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"Caliber Defect" unsweetens judicial miscarriage into wanton misconduct

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"Caliber Defect" unsweetens judicial miscarriage into wanton misconduct Powered By Docstoc
					                              United States District Court
                             FOR THE SOUTHERN DISTRICT OF NEW YORK
                                       [Name of the Court, above]

-------------------------------X
[Hubert] Burda Media, Inc. and
Hubert Burda Media Holding GmbH                                     97 CIV 7167 (RWS)
& Co. KG, Plaintiffs,                                      Cause: 18:1964 Racketeering (RICO) Act
vs.

                                                           MOTION FOR VACATUR OF RICO-
                                                           DEFAULT JUDGMENT FOR ULTRA
                                                           VIRES LACK OF JURISDICTION
                                                           PURSUANT TO FATAL AO 440
                                                           DRAFT DEFECT OF THE ORIGINAL
                                                           “NO-COURT-NAME” SUMMONS
                                                           WITHOUT THE NAME OF ONE OF
                                                           94 JUDICIAL DISTRICTS1 AND FOR
                                                           OVERT DUE PROCESS OFFENSES
                                                           PRIMA FACIE AND PRECEDENT
Fritz Blumenberg,
Christian Viertel,
Hot Line Delivery, Inc.,                                   (ex parte/presumptively unopposed)
Telecommunication Partners                                 (for publication ___ )
Limited,TransVideo,TV Broadcast
Center, Agate Reality, Salvadora
Blumenberg, Defendants.
--------------------------------x

         Comes Now, Christian Viertel, defendant pro se, in the above entitled action, and also
“joint” co-debtor of RICO-DEFAULT JUDGMENT #00,0823 DOC# 93 issued 4/6/2000 by this Court
[surreptitiously “modified ” three months later as recorded in DOC# 93 on 7/7/2000] moving for

VACATUR nunc pro tunc of this Court’s original and a “modified” RICO-Default-Judgment. Both


1
      See 94 choices in U.S.Code Title 28 › Part I › Chapter 5 › § 81 to § 131

                                                   1
“DEFAULT JUDGMENTS” were issued in [grave] “error, ultra vires” without personal jurisdiction

over the defendants due to an uncured, incurable, overt, fatal defect on Summons Form AO440.

FRCP 55 states in (c) Setting Aside a Default or a Default Judgment. The court may set aside an
entry of default for good cause, and it may set aside a default judgment under Rule 60(b).



                 Obligation to adjudicate in INTEREST OF JUSTICE, EX PARTE and for CAUSE


JURISDICTIONAL issues, as here, can be raised at any time, in particular when defects and/or
errors are clearly documented on the COURT’s own RECORD prima facie and remain per se

“without cloture until justice is done”.


“Where jurisdiction is challenged it must be proved” (Hagan vs. Lavine, 415 U.S. 528 (1974)); see
also: “Without jurisdiction the court cannot proceed at all in any cause. Jurisdiction is power to
declare the law, and when it ceases to exist, the only function remaining to the court is that of
announcing the fact and dismissing the cause.” (Exparte McCardle, 7 Wall.506,514 (1869)).See also

Haines vs Kerner for unbiased treatment of pro se submissions.


   See also Second Circuit (1993) Hon. C.J. Cardamone: 10 F.3d 90 as 27 Fed.R.Serv.3d 1098, RICO

Bus.Disp.Guide 8447 and see also Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 595, 30 L.Ed.2d
652 (1972) (per curiam) (allegations of pro se complaint are held to less stringent standard than
formal pleading drafted by lawyers, when court considers a motion to dismiss). Hence, as a general

rule a district court should grant a default judgment sparingly and grant leave to set aside the entry

of default freely when the defaulting party is appearing pro se. (33) Finally, the importance of an
explanation by the district court for its denial of a motion to vacate in light of these criteria is self-

evident. The absence of an explanation defeats intelligent appellate review. See, e.g., Marziliano v.
Heckler, 728 F.2d 151, 156 (2d Cir.1984); Davis, 713 F.2d at 913. While the failure of a district judge to
provide an explanation is not always fatal--so long as it is possible to discern that the appropriate
criteria have been satisfied, see Marziliano, 728 F.2d at 156; Standard Newspapers, Inc. v. King, 375


                                                     2
F.2d 115, 116 (2d Cir.1967) (per curiam)--it remains true that a trial court should provide specific

reasons for a denial of a motion to set aside a default under Rule 55(c).” (underline, bolding added
for emphasis)


     “There is such a thing as due process of law !”, Associate Justice A. Scalia on 1/21/2014 as a
reminder to the Federal Judiciary.


                     A) INOPERATIVE, BRUMMAGEM FEDERAL CIVIL FORM AO 440


         Whereas PLAINTIFFS strove to file a Federal “Racketeering Summons and Complaint” on
09/24/972 to initiate a RICO action. One unknown NYSD DEPUTY CLERK “overtly lacked diligence”
as he/she signed and dated a defective Federal Court Template – see DOC# 1 [EXHIBIT “A”
http://bit.ly/1gMEPN9 ].

     Form AO 440 that was deficiently prepared for an unnamed United States District Court
submission “somewhere in America” by a quartetto of PLAINTIFF ATTORNEY[s]: Warren L.

Feldman3, Rita McCloy, Stephanz, Mark R. Anderson, of white-shoe, “caliber”4, firm Rogers &.
Wells.




2
    see nysd.uscourts.gov ecf: 97-civ-7167 (closed):
      09/24/1997 1       COMPLAINT filed; Summons issued and Notice pursuant to
                         28 U.S.C. 636(c); FILING FEE $ 150.00 RECEIPT # 297686
                         (bm) (Entered: 09/25/1997)

3




4
    self-branded attribute       ©   W.Feldman supporting his honorarium request

                                                    3
                                         B) “Name That Court➾”


       A valid SUMMONS, however, was not submitted creating a conflict with Rules and Docket
entry language, and therefore, the submission could not and did not result in a veritable

Summons “issuance” for overt – prima facie - lack of any single Court’s identification by “Name”,
the so-designated space was simply left blank while Federal Rules demand a Court Name as a
“must” [FN7 intra], and that PRECONDITION is not as an optional accoutrement for otherwise

well-meaning, noble but not so diligent litigators.


       Plaintiffs Hubert Burda Media Holding GmbH & Co. KG [hereinafter “BURDA”] and [Hubert]
Burda Media, Inc. [hereinafter “BMI”] have been averse to this date, despite repeated peer
demands to its General Counsel, deficient to provide support in substance, in merit and in law of
this Circuit, or any Circuit, that a missing Court Name on a Summons-Form5 could somehow be in
conformity. The logic behind plaintiff’s silence is evident, because it is FATAL ERROR AB INITIO as
in “false start”, even when, arguendo, some 284 days6 postliminary, a real or rather fake Hague-

Treaty service-attempt could, hypothetically, have been effected, less so perfected, – “sans
certificate souscrit en France par la authorité central” – [dit le procureur de la République,

E.d.Montgolfier] and, such service-attempt was not, in fact, bollixed and counterfeit in contempt of
a bogus “Summons”. [Earlier “International Mailing” attempts had substantial overseas postal

5
  Not without irony, Court Administrators began offering online Federal RCP
#4 GUIDANCE to rule-challenged barristers-at-law:




6
  By dark judicial in-camera magic the 120-day “Service Window” was TWICE
“reset” for a defective Summons: DOC#15 [1-27-98] & DOC#19 [8-26-98]


                                                    4
failures despite “attny for pltff’s” self-congratulatory, albeit bogus”Proof” filed in DOC# 22, which,

at least, was not a sufficient white-shoe “gimme” to cut a clerks’ mustard.]


            C) MORE GROUNDS for Vacatur nunc pro tunc on lack of Personal Jurisdiction


        Whereas this was a jurisdictional defect not plausibly caused by subsequent “clerical error
or by eagerness to oblige” but is of exclusive big law provenance amid inept preparations

antecedent to BURDA’s “just too hasty7” demarche onto a Deputy Clerk’s intake window. As such,
omission of an identifiable FEDERAL JUDICIAL DISTRICT NAME as a locality to which a putative
defendant is “summoned” was fatal to the jurisdiction manifest in BURDA’s “NO-NAME AO
FORM” [Exhibit “A”], thus inoperative ab initio, in open conflict with Rule 48 and never cured.

        In 1999 a cure was no longer achievable, the defect was manifest, but regrettably brushed
up with some Color of Law, to monetize millions of triple RICO dollars9 which were based upon

debunked fiction and plainly contradictory to plaintiff BMI’s own June 1997 certified financial
[1996] audit showing large BMI earnings [see bit.ly/MCkmge ] but no qualified loss or pecuniary

7
  If BURDA and BMI considered “time of essence”, genuinely of ESSENCE was
COURT LOCATION, LOCATION & LOCATION & NAME and that was left blank [d’oh]
8
    United States Code Annotated for the United States District Courts
    Title II. Commencing an Action; Rule 4. Summons
    (a) Contents; Amendments.
    (1) Contents. A summons must:
    (A) name the court and the parties; [bold, strikeout, underlining added]
9
  RICO authorizes a civil cause of action for any person injured in his business or
property by reason of a violation of 18 U.S.C. § 1962. 18 U.S.C. §§ 1961 et seq. In
turn,§ 1962 lays out a list of prohibited "racketeering activities," which includes
mail or wire fraud, as well as conspiracy to commit those offenses. To allege a
RICO violation, a plaintiff must establish that the defendants engaged in a
"pattern of racketeering activities," defined as "at least two acts of racketeering
[*8] activity, one of which occurred after the effective date of this chapter and
the last of which occurred within 10 years . . . after the commission of a prior
act of racketeering activity." 18 U.S.C. § 1961(5).


                                                   5
injury from any racket or bezzle, nor societal harm to American citizenry at large. Thus, plaintiff

filed its RICO suit as a false injury claim, in tort against Movant and, absurdly, against a “co-
defendant” Telecommunication Partners Limited of plaintiff’s own making and printing.


                                  D) The COST of INK is REPUTATION


Deputy Judgment Clerk James Finneran positively knew a lot better10 than to just “peek” at his
“Pacer-intranet-screen” entries for DOC#1, 14, 15, 19, 22 but he blew the safety valve, waiving the
standardized smell-test, and promoted by clerical imbroglio gravest judicial error that eventually

resulted in a untested, perverse, rubberstamped “RICO-TRIPLED-DEFAULT”, which, as Judges are
well aware, are “disfavored” under several precedents11 and FRCP codex Rule 55 (b) (2) “The court



10
  Finneran conceded later that Judgment Clerks are “required to resist big-
law pressures and to inspect all relevant Summonses, Certificates and USM-
Forms” thoroughly before issuance of any ex-parte big-law-groomed CLERK’S
CERTIFICATE OF DEFAULT, something he regrets to have issued by neglect on
March 8, 2000, but kept out of the DOCKETS, to this date.[EXHIBIT “C”]

11
   See: Second Circuit (1993)in Enron 10 F.3d 90 as 27 Fed.R.Serv.3d 1098, RICO
Bus.Disp.Guide 8447: “Because defaults are generally disfavored and are
reserved for rare occasions, when doubt exists as to whether a default
should be granted or vacated, the doubt should be resolved in favor of the
defaulting party. In other words, "good cause" and the criteria of the Rule
60(b) set aside should be construed generously. See, e.g., Davis, 713 F.2d
at 915; Meehan, 652 F.2d at 277; 6 James W. Moore et al., Moore's Federal
Practice p 55.10, at 79 (2d ed. 1993)and “Because Rule 55(c) does not define
the term "good cause," we have established three criteria that must be
assessed in order to decide whether to relieve a party from default or from
a default judgment. These widely accepted factors are: (1) whether the
default was willful; (2) whether setting aside the default would prejudice
the adversary; and (3) whether a meritorious defense is presented. See,
e.g., Action S.A., 951 F.2d at 507; In re Men's Sportswear, Inc., 834 F.2d
1134, 1138 (2d Cir.1987); Meehan, 652 F.2d at 277.”



                                                   6
may conduct hearings or make referrals—preserving any federal statutory right to a jury trial—

when, to enter or effectuate judgment, it needs to:


       (A) conduct an accounting;

       (B) determine the amount of damages;

       (C) establish the truth of any allegation by evidence; or

       (D) investigate any other matter.”

       However, upon highly dubious but certain truancy grounds, this Court dropped out on the
necessity of MANDATORY JUDICIAL INQUEST on all points (A), (B), (C), (D) avoiding the rigmarole
of DUE PROCESS while simultaneously violating it, sua sponte.


                        E) Qui cum canibus concumbunt cum pulicibus surgent


       The “original“ [PROPOSED] DEFAULT JUDGMENT [sic: DOC#93] issued under a legal
standard classified as ultra vires within a few days, and the DEFAULT’s subsequent younger
sibling, the “modified” Judgment of July 2000 is still unavailable but, regardless of modification, is
equally VOID for idem lack of personal jurisdiction over defendant VIERTEL, and subject to

VACATUR for, inter alia, overt absenteeism of a minimum count of enterprising racketeers subject

to judgment.


               F) Second “debtor” was a PLAINTIFF creation serving BURDA’s profit centers


       Ironically, “Joint co-debtor-defendant”, captioned as Telecommunication Partners Limited,

is fictitious and as a corporation inexistent, or at least without nexus to Movant. [EXHIBIT“B”].




                                                   7
       Whereas “TelCoPa, Ltd” was just one of several phantoms BMI creations12 which BMI “off-
set-printed” and “self-issued” at BMI offices in Manhattan. BMI printed stationary of a fictitious
BMI vendor recorded in BMI’s book as V#6555 and that was simply a “dummy” without nexus and
without consent from the genuine entity: TelCoPa, Limited (Holding), a U.K.13 telecommunication
hedge fund, which Movant Viertel served as a director at times. TelCoPa, Limited (Holding) did

not sell services to BMI, and BMI did not receive any services to   ➾ ➾ ➾ ➾ and did not know
                                                                           ,

about such services it has no means to offer or bill for. BMI used absurd stationary that BMI

created and recorded as disbursements in its books to further its performance and cover up a few
undocumented executive payday loans. In fact every “fake invoice” by BMI generated at least
100% margin for BMI operating an independent (Hello JGK) BURDA profit center since 1992, an $8
million dollars (p.a.) media service provider in foreign commerce (!) for 25 overseas clients who

paid BMI’s honorarium and a cost plus basis for substantial free cash flow at BMI.
       It is particularly noteworthy that BMI printed a fake “NEW YORK OFFICE 16 W 55 Street”

address on the bottom of its fake stationary (see EXHIBIT “B”), that was BMI’s own, seventies’ news
Bureau address, certainly without nexus to Movant or TelCoPa, Limited (Holding) in 1996.


                                   G) Falsus in uno falsus in omnibus


       Whereas further good cause to vacate lies in that plaintiff failed to obtain, or was blocked
from filing an “amended Summons” [pursuant to Rule 4(a) (2)], that could have “named a court


12
   Moreover, BMI created phantom entities and BMI printed corresponding fake
stationary for its own BMI accounting: Best Messenger, EuroCast (USA),
Telecommunication Partners Limited, Agate Reality Media Services, etc
13
   The REAL CORPORATION that did not issue “invoices” to BMI:




                                                  8
and named a District”. Plaintiffs overt failure renders an entire historic, often judicially cited,

appellate discourse academic, whether Hague Treaty’s regime requiring “Certification by a
genuine delegate of the Central Authority” was followed, or whether it is an “optional exercise as
long as “caliber” U.S. law firms make fruitless attempts to serve”, or whether it was a Treaty
violation or whether the dispositive “Certificat“ had flatly been disallowed by France. Sad fact

remains, that BURDA’s attorneys have still not submitted a completed “Hague Certificate” into the
record of this case. A cure for these defects was unavailable to BURDA.


       French disallowance of “BURDA’s July 7 1998 USM-9414”, evidently late (120 day FRCP time-
bar unexcused, remained unsupported 284 days after filing) and basically faulty Hague-request
being the most likely event, since filing of a disconnected, posterior BURDA USM-94 Draft [partial

filing of ¾ pages] with this Court, inexplicably truncated to just three pages [DOC# 94], strikingly
omitting page 4, the utmost relevant “Certificate” page should have raised many RED FLAGS in

Moynihan’s Court Building on Pearl Street.
       BURDA’s offensive “evidence pruning” resulted in a fraudulent version of USM-94 dated
14.July 1998, evidently latter and distinct from the USM-94-Form BURDA’s local team factiously
filed in Paris, France by messenger. France was not amused. (see DOC#130)


       Whereas France’s Central Authority confirmed, upon administrative inquest, that no case
record exists of BURDA’s secondary, 7-14-1998 “postliminary” Hague request (“saisie le 7 Juillet




14
  USM-94, Request for Service Abroad of Judicial or Extrajudicial
Documents is a form, accompanying American judicial process, that is
recognized by the Central Authorities of many of the foreign countries who
are signatory to the Hague Service Convention. The form itself is no longer
completed by the U.S. Marshals Service, but by the private litigant who
wishes to effect service in a foreign country pursuant to the Hague
Convention.

                                                    9
1998” - see confirmation15 from French Justice http://bit.ly/1fEJ1e2 ]. It is immaterial if France’s
referral to “saisie le 7 Juillet 1998” referred to a request/reception date in Paris or to the “issue”
date of BURDA’s first and sole USM-94, but it flows from this official confirmation, that BURDA
filed a bogus USM-94 with this NYSD Court, and, most importantly, dematerialized France’s
“notification” executed on Aug 6, 1998 which had accompanied the return of the original and only

Hague request of 7/7/1998, without nexus to one dated 7/14/1998, if any. Evidently, the wrong
papers were fraudulently submitted by BURDA.



                  H) EX PARTE APPLICATION was served upon both plaintiffs by email


       Whereas BMI and BURDA, plaintiffs, are corporations believed and upon information to be
without valid representation by admitted NYSD counsel, BMI, by its Vice President Ellen Kiefer,

confirmed to the Second Circuit Clerk by letter dated 03/11/2011 docketed in CA2-10-2445 that
BMI is not in pursuit of executing collections on its Default Judgment, stating that “we do not feel
the necessity to do or claim anything”, practically abandoning its Default Judgment without
“having received anything”. Plaintiffs are not entitled to “anything” in an Ex Parte proceeding, but

this BMI statement supports this MOTION that the VACATUR of this DEFAULT shall be without
opposition, and that the former and latter RICO-DEFAULT JUDGMENT’s foreign registrations must
be vacated, nunc pro tunc, in a name clearing exercise, equally on Pacer and on public records in
Florida and elsewhere to effectively terminate the continuing “RICO stench ” and opprobrium

lasting 20 years or more16 [see 28 U.S. CODE § 3201 (C)(1)].

15
  Clip from France’s Justice Ministry confirming “return” to the l’autorité
requérante – ROGERS et WELLS – such 6-Aug-1998 “return” missing from Court
records:




16
  06/07/2000 1 Registration of Foreign Judgment from Southern District of
New York against Defendants, Christian Viertel and Telecommunication
                                                    10
       Whereas BURDA is believed to have able representation outside this District, by its General
Counsel and associated Board Member Prof. Dr. Robert Schweizer of eu-lawfirm “Kanzlei Prof.
Schweizer”, non-members of the Federal Bar. Prof. Dr. Schweizer and Prof. Dr. Hubert Burda,
billionaire owner of BURDA, received courtesy MOTION service by email today, however, their

opposition to this Ex-Parte-MOTION must be considered remote, unrealistic and, if this honorable
Court grants reply time, such term shall be reasonably limited in Interest of Justice and to end an

unlawful continuing opprobrium forthwith. Fiat ut petitur.

                                                  Fiat justitia ruat caelum
Respectfully submitted this 10th day of February 2014




                                           Professor Christian Viertel, Movant pro se
                                           Ist.DiTorre Della Giustizia 9/18 via delle Ballodole
                                           50139 FIRENZE ITALIA +1 360 227 6326
                                           Fax +1 801 346 7954 Email: viertel2020@aol.com




Service by email upon:
Hubert Burda Media Holding GmbH & Co. Kg.
Hubert Burda Media, Inc. CEO Elisabeth Varn, München via
Professor Dr. Robert Schweizer ; mail@kanzlei-professor-schweizer.de
Professor Dr. Hubert Burda ; burdaxxxxx@burda.com
Hardcopy by USMail to NYSD Pro Se Clerk on this 10th day of February 2014


3 EXHIBIT PAGES follow


Partners Limited in the liquidated amount of: $ 2,752,278.87; FILING FEE
$20.00 RECEIPT # 823260; B-12 JJO (Former Deputy Clerk) Modified on
06/08/2000 (Entered: 06/08/2000)

                                                 11
EXHIBIT „A“ (redacted for clarity)




                                     12
EXHIBIT „B“ (redacted for clarity)
Sample of fake BMI print, processed at BMI in NY for its own books/records




                                        13
EXHIBIT „C“ (2 pages of Clerk CERTIFICATE)

undocketed at Court to date




     Word Count: 2433
     Exhibits: 3
     Total Pages: 14
     Submitted for all purposes




                                      14

				
DOCUMENT INFO
Description: Motion FCRP 55 to vacate a DEFAULT on ultra vires grounds, Summons botched, NO-Name Court, BURDA, Hubert BURDA, MEDIA, Schweizer
Professor Viertel Professor Viertel
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