Notice of Intent for Children to Travel Outside the United States by qse41941

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									                       IN THE UNITED STATES DISTRICT COURT
                      FOR THE NORTHERN DISTRICT OF INDIANA
                               SOUTH BEND DIVISION

AMIR H. SANJARI,                                     )
                    Plaintiff                    )
       v.                                            )   Cause No.   3 : 0 4- C V - 0 4 7 0 CAN
                                                     )
ALISON GRATZOL,                                      )
                       Defendant             )
                                                     )
and, in re: the support and welfare of the           )
parties' minor children (AFS & MRS)                  )




                                     Affidavit
                  in Support of Motion To Alter, Amend Judgment


   I (affiant's name) Amir H. Sanjari, of 3299 Park Ridge Lane, NE, Grand Rapids, MI 49525,
being duly sworn upon my oath, state the following:



   I. Applicable Law



The Plaintiff filed his Notice of Removal upon the basis “of the violations of his, and his

children's, constitutional, due process, and equal protection rights by the state court”.

Furthermore, the Plaintiff again expressly clarifies to the Court that he is not seeking “the

granting or modification of a divorce, alimony, or custody decree.”

This Court has jurisdiction on this matter and has erroneously remanded (10.13.2004) the case to




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the state court. Below the applicable legal basis for removal (and retention) and / or alteration

and amendment of the judgment are discussed.

1. This Court, in its remand order, stated “When a notice of removal is filed, a district court must

   promptly examine the notice to see if removal is proper. 28 U.S.C. § 1446(c)(4). If removal is

   not proper, the court shall summarily remand the case. Id.”

   The chronological summary, outlined herein the Motion to Alter, Amend, indicate that not

   only the Court recognized the merits of this case that it did NOT “summarily” remand it

   (removed 07.19.2004, remanded 10.13.2004), but also those merits were recognized such that

   Status Reports and selection of District Judge / Magistrate were asked for, and an oral hearing

   was set (not withstanding the Magistrate – District Judge jurisdiction issue) to hear the case.

   The hearing was only vacated on the basis of jurisdictional issue between the District

   Magistrate and Judge, and not on the basis of the merits of the removal case. Indeed, a

   replacement oral hearing date by the Magistrate had been anticipated!

   In its erroneous order to remand this case back to state court, and hence violating the due

   process and constitutional rights of the Plaintiff and those of his minor children, this Court

   refers to the issues of racial neutrality as pertains to 28 USC § 1443 (1) and the Rooker-

   Feldman Doctrine.

   Furthermore, this Court, in “looking at the dissolution decree” [remand order, III Analysis,

   p4], seems to fall into the trap laid by the opposing counsel in misrepresenting the nature of

   the removal case. Not only the Plaintiff's removal was (is) not about the divorce, marital

   issues or custody, but it is about the “persistently corrupt process” in the state court and

   violations of the U.S. Constitution by the state court judges involved and the Defendant's

   attorney, Mr. Max Walker, as well as about obstruction of justice perpetrated by some or all

   of the above.



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  Below these legal issues are addressed, showing that not only this Court does have

  jurisdiction in this case, but it indeed would fail its duty (based upon its oath of office to

  uphold the Constitution of the United States) if it did not hear this case.

2. With regards to 28 USC § 1443 (1), the Plaintiff, a pro se, a man and a father who is not of

  U.S. origin nor national (nor are his children) did state in his removal notice that the “state

  court has deliberately perpetrated discrimination and prejudice against the Petitioner, and

  his children, in its conduct of the state case before it”. This racial, gender and parental

  discrimination and prejudice throughout the whole process of the state case was cont ributed to

  by the continuous and corrupt nature of the process in the state court with the participation of

  the opposing counsel, Mr. Max Walker, a disgraced (evidence available- also on the Plaintiff's

  website ) former Elkhart County Deputy Prosecutor.

  Further evidence of, and witnesses to the “persistently corrupt process” and malfeasance in

  the state court maybe provided in the anticipated hearing either in this federal Court or the

  federal Court of Appeals. The removal notice also included two affidavit by two other

  separate persons testifying to the biased and prejudicial conduct of the state court.

  Indeed, the removal notice included proof indicating that state court records in the possession

  of the Elkhart court Clerk were indeed tampered with (please Exhibits in the removal notice).

3. The Rooker-Feldman Doctrine, discredited for sometime now as an excuse and “cup-out” and

  abdication of their responsibility by some federal Courts to allow violations of the U.S.

  Constitution by the state courts, is not applicable here due to the following:

  a)    “The Rooker-Feldman Doctrine Does Not Apply to Cases Involving Parties Who Were

  Not Parties in the State Court Action.” (“Nevada's Response to Rooker-Feldman, Hon.

  Sharron E. Angle, et al. v. The Legislature of the State of Nevada, et al. , July 16, 2003, US

  District Court, District of Nevada.- copy enclosed, and all applicable cites therein).



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In this removal case, grave and significant violations of the constitutional rights were

perpetrated by the state court and the judges therein who were/are not parties to the state case.

“As a result, Rooker-Feldman simply does not apply to cases involving parties who were not

involved in the state court proceedings.”

Therefore, the Rooker-Feldman Doctrine does not apply to this removal case.

b)     “A second exemption to Rooker-Feldman abstention is also applicable” in this removal

case. “Rooker-Feldman Does not Apply When the Federal Issues Were not Raised [and not

heard] in the State Court Proceedings.”, “Nevada's Response to Rooker-Feldman (see a

above). “As the Supreme Court noted in Rooker itself, the abstention is only applicable to bar

claims that 'actually arose' in the state court action, for which there was a full hearing and

where the judgment was responsive in the issues. 263 U.S. At 415; Robinson v. Aryoshi, 753

F.2d 1468, 1469 (9th Cir. 1985),”. In this removal case, there was no such full (indeed any)

hearing on issues of the constitutional violations by the state courts.

Therefore, the Rooker-Feldman Doctrine does not apply to this removal case.

c)     “ Pursuant to District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 482

(1983); Rooker v. Fidelity Trust Co., 263 U.S. 413, 415-16 (1923), Federal courts have no

subject matter jurisdiction to review state court decisions. State Defendants allege Plaintiff is

challenging a child support determination. This is an outright lie. They know it. State

Defendants are in violation of Brogan v. United States, 118 S.Ct. 805 (1998) for making a

false statement within the jurisdiction of this Court, in violation of 18 U.S.C. § 1001. Title 18

U.S.C. §1001 states:


              "Whoever, in any matter within the jurisdiction of any department or

     agency of the United States knowingly and




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          willfully falsifies, conceals or covers up by any trick, scheme, or device a

material fact, or makes any

          false, fictitious or fraudulent statements or representations, or makes or

uses any false writing or

          document knowing the same to contain any false, fictitious, or fraudulent

statement or entry, shall be fined under

          this title or imprisoned not more than five years, or both." “



d)   Federal Courts have an unflagging obligation to exercise the jurisdiction given

to them pursuant to Article III, §2, cl. 1 of the Constitution for the United States.

Colorado River Water Conservation District v. United States, 424 U.S. 800, 817, 96

S.Ct. 1236, 1246, 47 L.Ed.2d 483 (1976). The Supreme Court observed that "the

presence of federal-law issues must always be a major consideration weighing

against surrender of federal jurisdiction. When applicable substantive law is federal,

abstention is disfavored. Village of Westfield v. Welch's, 170 F.3d 116, 124 (2nd Cir.

1999). Jurisdiction is not defeated even by possibility that allegations in complaint

might fail to state a claim under Fed.R.Civ.P. Rule 12(b)(1). HBP Associates v.

Marsh, 893 F.Supp. 271 (S.D.N.Y. 1995).


Abstention is the exception, not the rule, and is only justified in limited

circumstances. Brooklyn Institute of Arts and Sciences v. City of New York, 64

F.Supp.2d 184 (E.D.N.Y. 1999); ESI, Inc. v. Coastal Corp., 61 F.Supp.2d 35

(S.D.N.Y. 1999).

e)   As in




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“... the State Defendants have acted in bad faith, and have harassed Plaintiff by

depriving him of his passport without meaningful notice and meaningful opportunity

to challenge. This would make abstention improper. Kenneally v. Lungren, 967 F.2d

329, certiorari denied 113 S.Ct. 979, 506 U.S. 1054, 122 L.Ed.2d 133 (9th Cir. Cal.

1992). “,

the state Defendant in this removal case has acted in bad faith and has harassed the

Plaintiff by violating the latter's, and his children's, constitutional rights of due

process and equal protection in the state courts through corrupting the processes in

the state court.

f)      “ Federal Courts Have Maintained Jurisdiction Over


Child Support Related Cases under Federal Law and

Constitutional Law (Commerce Clause, Constitution for United States, Art.I, §8,

cl.3)

This District Court, in the matter of U.S. v. Nichols, 928 F.Supp. 302 (S.D.N.Y.

1996), Preska, J., held that abstention in that case was inappropriate and retained

jurisdiction because it involved issues of commerce. In fact, the U.S. Attorney's

Office for the Southern District of New York argued before this Court to retain

jurisdiction in these types of matters because they involved issues of commerce.

Notwithstanding the possible arguments relating to the discrimination of men,

Plaintiff uses this case because of the matter of international commerce involved, his

right to work which affects interstate commerce, and the involvement of various

Federal laws--Title IV-D, 42 U.S.C. §§651-669, of the Social Security Act, 42 U.S.C.

2000 h-2 and 42 U.S.C. 2000d-7(a)(1), Administrative Procedures Act under Title 5,




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22 C.F.R. 51.80 et seq., 22 C.F.R. 51.81 through 51.89, and 42 U.S.C. §§1983, 1985

et seq., which form the independent basis for federal jurisdiction.

 The difference in the instant case is that Plaintiff is deprived of Federally protected

fundamental rights by both the State and Federal defendants. First, the State

Defendants failed to give Plaintiff meaningful notice of an adverse action against

him. Secondly, the Federal Defendants provide no meaningful opportunity to defend

or challenge the adverse action. What this all means is that Plaintiff is denied his

fundamental rights to citizenship, right to work, right to travel, right to freely

associate, assemble or speak and right to religious freedom. Plaintiff believes there

are enough federally protected rights being violated that this Court must take

jurisdiction. There is no question.

CONCLUSION

For all of the foregoing reasons, Plaintiff requests that this Court (a) Grant his

application for Preliminary Injunction; (b) Grant Plaintiff's Cross-Motion in

Opposition to the State and Federal Defendants' Motions to Dismiss Plaintiff's

Complaint/ Motions for Summary Judgment; (c) Deny the State and Federal

Defendants' Motions in their entirety for being frivolous and meritless; and (d) Grant

Plaintiff such other and further relief as this Court deems just and fair. “




g)   “ Domestic Relation Exception


In general, lawsuits affecting domestic relations, however substantially, are not

within the exception unless the claim at issue is one to obtain, alter or end a divorce,




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alimony or child custody decree. Dunn v. Cometa, 238 F.3d 38, 41 (C.A.1 (Me.)

2001), where the counts for breach of fiduciary duty and for negligence and waste

were not foreclosed by the domestic relations exception. Id. at 40-41. This narrow

construction led the Court in Ankenbrandt v. Richards, 504 U.S. (La.) 689 (1992). to

hold that the exception did not apply to tort claims there at issue despite their

intimate connection to family affairs. Id., citing Ankenbrandt, 504 U.S. at 704. Both

counts were central to the defendant's alleged misfeasance or wrongful nonfeasance

in allowing Dunn's private insurance policy to lapse. Id. at 42.

Federal district court also has subject-matter jurisdiction over claims seeking relief

from family-court orders which emanated under procedures that allegedly violated

due process, equal protection, and other federal statutes such as §1983, the civil

rights statute. Agg v. Flanagan, 855 F.2d 336, 339 (C.A.6 (Ohio) 1988). Where Agg

had been brought under §1983 and alleged deprivation of federal constitutional

rights and state procedures that were contrary to federal law and thus invalid under

the supremacy clause, the domestic-relations exception doctrine, which concerned

federal jurisdiction based on diversity, did not apply. Id. at 339. [J]urisdiction [ ]

was therefore proper under 28 U.S.C. sec. 1331 or sec. 1343. Id., U.S. Const. Art. 6,

cl. 2; Amends. 5, 14. See also Rubin v. Smith, 817 F.Supp. 987, 991 (D.N.H. 1993)

(domestic-relations exception did not apply to a §1983 civil rights suit that raised

constitutional questions and sought damages for the deprivation of plaintiffs

constitutional interests without due process of law); Thomas v. New York City, 814

F.Supp. 1139, 1147 (E.D.N.Y.) (the issue of whether the state's procedure used to

separate parent from child complie[d] with constitutional due-process requirements

[was] squarely within [the] court's federal question jurisdiction ); Friedlander v.



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Friedlander, 149 F.3d 73, 740 (C.A.7 (Ill.) 1998) (where action merely arises from a

domestic-relations dispute and does not seek any of the distinctive forms of relief

typically associated with domestic-relations jurisdiction, the domestic-relations

exception does not bar diversity jurisdiction), citing Lloyd v. Loeffler, 694 F.2d 489

(7th Cir.1982) (a suit for interference with custody); McIntyre v. McIntyre, 771 F.2d

1316 (9th Cir. 1985) (similar to Lloyd); DiRuggiero v. Rodgers, 743 F.2d 1009,

1018-20 (3d Cir.1984) (similar to Lloyd); Stone v. Wall, 135 F.3d 1438 (11th Cir.

(Fla.) 1998)3 (similar to Lloyd);

"and better yet" [Dunn at 740] Raftery v. Scott, 756 F.2d 335, 337-38 (4th Cir.

1985),\FN1/ and Drewes v. Ilnicki, 863 F.2d 469 (6th Cir. (Ohio) 1988),\FN2/ both

cases like Friedlander, one of intentional infliction of emotional distress.



Going one step further, the court in Catz v. Chalker, 142 F.3d 279 (C.A.6

(Ohio) 1998) (former husband's action, seeking a declaration that the state divorce

decree was void as a violation of due process, was not a core domestic relations case

to which the domestic-relations exception applied). Catz did not seek declaration of

marital or parental status, but instead presented a constitutional claim in which it

was incidental that the underlying action involved a divorce. Id. Fourteenth

Amendment. The domestic-relations exception has no generally recognized

application as a limitation on federal question jurisdiction; it applies only as a

judicially implied limitation on diversity jurisdiction. U.S. v. Johnson, 114 F.3d 476

(C.A.4 (Va.) 1997).




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In Johnson v. Rodrigues (Orozco), 226 F.3d 1103, 1109 (C.A.10 (Utah) 2000), the

Rooker-Feldman doctrine did not apply where the underlying claims presented a

general challenge to the constitutionality of the Utah adoption statutory scheme and

alleged a due process violation. Such claims were asserted under federal question

jurisdiction, and constitutional claims do not require a federal court to make a

custody determination. Id. At 1111. So, too, are Johnson s claims asserted under

federal question jurisdiction, and constitutional claims do not require a federal court

to make a determination of whether an attorney should be disciplined.



FN1 In Raftery, the court held that the exercise of diversity jurisdiction over former

husband's action against former wife for intentional infliction of mental distress,

arising out of former wife's effort to destroy and prevent rehabilitation of

relationship between former husband and the parties' son, did not contravene

domestic relations exception to federal diversity jurisdiction.



FN2 In Drewes, the court held that the domestic-relations exception to diversity

jurisdiction does not apply to suits that are actually tort or contract claims having

only domestic-relations overtones. 28 U.S.C. sec. 1332(a)(1).



5. The second-prong of the Eleventh Amendment, which the district court applied

here, was never duly ratified and is thus unconstitutional and inapplicable to this

case.




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Another untenable excuse used by the federal courts to allow governmental

defendants to escape liability and accountability is the Eleventh Amendment. Like the

doctrine of judicial immunity, the nascence of the second prong of the Eleventh

Amendment was without the potency of any Congress. It was birthed almost 100

years after the duly-ratified first prong of the Eleventh Amendment, which has no

application here whatsoever, by a court acting outside the scope of its authority.

Hans v. Louisiana, 134 U.S. 1 (1890) (enhanced the Eleventh Amendment by judicial

fiat by holding that a citizen cannot sue his/her own State in federal court). It was a

court that when circumventing the legislature by usurping its law-making power,

transformed our government into one that oppressed the governed.



This was contrary to what our Framers intended.\FN1 / To prevent such oppression,

the Framers gave the public the right to return those oppressing the governed to

private life. U.S. Const., Art. 3, §1. Mass. Declaration of Rights, art. VIII. It is

reasonable to conclude that the Framers considered that the public would choose

from the full spectrum of sanctions: from the giving of relief for one identifiable

wrongdoing to the harsh sanction of impeachment. Thus the district court here

holding that the Eleventh Amendment barred Johnson s §1983 claims in Counts 7-9

was reversible error.



Moreover, where Article V of the Massachusetts Declaration of Rights explicitly

guarantees accountability by all magistrates and officers of each branch of

government to all the people at all times, and where it does not distinguish between

the Commonwealth of Massachusetts or the individuals in their individual or official



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capacities, article V constitutes the state s express and unequivocal consent to suit by

the people. Thus the Eleventh Amendment may neither override the Commonwealth's

constitutional guarantee of accountability nor bestow sovereign immunity on the

Commonwealth where there was no immunity ab initio (id.). Certainly the Eleventh

Amendment cannot preempt article V of the Declaration. Notwithstanding the

obvious issue of competing constitutions, Article VI of the federal constitution would

have to be invoked, and that is impossible. To invoke the Article VI, the intent of the

United States Congress to preempt the Massachusetts Declaration of Rights would

have to be shown, and where no United States Congress took part in the birth or the

development of the Eleventh Amendment, no such intent can be shown.



Johnson s First Amendment and other constitutional interests should trump the

defendants or the federal and state governments interests in precluding Johnson s

claims, which is, in effect, an unlawful bestowing of immunity on the defendants.

Immunity is immunity is immunity and by any other name would smell as foul.



By not having an existing statute or a constitutional provision upon which judicial or

quasijudicial or quasiprosecutorial immunity or the second prong of the Eleventh

Amendment are based, and no ordinary constitutional analysis -- using strict or

intermediate scrutiny or a rational basis test -- of the facts of the case or of Johnson

s legal arguments, the decisions below leave unsettled the critical conflict between

the judicially-created law and the constitutions.




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      Where the second prong of the Eleventh Amendment has never been scrutinized and

      cannot be attributed to the Framers or to any Congress, the application of the

      unratified second prong of the Eleventh Amendment, must not be continued as de

      facto constitutionalized policies or practices.

      FN1 Not having been duly ratified, the second prong of the Eleventh Amendment may

      not be invoked against the petitioner. Nor may it override or preempt article V of the

      Mass. Declaration of Rights, which has since 1780 constitutionally guaranteed

      accountability at all times by all three branches of government to the people, of

      which he is one. Nor may it supercede the Fourteenth Amendment, duly ratified 22

      years prior to the grenade thrown at the civil rights of individuals in Hans. Nor may

      it override the plain language of §1983, enacted to enforce the provisions of the

      Fourteenth Amendment. Nor may it overrule the intent of Congress not to afford

      immunity to those judges who deprive citizens of their civil rights.




   4. Therefore, this Court has both the duty and subject matter jurisdiction to hear this removal

case, hold a new trial and amend and/or alter its judgment of October 13, 2004.

In view of the above, the state court and four (4) judges involved therein have lost jurisdiction

through violation of of the United States Constitution, hence their orders and decisions in the

state matter are held VOID.

The Plaintiff respectfully requests, this Court to amend and alter its judgment of October 13,

2004, and provide the Plaintiff relief he has sought including

i) holding VOID the said state judges' decisions and orders since August 2000, Catz v. Chalker,




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142 F.3d 279 (C.A.6(Ohio) 1998),

ii) ordering the state court to convene a new venue and judge to deal with the state case,

preferably outside northern Indiana, or outside Indian altogether.

iii) setting a hearing at its earliest convenience to hear evidence in support of Plaintiff's

case,




  Executed ___________________this 22nd day of October, 2004.




  ___________________________
  Dr. Amir H. Sanjari (AFFIANT)




                                   VERIFICATION AND AFFIDAVIT


    Before me, the undersigned authority, personally came ans appeared the affiant named below,
who, being first duly sworn upon oath, stated that he has read the above and foregoing document
and knows the contents thereof, and that all statements of fact contained therein are true.



           ______________________________
            Dr. Amir H. Sanjari (AFFIANT)


Subscribed and sworn to before me, this 22 nd day of October 2004.




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         ______________________________
              NOTARY PUBLIC
               Address of Notary:




                                 CERTIFICATE OF SERVICE

The undersigned hereby certifies that a true and correct copy of the above and foregoing
document was served upon the following:
    Max K. Walker, Jr. (Attorney for the Defendant), 131 East Franklin Street, Suite 12,
                                        Elkhart, IN 46516
and / or the Defendant,
    Alison Gratzol, 26795 Bridgewater Court, Elkhart, IN 46514.
in person on this 22nd day of October, 2004.




       __________________________________
       Dr. Amir H. Sanjari, (Pro Se)

       3299 Park Ridge Lane
       Grand Rapids, Michigan 49525



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Ph: (616) 365 2676
sels56@yahoo.com




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