Amicus Briefs Encouraged by Judge Rudofsky
A week got away from me without the time to cheer for Judge Lee P. Rudofsky and his fantastic idea. No really. This is not said sarcastically.
Unlike Judge Susan Kaye Weaver, Judge Rudofsky is not pure evil. He has some fine qualities. One is a brilliant mind.
He is so smart, in fact, that when he makes an error, I question whether he is playing dumb like a fox. How can someone so smart get it so wrong, unless the error is intentional?
He came out with an order on March 21, 2023 in which he gets it all right. See the entire order in the Judge’s words posted below.
Basically, this is an invitation to encourage attorneys to write amicus briefs for non-clients, pro-bono at the Federal District Court.
Amicus means “friend”. The Amicus Brief is not written by a litigant or the litigant’s attorney; it is written by a “friend of the court”. This is a practice that is common at the circuit courts and the Supreme Court, but it is done rarely at the district court.
The reason I am excited about this new tool for litigants is that most pro se litigants don’t have the money to hire an attorney and in all but limited kinds of civil cases, most attorneys will not work on contingency.
If the case involves an important issue, an attorney may agree to get involved for the one specific task of writing an amicus brief.
For example, I brought a pro se case against a debt buyer named Portfolio Recovery Associates, LLC in the Eastern District of Arkansas. Judge Rudofsky is presiding.
One claim I made was that the debt collection activity was “outrageous”. Judge Rudofsky said no reasonable juror could agree with me and dismissed the claim at the motion for summary judgment stage. Had someone from the CFPB or Institute for Justice been able to submit a brief, it might have carried more weight for the argument that the legislature enacted the FDCPA to deter debt collectors from PRA’s exact conduct, and that PRA is a repeat offender that knows it is doing wrong. A licensed attorney should be able to present argument better than I can. And it always helps to have extra eyes on the case.
Though the decision on my case will not set precedence, it will be persuasive. Judges often rely on what another judge or even what he himself did previously to rule the same way again, even if it does not comport with statutory text written by the legislature. It seems like attorneys who represent plaintiffs in similar cases would want other plaintiffs to prevail, paving the way for more and grander awards.
Have Nots Barred from Justice by Law Bars: The Case of Faridian v. The World’s First Robot Lawyer (DoNotPay, Inc)
Can you afford an attorney?
If not, chances are that you may receive assistance from an overworked, sometimes substandard public defender. (These lawyers are referred to by some as “public pretenders”.)
Worse, the right to representation only extends to criminal defense. If you have a civil matter, such as a consumer protection case against Portfolio Recovery Associates, LLC or a custody case, you are out of luck.
There are legal aid services. I applied for legal aid to defend me against a case filed by attorney William Zac White on behalf of Mike Pietrczak, supposedly through his father Walter Pietrczak who had a power of attorney. Legal Aid said I would qualify, but the Pietrczak’s consulted them first, so even though legal aid declined to pursue the case on behalf of the Pietrczaks, they had a conflict of interest and could not represent me.
There is a wonderful public interest firm called Institute for Justice that works pro bono for regular folk, mostly on consumer cases, but they are way too small to make a significant impact on obtaining justice for the masses.
Back in the day, before the internet, legal research was extremely difficult. You had to find a law library, then bury yourself in the stacks, sifting out cases and following a trail to find legal precedent.
Legal research is not so difficult now, especially if you can afford a subscription to Westlaw or Lexus-Nexus. (I am told the subscription for non-attorneys is quite a bit more expensive than for attorneys.)
And there are plenty of forms online for simple matters like transferring title to real estate. But BE AWARE. Filling out these forms on behalf of a trust or limited liability company is considered to be the unauthorized practice of law by some courts.
It is highly questionable whether offering those forms online is the “unauthorized practice of law”.
There is a company that took it a step further and markets itself as “the world’s first robot lawyer”, DoNotPay, Inc.
A class action lawsuit was filed by a licensed attorney on behalf of a customer of the robot lawyer and other customers similarly situated. A copy of the complaint is posted below for you to download and read.
The attorneys for the plaintiff argue that there is a good reason a person not “barred” should be barred from practicing law. (Only attorneys would decide to say a person who is not barred from practicing law is “barred”.)
“The State Bar Act sets baseline standards for attorneys in the state in order to protect California residents from being harmed by unskilled or unscrupulous laymen passing themselves off as bona fide practitioners.” (Paragraph 14)
My personal experience is that I provide myself with much more competent and zealous legal representation than an attorney gives me. I do agree with the Bible, that “in a multitude of counselors is wisdom.” I want to be allowed to discuss my case with a variety of attorneys and non-attorneys. If I am ill or unable to make it to a hearing in a far-off jurisdiction, I want to be able to enlist co-counsel. Many jurisdictions, such as the Federal District Court for Southern California forbid this kind of piecemeal representation.
The most difficult part of advocating on my own behalf is the clerical work. I want to be able to hire a paralegal, but the government forbids paralegals from working without the supervision of a licensed attorney.
In the Pietrczak case, I represented myself so well against the attorney William White of Heber Springs that he eventually asked the court to dismiss me with prejudice. I “prevailed”. But I was not allowed to represent my living trust, of which I was sole settlor, trustee and beneficiary. So, Arkansas Judge Susan Weaver found against the Trust and gave all the property held in trust and all my personal property that was on the real estate, my personal right to use of the property and money the Pietrczaks defrauded from me to the Pietrczaks and their attorney, Willy White.
Judge Weaver also decided that a deed that was “prepared” by me, meaning I filled in the blanks in an online form at the direction of Mike Pietrczak, was “void ab initio” because I am not an attorney. The deed was otherwise perfect.
Hypocritically, attorneys including William White often use forms like these.
I am not an attorney and this is not legal advice. I am just wondering about one other section of the complaint filed against the world’s first robot lawyer. “There are many questions of law and fact common to the claims of Plaintiff and the Class, and those questions predominate over any questions that may affect individual members of the Class.” (Paragraph 38)
It seems to me that defense attorneys for big businesses love to argue that cases cannot be subject to class actions because the damages to each victim are not the same as to the class representative. First American Home Warranty Company used that excuse on cases. One customer might have a water heater that was not repaired, the next might have a furnace that did not heat the home. Unethical “minors counsel” or social workers in custody cases have argued that when sued by the parents and children they harm.
The customers who were allegedly harmed by using DoNotPay’s service to fight a parking ticket were obviously harmed or not in a different way than a customer who used the service to create a limited liability company.
It will be interesting to follow this case. I wonder if DoNotPay, Inc will pay a licensed attorney to represent it, or if it will use its own robot lawyer and use this case as a platform to determine if a person or entity is allowed to use these kinds of legal tools to assist in obtaining justice.
UPDATE: One of my favorite readers gave me a link to an interview on Tik Toc, discussing how a company called ChatGBT designed software that has passed a bar exam. https://www.tiktok.com/t/ZTRv6rCyL/
Stink Eye: Should Judge Weaver be allowed to dictate a litigant to keep a good pokerface?
“Lucky” was playing in a poker game with me last night; a 1/2 NLH at the Hard Rock in Tulsa, Oklahoma.
Lucky is a tough looking young man, about the same age as my son. He is Hispanic, wears a full beard, dark shades and muff style headphones. He has a take no prisoners style of play.
I was dealt an AQ off-suit, which I consider to be a good playable hand. If I was leading off with the betting, I’d probably raise from the minimum $2 bet to $6. But Lucky got to bet before me. With a dramatic display of calculation, picking out a few chips, then pausing and adding a few more from a different color stack, he announced his bet as $23 dollars and strew the chips across the table with aplomb.
Any bet over $20 pre-flop at this table meant a premium hand (or a bluff). He probably had an AK, KK, or AA and dominated me. So, after glaring at him, I folded.
Lucky took off his headphones and addressed me personally for the first time since I joined the game. Really he was talking about me in the third person to the whole group, but he intended to engage me. I don’t remember his exact words. It was something to the effect of look at the way she stared at me. She was harsh.
The hand played out and Lucky took down a sizable pot when the last remaining caller folded after the river. Lucky showed us his pocket jacks. JJ against AQ is actually a coin toss. There was an Ace on the turn, so if I had not folded, I would have won the hand.
I acted contrary to my own rules and told the players what I folded. We had a good laugh together and I told the men about a comment that Judge Susan Weaver made to me. It was during the hearing where she trampled all over my rights to due process and announced her intention to give my personal property and real estate held in trust to a man who put his intention to defraud me of $75,000 in writing.
Judge Weaver said to stop giving her “stink eye”. At the time she said that, I had a credible fear that the judge also intended to find me in contempt of court and incarcerate me. Her stink eye comment sounded like a set-up to find me in direct contempt.
Judges have gotten away with throwing people in jail for less. They should not. They should not be allowed to tyrannize litigants who are merely expressing disapproval of the judges’ errant denial of civil rights through a non-disruptive facial expression.
It is not as if I called Judge Weaver a bitch. Opposing counsel William White called me “bitch” loudly in court that day and Judge Weaver pretended not to hear it. Judge Weaver’s longtime colleague Court Reporter Jana Perry pretended not to hear it either, when she fabricated what was said in the fictionalized transcript she created.
My look of righteous anger, though, that Judge Weaver found worth noting for the record.
Lucky made me realize just how evil Susan Kaye Weaver was to demand that I hide my dismay with her Draconian commands. Lucky noticed the intense look I gave him, also. And we were playing poker. The whole idea behind poker is to mask your emotions, because showing your emotions conveys information that can help your opponent make educated decisions on future hands. You’re not playing a hand, you’re playing a game.
When the unethical jurist abused her power by forbidding me from defending my own property rights, I was justifiably angry. There is nothing disruptive about me looking at the judge with an angry look on my face. Had she not commented, there would be no record of my disapproval until I filed my appeal.
Judge Susan Weaver wants to bully and bluff and for me to maintain my best poker face. I complied that day in court, for fear of having my 60-year-old body thrown in jail. If I had the energy, I would have protected my Constitutional right to a fair trial from being treated as a game. (Hopefully the Court of Appeals addresses the issue when ruling on my unopposed appellate brief.)
Federal Courts Errantly Allow Non-Attorneys to Represent Corporations, as Long as They Lose
Supposedly, an individual who is not authorized to practice law is not allowed to represent another person in court. This applies even if the representative is a licensed attorney in another state.
But Judge Janis L. Sammartino, a Federal District Court Judge in Southern California allowed me to represent a limited liability company in what is called a “derivative action” until I discovered the error myself. She then required me to defend against a bogus attorney fee award.
After Judge Sammartino was transferred off the case, replacements Todd Robinson and Linda Lopez affirmed the ongoing proceedings and astronomical attorney fee award.
I have a pending appeal in the Ninth Circuit. Here are excerpts of the opening brief with the entire document below.
Silver Strand Plaza, LLC was formed in 2005. In 2009, there was an amendment that resulted in my ownership of 14.1571% of the shares.
Ellis Stern and his firm, Stern & Goldberg (“Stern”) represented my mother’s, SSP’s and the other individual members’ interests in SSP. The retainer agreement with SSP specified that Stern would oppose me, singling me out by name.
At the end of 2013, I demanded to see the company books and records. Stern allowed me to go to his office and make copies of what he claimed were the entire books and records. There were indications that pertinent documents were excluded.
I found discrepancies that concerned me and brought these to the attention of the other members in a special meeting by telephonic conference. The other members, who had the right and obligation to make “major” decisions in good faith and fair dealing, did not agree to have a professional accounting. Stern made an inaccurate written record of the meeting. I corrected him in writing.
On June 9, 2015, I wrote this in an email to my sisters, mother and Stern:
“It is about 18 months since I was included in any meeting of partners of SSP, LLC. I had a few concerns come up in the last couple days. My conclusion is that we would all be better off if the other partners bought me out of SSP, LLC.” I used the “tax basis” of my shares as the offer price, $516,839.
Stern authored a counter-offer couched as his opinion presented on June 15, 2015, of $218,000 from SSP for my share of SSP. My offer was clearly a transaction between me on the one side and my sisters on the other side. The counter-offer looked like it was from SSP. There was no company meeting of the members that I was informed about to decide how to handle the offer. There was no explanation about if I would be required to provide 14.1571% of the $218,000 capital to purchase the property from myself, as would be the literal meaning of the operating agreement, dropping my net to $187,138. I used $218,000 in my pleadings to the lower court, because my offer was to my sisters, not SSP. The statutory buyout provisions of the Cal. Corp. Code provide defendants in an involuntary dissolution action with a mechanism for avoiding dissolution by purchasing the plaintiff’s shares or other interests. It is not the corporation buying out the shares.
I rejected the counter-offer.
In May 2016, Sherman recommended selling the shopping center, and the members accepted that recommendation. (This came at about the time our sister Roberta Kramer (deceased) discovered she had cancer.) In October 2016, only 16 months after Stern wrote an offer of $218,000 for my interest in SSP, the shopping center went into escrow at a purchase price that valued my interest at nearly $1.5 million.
[After advising the manager to make four other breaches of fiduciary duty to me], in that same February 2, 2017 e-mail, Sherman used the excuse of the time spent communicating on the withhold issue as the reason she could not wire my distribution to me, even though other members were being paid, and even though Sherman’s e-mail claiming that she “will not have time today to go to the bank” was sent at 10:45 a.m. When I responded only an hour later that Sherman had a fiduciary obligation to wire the amount of my distribution less whatever amount Sherman believed had to be withheld for California taxes, Sherman responded through Stern and asserted for the first time that, in addition to California taxes, Sherman was required to withhold the amount of a Child Support Division lien against other property unrelated to SSP, and that determining the amount of the lien would further delay payment to me of my distribution. Sherman and Stern had been aware of the Child Support Division lien against other property for over a year and had never previously indicated that money would have to be withheld to pay that lien. With this excuse, Sherman delayed wiring any of my distribution (even the amount that was undisputed) until February 6, 2017.
Again, instead of Stern advising Sherman to make a full payment and leave the issue alone, he advised her to improperly withhold and convert $50,000 from my distribution wired on February 6, 2017. The stated reason: the funds were held as a litigation fund that Mary Sherman could use if I litigated to obtain the funds! Through Stern, Sherman not only defended this unlawful conversion and breach of fiduciary duty, Stern informed me that the funds would not be released until I released any of my claims against Mary Sherman for breach of fiduciary duty: “Perhaps we can discuss a method to protect the Manager [Mary Sherman] in connection with release of the reserved funds. Otherwise, they will be withheld to cover the litigation expense or for the period of time until the statute of limitations has run its course.”
Stern reiterated this effort to extort a release from me in a second e-mail to my attorney on February 9, 2017, in which he wrote: “The $50,000.00 will be released promptly upon your furnishing to me a signed General Release by your client [me], releasing Mary Sherman from all claims in her capacity as Manager of the LLC.” I did not respond to this blatant effort to extort a release from me. Realizing that she was only compounding her breach of fiduciary duty, Sherman released the $50,000 by wiring the funds to me on February 10, 2017.
Attorney Michael Early, Stanford and Hastings trained and with over two decades of experience, agreed that the books and records presented to me were inconsistent with the arm’s length valuation of the property. He represented me on contingency in an attempt to obtain a full disclosure of the financials and recover the capital in my account that was owed to me. We saw that the “corrected” prospectus stated expected income that was significantly higher than the income reported to me.
When I pressed for an explanation for the difference in NOI after the sale, Sherman responded through Stern, in pertinent part, as follows: “The numbers of the package were developed by the broker as part of his sales effort to maximize the sales price of the property, since the sales price is proportional to the net operating income. Our broker added back certain expenses to obtain a higher net operating income, and he reviewed these add backs with the buyer.”
When I then asked for 1) evidence that would verify the statement and 2) a brief description of the “certain expenses” that were added back “to obtain a higher net operating income,” Stern forwarded an e-mail from Sherman in which she stated that the buyer of the SSP property received the same financials that were used to prepare SSP tax documents and that: “the Buyer bought the building based on these numbers (with certain add backs, such as all management fees, earthquake insurance, and other costs that they deemed irrelevant since they would not be paying those costs once they owned the building).” No further explanation was provided.
When I inquired further of Sherman, Stern further muddied the waters by responding that: “There apparently were certain non-recurring expenses that formed the basis for the financial statements presented to the buyer, which, as [Mary Sherman] indicates, were fully identified and explained to the buyer.” In this “explanation,” items such as management fees and earthquake insurance are apparently described as “non-recurring expenses.”
Michael Early filed a lawsuit in the Central district of California on my behalf against SSP, and Mary Sherman as an individual and as manager of SSP about April 27, 2018.
In early May 2018, I was informed through Michael Early that SSP retained Patrick McGarrigle and his firm (“McGarrigle”) to represent it in the litigation.
McGarrigle said I would receive the full disclosure of SSP records if I dismissed the first lawsuit. I fell for his fraudulent statement and withdrew the suit.
I still have not received a full disclosure.
During the six years following the post-sale distribution, Sherman has not distributed any funds to me, even though the K-1s provided on behalf of SSP show over $70,000 in my capital account which fell by $54 this year.
There were a few random line items on the K-1s and bank records that were disclosed to me that indicate there is a loan and a property bought in part with my capital account that are self-dealing by the Shermans: “THE SHERMAN FA” as payee; “MSFP Loan”; “MSFP II LP”; and a “Sherman Family Limited Partnership” as real estate owned by SSP listed on a K-1. Sherman, Stern, McGarrigle and the current SSP attorney all refused to tell me what these line items indicate and there is a second bank account, “CBB”, for which they did not produce statements.
It is apparent to me that the Defendants intend to withhold my capital account indefinitely, so I agreed that Michael Early cannot afford to work on contingency for the protracted litigation that was threatened. I agreed to release him and handle the matter on my own with substitute counsel on limited scope. The attorney I consulted, LaToya Redd (“Redd”), informed me that the Southern District of California “frowns on” attorneys helping pro se litigants for distinct pieces of the case. She said I must obtain leave to hire her piecemeal before I could retain her.
Throughout 2019, McGarrigle advocated on behalf of the individual defendants. Dennis is the only member who communicated significantly with me directly in 2019. She wrote over 50 emails, most copied to the other members and McGarrigle. While Dennis showed some interest in getting an accounting, over 30 of her emails were disturbing, as detailed below.
McGarrigle authored over 40 emails, advocating for the position of the individual members and manager. It was obvious he was speaking on behalf of each member, Kramer as an individual, as well as for SSP. He claimed my emails used “pejorative”, “inflammatory language”, and “wild accusations”. Yet he said not a single word to rein in Diane Dennis.
Dennis sent several emails that are considered “defamation per se” in all but three states. I live in one of the states that breaks from the availability of “per se” protection against these kinds of comments. The recipients of the malicious emails and my business interest in SSP are in states that recognize “per se”.
McGarrigle admonished me for discussing SSP business, yet refrained from admonishing Dennis for completely inappropriate and disturbing emails.
McGarrigle, and Stern before him, represented both the competing interests of individuals connected to SSP and SSP as a separate entity. The money used to pay for representing the individuals was a distribution of capital to each member, without a distribution to me.
Early in the proceedings I moved the court for leave to retain an attorney on limited scope, which I described as for the purpose of [], to explain derivative actions and other issues that were too complex for me, [], or handle issues that have a fee shifting provision, such as [] if I could prove the anti-SLAPP motion was filed maliciously [by the attorney defendants], as it was. I filed two motions and was denied twice.
Issue:
Whether the court and licensed attorneys were allowed to proceed on the FAC or more specifically the derivative causes of action included in the FAC, even though the complaint was written and filed by someone unauthorized to practice law. It was clear legal error to allow the void proceedings.
Law: [allowed to exclude citations as a pro se litigant]
The Ninth Circuit employs a de novo standard of review for issues addressing the unauthorized practice of law.
It is clear on the face of the FAC that I chose to file the cause of action for legal malpractice as a derivative action only. It is therefore a nullity.
If this court upholds the opinion of the lower court that certain rights that I claimed were violated were not my rights, but belonged to SSP, and must be brought as a derivative action, then amendment is not futile, as long as I can hire an attorney on limited scope for the derivative causes.
Judge Lopez’s spin on my motion to vacate the void orders that were the fruit of the void pleading is found in Doc. 266. Her conclusion: “Because no judgment was rendered on Plaintiff’s now-dismissed claims against the Attorney Defendants, none of the cases cited by Plaintiff support a finding of clear error by this Court.” It is well settled that a presiding judge must strike any document written by one not licensed to practice in that jurisdiction on behalf of anyone but herself. In Pietrczak v. [Hammett] and the Rural Revival Living Trust, Searcy County case 65CV-21-20, I was named as a common defense doctrine defendant. I prevailed as an individual. But the court granted default judgment against the trust after a hearing in which the court forbid me from defending the trust in any way or giving testimony as the trustee of the trust. (That case is on appeal. One reason, I was sole beneficiary, settlor and trustee of the trust, and therefore would only be representing myself.) In two related cases against Goodman Manufacturing Company Inc., et al in which I am plaintiff, an answer written by a Texas attorney was found void, and a Home Depot attorney’s signature on a settlement agreement was struck out with a written admonishment that he was not licensed to practice law in Arkansas. California usually treats this situation the same as Arkansas, but if the district court is allowed to veer from the California law on my case alone, and if choice of law is Arkansas law for defamation per se, then it must be choice of law for this issue also.
When the Attorney Defendants and their counsel first read the cover page of the FAC, they knew or should have known I was not allowed to proceed on a derivative cause of action. There is caselaw stating this. The court failed to deem the impermissible pleading void ab initio and then ordered me to pay attorney fees to the licensed attorneys who purposefully multiplied the proceedings by continuing to file hundreds of pages of argument and alleged evidence in support of the unnecessary anti-SLAPP motion.
Judge Lopez titled section “A” of her order “Plaintiff’s Voluntary Dismissal is Not Void”. I argued that all the proceedings on the derivative cause were void. The court should have dismissed the derivative cause or the entire pleading on her own or by motion of the Attorney Defendants on those grounds alone.
Judge Lopez wrote: “There is no merit to Plaintiff’s contention that the Attorney Defendants or the Court failed to adequately aid in the prosecution of her claim.” I never demanded “aid in the prosecution” of my claim. I notified the court of something the court knew or should have known, that the pleading on the derivative action and everything based on that pleading was a nullity.
An Arkansas court, if honorable, would disregard the California judgment as it is void ab initio. But this does not protect me, because most of my assets and anticipated assets are in California, (one indication the choice of law for all issues including defamation should have been California law).
Judge Lopez quoted me as writing, “[w]ith diligence, [P]laintiff could have known the law.” She left out the following sentence. “But as discussed earlier, the one exception to knowing the law is when the law makes an order void.” The derivative action did not become less void because I could have known it was void.
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The court awarded the attorney defendants over $70,000 in fees paid to their attorneys to advocate to strike the pleadings against them on the grounds that a malpractice and conversion cause of action were filed as a Strategic Litigation Against Public Participation. Neither cause is subject to the “anti-SLAPP” statute. The pleadings could easily be stricken as void because I was not authorized to practice law. But that would carry no fee shifting provision.
So, Judge Sammartino, Robinson and Lopez (the Three Stooges?) decided to let me practice law for a limited period of time, in order to rack up fees for other attorneys.
Did Judge Sammartino, a clerk, Attorney Keith Cochran and my sister Lynn Kramer commit conspiracy against rights?
I think so.
Here is the pertinent language in the code 18 U.S.C. 241:
If two or more persons conspire to injure, oppress, threaten, or intimidate any person in any State in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same they shall be fined under this title or imprisoned not more than ten years, or both.
This is what I allege happened, as I wrote it within an informal appellate brief filed in the Ninth Circuit Court of Appeals:
(“Sherman” is Mary Sherman, the member-manager of Silver Strand Plaza, LLC. “Kramer” is Lynn Kramer. Both are my sisters.)
Sherman allowed Kramer to transfer her shares in SSP to a living trust that benefitted and had her husband as co-trustee. This was disallowed by the SSP OA and I received no notification of a vote as required by the OA.
Sherman stalled transmitting the updated member list to me until after I filed my complaint in which I named Kramer as an individual, but not her trust. I did not know Kramer transferred her shares to a trust until I received the updated member list. I had to make an immediate amendment to the complaint.
I had to receive leave to file electronically, so the Clerk of the Court filed my documents for me until Docket entry 9 on July 16, 2019. I did not notice Linda R. Kramer missing from the docket. After I filed the FAC to add the trustees of the Lynn and Erik’s Trust (which I think might be a misnomer for the Erik and Lynn’s Trust), the Clerk added the new defendants, but Linda R. Kramer as an individual was either removed or had never been included. Kramer seized upon the opportunity to try to extract herself from the litigation as an individual by excluding herself as an individual from her response to the complaint. I informed the deputy clerk of the error and asked him specifically if he could grant a default. He said yes. After I filed a less than stellar motion for default, he informed me of a case that had a successful motion for default filed to use as a template.
While I was correcting my motion, the deputy clerk did a favor for Kramer by adding her to the docket entry 19, her trustee’s response, without notating the correction. (The District Court Clerk in the Eastern District of Arkansas always notes every change made to the docket entries.) After the clerk learned that I had taken a copy of the original docket entries, the clerk changed the altered entry back, again without notation of the change. This appeared to me that I would receive unequal treatment on this case. It reminded me of activity on my custody case. It showed an intent to falsify the record for my litigation adversaries, which is malicious.
My allegation against the district court clerk is plausible, supported by evidence and it is true.
Kramer knew about my horrible experience in family court. She told me I “took on the mafia and won.” She knew that I checked into a hospital with anxiety and depression caused in major part by my experience in court. It was especially cruel for her to abuse the process by enlisting the Clerk to alter the docket, like was done to me in my family law case. In that paper file case, the alterations started small and culminated in the entire 14 volumes going missing for years at a time.
I immediately reported the falsification of the record to the Court through filed documents. The Court gave me no relief, and in fact threatened me for making the report, as I will discuss further in another section.
I filed a 42 USC 1983 case in Arkansas district court concerning the clerk’s misconduct. It was dismissed before reaching the merits on issues concerning immunities. I disagreed with the MTD but did not respond. I was low on energy.
Throughout these proceedings and the 42 USC 1983 suit the Clerk did not provide the electronic history of changes to the docket. The system software was changed subsequently, and I am afraid that evidence has now been destroyed.
The harm, because the clerk changed the alteration back, was the innate harm implicit in the violation of my Constitutional Rights. I made the reasonable inference that the court would not provide me a fair adjudication of my grievances. And I was right.
In response to the alteration of the docket and the improper collusion between attorney Keith Cochran and the deputy clerk to deny me a clerk’s default against Linda R. Kramer as an individual, I asked for sanctions under Rule 11 and for the court to order the clerk to enter default.
[After Judge Sammartino denied my relief and threatened and intimidated me from bringing any corrupt conduct to the court’s attention] I asked Judge Sammartino to recuse, Doc. 153.
[Lynn] Kramer as an individual was in default by excluding herself from the MTD filed timely on behalf of the co-trustees of the Lynn and Erik’s Trust.
[The Ninth Circuit Court of Appeals asked:]
What issues are you asking the court to review in this case? What do you think the district court did wrong?
Whether omitting one of two capacities in which Linda Kramer was named from the list of represented defendants joined on the cover of an MTD means that separate defendant was in default. If so, whether the clerk must grant default, which can only be set aside after a successful motion to set it aside that explains that the party was omitted by error and why she should be allowed to late file.
The clerk erred and the court upheld the error by allowing the clerk to look to a footnote on page 6 of the MTD, Doc. 19-1, and make an improper inference that the attorney who wrote the MTD represented Ms. Kramer in all her capacities.
The court erred by writing an intimidating footnote in her Order of March 23, 2020, Doc. 111. “The Court cautions Plaintiff against impugning the Clerk or other staff of this Court or District based on gratuitous speculation regarding relationships of favoritism toward litigants or their counsel. See, e.g., ECF No. 85 at 2, 4. Such accusations should not be made lightly and, absent evidence supporting such claims, the Court will not countenance them.”
My testimony given through declaration and documents certified under Rule 11 was evidence, exhibits attached were evidence, and the revision history of the docket software was available to the court.
The court erred by failing to follow simple procedure, FRCP Rule 55(a) and (c).
The court erred by failing to sanction attorney Keith Cochran and his firm for convincing the clerk to include Linda Kramer as an individual on the electronic record days after her deadline and violating Rule 11 in defending his misconduct.
[The Ninth Circuit Court of Appeals asked:]
What law supports these issues on appeal? (You may refer to cases and statutes, but you are not required to do so.)
In determining whether to grant default, a clerk may look no further than the cover of a document. If a separate defendant is left off the list of represented defendants, in other words not joined, whether purposefully or inadvertently, they must file a motion to have default set aside pursuant to F.R.C.P. Rule 55.
Obviously, Linda R. Kramer as an individual was not joined to the co-trustees’ timely response. That separate defendant was not on the docket until two days after the MTD was filed as Doc. 19.
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I did not cite 18 U.S.C. 241, Conspiracy Against Rights in the brief. I wonder if the Justices of the Ninth Circuit will notice the criminal conduct on their own, and if they will uphold our Constitution as they are sworn to do.
You may download the entire brief which is posted below.
Email: bohemian_books@yahoo.com
Did Judge Janis L. Sammartino Exhibit a Personal Bias Against Me? “Absolutely!” Said Attorney Who Read the File
This is two sections of an informal appellate brief I filed in the Ninth Circuit, Cir. Case No. 22-56003. The COA does not require citation to caselaw by a pro se litigant.:
Whether the Southern District of California exhibited a personal bias against me. [Attorney LaToya] Redd wrote by email to me that the rulings on my case “absolutely” gave the court the appearance of bias.
I filed a motion for recusal of Judge Sammartino, Doc. 153. The case was transferred before a decision on the merits and ordered “denied as moot”, Doc. 173, 174. The court erred when it failed to decide the issue on the merits then adopted the decisions of the apparently biased Judge as “law of the case”.
All decisions subsequent are tainted.
Some but not all the court’s legal errors are addressed in other sections. The appellate court can look through the entire record to assess if there is an appearance of bias. The totality of the record shows the court absolutely appeared to be biased.
Ruling with an appearance of bias violates the most fundamental Constitutional right to present grievances, have them adjudicated fairly with equal protection and due process. It makes every “opinion” that allows for discretion questionable. This includes the big picture of whether to dismiss the complaint. It includes all the building blocks that came to that conclusion, such as whether the defendants were reasonable to deny an accounting and dissolution.
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I followed up with eleven more sections that described specific rulings. Most defy all logic. The few that could have gone either way were always found in favor of my represented adversaries.
Stay tuned for a posting of each section of issues and law, or read it all now by downloading a copy below.
Does the Federal District Court in Southern California Deny Equal Access to Justice to All Except the Moneyed Elite?
The following is cut and pasted from an informal appellate brief I filed in the Ninth Circuit Court of Appeals. The Ninth Circuit does not require pro se litigants to cite caselaw, so I used more of my page allowance to describe the facts of the case in enough detail that the court should know dismissal without leave to amend was an error.
ISSUE:
- Whether the Southern District of California exhibits a bias against pro se litigants, including me, denying the benefit of co-counsel, not allowing for an alternate advocate if the pro se litigant is ill, and misconstruing caselaw to mean that non-attorneys must communicate as artfully as their adversaries’ hired attorneys. Denying Co-Counsel and putting form above substance is inconsistent with some other districts in circuit and nationwide and with this appellate court.
For example, before the Defendants filed any response, I moved for leave to hire an attorney to help me with specific acts, including explaining derivative actions to me, giving me practice tips, working on issues that have a fee shifting provision, and standing in for me when I was too ill or the cost of travel was prohibitive. Doc. 11. I filed a second motion to hire an attorney for the distinct task of writing a motion for reimbursement of costs of service of summons on the Shermans Doc. 146, and the court denied it, Doc. 148.
Examples of the harm: It would cost me more in time and aggravation to write the motion myself than the costs of service; A motion for Rule 11 sanctions against several attorneys for filling MTDs with misstatements of what I wrote in the complaint would cost me even more in time and aggravation, so I did not avail myself of that powerful tool to sanction the misconduct; I was not able to hire a paralegal because they are not allowed to work unless directed by a licensed attorney, so I struggled for countless hours with work that attorneys delegate to paralegals; I had to work while sick, in pain and medicated.
Denying me the right to hire counsel for the derivative causes was un-Constitutional on its face and as applied. Effectively, only the moneyed elite, those who can afford the legal fees, are allowed to bring mixed individual and derivative claims in CASD.
I was not alerted to the fact that courts treat derivative causes of action as void ab initio when written by a non-attorney, as discussed more in questions 6 and 8, section V below. The court should have, in the least, granted leave to hire an attorney for only the derivative causes of action, because I was not allowed to advocate on them.
When an attorney is ill, he can have another attorney step in for him or at least write a motion for a stay or appropriate extensions of time. In response to seeing some court related emails come through, but not being able to concentrate enough to understand much of it, I sent the following email to judge Linda Lopez and three attorneys on the case on October 1, 2022: “Subject: Hammett incapacitated //Dear Court,// I have COVID and an autoimmune disease. I thought I would be able to write a proposed order for stay of proceedings, but took a turn for the worse quickly today.// I am turning off electronics.// Please extend my time to respond to anything until I am able to function.// Thank you, // Laura Hammett” I was highly medicated, hadn’t eaten for days, could not lift my head, and wrote laying prone.
Three days later the court sent an email: “Good Afternoon,// The email you recently sent to efile_Lopez@casd.uscourts.gov will not be considered by the Court because the communications contained therein were not authorized by the Court and, therefore, are improper. Any motions, applications, requests, or notices must be filed in accordance with the Federal Rules of Civil Procedure and Civil Local Rules for the Southern District of California.// Chambers of Judge Linda Lopez”. (Bold theirs)
This illustrates how the rule that pro se litigants must work alone denies a level playing field and caused me individualized harm. I was physically unable to file a motion and was not allowed to have an attorney do it for me.
The court cited caselaw that permits the court to hold a pro se litigant to the same legal standard as a represented litigant. The court, probably purposefully, ignored the bountiful caselaw and Judges’ Bench Books on Pro Se Litigants that differentiates between following the law and presenting a case eloquently.
When the court, as the district court did here, misapplies the technical nuances of the law and legal procedure as a weapon against laymen, i.e. you can’t advocate a derivative action because you are unauthorized to practice law, but you can only bring this cause as a derivative action, and you can’t hire an attorney for that distinct purpose, …the common person will become highly discouraged from seeking redresses in a court of law.
I suffered personal harm caused by the defendants conduct. With limited scope representation, motion practice would be easier and should have produced the desired result of proceeding to discovery. But maybe it would not, because…
[followed with a description of the bias the court appeared to have against me personally]
LAW:
- Right to Limited Scope Representation – The fundamental right to equal protection provided for in the United States Constitution. All classes must be able to present grievances effectively, not only the class that has the most money.
The various courts throughout the country should endeavor to be consistent. Especially within the same circuit, district courts should be consistent.
The Southern District of California is inconsistent with its sister court to the north about the right to limited scope representation. Worse, CASD is inconsistent with the Ninth Circuit.
Ninth Circuit rules allow pro se litigants to write an informal brief without excerpts, citation to the record, and discussion of the standard of review. The district court claims discretion to ease the technical requirements, but in this case, did not. For example, the court denied my motion to exclude the redline copy with my amendments. But the district court in the Eastern District of Arkansas gives a blanket exemption to that requirement to pro se litigants.
The Ninth Circuit allows pro se litigants to hire an attorney for a distinct task. I retained and paid attorney LaToya Redd to represent me in my proposed interlocutory appeal on the limited issue of the attorney fee award. I was going to argue the failure to enter default against Linda Kramer on my own. But Ms. Redd refused to represent me on any partial representation in district court until I obtained leave of the court, because she had been reprimanded by the district court in Southern California for giving another pro se litigant partial representation.
Of course, had Mr. Early continued to represent me, or if Ms. Redd was allowed to give me limited scope representation, there would probably have been a different outcome. The case of Schrage v. Schrage in the California Central district had a similar fact set to this one. The difference was that the Schrage brothers were fighting over significantly more money than the SSP sisters. The lone plaintiff brother was able to afford to retain a top-notch law firm. The plaintiff prevailed on the issue of dissolution and was reimbursed his attorney fees. He prevailed on breach of fiduciary duty at the lower court but was overturned at the Cal. Sup. Ct. because he did not bring the cause as a derivative action.
The court here found much of the harm to be not individualized, and therefore would require derivative pleading. The court also forbid me from hiring an attorney for the limited issue of derivative causes. This is a violation of my right to file a grievance based on my economic class.
In fact, the caselaw interpreting that an attorney represent a sole minority shareholder in a tightly held corporation when the other shareholders give themselves distributions that are not made to the sole member enables the other members to plunder the company coffers for their own personal use, unless the sole member has enough money to hire an attorney.
The fee shifting provisions have been rendered meaningless for self-represented, because courts routinely disallow payment of attorney fees to pro se litigants, even when the legislature did not write the word “incurred” in the fee shifting statute. This is another huge bias against pro se litigants.
Steppingstone to SCOTUS
Did you miss me?
I’ve spent the last seven days writing an informal appellate brief for the Ninth Circuit.
The 9th accommodates pro se litigants. They have a form to fill out that does not require a table of contents, a table of authorities,,,heck, they don’t even require a layperson to include citations to caselaw.
I’m not aware of the statistics for how many pro se appeals are successful at the Ninth Circuit Court of Appeals compared to other courts around the country. At least they don’t waste our time, energy and money as badly as say, the Eighth Circuit.
I filed a notice of appeal at the 8th, paid the filing fee and those rat bastards denied me summarily. It was a case against judge Susan Weaver that was denied at the Eastern District of Arkansas by Judge Billy Roy Wilson. Injustices Steven M. Colloton, Raymond W. Gruender and Bobby E. Shepherd didn’t wait for me to file a brief. Zippity-zip, they affirmed the pack of lies old man Wilson wrote when he threw my case out in favor of all defendants before co-defendant Attorney William Zac White even filed a motion to dismiss.
The system is rigged against pro se litigants, meaning the common person who can’t afford to hire an attorney.
I’ve been ill these last few years. I haven’t had the energy to fight.
When the 8th circuit denied my appeal without letting me file a brief, I should have filed a motion for reconsideration and then a petition for certiorari to the United States Supreme Court. I didn’t.
I’m sure I will get another chance.
In the meantime, here is the informal brief that kept me too busy to visit with you, my dear reader.
A Higher Law 