Your SlideShare is downloading. ×
  • Like
MOTION TO STRIKE - Motion To Stay (PKH)
Upcoming SlideShare
Loading in...5
×

Thanks for flagging this SlideShare!

Oops! An error has occurred.

×

Now you can save presentations on your phone or tablet

Available for both IPhone and Android

Text the download link to your phone

Standard text messaging rates apply

MOTION TO STRIKE - Motion To Stay (PKH)

  • 12,859 views
Published

 

Published in News & Politics
  • Full Name Full Name Comment goes here.
    Are you sure you want to
    Your message goes here
    Be the first to comment
    Be the first to like this
No Downloads

Views

Total Views
12,859
On SlideShare
0
From Embeds
0
Number of Embeds
0

Actions

Shares
Downloads
5
Comments
0
Likes
0

Embeds 0

No embeds

Report content

Flagged as inappropriate Flag as inappropriate
Flag as inappropriate

Select your reason for flagging this presentation as inappropriate.

Cancel
    No notes for slide

Transcript

  • 1. RESERVED FOR IN THE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT – JACKSON DIVISIONVOGEL DENISE NEWSOME PLAINTIFFV. CIVIL ACTION NO. 3:12-cv-00342PAGE KRUGER & HOLLAND P.A., ET AL. DEFENDANTS PLAINTIFF’S MOTION TO STRIKE MOTION TO STAY ALL PROCEEDINGS PENDING A RULING ON DEFENDANTS’ MOTION TO DISMISS AND MEMORANDUM IN SUPPORT OF MOTION TO STAY ALL PROCEEDINGS PENDING A RULING ON DEFENDANTS’ MOTION TO DISMISS; MOTION FOR RULE 11 SANCTIONS OF AND AGAINST DEFENDANTS; AND MOTION FOR DEFAULT JUDGMENT (JURY TRIAL DEMANDED IN THIS ACTION)
  • 2. IN THE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT – JACKSON DIVISIONVOGEL DENISE NEWSOME PLAINTIFFV. CIVIL ACTION NO. 3:12-cv-00342PAGE KRUGER & HOLLAND P.A., ET AL. DEFENDANTS PLAINTIFF’S MOTION TO STRIKE MOTION TO STAY ALL PROCEEDINGS PENDING A RULING ON DEFENDANTS’ MOTION TO DISMISS AND MEMORANDUM IN SUPPORT OF MOTION TO STAY ALL PROCEEDINGS PENDING A RULING ON DEFENDANTS’ MOTION TO DISMISS; MOTION FOR RULE 11 SANCTIONS OF AND AGAINST DEFENDANTS; AND MOTION FOR DEFAULT JUDGMENT (JURY TRIAL DEMANDED IN THIS ACTION)1 COMES NOW Plaintiff Vogel Denise Newsome (“Newsome” and/or “Plaintiff”) WITHOUT waiving herOBJECTIONS to Judge Tom S. Lee presiding over this matter in that a CONFLICT-OF-INTEREST exist whichrequires RECUSAL as well as Newsome’s OBJECTIONS to Magistrate assignment in this matter and files this, herMOTION TO STRIKE MOTION TO STAY ALL PROCEEDINGS PENDING A RULING ON DEFENDANTS’ MOTION TO DISMISS(Doc. No. 9) and MEMORANDUM IN SUPPORT OF MOTION TO STAY ALL PROCEEDINGS PENDING A RULING ONDEFENDANTS’ MOTION TO DISMISS (Doc. No. 10); Motion for Rule 11 Sanctions of and Against Defendants; andMotion for Default Judgment (Jury Trial Demanded in this Action) (“MTS-MTSTAY&MFR11SDefault”) in thepreservation of her rights and pursuant to Federal Rules of Civil Procedure (“FRCP”) Rule 12(F) governing mattersregarding motion to strike; FRCP Rule 12(G) governing matters regarding consolidation of defenses and objections;FRCP Rule 11 governing sanctions and/or signing of pleadings, motions, and other documents; FRCP Rule 55governing default judgments; and the Fourteenth and Seventh Amendment to the Constitution. In support of thisinstant MTS-MTSTAY&MFR11SDEFAULT, Newsome attaches her Affidavit at EXHIBIT “1” – incorporatedherein by reference as if set forth in full herein. Said Affidavit contains PERTINENT and RELEVANT informationthat Newsome believes will aid this Court and provide it with an UNDERSTANDING as to what is really takingplace behind the scenes in FURTHERANCE of the Conspiracies addressed in Newsome’s Complaint filed in thislawsuit. In further support thereof Newsome states: 1. This instant MTS-MTSTAY&MFR11SDEFAULT is submitted in good faith and is not submitted for purposes of delay, harassment, hindering proceedings, embarrassment, obstructing the administration of justice, vexatious litigation, increasing the cost of litigation, etc. and is filed to protect and preserve the rights of Newsome secured/guaranteed under the United States Constitution and other laws of the United States. 1 NOTE: Boldface, caps, small-caps, italics, highlights and underline represents “emphasis” added. Page 1 of 39
  • 3. 2. Newsome attaches her supporting Affidavit at EXHIBIT “1” which is incorporated herein by reference as if set forth in full.3. That a CONFLICT-OF-INTEREST presently exists with the assignment of this lawsuit to Judge Tom S. Lee. The record evidence CLEARLY supports that Newsome has timely, properly and adequately NOTIFIED this Court of the Conflict-Of-Interest regarding Judge Tom S. Lee. See Doc. No. 2 – “Motion Conflict-Of-Interest Information. . .” As a direct and proximate result of this Court to comply with the MANDATORY requirements of statutes and laws governing said matters, Newsome has been irreparably injured/harmed and deprived rights – i.e. equal protection of the laws, privileges and immunities, and due process of laws guaranteed under the United States Constitution and other governing laws. As a direct and proximate result of this Court’s unlawful/illegal practices and failure to comply with the MANDATORY requirements of 28 U.S.C.A. § 455 and any and all applicable statutes/laws governing said matters, Newsome has been irreparably injured/harmed and deprived rights – i.e. equal protection of the laws, privileges and immunities, and due process of laws guaranteed under the United States Constitution and other governing laws. See EXHIBITS “2” – FRCP Rule 26 and “3” - 28 U.S.C.A. § 455 respectively attached hereto and incorporated by reference as if set forth in full herein. Phillips v. Joint Legislative Committee on Performance and Expenditure Review Of The State of Mississippi, et al., 637 F.2d 1014 (5th Cir. 1981) - [3] Under statute requiring a judge to disqualify himself in any proceeding in which his impartiality might be reasonably questioned, judge need not accept all the allegations by moving party as true and, in fact, no motion at all is required; the judge must disqualify himself if the facts cast doubt on his impartiality regardless of how or by whom they are drawn to his attention. 28 U.S.C.A. § 455. . . . [3] Congress rewrote the second statute, section 455, in 1974. Subsection (b) of that section lists a number of specific situations in which a judge must recuse himself. . .Subsection (a), a more general provision, requires that Any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned. Section 455, unlike section 144, does not stipulate a formal procedure by which it must be raised. Like section 144, however, it may be raised by motion. Davis, 517 F.2d at 1051. Substantively, the two statutes are quite similar, if not identical.[FN6] FN6. To the extent that there is a difference, section 455 imposes the stricter standard: a movant under section 144 must allege facts to convince a reasonable person that bias exists, Parrish, 524 F.2d at 100, while under the broader language of section 455, he must show only that a reasonable person “would harbor doubts about the judges impartiality”, Potashnick v. Port City Constr. Co., 5 Cir. 1980, 609 F.2d 1101, 1111 (emphasis added), cert. denied, - - U.S. --, 101 S.Ct. 78, 66 L.Ed.2d 22 (1980). See Comment, Disqualification of Federal Judges for Bias or Prejudice, 46 U.Chi.L.Rev. 236, 243-50 (1978). See also Note, Disqualification of Judges and Justices in the Federal Courts, 86 Harv.L.Rev. 736, 745-50 (1973). On the other hand, section 455, unlike section 144, does not require the judge to accept all allegations by a moving party as true. Indeed, the section requires no motion at all; the judge must disqualify himself if the facts cast doubt on his impartiality regardless of how or by whom they are drawn to his attention. See Fredonia Broadcasting Corp. v. RCA Corp., 5 Cir. 1978, 569 F.2d 251, 254-57, cert. denied, 439 U.S. 859, 99 S.Ct. 177, 58 L.Ed.2d 167 (1979). Section 144, by contrast, requires allegation by affidavit within a stringent time limit and allows a party only one such affidavit in any case. If a party could bind a judge by his factual allegations in a section 455 motion, free from the formal requirements and more demanding standard of proof of section 144, the result would be a virtual open season for recusal. See 46 U.Chi.L.Rev. at 250. [4] The alleged bias of a judge must be personal as distinguished from judicial in nature in order to require recusal. 28 U.S.C.A. §§ 144, 455. - - See EXHIBIT “4” – Phillips matter attached hereto and incorporated by reference as if set forth in full herein. Clearly the INTEGRITY of this Court has been compromised and the appearance of IMPROPRIETY is inevitable through Judge Tom Stewart Lee’s acts and projects an appearance that this Lawsuit can be Page 2 of 39
  • 4. won through criminal acts – i.e. through bribes, blackmail, extortion, intimidation, threats, etc. - byDefendants and their counsel. Therefore, Judge Lee’s acts CLEARLY VIOLATE the Mississippi Code ofJudicial Conduct. See EXHIBIT “5” – Code of Judicial Conduct (Mississippi) attached hereto andincorporated by reference as if set forth in full herein. 28 USC § 455 - Disqualification of justice, judge, or magistrate judge (a) Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned. (b) He shall also disqualify himself in the following circumstances: (1) Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding; (2) Where in private practice he served as lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer concerning the matter, or the judge or such lawyer has been a material witness concerning it; (3) Where he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy; (4) He knows that he, individually or as a fiduciary, or his spouse or minor child residing in his household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding; (5) He or his spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person: (i) Is a party to the proceeding, or an officer, director, or trustee of a party; (ii) Is acting as a lawyer in the proceeding; (iii) Is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding; (iv) Is to the judge’s knowledge likely to be a material witness in the proceeding. (c) A judge should inform himself about his personal and fiduciary financial interests, and make a reasonable effort to inform himself about the personal financial interests of his spouse and minor children residing in his household. . . . See EXHIBIT “3” - 28 USC § 455 attached hereto and incorporated by reference as if set forth in full herein.MANDATORY DISQUALIFICATION is required when “ONE” of the grounds specificallyenumerated in statute applies – i.e. for instance, as in this instant lawsuit, grounds for Judge TomStewart Lee’s disqualification is required pursuant to 28 USC § 455 and/or the applicable statutes/lawsgoverning said matters: Renteria v. Schellpeper, 936 F.Supp. 691 (1996) - [6] If one of grounds specifically enumerated in statute applies, disqualification of judge is mandatory whether or not reasonable person would question judges impartiality. 28 U.S.C.A. § 455(b). . . . [6] . . .If one of the provisions of section 455(b) applies then disqualification is mandatory whether or not a reasonable person would question the judges impartiality. Liljeberg v. Health Serv. Acquisition Corp., 486 U.S. 847, 859 n. 8, 108 S.Ct. 2194, 2202 n. 8, 100 L.Ed.2d 855 (1988).CLEARLY Judge Tom S. Lee is adamant and it appears is refusing to RECUSE himself as required bystatutes/laws governing said matters. Therefore, it appears that the proper INVESTIGATION(S) as with Page 3 of 39
  • 5. other CORRUPT Judge(s) as G. Thomas Porteous, may be necessary in having Judge Lee removed from lawsuits involving Newsome. Furthermore, involving matters of PUBLIC Interest in which Judge Lee is associated may have to be resolved through IMPEACHMENT proceedings. Clearly it is obvious that Judge Tom Stewart Lee is placing his JUDICIAL FATE in the “banking” on and/or “placing all of his eggs” in the basket/relationship of Baker Donelson Bearman Caldwell & Berkowitz. Newsome have already initiated further legal and proper CONGRESSIONAL actions involving Judge Tom Stewart Lee. Even if the United States Congress may be dragging its feet and/or attempting to OBSTRUCT such matters, ALL that is required of Newsome is to PROVE by facts, evidence and legal conclusions that proper legal recourse for redress has been met. See pleading filed at Doc. No. 2 of this instant Lawsuit – See EXHIBIT “6” – Docket Sheet for this action attached hereto. Newsome’s burden has been met and this Court has been timely, properly and adequately notified of same. It matters NOT that there are attempts by law firms such as Baker Donelson Bearman Caldwell & Berkowitz and members of such CONSPIRACIES that may be members of the United States of America Congress, Supreme Court of the United States of America, etc. OBSTRUCTING the ADMINISTRATION of JUSTICE, Newsome need only PROVE and SHOW through EVIDENCE that she has initiated legal actions and has done so. Legal actions which clearly appears may require additional measures permissible under the statutes/laws governing matters when the United States of America’s Congress, etc. FAILS to act to protect the INTEREST of the PEOPLE and/or PUBLIC-AT-LARGE!4. In accordance with the statutes/laws governing said matters, Newsome has timely, properly and adequately PRESERVED said issues such as the CONFLICT-OF-INTEREST and other issues raised in her Motions to Strike the Defendants’ pleadings filed in this lawsuit. See for instance EXHIBIT “7” – “Waiver Of Loss Of Right To Disqualify Judge By Participation In Proceedings . . .” attached hereto and incorporated by reference as if set forth in full herein.5. That Newsome further OBJECTS to the assignment of a Magistrate to this Lawsuit in that she has timely, properly and adequately NOTIFIED this Court in writing as to her OBJECTIONS. Furthermore, said OBJECTION is in accordance with Rules governing said matters as well as in accordance to Rule 73 of the Federal Rules of Civil Procedure and 28 U.S.C. § 636 and any and all applicable statutes/laws governing said matters. Furthermore, Newsome states in support thereof: Rule 73 Federal Rules of Civil Procedure: (a) Trial by Consent. When authorized under 28 U.S.C. §636(c), a magistrate judge may, if all parties consent, conduct a civil action or proceeding, including a jury or nonjury trial. A record must be made in accordance with 28 U.S.C. §636(c)(5). (b) Consent Procedure: (1) In General. When a magistrate judge has been designated to conduct civil actions or proceedings, the clerk must give the parties written notice of their opportunity to consent under 28 U.S.C. §636(c). To signify their consent, the parties must jointly or separately file a statement consenting to the referral. A district judge or magistrate judge may be informed of a partys response to the clerks notice only if all parties have consented to the referral. (2) Reminding the Parties About Consenting. A district judge, magistrate judge, or other court official may remind the parties of the magistrate judges availability, but must also advise them that they are free to withhold consent without adverse substantive consequences. (3) Vacating a Referral. On its own for good cause—or when a party shows extraordinary circumstances—the district judge may vacate a referral to a magistrate judge under this rule. See EXHIBIT “8” – Rule 73 of the Federal Rules of Civil Procedure attached hereto and incorporated by reference as if set forth in full herein. In fact, this Court has the REQUIRED Form AO 085 that was to be distributed to parties NOTIFYING of Magistrate Assignment (if any) – See EXHIBIT “9” – Form AO 085 which has been marked DECLINED attached hereto and incorporated by reference as if set forth in full herein. Nevertheless, this Court failed to comply with the statutes/laws governing said matters. As a direct and proximate result of this Court to comply with the MANDATORY requirements of said Rule 73 and any and all applicable statutes/laws governing said matters, Newsome Page 4 of 39
  • 6. has been irreparably injured/harmed and deprived rights – i.e. equal protection of the laws, privileges and immunities, and due process of laws guaranteed under the United States Constitution and other governing laws.6. Newsome hereby timely, properly and adequately OBJECTS to this Court’s FAILURE and Defendants and their Counsel’s FAILURE to provide this Court and Newsome with the REQUIRED information and/or documentation advising of “CONFLICT-OF-INTEREST” in accordance with the Mississippi Rules of Professional Conduct (“MRPC”). See EXHIBIT “10” – MRPC attached hereto and incorporated by reference as if set forth in full herein. Newsome on or about July 18, 2012, has in good-faith requested that Named Defendants and their Counsel (Phelps Dunbar/W. Thomas Siler, Jr./Jason T. Marsh) provide her with this MANDATORY information. Clearly the SHAM/BOGUS/FRIVOLOUS Motion To Stay All Proceedings Pending A ruling On Defendants’ Motion To Dismiss (“Motion to Stay”) and Memorandum In Support Of Motion To Stay All Proceedings Pending A Ruling On Defendants’ Motion To Dismiss (“Memorandum in Support”) of this instant Lawsuit by Named Defendants’ counsel are attempts to EVADE and/or AVOID having to provide the names of additional members of the CONSPIRACIES and CRIMINAL/CIVIL wrongs leveled against Newsome who may also be rightful DEFENDANTS to this lawsuit (i.e. which the required preservations have been made in the COMPLAINT by including “DOES 1 – 100 in their official and individual capacities” should further identities become known during the litigation of this Lawsuit).7. UNDISPUTED is the fact that Page Kruger & Holland, P.A. is a “PRIVATE” company/corporation. Therefore, subject to the provisions of 42 U.S.C. § 1981 and any and all other statutes/laws governing said matters. Plummer vs. Chicago Journeyman Plumbers Local Union No. 130, U.A., 452 F.Supp. 1127 (1978) - . . . plaintiffs action under section pertaining to equal rights under the law would stand. . . [19] Plaintiffs alleging discrimination in employment could have proceeded by first bringing action under civil rights section pertaining to equal rights under the law to avoid any statute of limitations problems. . .or plaintiffs could also have proceeded with separate and independent action under equal rights under the law section . . . [25] Section of Civil Rights Act pertaining to equal rights under the law provides federal remedy against discrimination in PRIVATE employment on the basis of race, whereby claimant may be entitled to legal and equitable relief, irrespective of whether claimant has pursued Title VII administrative remedies. . . . [19] Plaintiffs correctly state that the Supreme Court suggested in Johnson v. Railway Express Agency, supra, 421 U.S. at 465, 95 S.Ct. 1716, that plaintiffs file their section 1981 suit to avoid the tolling of the statute of limitations while the EEOC processes their Title VII charges. Nonetheless, this suggestion does not support the procedure that plaintiffs followed. They filed their Title VII suit, while three plaintiffs were still processing their charges through the EEOC, in order to file in conjunction with their section 1981 action. They then filed two amended complaints after these plaintiffs received right to sue notices. The Court in Johnson v. Railway Express Agency, supra at 466, 95 S.Ct. 1716, stated that section 1981 and Title VII are separate and independent remedies for discrimination. Plaintiffs could have proceeded by first bringing a section 1981 action to avoid any statute of limitations problem. They could then have petitioned the court for a stay of the section 1981 action until the Title VII efforts at conciliation and voluntary compliance had been completed. Id. at 465, 95 S.Ct. 1716. At that point, they could have filed a supplemental pleading pursuant to Fed.R.Civ.P. 15(d), adding the Title VII claim. Plaintiffs could also have proceeded with the separate and independent section 1981 action. They could then have filed their Title VII action after jurisdictional prerequisites had been fulfilled and could have sought consolidation pursuant to Fed.R.Civ.P. 42(a). Plaintiffs procedure of filing their Title VII claims before jurisdictional prerequisites had been completed certainly did not provide an orderly procedure. Their continued updating with respect to the satisfaction of Title VII jurisdictional prerequisites resulted in two amendments to the complaint and five rounds of complex briefing. – See EXHIBIT “11” – Plummer matter attached hereto and incorporated by reference as if set forth in full herein.8. UNDISPUTED is the fact that Defendants’ Motion to Dismiss and supporting Memorandum Brief in this lawsuit is premised on claims brought under 42 U.S.C. § 1983 against “STATE” and/or “Government” employers/officials/employees. UNISPUTED is the fact that Newsome’s instant lawsuit Page 5 of 39
  • 7. is a premised on 42 U.S.C. § 1981 – Equal Rights Under The Law which allows for one to “to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens . . .” Therefore, NOT even with a MAGNIFYING GLASS will a JURY and Court find any such § 1983 claims as asserted by the Defendants in this lawsuit.9. UNDISPUTED is the fact that as with Defendants’ Motion to Dismiss and supporting Memorandum Brief in this lawsuit their recent filings requesting Staying of action also appears to have been taken from their Counsel’s FORMS Pleading Manual and or that of its CONSPIRING outside Law Firms with an interest in this lawsuit (EMPHASIS added). Furthermore, the frivolous allegations asserted by Defendants and their Counsel clearly are IRRELEVANT and: (i) an insufficient defense to the Complaint filed by Newsome; (ii) redundant; (iii) immaterial; (iv) impertinent and/or (v) scandalous and provided for purposes of delay, harassment, obstructing justice, embarrassment, sham/frivolousness, commit fraud upon this Court, and other reasons known to Defendants and their Counsel.10. Named Defendants’ filing of Motion to Stay and Memorandum In Support it appears are FRIVOLOUS efforts to keep Newsome out of their “TREASURE CHEST” and efforts to deprive her of “INITIAL DISCLOSURE” information MANDATORILY required to be released to Newsome pursuant to Rule 26 of the Federal Rules of Civil Procedure. Moreover, FRIVOLOUS attempts by Named Defendants and their counsel (Phelps Dunbar/W. Thomas Siler, Jr./Jason T. Marsh) to UNLAWFULLY/ILLGALLY withhold the release of Insurance information MANDATORILY required to be released pursuant to Rule 26 (a)(1)(A)(iv) of the FRCP. See EXHIBIT “2” – FRCP Rule 26 attached hereto and incorporated by reference as if set forth in full herein. Furthermore, according to information contained in Defendant Page Kruger & Holland’s Corporate Annual Reports filed with the State of Mississippi – Secretary of State it provides information regarding “Stocks Shares Authorized, Issued & Outstanding” which reflects, for instance, from approximately August 2006 through January 2012 the issuance of THEIR Stock Shares from approximately 7,400 to 9,000. See EXHIBIT “66” – Page Kruger & Holland Corporate Annual Reports attached hereto and incorporated by reference as if set forth in full herein. http://www.slideshare.net/VogelDenise/page-kruger-holland-phelps-dunbar-clients The Fifth Circuit Court of Appeal in Hall vs. Aetna Casualty and Surety Company, 617 F.2d 1108 (5th Cir. 1980) finding: Fact that defendant insurer furnished a version of its policy including special endorsements referring to an exclusion allegedly applicable to plaintiffs claim did not put plaintiff on notice of the exclusion since insurers duty was to produce entire contract on pretrial discovery and although it did so the subject special endorsement by itself was incomprehensible in that it was not reference to any particular coverage. See EXHIBIT “12” – Hall matter attached hereto and incorporated by reference as if set forth in full herein. Other Court Courts finding: Page 6 of 39
  • 8. Excelsior College v. Frye, 233 F.R.D. 583 (2006) - Holdings: The District Court, Papas, United States Magistrate Judge, held that: (1) discovery rule mandating disclosure of insurance information merely requires the disclosure of an insurance policy or other agreement that gives rise to an insurers obligation to indemnify or hold its insured harmless for a judgment . . . [1] A plain reading of discovery rule governing mandatory disclosure of insurance information indicates it is clearly designed for parties to produce documentation of any insurance policies that give rise to an insurers obligation to indemnify or hold its insured harmless for a judgment. See EXHIBIT “12” – Excelsior College matter attached hereto and incorporated by reference as if set forth in full herein. Woldum v. Roverud Construction, Inc., 43 F.R.D. 420 (1968) - On defendants objections to interrogatories asking whether defendant carried liability insurance at time of accident, name and address of insurer, name of insured, and amount of coverage, on grounds that they were an attempt to inquire into privileged matters, and were incompetent, irrelevant and immaterial. The District Court, McManus, Chief Judge, held that permitting discovery of existence and amount of insurance coverage would better further word and spirit of federal discovery rules than to deny it. Objections overruled. [1] Interrogatories asking whether defendant carried liability insurance at time of accident, the name and address of insurer, the name of insured, and amount of coverage were not improper on grounds that they were an attempt to inquire into privileged matters, and were incompetent, irrelevant and immaterial. Fed.Rules Civ.Proc. Rule 1, 28 U.S.C.A. [2] Overriding purpose of federal discovery rules is to promote full disclosure of all facts to aid in fair, prompt and inexpensive disposition of lawsuits. Fed.Rules Civ.Proc. Rule 1, 28 U.S.C.A. [3] Permitting discovery of existence and amount of insurance coverage would better further word and spirit of federal discovery rules than to deny it. Fed.Rules Civ.Proc. Rule 1, 28 U.S.C.A. [1] In this action damages are sought for . . . injuries allegedly suffered by plaintiff . . . by an employee of defendant. The interrogatories in question ask whether defendant carried liability insurance at the time of the accident, the name and address of the insurer, the name of the insured, and the amount of coverage. Defendant objects on the grounds that said interrogatories are ‘an attempt to inquire into privileged matters, not proper interrogatories, incompetent, irrelevant and immaterial.’ [2] [3] . . . It is this courts view that the better rule is that taken by courts allowing discovery. E. g., Slomberg v. Pennabaker, 42 F.R.D. 8 (M.D.Pa.1967); Cook v. Welty, 253 F.Supp. 875 (D.D.C.1966); Ash v. Farwell, 37 F.R.D. 553 (D.Kan.1965); 41 A.L.R.2d 968 and Supplement Service. The overriding purpose of the federal discovery rules is to promote full disclosure of all facts to aid in the fair, prompt and inexpensive disposition of lawsuits. Rule 1, F.R.Civ.P., requires that the federal rules ‘be construed to secure the just, speedy, and inexpensive determination of every action.’ It would seem that permitting discovery of the existence and amount of coverage better furthers the word and spirit of the rules than to deny it. It is therefore ordered Defendants Objections to Interrogatories, filed December 29, 1967, are overruled. See EXHIBIT “13” – Woldum matter attached hereto and incorporated herein by reference as if set forth in full herein. 11. For this Court to grant Defendants’ Motion to Dismiss, Newsome would be prejudiced and deprived equal protection of the laws, equal immunities and privileges and due process of laws. Rights secured/guaranteed under the United States Constitution and other governing laws.A. JURISDICTIONAL/STATUTE OF LIMITATIONS: Page 7 of 39
  • 9. Walton v. Utility Products, Inc., 424 F.Supp. 1145 (D.C.Miss. 1976 ) - (n.1) Since statute guaranteeing equal rights under the law contains no statute of limitations, period of limitations applicable to action under statute is determined by reference to most analogous statute of limitations in force in state in which cause of action arises. 42 U.S.C.A. § 1981.2 See EXHIBIT “14” - Walton v. Utility Products, Inc. attached hereto and incorporated herein by reference as if set forth in full herein. This citation is not new to the Defendants in this lawsuit in that it is addressed at Footnote (“Fn.”) 6 at page 7 of the Complaint. Along with other case law provided in: Heath v. D. H. Baldwin Co., 447 F.Supp. 495 (N.D.Miss.Greenville.Div., 1977) - General six-year statute of limitations in Mississippi was applicable to suit by . . .employee against employer . . . claiming racial discrimination. Code Miss. 1972, § 15-1-49; 42 U.S.C.A. § 1981. Howard v. Sun Oil Co., 294 F.Supp. 24 (S.D.Miss.Hattiesburg.Div.,1967) - Ordinarily, suit in tort for damages brought more than six years after commission of tort is barred by Mississippi six-year statute of limitations. Code Miss.1942, § 722. See Fn.6 at page 7 of Complaint filed in this instant lawsuit. Moreover, EXHIBITS “15” – Heath and “16” – Howard respectively attached hereto and incorporated by reference as if set forth in full herein. Newsome having highlighted information that is PERTINENT and RELEVANT in that it goes to the relief of SANCTIONS that Newsome seeks of and against Defendants and/or their Counsel – i.e. supports what facts, evidence and legal conclusions were available at the time of their preparation of the Motion to Stay [Doc. No. 9] and supporting Memorandum Brief [Doc. No. 10] submitted in this lawsuit. 12. Newsome believes this Court upon receipt of the Complaint in this lawsuit, may have reviewed the “CIVIL COVER SHEET” and statements provided under “JURISDICTION” of Complaint and determined arguments to be well-founded and proceeded to file Newsome’s lawsuit. Truvillion vs. Kings Daughters Hospital, 614 F.2d 520 (5th Cir. Miss. 1980) - . . .(4) claim against employer grounded on civil rights statute was governed by Mississippi six-year catchall statute of limitations rather than three-year statute of limitations governing unwritten contracts. . . . [6] Job discrimination suit filed under civil rights statute was governed by Mississippi six-year catchall statute of limitations, rather than three-year statute of limitations governing unwritten contracts. . . [6] . . ."(a) person suing under Section 1981 to enforce his right to be free of discrimination predicates his claim on the right to contract guaranteed in the statute. The 2 [1] The court rejects defendants contention that the three-year limitations period of Miss.Code Ann. § 15-1-29 (1972) barsplaintiffs section 1981 claim. Defendant correctly states that since section 1981 contains no statute of limitations, the applicable period oflimitations is determined by reference to the most analogous statute of limitations in force in the state in which the cause of action arises. Section15-1-29 pertains to actions founded on implied contracts. . . . (n. 2) Under law of Mississippi, general six-year period of limitations rather than three-year period of limitations whichapplies to action founded on implied contracts and action to recover back pay governs employment discrimination suit charging violation offederal statute guaranteeing equal rights under the law. 42 U.S.C.A. § 1981; Code Miss.1972, §§ 15-1-29, 15-1-49. (n. 3) Under law of Mississippi, three-year statute of limitations applicable to action seeking recovery of back wages acts aslimitation upon back pay liability of employer charged with racial discrimination but does not operate to bar entire back pay claim or claim fordeclaratory or injunctive relief. 42 U.S.C.A. § 1981; Code Miss.1972, § 15-1-29. (n. 4) Under law of Mississippi, employees claim against employer charging violation of federal statue guaranteeing equalrights, filed within six years of alleged racial discrimination, was not time barred. Code Miss.1972, § 15-1-49; 42 U.S.C.A. § 1981. [2] [3] [4] This court is of the opinion that the reasoning . . . is equally applicable to a section 1981 employment discriminationaction. As there is no Mississippi statute of limitations for civil rights actions, or a specific Mississippi statue of limitations for actions analogousto actions based on racial discrimination in employment, the general six-year period of limitations provided by Miss.Code Ann. § 15-1-49,rather than the three-year period provided by section 15-1-29, determines the time within which a section 1981 employment discrimination suitmust be filed. As noted previously, section 15-1-29 does act as a limitation upon an employers back pay liability, but it does not operate to barthe entire back pay claim, or a claim for declaratory or injunctive relief.FN1 Since plaintiff filed his section 1981 claim well within the six-yearperiod, defendants motion to dismiss this portion of the complaint must be denied. [5] The court also does not agree with defendants contention that Title VII relief is precluded because of plaintiffs failure to file thisaction within 90 days of receipt of the EEOC failure of conciliation notice. . . . Defendants motion to dismiss the Title VII aspects of plaintiffscomplaint is accordingly denied. Page 8 of 39
  • 10. contractual nature of claim under Section 1981 dictates application. . . But the statutory right Ms. Truvillion asserts is not the right to enforce an unwritten contract as the district court assumed . . . Because Mississippi has no statute of limitations designed to cover actions seeking redress for the tort of employment discrimination, the States catch-all statute is applicable. [FN16] See Heath v. D.H. Baldwin Co., N.D. Miss. 1979, 447 F.Supp. 495, 504; Walton v. Utility Products, Inc., N.D. Miss. 1976, 424 F.Supp. 1145, 1147. The statute runs for six years, and does not bar Ms. Truvillions claim. FN16. The statute provides: All actions for which no other period of limitation is prescribed shall be commenced within six years next after the cause of such action accrued, and not after. See EXHIBIT “17” – Truvillion matter attached hereto and incorporated by reference as if set forth in full herein.13. The filing of this lawsuit should come as no surprise to Defendants Page Kruger & Holland, P.A. (“PKH”), Thomas Y. Page (“TPage”), Louis G. Baine III (“LBaine”), and Linda Thomas. (“LThomas”) [collectively known as “Named Defendants”] because the record evidence will support that as early as May 16, 2006, Named Defendants were timely, properly and adequately notified of Newsome’s intent to bring a lawsuit. See EXHIBIT “18” – Newsome’s May 16, 2006 Email to Named Defendants attached hereto and incorporated by reference as if set forth in full herein. Said email which states in part: In that I believe that I have been unlawfully terminated, I am requesting that PKH PRESERVE my employment records, any other documents, audio, etc. regarding my employment and reasons for termination. In that PKH was given an opportunity to provide me with written documentation as to their reasons for my termination, I will only conclude that any other reasons which may be offered AFTER the fact/termination will be PRETEXT in nature - provided in an effort to COVER- UP/SHIELD PKHs unlawful employment action taken against me. Said email was also provided with the Complaint in this lawsuit at Exhibit VI. It is an UNDISPUTED fact that Named Defendants ACKNOWLEDGE referenced statement as sufficient NOTIFICATION on Newsome’s intent to bring suit and/or legal action regarding her termination. The U.S. Supreme Court finding: Burnett v. New York Cent. R. Co., 85 S.Ct. 1050 (1965) - Statutes of limitations are designed primarily to assure fairness to defendants; they promote justice by preventing surprises through revival of claims that have been allowed to slumber until evidence has been lost, memories have faded, and witnesses have disappeared. Policy of repose, designed to protect defendants, is frequently outweighed where interests of justice require vindication of plaintiffs rights. Beach v. Ocwen Federal Bank, 118 S.Ct. 1408 (1998) - The object of a statute of limitation in keeping stale litigation out of the courts would be distorted if statute were applied to bar otherwise legitimate defense to timely lawsuit, for limitation statutes are aimed at lawsuits, not at consideration of particular issues in lawsuits. [EMPHASIS ADDED]. Named Defendants CANNOT say that evidence was lost and/or assert memories have faded, etc. because they were timely, properly and adequately requested to PRESERVE the record. Named Defendants and their counsel’s FRIVOLOUS assertion alleging § 1983 claims NOT provided in Newsome’s Complaint clearly supports their KNOWLEDGE that any attacks against Newsome’s claims as being TIME BARRED is (i) an insufficient defense to the Complaint filed by Newsome; (ii) redundant; (iii) immaterial; (iv) impertinent and/or (v) scandalous and provided for purposes of delay, harassment, obstructing justice, embarrassment, sham/frivolousness, commit fraud upon this Court, and other reasons known to Defendants and their Counsel. Furthermore, the record evidence will support that Named Defendants and their counsel have been WELL ENGAGED in CONTINUED and ONGOING conspiracies and criminal/civil wrongs leveled against Newsome since her unlawful/illegal termination of employment and TO DATE have NOT ceased from engaging in such unlawful/illegal practices. Page 9 of 39
  • 11. 14. It is well-settled by the court(s) that claims and/or cause of action is the determining factor as to which statute-of-limitation is applicable: King v. Otasco, Inc., 861 F.2d 438 (5th Cir.Miss.,1988) - When suit alleges several distinct causes of action, even if they arise from single event, applicable limitations period must be determined by analyzing each cause of action separately, rather than by determining “essence” of plaintiffs claims considered as a whole. Plaintiffs cannot be allowed to obtain trials for intentional tort claims after statute of limitations has barred them merely by engaging in artful pleading; if however, claim can plausibly withstand motion to dismiss or for summary judgment, it cannot be treated as mere rewording of barred claim, and thus, instead of probing for essence of suit, district court should analyze each claim on its own merits. Alexander v. Taylor, 928 So.2d 992 (Miss.App.,2006) - What limitations statute or statutes apply is determined from an examination of the claims that are made. Shaw v. McCorkle, 537 F.2d 1289 (5th Cir.Miss.,1976) - In choosing applicable state statute of limitations to apply to action brought under civil rights statute, court must ground its decision on the basis of which statute will best effectuate the congressional policies underlying the civil rights statute. In this instant lawsuit Newsome brings the following Counts and claims, facts, evidence and legal conclusions to sustain them will support that Newsome’s claims are subject to the six-year statute of limitation and are not barred – while some of the Counts may be misnumbered, it has NO bearing on the claims, facts and legal conclusions provided by Newsome to support her Complaint. Moreover, misnumbering is a MINOR issue which can be corrected through an Amended Complaint should it be deemed necessary. The supporting statements of claims are set forth in PARAGRAPHS in the Complaint and are DISTINCTLY numbered as required by the Rules/Statutes governing said matters. The Counts being as follows: Count I - 42 USC § 1981: Equal Rights Under The Law Against Defendants; Count II - 42 USC § 1985: Conspiracy To Interfere With Civil Rights and 42 USC § 1981: Equal Rights Under The Law Against Defendant(s); Count III - 42 USC § 1986: Action For Neglect To Prevent and 42 USC § 1981: Equal Rights Under The Law Against Defendant(s); Count IV - Negligent Interference with Employment and 42 USC § 1981: Equal Rights Under The Law Against Defendant(s); Count V - Discrimination in Employment and 42 USC § 1981: Equal Rights Under The Law Against Defendant(s); Count II [Sic] – Retaliation and 42 USC § 1981: Equal Rights Under The Law Against Defendant(s); Count IIIII [Sic] - Breach Of Express Employment Agreement 42 USC § 1981: Equal Rights Under The Law Against Defendant(s); Count VIII – Breach Of The Covenant Of Good Faith And Fair Dealing 42 USC § 1981: Equal Rights Under The Law Against Defendant(s); Count IX – Negligent Infliction Of Emotional Distress and 42 USC § 1981: Equal Rights Under The Law Against Defendant(s); Count X – Fraud Against [sic] and 42 USC § 1981: Equal Rights Under The Law Against Defendant(s); Count XI – Negligent Interference With Employment – Malicious Conspiracy To Cause Discharge From Employment and 42 USC § 1981: Equal Rights Under The Law Against Defendant(s); Count IVII – Violation of the Fourteenth Amendment of the U.S. Constitution – Due Process and 42 USC § 1981: Equal Rights Under The Law; and Count VII – Violation of the Fourteenth Amendment of the U.S. Constitution – Equal Protection and 42 USC § 1981: Equal Rights Under The Law Against Defendant(s) I. MOTION TO STRIKE/ CONSOLIDATION OF DEFENSES Pendleton County v. Amy, 80 U.S. 297 (1871) - Defendants pleas which were inartistically framed and were argumentative and set up nothing which could not have been taken advantage of for what it was worth under the general issue might have been stricken from the record on motion. Brown v. Lamb, 112 Ohio App. 116, 171 N.E.2d 191 (1960) - (n.4) Motions to strike pleadings and papers from the files are ordinarily employed to strike pleadings for failure to comply with previous orders . . . or to test its form with respect to certification, and the office of such motions is not to inquire into the merits of the case. Page 10 of 39
  • 12. (n.8) A pleading is “frivolous” when it is clearly insufficient on its face and does not controvert material points of the opposite pleading and is presumably interposed for mere purposes of delay or to embarrass the opponent. Sherrill v. Stewart, 21 So.2d 11 (Miss.,1945) - A “frivolous pleading” is one so clearly untenable or the insufficiency of which is so manifest upon bare inspection of pleading that court is able to determine its character without argument or research. McDowell v. Minor, 131 So. 278 (Miss.,1930) - Where pleading is manifestly sham and frivolous, motion to strike is available. Pursuant to Rule 12 (F) of the Federal Rules of Civil Procedure, Newsome through this MTS-MTSTAY&MFR11SDEFAULT moves this Court to strike the statements, contents and any supporting exhibits ofDefendants’ Motion To Stay All Proceedings Pending A ruling On Defendants’ Motion To Dismiss and MemorandumIn Support Of Motion To Stay All Proceedings Pending A Ruling On Defendants’ Motion To Dismiss. Under saidRule it states: Rule 12(F) Motion to Strike. The Court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter. The court may act: (1) on its own; or (2) on motion made by a party either before responding to the pleading or, if a response is not allowed, within 20 days after being served with the pleading.Therefore, in an effort to provide specificity Newsome moves for the striking of contents/statements in Defendants’Motion to Stay and the supporting Memorandum In Support in that the asserted Rule 12 (b)(6) Motion to Dismiss andits Memorandum Brief are IRRELEVANT and IMMATERIAL to this instant lawsuit. In further support of thisinstant MTS-MTSTAY&MFR11SDEFAULT, Newsome moves this Court to strike the contents/statements for thefollowing reasons: A. MOTION TO STAY ALL PROCEEDINGS PENDING A RULING ON DEFENDANTS’ MOTION TO DISMISS (“MOTION TO STAY”) The entire contents of “Motion to Stay” which include; however, is not limited to the Style and Headings ofsaid pleading in that it is: (ii) redundant; (iii) immaterial; (iv) impertinent and/or (v) scandalous and provided forpurposes of delay, harassment, obstructing justice, increasing costs of litigation, embarrassment, sham/frivolousness,unduly burdensome, provided for purposes of committing fraud upon this Court, and other reasons known toDefendants and their Counsel and the following: 15. Opening paragraph on Page 1 which begins with “COME NOW, Defendants, Page Kruger & Holland, P.A. (“PKH”), Thomas Y. Page, Louis G. Baine, III, and Linda Thomas” in that it is - (ii) redundant; (iii) immaterial; (iv) impertinent and/or (v) scandalous and provided for purposes of delay, harassment, obstructing justice, increasing costs of litigation, embarrassment, sham/frivolousness, unduly burdensome, provided for purposes of committing fraud upon this Court, and other reasons known to Defendants and their counsel (Phelps Dunbar LLP, W. Thomas Siler, Jr. and Jason T. Marsh Page 11 of 39
  • 13. [hereinafter, “Phelps Dunbar,” “Siler” and/or “Marsh”)] hereinafter collectively known as “STRICKEN STATEMENT CLAUSE.”16. ¶1 on Page 1 which begins with, “Because Plaintiff filed her claims against Defendants six years after they accrued” and the referenced Footnote 1 in that they are - “STRICKEN STATEMENT CLAUSE.” Heath vs. D. H. Baldwin Company, 447 F.Supp. 495 (N.D. Miss. 1977) - . . . (4) Mississippi six- year statute of limitations was applicable to action under Civil Rights Act of 1870 . . . [5] General six-year statute of limitations in Mississippi was applicable to suit by laid off employee aganst employer and union claiming racial discrimination. Code Miss. 1972, § 15-1-49; 42 U.S.C.A. § 1981. . . . For the reasons set forth by Chief Judge Keady in Walton v. Utility Products, Inc., 424 F.Supp. 1145, 1147, (N.D. Miss. 1976) the court finds that the 6-year limitation period of Miss. Code Ann. s 15-1-49 (1972) is applicable and therefore Heaths s 1981 claim was timely filed. Defendants motion to dismiss the s 1981 claim is not well taken and will be denied. To date, Newsome’s July 14, 2012 MOTION TO STRIKE MOTION TO DISMISS AND MEMORANDUM I N SUPPORT OF MOTION TO DISMISS; MOTION FOR RULE 11 SANCTIONS OF AND AGAINST DEFENDANTS; AND MOTION FOR DEFAULT JUDGMENT (JURY TRIAL DEMANDED IN THIS ACTION) which is supported by FACTS, EVIDENCE and LEGAL CONCLUSIONS remains UNCONTESTED!17. ¶2 on Page 2 which begins with, “For the reasons fully set forth in corresponding Memorandum in Support” in that it is - “STRICKEN STATEMENT CLAUSE.” To date, Newsome’s July 14, 2012 MOTION TO STRIKE MOTION TO DISMISS AND MEMORANDUM I N SUPPORT OF MOTION TO DISMISS; MOTION FOR RULE 11 SANCTIONS OF AND AGAINST DEFENDANTS; AND MOTION FOR DEFAULT JUDGMENT (JURY TRIAL DEMANDED IN THIS ACTION) which is supported by FACTS, EVIDENCE and LEGAL CONCLUSIONS remains UNCONTESTED!18. ¶3 on Page 2 which begins with, “In further support of this Motion, Defendants submit the following exhibit” and the supporting “Exhibit ‘A’ – Email from Vogel Newsome” in that it is - “STRICKEN STATEMENT CLAUSE.” UNDISPUTED is the fact that Named Defendants and their counsel resort to EXTRAJUDICIAL matters and rely upon an UNLAWFUL/ILLEGAL Order in another lawsuit in which the Magistrate Judge CLEARLY LACKED Jurisdiction to enter and CANNOT be upheld in that it appears from review of Docket Sheet in Newsome vs. Mitchell McNutt & Sams, at Doc. No. 2 that OBJECTION to Magistrate assignment was timely, properly and adequately made known to that court. See EXHIBIT “19” – Docket Sheet Mitchell McNutt & Sams matter attached hereto. UNDISPUTED is the fact that while Named Defendants and their counsel rely upon an ORDER which it appears from the record evidence may have been obtained through CRIMINAL acts – i.e. BRIBES, EXTORTION, COERCION, BLACKMAIL, SPECIAL FAVORS, etc. – and DELIBERATELY FAILS to make KNOWN Magistrate Judge F. Keith Ball’s EMPLOYMENT history with counsel in this lawsuit (Phelps Dunbar) as well as his TIES/ROOTS/CONNECTIONS with Phelps Dunbar’s CONSPIRING Law Firm (Baker Donelson Bearman Caldwell & Berkowitz). Moreover, the FACT of how Baker Donelson Bearman Caldwell & Berkowitz (“Baker Donelson”) relies upon “FRONTING FIRMS” as Phelps Dunbar - who SHARE clients (i.e. such as Entergy – see for instance Phelps Dunbar’s Client Listing at EXHIBIT “20” and the Docket Sheet in Newsome vs. Entergy at EXHIBIT “21” respectively attached hereto and incorporated by reference as if set forth in full herein) - to enter Lawsuits involving Newsome for purposes of SHIELDING an ILLEGAL ANIMUS and HIDING their IDENTITY and their and their clients’ INTERESTS from the PUBLIC/WORLD!19. On Page 2, paragraph which begins with, “WHEREFORE, PREMISES CONSIDERED, Defendants, Page Kruger & Holland, P.A.” in that it is - “STRICKEN STATEMENT CLAUSE.” To date, Newsome’s July 14, 2012 MOTION TO STRIKE MOTION TO DISMISS AND MEMORANDUM I N SUPPORT OF MOTION TO DISMISS; MOTION FOR RULE 11 SANCTIONS OF AND AGAINST DEFENDANTS; AND Page 12 of 39
  • 14. MOTION FOR DEFAULT JUDGMENT (JURY TRIAL DEMANDED IN THIS ACTION) which is supported by FACTS, EVIDENCE and LEGAL CONCLUSIONS remains UNCONTESTED! 20. On Page 2, the remaining contents of the Motion to Dismiss in that it is - “STRICKEN STATEMENT CLAUSE.” 21. On Page 3, the Certificate of Service and the contents therein in that it is - “STRICKEN STATEMENT CLAUSE.” 22. “Exhibit A” in that it is - “STRICKEN STATEMENT CLAUSE.” See also ¶ 18 above of this instant pleading. Now that the statutes/laws governing said matters require the STRIKING of the entire contents, statements,exhibits, etc. as noted above, there remains NO legal/lawful pleading of record. Therefore, Newsome is entitled tothe relief (Rule 11 Sanctions and DEFAULT Judgment, etc.) sought herein. B. MEMORANDUM IN SUPPORT OF MOTION TO STAY ALL PROCEEDINGS PENDING A RULING ON DEFENDANTS’ MOTION TO STAY (“MEMORANDUM IN SUPPORT”) The Striking of entire contents in “Memorandum In Support” which include; however, is not limited to theStyle and Headings of said pleading in that it is: (ii) redundant; (iii) immaterial; (iv) impertinent and/or (v) scandalousand provided for purposes of delay, harassment, obstructing justice, increasing costs of litigation, embarrassment,sham/frivolousness, unduly burdensome, provided for purposes of committing fraud upon this Court, and otherreasons known to Named Defendants and their counsel (Phelps Dunbar LLP, W. Thomas Siler, Jr. and Jason T.Marsh [hereinafter, “Phelps Dunbar,” “Siler” and/or “Marsh”)] hereinafter collectively known as “STRICKENSTATEMENT CLAUSE.” In support thereof, Newsome states the following: 23. On the first unnumbered page, the opening paragraph which begins with, “COME NOW, Defendants, Page Kruger & Holland, P.A. (“PKH”)” in that it is - “STRICKEN STATEMENT CLAUSE.” To date, Newsome’s July 14, 2012 MOTION TO STRIKE MOTION TO DISMISS AND MEMORANDUM I N SUPPORT OF MOTION TO DISMISS; MOTION FOR RULE 11 SANCTIONS OF AND AGAINST DEFENDANTS; AND MOTION FOR DEFAULT JUDGMENT (JURY TRIAL DEMANDED IN THIS ACTION) which is supported by FACTS, EVIDENCE and LEGAL CONCLUSIONS remains UNCONTESTED! 24. On first unnumbered page, “I. INTRODUCTION” and paragraph which begins with, “Because Plaintiff filed her claims against Defendants six years after they accrued” along with the referenced Footnote 1 and the contents therein which begins with, “In her Complaint, Plaintiff asserts a litany of federal constitutional claims” in that they are - “STRICKEN STATEMENT CLAUSE.” UNDISPUTED is the fact that Newsome’s Complaint has been filed within six-years. UNDISPUTED is the fact that Named Defendants are PRIVATE actors. UNDISPUTED is the fact that Newsome’s Complaint is premised upon 42 U.S.C.A. § 1981 claims and NOT 42 U.S.C.A. § 1983 claims. Therefore, § 1981 implicitly creates an independent cause of action AGAINST PRIVATE actors because no other statute created such a remedy; moreover, the acts of Named Defendants are “CONTINUING” acts to date in which the statute of limitations CONTINUES to run and/or restarts with EACH overt act. Page 13 of 39
  • 15. UNDISPUTED is the fact, that Newsome’s instant lawsuit has been filed within the six-year statute oflimitation governing said matters but also within the six-year statute of limitation period in that, asevidenced in this instant lawsuit, Named Defendants and their counsel CONTINUE to engage inconspiracies that affect Newsome’s “EQUAL Rights Under the Laws!” Therefore, with EACH overtact by Named Defendants, Newsome’s claims become subject to “TOLLING” doctrine requirements.This is PERTINENT and RELEVANT information KNOWN to Named Defendants and/or their counsel(Phelps Dunbar/Siler/Marsh). For instance, see one of PHELPS DUNBAR’S cases – Walker vs. Epps,550 F.3d 407 (5th Cir. Miss. 2008): Under Mississippi law, “continuing tort,” for which limitations period resets at each wrongful act, is one inflicted over period of time; it involves wrongful conduct that is repeated until desisted. See EXHIBIT “22” – Walker matter attached hereto and incorporated by reference.UNDISPUTED is the fact that PKH is involved in the Newsome vs. Spring Lake Apartment matter.Which as recent as July 2008 (i.e. approximately FOUR [4] years ago] Newsome had to have removedfrom that court and is a matter that Newsome is presently working on through the continued MASSIVEConspiracies leveled to obstruct said matter. Continued tort claims are timely, properly and adequatelyasserted in Newsome’s Complaint filed in this instant lawsuit: ¶5 Pg. 21 ¶(xii) Pg. 63 ¶214-216 Pg. 94 ¶278 Pg. 121 ¶(xii) Pg. 22 ¶165 Pg. 70 ¶217 Pg. 95 ¶1 Pg. 122 ¶105 Pg. 41 ¶170 Pg. 71 ¶l Pg. 96 ¶292 Pg. 127 ¶¶106, 107 Pg. 43 ¶175 Pg. 73 ¶ 233-235 Pg. 108 ¶296 Pg. 127 ¶110 Pg. 47 ¶176 Pg. 74 ¶237, 238 Pg. 109 ¶297 Pg. 130 ¶117 Pg. 48 ¶177 Pg. 75 ¶m Pg. 111 ¶298 Pg. 130 ¶119 Pg. 49 ¶(xii), (xvii) Pg. 77 ¶245 Pg. 112 ¶1 Pg. 131 ¶ (xii) Pg. 51 ¶188 Pg. 82 ¶253, 259 Pg. 114 ¶136 Pg. 60 ¶197 Pg. 85 ¶260 Pg. 115 ¶138-139 Pg. 61 ¶198-199 Pg. 87 ¶261 Pg. 116 ¶140 Pg. 62 ¶l Pg. 89 ¶l Pg. 117To date, Newsome’s July 14, 2012 MOTION TO STRIKE MOTION TO DISMISS AND MEMORANDUM I NSUPPORT OF MOTION TO DISMISS; MOTION FOR RULE 11 SANCTIONS OF AND AGAINST DEFENDANTS; ANDMOTION FOR DEFAULT JUDGMENT (JURY TRIAL DEMANDED IN THIS ACTION) which is supported byFACTS, EVIDENCE and LEGAL CONCLUSIONS remains UNCONTESTED!Furthermore, it is UNDISPUTED that Named Defendants’ Motion to Dismiss (i.e. in that it appears intheir TRICKERY in the use of the pen/computer, it appears that the relief sought may be that ofsummary judgment) and Motion to Stay are NOT supported by Affidavits because they have FULLKNOWLEDGE that their Motions have been submitted in bad faith and/or for purposes of delay,harassment, obstructing justice, increasing costs of litigation, embarrassment, sham/frivolousness,unduly burdensome, provided for purposes of committing fraud upon this Court, and other reasonsknown to Named Defendants and their counsel. Myers v. Mississippi Office of Capital Post-Conviction Counsel, 720 F.Supp.2d 773 (S.D. Miss. Jackson 2010) - Section 1981 implicitly creates an independent cause of action against private actors because no other statute created such a remedy, but does not create any right of action against state actors separate from § 1983. 42 U.S.C.A. §§ 1981, 1983. Tramble v. Converters Ink Co., 43 F.Supp. 1350 (1972) - [2] Civil rights statute generally guaranteeing equal rights under the law applies to private job discrimination based on race and is not limited to acts under color of state law. 42 U.S.C.A. § 1981.Moreover, it appears that Named Defendants are eyeing cases outside this lawsuit involving Newsome;therefore, a reasonable mind/person may conclude that from the Newsome vs. Mitchell McNutt & Samsmatter [USDC Southern District of Mississippi/Jackson, 3:10-cv-704], filed approximately SIX-YEARSfrom the date of her termination with Mitchell McNutt & Sams (“MMS”) – i.e. termination date beingapproximately December 3, 2004, and Newsome’s lawsuit was received and filed by this Court on orabout December 3, 2010. As with the “MMS” matter, upon reviewing of pleading PRIOR to Page 14 of 39
  • 16. DOCKETING and FILING, this Court was SATISFIED that the Complaint , as in this instant Lawsuit, was ALSO TIMELY filed, the FILING FEE PAID and therefore, DOCKETED the matter.25. On Page 2, continuance of paragraph from first unnumbered page which states, “this matter, as well as preserve important judicial resources” in that it is - “STRICKEN STATEMENT CLAUSE.” To date, Newsome’s July 14, 2012 MOTION TO STRIKE MOTION TO DISMISS AND MEMORANDUM I N SUPPORT OF MOTION TO DISMISS; MOTION FOR RULE 11 SANCTIONS OF AND AGAINST DEFENDANTS; AND MOTION FOR DEFAULT JUDGMENT (JURY TRIAL DEMANDED IN THIS ACTION) which is supported by FACTS, EVIDENCE and LEGAL CONCLUSIONS remains UNCONTESTED!26. On Page 2, “II. FACTUAL BACKGROUND” and paragraph which begins with, “Plaintiff began working for PKH as a temporary legal secretary” along with the referenced Footnotes 2, 3, and 4 as well as the contents therein, in that they are - “STRICKEN STATEMENT CLAUSE.” UNDISPUTED is the NEXUS/CAUSAL Link between Newsome’s March 15, 2006, lawsuit (i.e. in Newsome vs. Spring Lake Apartments LLC, et al. - a protected activity which alleges discriminatory practices, etc.) and PKH’s May 15, 2006 termination (approximately two (2) months later) of Newsome’s employment based on being contacted and notified of her engagement in this lawsuit and/or other protected activities. See EXHIBIT “18” – Newsome’s May 16, 2006 Email attached hereto and incorporated herein by reference as if set forth in full herein. PKH’s termination of Newsome’s employment coming approximately three (3) days prior to hearing/proceedings on or about May 18, 2006, in Newsome vs. Spring Lake Apartments LLC, et al. [EMPHASIS added]. See EXHIBIT “23” – Motion Docket Sheet attached hereto and incorporated by reference. Note: Also provided at Exhibit VII of Complaint filed in this lawsuit. To date, Newsome’s July 14, 2012 MOTION TO STRIKE MOTION TO DISMISS AND MEMORANDUM I N SUPPORT OF MOTION TO DISMISS; MOTION FOR RULE 11 SANCTIONS OF AND AGAINST DEFENDANTS; AND MOTION FOR DEFAULT JUDGMENT (JURY TRIAL DEMANDED IN THIS ACTION) which is supported by FACTS, EVIDENCE and LEGAL CONCLUSIONS remains UNCONTESTED! The prohibited retaliatory practices of PKH were KNOWN at the time Named Defendants counsel (Phelps Dunbar/Siler/Marsh) executed the Motion to Dismiss and supporting Memorandum Brief. For instance see one of PHELP DUNBAR’S cases - Callahan v. Bancorpsouth Ins. Services of Mississippi, Inc., 244 F.Supp.2d 678 (S.D. Miss. S.Div. 2002): [3] Title VII prohibits retaliation in either of two instances: ( 1) where the employee has opposed any unlawful employment practice; or (2) where the employee has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing. Civil Rights Act of 1964, § 704(a), 42 U.S.C.A. § 2000e–3(a). – EXHIBIT “24” Callahan matter attached hereto and incorporated by reference as if set forth in full herein. UNDISPUTED is that Actions brought pursuant to 42 USC § 1981 are governed by the SAME standards applicable to claims raised under Title VII.27. On Page 2, paragraph which begins with, “Plaintiff’s employment with PKH ended on May 15, 2006” along with the referenced Footnotes 5 and 6 as well as the contents therein, in that they are - “STRICKEN STATEMENT CLAUSE.” UNDISPUTED is the fact that this instant lawsuit premised on 42 USC § 1981 claims, etc. was filed within six years of the alleged violations and CONTINUING violations [EMPHASIS added] addressed in this lawsuit. Furthermore, UNDISPUTED is the fact that Newsome’s claims premised on 42 USC § 1981 fall under “all actions for which no other period of limitation is prescribed shall be commenced within six years;” therefore, the six-year statute of limitation under Mississippi’s CATCHALL statute is applicable pursuant to Mississippi Code Ann. § 15-1-49: Gates vs. Spinks, 771 F.2d 916 (5th Cir. S.D. Miss. 1985) - FN1. Although Mrs. Gates formally denominated her complaint as being brought pursuant to “Title 42, U.S.C., Section 1981, et seq.”, Page 15 of 39
  • 17. the substance of the complaint states a cause of action only under section 1983. We therefore treat Mrs. Gates claim as one brought pursuant to § 1983. FN2. Section 15-1-49. Limitations applicable to actions not otherwise specifically provided for - All actions for which no other period of limitation is prescribed shall be commenced within six years next after the cause of such action accrued, and not after. . . . The six-year statute (section 15-1-49) is more general in the sense that it is a general residual statute that applies to a broad class of actions-tort, contract or statutory-not otherwise provided for. A reasonable person/mind may conclude that Named Defendants’ counsel’s KNOWLEDGE that Newsome’s Complaint premised on 42 USC § 1981 claims are subject to the six-year statute of limitations. Therefore, Named Defendants’ counsel has FRIVOLOUSLY attempted to assert 42 USC § 1983 claims – i.e. as evidenced in the “CLUMP” of trashed Opinions dumped on this Court - when no such § 1983 claims are made by Newsome through her Complaint filed in this lawsuit. To date, Newsome’s July 14, 2012 MOTION TO STRIKE MOTION TO DISMISS AND MEMORANDUM I N SUPPORT OF MOTION TO DISMISS; MOTION FOR RULE 11 SANCTIONS OF AND AGAINST DEFENDANTS; AND MOTION FOR DEFAULT JUDGMENT (JURY TRIAL DEMANDED IN THIS ACTION) which is supported by FACTS, EVIDENCE and LEGAL CONCLUSIONS remains UNCONTESTED!28. On Page 2, paragraph which begins with, “Because Plaintiff’s claims are time barred” along with the referenced Footnote 7 as well as the contents therein, in that they are - “STRICKEN STATEMENT CLAUSE.” To date, Newsome’s July 14, 2012 MOTION TO STRIKE MOTION TO DISMISS AND MEMORANDUM I N SUPPORT OF MOTION TO DISMISS; MOTION FOR RULE 11 SANCTIONS OF AND AGAINST DEFENDANTS; AND MOTION FOR DEFAULT JUDGMENT (JURY TRIAL DEMANDED IN THIS ACTION) which is supported by FACTS, EVIDENCE and LEGAL CONCLUSIONS remains UNCONTESTED!29. On Page 2, “III. ARGUMENT AND AUTHORITIES” and paragraph which begins with, “It has long been recognized that “[a] trial court has broad discretion” in that it is - “STRICKEN STATEMENT CLAUSE.” UNDISPUTED is the fact that Named Defendants and their counsel are attempting to “put the cart before the horse.” As a matter of law, NO Responsive Pleading and/or Answer (in accordance to the statutes/laws governing said matters) have been made to Newsome’s Complaint. Therefore, there are NO facts, evidence, NOR legal conclusions to sustain a staying of this action for DISCOVERY purposes. Named Defendants and their counsel have not even gotten off of the home plate to assert first-base privileges and/or defenses regarding DISCOVERY matters. The Discovery process may begin AFTER the filing of a legal/lawful responsive pleading and/or Answer – which in this Lawsuit has NOT been filed. Moreover, the record evidence supports Newsome timely, properly, and adequately NOTIFIED Named Defendants’ through “Waiver of the Service of Summons and Page 16 of 39
  • 18. NOTIFICATION ACCOMPANYING WAIVER OF SERVICE OF SUMMONS” that anyresponsive pleading and/or Answer which did NOT meet the pleading REQUIREMENTS would be metwith a MOTION TO STRIKE! See EXHIBITS “25,” “26,” “27,” and “28” respectively attached heretoand incorporated by reference as if set forth in full herein. Furthermore, the “Notice Of A Lawsuit AndRequest To Waive Service Of A Summons” served on EACH of the Named Defendants NOTIFIEDthem of the PUBLIC/SOCIAL Forums – i.e. such as www.slideshare.net/VogelDenise andhttps://secure.filesanywhere.com/fs/v.aspx?v=8a706b8f58666ebeac6b to be used for theposting/sharing of documents in this Lawsuit [EMPHASIS ADDED]. See EXHIBITS “29,” “30,”“31,” and “32” - “Notice of Lawsuit. . .” ONLY respectively, attached hereto and incorporated byreference as if set forth in full herein.UNDISPUTED is the fact, that it appears that Named Defendants counsel may have had a SNEAKPEEK at Newsome’s July 14, 2012 Motion to Strike posted at: http://www.slideshare.net/VogelDenise/071412-motion-to-strike-page-kruger-holland-matterand then MOVED swiftly TWO (2) days later in efforts of BLINDSIDING the Court and Newsomefiled their SHAM/FRIVOLOUS/BOGUS “Motion to Stay” and supporting “Memorandum in Support”PRIOR to its receipt of Newsome’s Motion to Strike Motion To Dismiss and Memorandum In SupportOf Motion To Dismiss; Motion for Rule 11 Sanctions of and Against Defendants; and Motion for DefaultJudgment (Jury Trial Demanded in this Action) in hopes of obtaining and UNLAWFUL/ILLEGALOrder Staying of this Lawsuit by Magistrate Judge Michael T. Parker who LACKS JURISDICTIONto act in that Newsome has timely, properly and adequately “IN WRITING” notified of herOBJECTIONS to Magistrate Referral as well as OBJECTION to Judge Tom S. Lee.Furthermore, that Named Defendants counsel AGAIN, it appears, resorting to their “Folder of FORMPleadings” and pulled out one addressing DISCOVERY matters – i.e. which IS NOT applicable to thisinstant lawsuit – in efforts of trying to OBSTRUCT the administration of justice and their having tofulfill their MANDATORY OBLIGATIONS to notify parties and/or this Court notifying parties to thisaction of any/all CONFLICTS-OF-INTERESTS pursuant to Mississippi Rules of Professional Conduct(See EXHIBIT “10” attached hereto and incorporated by reference as if set forth in full herein) andother statutes/laws governing said matters. Mississippi Comn on Judicial Performance v. Gibson, 883 So.2d 1155 (Miss.,2004) - “Moral turpitude,” in the context of judicial misconduct, includes, but is not limited to, actions which involve interference with the administration of justice, misrepresentation, fraud, deceit, bribery, extortion, or other such actions which bring the judiciary into disrepute.UNDISPUTED is the fact, that on or about July 14, 2012, Newsome posted in a PUBLIC/SOCIALForum at http://www.slideshare.net/VogelDenise/071412-motion-to-strike-page-kruger-holland-matter her pleadings entitled, PLAINTIFF’ S MOTION TO STRIKE MOTION TO DISMISS ANDMEMORANDUM IN SUPPORT OF MOTION TO DISMISS; MOTION FOR RULE 11 SANCTIONS OF ANDAGAINST DEFENDANTS; AND MOTION FOR DEFAULT JUDGMENT (JURY TRIAL DEMANDED IN THISACTION). See EXHIBIT “33” – ScreenShot of pleading reflecting “POSTING Date.” [EMPHASISADDED].UNDISPUTED is the fact, that on or about July 18, 2012, Newsome submitted Facsimile toNamed Defendants’ counsel entitled, “REQUEST FOR EXPLANATION FOR PHELPSDUNBAR’S/COUNSELS’ KNOWLEDGE OF CONFLICT OF INTEREST AND DELIBERATEFAILURE TO NOTIFY PARTY(S) OF SAME and GOOD FAITH DEMAND THAT PHELPSDUNBAR WITHDRAW PLEADINGS.” See EXHIBIT “34” – July 18, 2012 Facsimile attachedhereto and incorporated by reference as if set forth in full herein. At the time of this instant filing,Named Defendants’ counsel has FAILED to provide Newsome with information MANDATORILYrequired pursuant to Mississippi Rules of Professional Conduct and other statutes/laws governing saidmatters. Page 17 of 39
  • 19. To date, Newsome’s July 14, 2012 MOTION TO STRIKE MOTION TO DISMISS AND MEMORANDUM I N SUPPORT OF MOTION TO DISMISS; MOTION FOR RULE 11 SANCTIONS OF AND AGAINST DEFENDANTS; AND MOTION FOR DEFAULT JUDGMENT (JURY TRIAL DEMANDED IN THIS ACTION) which is supported by FACTS, EVIDENCE and LEGAL CONCLUSIONS remains UNCONTESTED!30. On Page 3, continuance of paragraph from page 2 which states, “Petrus v. Bowen, 833 F.2d 581, 583” and the referenced “Exhibit ‘1’” and the contents therein, in that they are - “STRICKEN STATEMENT CLAUSE.” UNDISPUTED is the fact that NO Responsive Pleading and/or Answer to Newsome’s Complaint, in accordance with the statutes/laws governing said matters, has been filed in this Lawsuit. Furthermore, to date, Newsome’s July 14, 2012 MOTION TO STRIKE MOTION TO DISMISS AND MEMORANDUM IN SUPPORT OF MOTION TO DISMISS; MOTION FOR RULE 11 SANCTIONS OF AND AGAINST DEFENDANTS; AND MOTION FOR DEFAULT JUDGMENT (JURY TRIAL DEMANDED IN THIS ACTION) which is supported by FACTS, EVIDENCE and LEGAL CONCLUSIONS remains UNCONTESTED! UNDISPUTED is the fact that pursuant to Rule 26 of the Federal Rules of Civil Procedure – for instance Rule 26(a)(1)(A), it clearly states in part: RULE 26 - Duty to Disclose; General Provisions Governing Discovery (1) Initial Disclosure. (A) In General. Except as exempted by Rule 26(a)(1)(B) or as otherwise stipulated or ordered by the court, a party must, without awaiting a discovery request, provide to the other parties: (i) the name and, if known, the address and telephone number of each individual likely to have discoverable information—along with the subjects of that information—that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment; (ii) a copy—or a description by category and location—of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, unless the use would be solely for impeachment; (iii) a computation of each category of damages claimed by the disclosing party— who must also make available for inspection and copying as under Rule 34 the documents or other evidentiary material, unless privileged or protected from disclosure, on which each computation is based, including materials bearing on the nature and extent of injuries suffered; and (iv) for inspection and copying as under Rule 34, any insurance agreement under which an insurance business may be liable to satisfy all or part of a possible judgment in the action or to indemnify or reimburse for payments made to satisfy the judgment. See EXHIBIT “2” – Rule 26 of FRCP attached hereto and incorporated by reference as if set forth in full herein. So now with have Named Defendants and their counsel attempting to OBSTRUCT justice in the release of MANDATORY “DISCLOSURE” information as well as their DELIBERATE failure to release such information because of KNOWLEDGE of the EXPOSURE of “Conflict-Of-Interest” that is inevitable and may further EXPOSE their CRIMINAL/CIVIL violations; moreover, ROLE in CONTINUING and ONGOING Conspiracies leveled against Newsome.31. On Page 3, paragraph which begins with, “A stay of discovery is warranted” and the “. . .” in that it is - “STRICKEN STATEMENT CLAUSE.” Furthermore, to date, Newsome’s July 14, 2012 MOTION TO STRIKE MOTION TO DISMISS AND MEMORANDUM IN SUPPORT OF MOTION TO DISMISS; MOTION FOR RULE 11 SANCTIONS OF AND AGAINST Page 18 of 39
  • 20. DEFENDANTS; AND MOTION FOR DEFAULT JUDGMENT (JURY TRIAL DEMANDED IN THIS ACTION) which is supported by FACTS, EVIDENCE and LEGAL CONCLUSIONS remains UNCONTESTED!32. On Page 3, paragraph which begins with, “Courts within the jurisdiction of the Fifth Circuit” in that it is - “STRICKEN STATEMENT CLAUSE.” Furthermore, to date, Newsome’s July 14, 2012 MOTION TO STRIKE MOTION TO DISMISS AND MEMORANDUM IN SUPPORT OF MOTION TO DISMISS; MOTION FOR RULE 11 SANCTIONS OF AND AGAINST DEFENDANTS; AND MOTION FOR DEFAULT JUDGMENT (JURY TRIAL DEMANDED IN THIS ACTION) which is supported by FACTS, EVIDENCE and LEGAL CONCLUSIONS remains UNCONTESTED!33. On page 4, continuance of paragraph from page 3 which states, “dispositive motion. The Magistrate Judge in that case, Honorable F. Keith Ball, granted the stay until the District Court Judge, Honorable Henry T. Wingate,” along with the referenced Footnotes 8 and 9 and the contents therein, in that they are - “STRICKEN STATEMENT CLAUSE.” UNDISPUTED are the following facts that are PERTINENT and RELEVENT to understanding the ONGOING Conspiracies and BLATANT Criminal/Civil violations being carried out by Judges/Magistrate Judges of this Court and opposing counsel in Lawsuits involving Newsome that are matters of SOCIAL/PUBLIC/GLOBAL importance in that it supports the PATTERN-OF- PRACTICE as well as supports NOT only the appearance of IMPROPRIETY but actual IMPROPRIETY by Officers of this Court. A reasonable mind may conclude that this is a “CULTURE” of criminal/civil wrongs ENGRAINED and DEEPLY-ROOTED” in the United States of America’s CORRUPT Judicial System that involve matters that are RACIALLY motivated and matters of PUBLIC Policy/Interests. It is important to note that Named Defendants and their counsel (Phelps Dunbar/W. Thomas Siler, Jr./Jason T. Marsh) DELIBERATELY and with CRIMINAL/CRIMINAL intent fail to advise Newsome of the following PERTINENT and RELEVANT facts: a) Honorable Henry T. Wingate was nominated by former President Ronald Reagan on or about September 11, 1985. See EXHIBIT “58” attached hereto and incorporated by reference as if set forth in full herein. b) Baker Donelson’s employee Howard Henry Baker, Jr. served as CHIEF OF STAFF to United States of America President Ronald Reagan. Served as Senior Majority Leader of the United States Senate. Is currently SENIOR Counsel at Baker Donelson. Descendant of Baker Donelson founder. Founder of Baker Donelson in WASHINGTON, D.C. and London. See EXHIBIT “59” attached hereto and incorporated by reference as if set forth in full herein. c) Honorable Henry T. Wingate confirmed the Honorable F. Keith Ball. See EXHIBIT “60” attached hereto and incorporated by reference as if set forth in full herein. Judge Wingate appointed the Magistrate Selection Panel responsible. See EXHIBIT “61” attached hereto and incorporated by reference as if set forth in full herein. DIRTY-HANDS DEALS: It appears from information found regarding the selection of Magistrate Ball that he may have been PRE-SELECTED. If so, it appears MORE qualified candidates may have been deprived EQUAL employment opportunities as a direct and proximate result of CRIMINAL/CIVIL violations by Judge Wingate, Phelps Dunbar and Baker Donelson to get another one of their judges on the bench for purposes of STACKING the Court. It appears the LEAKING of Magistrate Ball’s selection coming from a source NOT on the Magistrate Selection Panel. Last Monday I reported that Keith Ball has been selected as the new Magistrate Judge for the Southern District. I had heard the news the previous Friday from someone who was not on the Magistrate Selection Panel. Then last Wednesday I heard that one of the Southern District Judges was telling lawyers that no announcement had been made on the selection yet. Page 19 of 39
  • 21. See EXHIBIT “62” attached hereto and incorporated by reference as if set forth in full herein. From Newsome’s research, she found that Judge Wingate is a BLACK-American (i.e. NOT African-American). However, one should NOT be deceived by the fact that Newsome is AFRICAN-American that Judge Wingate would not be engaged in the CRIMINAL practices and CONSPIRACIES, etc. leveled against Newsome. From information that has been found, clearly it appears that the United States District Court – Southern District of Mississippi (Jackson) JUDICIAL panel may be STACKED with CORRUPT/TAINTED/BRIBED, etc. Judges purchased by such firms as Phelps Dunbar, Baker Donelson, Page Kruger & Holland, and others that CONSPIRE with them. Furthermore, the mere fact that Judge Wingate is a BLACK-American does NOT insulate him from RECUSAL. Judge Wingate KNOWS and/or should of KNOWN of his DUTY to RECUSE himself; moreover, the role he is playing in the ONGOING Criminal/Civil violations and CONSPIRACIES leveled against Newsome. Clearly the unlawful/illegal attacks leveled against Newsome are RACIALLY motivated. In re Chevron U.S.A., Inc., 121 F.3d 163 (5th Cir. 1997) - Judge is not insulated from recusal, in racially charged case, merely because he or she is black. 28 U.S.C.A. § 455. It appears Judge Wingate may be known as what is called a “HOUSE NEGRO:” One who has NO sense of his heritage and roots and is ASHAMED to be associated with African Heritage or roots because of what has been depicted in the MEDIA teaching them to hate themselves (i.e. the color of their skin, hair, etc.) and to be ashamed of their looks: http://youtu.be/YtOslGWp13A They are HIGHLY employed by the United States of America Government to serve as HOUSE Negroes/GATEKEEPERS and/or to meet QUOTAS for DECEPTIVE purposes - i.e. to DECEIVE and HIDE from the PUBLIC/WORLD the United States of Americas WHITE Supremacist and RACIST Agenda. HIGHLY employed by Government Agencies to COVER-UP Discriminatory practices in the Government and PRIVATE Sector by WHITE Racist Employers/Supremacists. They are also used to COVER-UP the Corruption and Criminal/Civil wrongs of SYSTEMATIC Discriminatory Practices leveled against AFRICAN-Americans and People of Color that are seen as a THREAT because they are EDUCATED and are STRONG Civil Rights Activists fighting for the cause of their people and EXPOSING the United States of America’s CRIMINAL HERITAGE. http://www.slideshare.net/VogelDenise/criminals-in-our-past HOUSE Negroes/BLACK-Americans are usually individuals NOT qualified to perform jobs they are hired for and are merely put into their positions as “GATE KEEPERS” and a direct and proximate result of SPECIAL FAVORS - i.e. them having to COMPROMISE and DENY morals, values and beliefs. One who will do EVERYTHING possible to FIT IN and be ACCEPTED by White Society. They live in FEAR and have become VERY DEPENDENT on a WHITE-RUN Government DETERMINED to erase and change their IDENTITY and LOOKS. But NO matter how HARD he/she TRIES, they are STILL seen as "BLACK!" It is BLACK- Americans that a White Reporter is SCOFFING at and PRAISING the TERRORISTS Acts (i.e. RAPES, MURDERS, LYNCHING, etc.) of his White Supremacist Counterparts in this interview with "Muslim Civil Rights Activist Malcolm X" and that Malcolm X prophesied whose REIGN will come to an END! http://youtu.be/o7f5NTLgtEA Just keeping it real and laying down the FACTS! So one can see why Judge Wingate was selected and why his MASTERS LOVE him so!d) Honorable F. Keith Ball has employment history with Named Defendant’s counsel Phelps Dunbar. See EXHIBIT “63” attached hereto and incorporated by reference as if set forth in full herein. Furthermore, research yielding information regarding Magistrate Ball’s presiding over a COPYRIGHT case [EMPHASIS added] involving Baker Donelson. See EXHIBIT “64” – As recent as JUNE 2012, information regarding Baker Donelson serving as counsel in Copyright matter attached hereto and incorporated by reference as if set forth in full herein. Why is this information PERTINENT and RELEVANT, because as recent as February 3, 2012, it appears that Baker Donelson, their Client (United States of America President Barack Obama) and others with whom they conspire with in ONGOING Conspiracies leveled against Newsome, had a FRIVOLOUS Copyright Lawsuit brought against Newsome for purposes of CRIMINAL intent and to keep the PUBLIC/WORLD from seeing the role they have played in the pattern-of-practices leveled against Newsome Page 20 of 39
  • 22. involving CONTACTING her employers and ORCHESTRATING the TERMINATION of her employment – as evidenced in this instant Lawsuit and the 05/16/06 Email through the use of: STALKING, HARASSMENT, THREATS, BRIBES, COERCION, BLACKMAIL, INTIMIDATION, OBSTRUCTION OF JUSTICE, etc. in attempts of silencing her and depriving her equal protection of the laws, equal immunities and privileges under the laws, due process of laws and other rights secured/guaranteed under the United States Constitution and other statutes/laws of the United States of America governing said matters – See EXHIBIT “65” – Docket Sheet in The Garretson Firm Resolution Group matter attached hereto and incorporated by reference as if set forth in full herein. This case was SEALED once Newsome went PUBLIC/GLOBAL in sharing this information. Acts taken to keep this information out of the PUBLIC/WORLD eyes as they STRUGGLE to get United States of America President Barack Obama RE-ELECTED! It appears United States of America President Barack Obama, Baker Donelson and those with whom they conspire going as far as contacting companies providing Newsome with PUBLIC/SOCIAL forum services (i.e. as the Internet) for purposes of sharing information that is of PUBLIC/GLOBAL interests. However, as Named Defendants, their counsel, and those with whom they CONSPIRE can see, they have failed and Newsome continues to exercise rights secured to her under the United States Constitution and other statutes/laws and release information regarding the CRIMINAL/CIVIL wrongs and CONSPIRACIES leveled against her: www.vogeldenisenewsome.net and www.slideshare.net/vogeldenise, etc. e) On or about July 18, 2012, Newsome timely, properly and adequately requested an explanation from Named Defendants counsel (Phelps Dunbar/W. Thomas Siler, Jr./Jason T. Marsh) via Facsimile entitled, “REQUEST FOR EXPLANATION FOR PHELPS DUNBAR’S/COUNSELS’ KNOWLEDGE OF CONFLICT OF INTEREST AND DELIBERATE FAILURE TO NOTIFY PARTY(S) OF SAME and GOOD FAITH DEMAND THAT PHELPS DUNBAR WITHDRAW PLEADINGS.” See EXHIBIT “34” attached hereto and incorporated herein by reference. Newsome’s request being in compliance with the Mississippi Rules of Professional Conduct and other statutes/laws governing said matters. See EXHIBIT “10” attached hereto and incorporated by reference as if set forth in full herein. Mississippi Comn on Judicial Performance vs Agin, 17 So.3d 578 (Miss.,2009) - Judges conduct in failing to issue a timely ruling in case violated the code of judicial conduct canons that required a judge to uphold the integrity and independence of the judiciary, to respect and comply with the law and to act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary, and to dispose of all judicial matters promptly, efficiently and fairly. Code of Jud.Conduct, Canons 1, 2A, 3B(8), 3C(1). See EXHIBIT “5” – Code of Judicial Conduct attached hereto and incorporated by reference as if set forth in full herein. Mississippi Comn on Judicial Performance vs Bustin, 2011 WL 4634995 (Miss., 2011) - “Moral turpitude,” in the context of judicial misconduct, includes, but is not limited to, actions which involve interference with the administration of justice, misrepresentation, fraud, deceit, bribery, extortion, or other such actions which bring the judiciary into disrepute. Furthermore, to date, Newsome’s July 14, 2012 MOTION TO STRIKE MOTION TO DISMISS AND MEMORANDUM IN SUPPORT OF MOTION TO DISMISS; MOTION FOR RULE 11 SANCTIONS OF AND AGAINST DEFENDANTS; AND MOTION FOR DEFAULT JUDGMENT (JURY TRIAL DEMANDED IN THIS ACTION) which is supported by FACTS, EVIDENCE and LEGAL CONCLUSIONS remains UNCONTESTED!34. On Page 4, paragraph which begins with, “If Defendants’ motion to dismiss is granted, the need for discovery,” along with the referenced Footnote 10 and the contents therein, in that they are - “STRICKEN STATEMENT CLAUSE.” UNDISPUTED is the FACT that Named Defendants and their counsel AGREE that Newsome’s 143-Page Complaint distinctly set forth VALID Claims! Furthermore, because there has been NO Page 21 of 39
  • 23. legal/lawful Responsive Pleading and/or Answer filed to Newsome’s Complaint, as a matter of law, the averments/claims set forth in the Complaint filed in this Lawsuit are DEEMED “ADMITTED” as Named Defendants were timely, properly and adequately NOTIFIED of when served the Complaint along with “Waiver of the Service of Summons and NOTIFICATION ACCOMPANYING WAIVER OF SERVICE OF SUMMONS” - i.e. which CLEARLY stated in part: 6. If your answer is not sufficiently definite in nature to give reasonable notice of the allegations in the Complaint sought to be placed in issue, the Plaintiff’s averments may be treated as admitted (i.e. a corporate defendant’s denial of “each and every allegation” did not give “plain notice.”).3 7. A denial of knowledge or information requires that you not only lack first-hand knowledge of the necessary facts involved, but also that you lack information upon which you reasonably could form a personal belief concerning the truth of the Plaintiff’s allegations.4 8. Normally, you may NOT assert lack of knowledge or information if the necessary facts or data involved are within your knowledge or easily brought within your knowledge (i.e. An Answer denying information as to the truth or falsity of a matter necessarily within the knowledge of the party’s managing officers is a sham, and will be treated as an admission of allegation of the complaint.5) 9. An averment, that you are without knowledge or information sufficient to form a belief as to matters that are common knowledge or of which you can inform yourself with the slightest effort, will be treated as patently false and the effect and purpose will be taken as such to merely delay justice.6 See EXHIBITS “25,” “26,” “27,” and “28” respectively attached hereto and incorporated by reference as if set forth in full herein. Furthermore, to date, Newsome’s July 14, 2012 MOTION TO STRIKE MOTION TO DISMISS AND MEMORANDUM IN SUPPORT OF MOTION TO DISMISS; MOTION FOR RULE 11 SANCTIONS OF AND AGAINST DEFENDANTS; AND MOTION FOR DEFAULT JUDGMENT (JURY TRIAL DEMANDED IN THIS ACTION) which is supported by FACTS, EVIDENCE and LEGAL CONCLUSIONS remains UNCONTESTED! 35. On Page 4, paragraph which begins with, “IV. CONCLUSION” and the following paragraph which begin with, “Based on the pending motion,” in that they are - “STRICKEN STATEMENT CLAUSE.” 36. On Page 5, remaining content of the pleading in that it is - “STRICKEN STATEMENT CLAUSE.” 37. On Page 6, the “CERTIFICATE OF SERVICE” and the contents therein in that it is - “STRICKEN STATEMENT CLAUSE.” Now that the statutes/laws governing said matters require the STRIKING of the entire contents, statements,exhibits, etc. as noted above, there remains NO legal/lawful pleading of record. Therefore, Newsome is entitled tothe relief (Rule 11 Sanctions and DEFAULT Judgment, etc.) sought herein. C. “MISSISSIPPI” CATCALL STATUTE – GOVERNS 42 USC § 1981 CLAIMS 3 Reference Purposes: Wright & Miller Federal Practice and Procedure Civil 3d § 1261. 4 Reference Purposes: Wright & Miller Federal Practice and Procedure Civil 3d § 1262. 5 For Reference Purposes: Wright & Miller Federal Practice and Procedure Civil 3d § 1262 and also, Harvey Aluminum (Inc.) v.NLRB, 335 F2d 749, 758 (9 th Cir. 1964). 6 For Reference Purposes: See Reed v. Turner, 2 F.R.D. 12; and Squire v. Levan, 32 F.Supp. 437. Page 22 of 39
  • 24. 38. UNDISPUTED is the fact that Newsome’s Complaint is premised on claims brought pursuant to 42 U.S.C. § 1981 – Equal Rights Under The Law which allows for one to “to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens . . .” Therefore, subject to the provision of Mississippi’s “CATCHALL Statute” pursuant to Mississippi Code Ann. § 15-1-49: FN2. Section 15-1-49. Limitations applicable to actions not otherwise specifically provided for - All actions for which no other period of limitation is prescribed shall be commenced within six years next after the cause of such action accrued, and not after. . . . The six-year statute (section 15-1-49) is more general in the sense that it is a general residual statute that applies to a broad class of actions-tort, contract or statutory-not otherwise provided for. Gates vs. Spinks, 771 F.2d 916 (5th Cir. S.D. Miss. 1985) Furthermore, to date, Newsome’s July 14, 2012 MOTION TO STRIKE MOTION TO DISMISS AND MEMORANDUM IN SUPPORT OF MOTION TO DISMISS; MOTION FOR RULE 11 SANCTIONS OF AND AGAINST DEFENDANTS; AND MOTION FOR DEFAULT JUDGMENT (JURY TRIAL DEMANDED IN THIS ACTION) which is supported by FACTS, EVIDENCE and LEGAL CONCLUSIONS remains UNCONTESTED!39. 42 USC § 1981 claims encompasses race-based as well as retaliation claims. It is UNDISPUTED that § 1981 contains NO statute of limitations. The United States Supreme Court has found: CBOCS West, Inc. v. Humphries, 128 S.Ct. 1951 (U.S. 2008) - Section 1981 encompasses retaliation claims. Retaliation claims cognizable under § 1981 include employment-related retaliation claims. 42 U.S.C.A. § 1981. Jackson v. Birmingham Bd. of Educ., 125 S.Ct. 1497 (U.S. 2005) - Retaliation against a person because that person has complained of . . . discrimination is a form of intentional . . . discrimination encompassed by Title IXs private cause of action; retaliation is, by definition, an intentional act, retaliation is a form of discrimination because the complainant is being subjected to differential treatment, and the discrimination is “on the basis of sex” because it is an intentional response to the nature of the complaint, namely, an allegation of sex discrimination. UNDISPUTED is the “DIFFERENTIAL” treatment Newsome was subjected to as a direct and proximate result of Named Defendants’ learning of her engagement in PROTECTED activities – i.e. Title VII actions, Lawsuits, being a witness and/or party in legal proceedings, etc. – as set forth in the May 16, 2006 Email Newsome submitted to Named Defendants’ memorializing the meeting which resulted in her TERMINATION. Furthermore, Named Defendants NOT DENYING that other employees similarly situated engaged in the same activities they noted were grounds for Newsome’s termination. Therefore, a reasonable person and/or mind may conclude that PKH’s termination of Newsome’s employment was discriminatory, retaliatory and the proffered reasons PRETEXT to shield/mask its criminal/civil wrongs leveled against Newsome. Moreover, Named Defendants’ role in the CONSPIRACIES leveled against Newsome.40. Named Defendants’ counsel ERRONEOUSLY asserts that because Newsome may mention Title VII in her Complaint, that she has to bring this lawsuit under Title VII – wherein she DOES NOT! As Named Defendants’ counsel grasp at straws in his dire and desperate FRIVOLOUS efforts to get his clients out of this lawsuit and the relief to which Newsome is entitled. The Fifth Circuit Court of Appeals is clear on such issues that involve Title VII claims as well as § 1981 claims being cognizable under the same rubric of analysis. Raggs v. Mississippi Power & Light Co., 278 F.3d 463 (5th Cir. Miss. 2002) - Court of Appeals considers claims of intentional discrimination, which include racial discrimination and retaliation claims based on Title VII and § 1981, under the same rubric of analysis. 42 U.S.C.A. § 1981; Civil Rights Act of 1964, § 701 et seq., 42 U.S.C.A. § 2000e et seq.41. UNDISPUTED is the fact that Newsome’s employment with PKH was terminated as a direct and proximate result of her engagement in PROTECTED activity – i.e. for instance knowledge that Newsome had filed a lawsuit, was assisting and/or participating in lawsuit, investigations, attending hearings, etc. In fact, Named Defendants with KNOWLEDGE of Newsome’s engagement in protected Page 23 of 39
  • 25. activities and an UPCOMING Court appearance approximately three (3) days before the date of her next Court appearance in a PROTECTED activity, terminated Newsome’s employment for purposes of providing opposing parties with an UNDUE/UNLAWFUL advantage in lawsuit. See EXHIBIT “23” – Motion Docket attached hereto and incorporated by reference as if set forth in full herein. Then when Newsome and her attorney had the matter moved to FEDERAL Court, PKH with KNOWLEDGE of the Conflict-Of-Interest that existed, elected to make a CONSCIOUS, DELIBERATE and WILLFUL decision to represent parties in said lawsuit – Newsome vs. Spring Lake Apartments: See EXHIBIT “35” – Spring Lake Apartments Docket Sheet which reflects and/or supports PKH’s representation of defendant(s) in said matter attached hereto and incorporated by reference as if set forth in full herein. For instance see the following PHELPS DUNBAR’s Client’s Case: Callahan v. Bancorpsouth Ins. Services of Mississippi, Inc., 244 F.Supp.2d 678 (S.D.Miss.S.Div.,2002) - Title VII prohibits retaliation in either of two instances: (1) where the employee has opposed any unlawful employment practice; or (2) where the employee has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing. See EXHIBIT “24” – Callahan matter (i.e. with Phelps Dunbar information highlighted) attached hereto and incorporated by reference. D. FRAUD ON THE COURT: Fraud On The Court: (1) In a judicial proceeding, a lawyers or partys misconduct so serious that it undermines or is intended to undermine the integrity of the proceeding. (Blacks Law Dictionary 8th Edition) Fraud: (1) A knowing misrepresentation of the truth or concealment of a material fact to induce another to act to his or her detriment. (2) A misrepresentation made recklessly without belief in its truth to induce another person to act. (3) A tort arising from a knowing misrepresentation, concealment of material fact, or reckless misrepresentation made to induce another to act to his or her detriment. Id.42. Named Defendants’ Motion to Stay and the supporting Memorandum In Support are pleadings which were provided with knowledge of their misrepresentations of the truth or concealment of material fact and for purposes of inducing this Court to act to its detriment – thus compromising this Court’s integrity and the appearance of impropriety would be obvious.43. Named Defendants’ Motion to Stay and the supporting Memorandum In Support are pleadings which were provided with knowledge of the CONFLICT-OF-INTEREST that exists and their DUTY to DISCLOSE pursuant to FRCP Rule 26, Mississippi Rules of Professional Conduct and other statutes/laws governing said matters – thus compromising this Court’s integrity and the appearance of impropriety CLEARLY obvious.44. Newsome believes that the record evidence will support “Named Defendants’” Motion to Stay and the supporting Memorandum In Support are misrepresentations made recklessly without belief in its truth to induce this Court and/or its Judge(s) to engage in the cover-up of unlawful/illegal – criminal/civil - and unethical practices to the DETRIMENT of their careers – i.e. perhaps winding up like either Judge G. Thomas Porteous (i.e. a Federal Judge IMPEACHED and found GUILTY for criminal behavior) and/or Judge Bobby DeLaughter (State Judge INDICTED and found GUILTY for his criminal behavior). See EXHIBITS “36” – Judge Porteous Information and “37” – Judge DeLaughter Information respectively attached hereto and incorporated by reference as if set forth in full herein.45. In this instant lawsuit, Named Defendants’ counsel has merely abused this Court’s Electronic Filing System by injecting Motion to Stay and supporting Memorandum In Support in an attempt to beat the filing of Newsome’s MOTION TO STRIKE MOTION TO DISMISS AND MEMORANDUM IN SUPPORT OF MOTION TO DISMISS; MOTION FOR RULE 11 SANCTIONS OF AND AGAINST DEFENDANTS; AND MOTION FOR DEFAULT JUDGMENT (JURY TRIAL DEMANDED IN THIS ACTION) asserting they were being filed on behalf of “Named Defendants” with KNOWLEDGE their pleadings were (ii) redundant; (iii) immaterial; (iv) impertinent and/or (v) scandalous and provided for purposes of delay, harassment, obstructing justice, fraud, Page 24 of 39
  • 26. increasing costs of litigation, embarrassment, sham/frivolousness, unduly burdensome, provided for purposes of committing fraud upon this Court, and other reasons known to Defendants and their counsel. The actions by Named Defendants counsel were carried out with fraudulent intent so serious that it undermines or was intended to undermine the integrity of this Court and these proceedings.46. Newsome believes that the facts, evidence and legal conclusions set forth in this instant filing will support that “Named Defendants’” Motion to Stay and supporting Memorandum In Support were provided with intent to deceive, for purposes of falsification, concealment and misrepresentation upon this Court. The U.S. Supreme Court finding: Knauer v. U.S., 66 S.Ct. 1304 (1946) - “Fraud” connotes perjury, falsification, concealment, and misrepresentation. Lord v. Goddard, 54 U.S. 198 (1851) - “Fraud” means an intention to deceive.47. While “Named Defendants” may be represented by counsel (Phelps Dunbar) they are BOUND and subject to any act which are committed by their counsel (Phelps Dunbar/Siler/Marsh). Defendants’ counsel has filed Appearances on their behalf. See EXHIBIT “38” – Phelps Dunbar Appearance Documents attached hereto. Great Atlantic & Pacific Tea Co. v. Majure, 168 So. 468 (Miss.,1936) - Attorney who acts for litigant is presumed to have authority to do all acts necessary to properly conduct litigation, and party denying such authority has burden to show absence thereof and is bound, as to opposite party, by any act which attorney does in regular course of practice, however improper, if done without fraud or collusion. McKiernan v. Patrick, 4 Howard 333 (Miss.,1840) - Where the authority of an attorney of record is disputed, he may be required to produce it. An "appearance" in an action involves some submission or presentation to the court by which a party shows his intention to submit himself or herself to the jurisdiction of the court. (Ex parte Phillips, 900 So. 2d 412 [2004]) Rains v. Gardner, 719 So.2d 768 (Miss.App.,1998) - The party claiming that a person has waived process and entered an appearance has the burden of proof on the question. E. DIRTY HANDS POLICY: United States Supreme Court Rulings: Bein v. Heath, 47 U.S. 228 (1848) - One who asks relief in chancery must have acted in good faith, since the equitable powers can never be exerted in behalf of one who has acted fraudulently, or who, by deceit or any unfair means, has gained an advantage. Precision Instrument Mfg. Co. v. Automotive Maintenance Machinery Co., 65 S.Ct. 993 (1945) - An equity court may exercise wide range of discretion in refusing to aid litigant coming into court with unclean hands. Johnson v. Yellow Cab Transit Co., 64 S.Ct. 622 (1944) - The maxim that he who comes into equity must come with clean hands is not applied by way of punishment for an unclean litigant, but upon considerations that make for the advancement of right and justice. Milwaukee & M.R. Co. v. Soutter, 80 U.S. 517 (1871) - He that hath committed iniquity shall not have equity. Sample v. Barnes, 55 U.S. 70 (U.S.Miss.,1852) - Whoever would seek admission into a court of equity must come with clean hands and such a court will never interfere in opposition to conscience or good faith. Fifth Circuit Court of Appeals : Page 25 of 39
  • 27. Flory v. U.S., 138 F.3d 157 (C.A.5.Miss.,1998) - He who comes into equity must come with clean hands. Cataphote Corp. v. Hudson, 422 F.2d 1290 (C.A.5.Miss.,1970) - Protection of trade secrets is an equitable doctrine; secrets obtained by wrongful means are not entitled to protection, and “unclean hands” doctrine may apply to deny the employer protection. New York Football Giants, Inc. v. Los Angeles Chargers Football Club, Inc., 291 F.2d 471 (C.A.5.Miss.,1961) - He who comes into equity must come with clean hands. Mississippi State Court: Bailey v. Bailey, 724 So.2d 335 (Miss.,1998) - “Clean hands doctrine” prevents complaining party from obtaining equitable relief in court when he is guilty of willful misconduct in transaction at issue. Thigpen v. Kennedy, 238 So.2d 744 (Miss.,1970) - It is duty of the chancellor to apply “unclean hands” doctrine of its own motion when it becomes evident that the facts of case are such they call for application of the doctrine. Ellzey v. James, 970 So.2d 193 (Miss.App.,2007) - He who does fraud may not borrow the hands of the chancellor to draw equity from a source his own hands has polluted.48. Newsome believes that the facts, evidence and legal conclusions provided in the Complaint filed in this lawsuit and her subsequent filings will support that “Named Defendants” have DIRTY HANDS. Moreover, their counsel (Phelps Dunbar) also has a reputation for DIRTY HANDS and has KNOWINGLY and DELIBERATELY withheld information from this Court and Newsome required under statutes/laws governing “DUTY TO DISCLOSE.” Newsome is CONFIDENT that information is CRUCIAL in understanding the OVER 20 Years of criminal/civil wrongs they have leveled against her to deprive her equal protection of the laws, privileges and immunities and due process of laws; moreover, life, liberties and the pursuit of happiness secured under the United States Constitution and other statutes/laws governing said matters.49. Newsome believes that the facts, evidence and legal conclusions provided in the Complaint filed in this lawsuit and her subsequent filings will support that “Named Defendants” have a reputation of COHORTING and CONSPIRING with CORRUPT/TAINTED Officials/Judges – i.e. such as Judge Bobby DeLaughter who was INDICTED and pled “Guilty” to criminal activities [See Paragraph i) at Page 14 of Complaint and supporting Exhibit “VIII”] and IMPEACHED Judge G. Thomas Porteous [See Paragraph ii) at Page 14 of Complaint and supporting Exhibit “IX”] – for purposes of obtaining an undue advantage in legal actions. UNDISPUTED is the fact that a NEXUS/CONNECTION can be established with Baker Donelson and former United States of America President William “Bill” Clinton. For instance, Baker Donelson’s EMPLOYED a TOP/KEY LOBBYIST by the name of Linda Daschle - i.e. in what appears to be a REWARD for the role played in the PLANNING of the September 11, 2011 ATTACKS on the World Trade Center and other targets. Furthermore, what appears to be Baker Donelson REWARDING Linda Daschle with employment AFTER the Bill Clinton REIGN as a direct and proximate result of REWARDING her! As COUNSEL for United States of America President Barack Obama, they attempted to get Linda Daschle’s husband (Thomas Daschle) appointed to the position of Secretary for the United States Department of Health and Human Services See EXHIBIT “39” – Linda Daschle information attached hereto and incorporated by reference as if set forth in full herein. Now it appears “Named Defendants” and its counsel (Phelps Dunbar/Siler/Marsh) are attempting to use ANOTHER tainted and corrupt Judge – Tom S. Lee – to aid and abet in their CRIMINAL acts in FURTHERANCE of the CONSPIRACIES and criminal/civil wrongs leveled against Newsome. A NEXUS/CONNECTION between Phelps Dunbar and Baker Donelson Bearman Caldwell & Berkowitz (“Baker Donelson”) can be established. In support thereof, Newsome states: a) Both Phelps Dunbar and Baker Donelson have a PERSONAL, FINANCIAL and BUSINESS interest in the outcome of this lawsuit along with their Clients (i.e. which Page 26 of 39
  • 28. include Entergy Louisiana/New Orleans (“Entergy”), LIBERTY MUTUAL INSURANCE Company, etc.) For instance, both Phelps Dunbar and Baker Donelson are legal Counsel for Entergy. See EXHIBITS “20” – Phelps Dunbar information from LexisNexis and “21” – Cover Page in Newsome vs. Entergy referencing Baker Donelson’s legal representation of Entergy respectively attached hereto and incorporated by reference as if set forth in full herein. In fact, there is EVIDENCE of how Phelps Dunbar and Baker Donelson TEAM UP and/or engage JOINTLY in legal actions on behalf of their clients – i.e. see for instance Hambrick vs. Bear Stearns Residential Mortgage Opinion at EXHIBIT “40” wherein Newsome has HIGHLIGHTED such JOINT Legal Ventures, attached hereto and incorporated by reference as if set forth in full herein. Well it appears Phelps Dunbar and Baker Donelson even SWAP attorneys – See EXHIBIT “41” – Phelps Dunbar & Baker Donelson Employee Transitions attached hereto and incorporated by reference as if set forth in full herein. b) It appears just as in the Newsome vs. Spring Lake matter, Baker Donelson may be attempting to use Phelps Dunbar as a FRONTING FIRM for purposes of SHIELDING/HIDING its involvement and interests. This information is pertinent and relevant in that Judge Tom S. Lee’s FAILURE to advise of such CONFLICT-OF- INTEREST in the Newsome vs. Spring Lake matter as well as his appearance as a PURCHASED/BRIBED Judge of Baker Donelson resulted in the TAINTING and COMPROMISING of that lawsuit that Newsome had to have it removed as a direct and proximate result of the CRIMINAL/CIVIL wrongs by Judge Tom S. Lee and members in the Clerk’s Office attempts to THROW that lawsuit. See Exhibit “XXIV” – “EMERGENCY COMPLAINT AND REQUEST FOR LEGISLATURE/CONGRESS INTERVENTION; ALSO REQUEST FOR INVESTIGATIONS, HEARINGS AND FINDINGS” of the Complaint filed in this lawsuit. Judge Tom Stewart Lee who was nominated by former President Ronald Reagan – i.e. at which time Howard Baker (grandson of FOUNDER of Baker Donelson) was United States Senate MAJORITY Leader and later becoming CHIEF OF STAFF to President Ronald Reagan. DISQUALIFICATION of Judge Tom Stewart Lee is therefore warranted for purposes of maintaining the appearance of impropriety and other violations none to this Court requiring disqualification(s). See EXHIBIT “42” – Disqualification Of Supreme Court Justices: The Certiorari Conundrum attached hereto and incorporated by reference as if set forth in full herein.The Fifth Circuit finding in U.S. v. Couch, 896 F.2d 78 (5th Cir. 1990) that: [4] Aetna thus instructs that the Due Process Clause “may sometimes bar trial by judges who have no actual bias and who would do their very best to weigh the scales of justice equally between contending parties.” 475 U.S. at 825, 106 S.Ct. at 1587. Sometimes, of course, but not always. The inquiry commanded by section 455 and that commanded by the Due Process Clause are not the same. The Due Process Clause requires a judge to step aside when a reasonable judge would find it necessary to do so. Section 455 requires disqualification when others would have reasonable cause to question the judges impartiality. It is this additional, systemic concern for avoiding the appearance of impropriety that makes the section 455 standard for disqualification more demanding than that imposed by the Due Process Clause. At some point the two tests overlap. We conclude that it is this area of overlap that the Liljeberg court was referring to when it noted that the concern for public perceptions of judicial integrity has “constitutional dimensions.” 486 U.S. at 865 n. 12, 108 S.Ct. at 2205 n. 12, 100 L.Ed.2d at 875 n. 12. See Walberg v. Israel, 766 F.2d 1071 (7th Cir.), cert. denied, 474 U.S. 1013, 106 S.Ct. 546, 88 L.Ed.2d 475 (1985).The United States Supreme Court finding in Liljeberg v. Health Services Acquisition Corp.,486 U.S. 847: [5] . . . We conclude that in determining whether a judgment should be vacated for a violation of § 455(a), it is appropriate to consider the risk of injustice to the parties in the particular case, the risk that the denial of relief will produce injustice in other cases, and the risk of undermining the publics confidence in the judicial process. We must continuously bear in mind that “to perform its high function in the best way ‘justice must satisfy the appearance of justice.’ ” In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 625, 99 L.Ed. 942 (1955) (citation omitted). Page 27 of 39
  • 29. c) There is record evidence to support that while Judge Tom Stewart Lee has RECUSED himself in matters involving Baker Donelson’s and its Clients’ interests – See EXHIBIT “43” – when it comes to matters involving Newsome, Judge Lee is ADAMANT and INSIST on violating the laws for purposes of protecting the interests of those with whom he have financial, personal and business interests. Furthermore, Judge Lee clearly appears on LISTING of Judges/Justices that Baker Donelson advertises on its website. For instance see DISQUALIFICATIONS warranted in that: Judge Tom Stewart Lee is a Member of the Mississippi Bar and has PERSONAL, FINANCIAL and BUSINESS interests of those involved in this lawsuit: EXHIBIT “44” – Judge Tom Stewart Lee Mississippi Bar Information attached hereto and incorporated by reference as if set forth in full herein. Also see Exhibit XVIII of Complaint supporting Baker Donelson’s holding of position(s) as President of the Mississippi Bar Association. Furthermore, PKH having attorneys who are Officers of the Mississippi Defense Lawyers with business ties and relationships to Baker Donelson and Phelps Dunbar. See Exhibit XIX of Complaint and EXHIBITS “40” and “41” of this instant pleading. DISQUALIFICATION is required pursuant to 28 USC § 144 and/or 455. See for instance EXHIBIT “45” - Judges Membership In Bar Association As Ground For Disqualification Under 28 USC § 455 [i.e. IMPORTANT TO NOTE that Baker Donelson’s advertisement of employees serving as:  United States Circuit Court of Appeals Judge  United States District Court Judges  United States Attorneys  Presidents of State and Local Bar Associations See EXHIBIT “46” attached hereto and incorporated by reference as if set forth in fill herein] and EXHIBIT “ 47” - Disqualification Of Judge Under 28 U.S.C.A. § 455(b)(4), Providing For Disqualification Where Judge Has Financial Or Other Interest In Proceeding attached hereto and incorporated by reference as if set forth in full herein. EXHIBIT “48” - Disqualification Of Judge Because Of Political Association Or Relation To Attorney In Case attached hereto and incorporated by reference as if set forth in full herein. DISQUALIFICATION because Judge Tom Stewart Lee’s IMPARTIALITY is validly and in good faith QUESTIONED – See EXHIBIT “49” - Construction and Application of 28 USCS § 455(a) Providing For Disqualification Of Justice, Judge, Magistrate, or Referee In Bankruptcy In Any Proceeding In Which His Impartiality Might Reasonably Be Questioned attached hereto and incorporated by reference as if set forth in full herein. Under the “EQUAL RIGHTS UNDER THE LAWS” as well as other statutes/laws of the United States of America governing said matters, Newsome is entitled to a “FAIR and IMPARTIAL Forum.” See EXHIBIT “50” - Safeguarding the Litigants Constitutional Right to a Fair and Impartial Forum: A Due Process Approach to Improprieties Arising from Judicial Campaign Contributions from Lawyers attached hereto and incorporated by reference as if set forth in full herein. Newsome believes that DISQUALIFICATION of Judge Tom Stewart Lee is further warranted in that clearly he has a BIAS towards her as do Named Defendants, their counsel and those with whom they CONSPIRE. See EXHIBIT “51” - Disqualification Of Judge For Bias Against Counsel For Litigant attached hereto and incorporated by reference as if set forth in full herein. d) In fact, in the Newsome vs. Spring Lake matter in which PKH KNEW and/or should have known of the CONFLICT-OF-INTEREST with its involvement; nevertheless, PKH too remained ADAMANT and INSISTED on remaining in lawsuit as Legal Counsel for defendant(s) in that action. PKH employing the son (John Noblin) of the Clerk (J.T. Noblin) of this Court. See Exhibits “XII” and “XIII” of Complaint. Furthermore, Judge Tom Stewart Lee allowed such criminal/civil wrongs OVER Newsome’s Objections. Further supporting RECUSAL and DISQUALIFICATION of Judge Tom Stewart Lee to preside in this matter. See EXHIBIT “52” - Conduct or Bias of Law Clerk or Other Judicial Support Personnel as Warranting Recusal of Federal Judge or Magistrate attached hereto and incorporated by reference as if set forth in full herein.50. Through this instant MTS-MTSTAY&MFR11SDEFAULT, Newsome is requesting this Court to refuse to AID and ABET “Named Defendants,” their legal counsel (Siler and Marsh), and their law firm (Phelps Dunbar) and others engaging in furtherance of conspiracies leveled against Newsome that come before this Court with DIRTY/UNCLEAN HANDS! Page 28 of 39
  • 30. 51. Newsome believes there is sufficient evidence in the Complaint and supporting Exhibits to sustain that “Named Defendants” have a PATTERN-OF-PRACTICE in engaging others to join conspiracies leveled against Newsome for purposes of subjecting her to criminal/civil wrongs – i.e. depriving her equal protection of the laws, equal privileges and immunities and due process of laws. Moreover, “Named Defendants” and those with whom they conspire have a PATTERN-OF-PRACTICE of coming before the Court(s) with DIRTY/UNCLEAN HANDS.52. In that “Named Defendants,” their counsel, Judge Tom Stewart Lee and those with whom they CONSPIRE have a well-established HISTORY and PATTERN-OF-BEHAVIOR in compromising the record and TAMPERING with documents, under the DIRTY HAND POLICY they come before this Court, through this instant lawsuit, to continue their criminal behavior. Having sufficient information and evidence before them, they made a WILLFUL and CONSCIOUS decision to come before this Court in furtherance of CONSPIRACIES and CRIMINAL INTENT to commit fraud upon this Court and to induce its Judge(s) to engage in the COVER-UP of criminal behavior in unlawful/illegal employment practices which not only adversely affected Newsome but the public-at-large. F. FEDERAL RULES OF CIVIL PROCEDURE – RULE 11 SANCTIONS: Skidmore Energy, Inc. v. KPMG, 455 F.3d 564, 569-570 (2006) – Under the “snapshot” rule, sanctions based on a frivolous pleading were proper because the lack of legal and evidentiary support for the pleading at the time it was filed. The . . .court found the claims lacked both legal and factual support and imposed more than $500,000 in sanctions against plaintiffs and their counsel, based on defendants’ reasonable expenses incurred in litigating against the claims. . . . This test focuses on the instant when the signature is placed on the document, and the state of mind of the signer at the time. The test ensures the Rule 11 liability is assessed only for violation existing at the moment of filing. The . . . court had clearly concluded that the pleadings were frivolous when filed. The fact that they continued to lack evidentiary support throughout the proceedings only underscored the violation. (n. 4) Both client and attorney have duty to conduct reasonable inquiry into facts or law before filing lawsuit; (n. 5) In lawsuit addressing ongoing dispute . . .court did not abuse its discretion in awarding Rule 11 sanctions against plaintiffs; rather than sanctioning them for legally frivolous nature of pleadings, it sanctioned them for . . .factually groundless allegations in their complaint; and (n. 7) Fifth Circuits “snapshot” rule/test ensures that Rule 11 liability is assessed only for a violation existing at moment of filing.53. This Court, upon the use of the U.S. Fifth Circuit Court of Appeals’ “SNAPSHOT Rule” on Named Defendants’ Motion to Stay and supporting Memorandum In Support may find the evidence supports that said pleadings are frivolous and a sham submitted with WILLFUL, MALICIOUS and WANTON acts to commit fraud upon this Court. Furthermore, that said pleadings clearly lacked legal standing and evidentiary support at the time they were filed. Furthermore, a reasonable person/mind may conclude that Named Defendants’ failure to return the “Waiver of the Service of Summons” and the attached “Notification Accompanying Waiver of Service of Summon” served on each of them was done with KNOWLEDGE and DELIBERATE intent to engage in criminal/civil violations before this Court. Therefore, supporting and sustaining the sanction relief Newsome seeks through this instant filing.54. Newsome believes that a reasonable mind may conclude that in using the “SNAPSHOT Rule” as well as the Named Defendants’ failure to return the “Waiver of the Service of Summons” and the attached “Notification Accompanying Waiver of Service of Summon” served on each of them, at the time of signing of Motion to Stay and Memorandum In Support, the state of mind of Named Defendants’ and their counsel (Phelps Dunbar/Siler/Marsh) was for purposes of fraud, deceit, misrepresentation, harassment, embarrassment, obstructing justice, delaying proceedings, increasing the costs of litigation, violating the Rules of the Court and Federal Rules of Civil Procedures and other reasons known to them. Page 29 of 39
  • 31. 55. Newsome further believes that the record evidence (i.e. Complaint and Newsome’s subsequent filings) will support that “Named Defendants” have established a “PATTERN-OF-ABUSE” and “PATTERN- OF-ENGAGING-IN-CRIMINAL ACTS” to further support Rule 11 Sanctions as well as this Court’s reporting of said CRIMINAL acts to the appropriate agency/entity for prosecution, sanction and disbarment (if applicable).56. “Named Defendants” and any person they would have retained to represent them in this lawsuit have a duty to conduct reasonable inquiry into facts of law before filing pleadings.57. The record evidence will support that “Named Defendants” were timely, properly and adequately NOTIFIED that Newsome would seek Rule 11 sanctions and/or relief under the applicable laws. “Named Defendants” were notified through the “Waiver of the Service of Summons” and the attached “Notification Accompanying Waiver of Service of Summon” which accompanied it. For instance see EXHIBITS “25,” “26,” “27,” and “28” respectively attached hereto and incorporated by reference as if set forth in full herein. Furthermore, based on information received, Named Defendants and their counsel (Phelps Dunbar/Siler/Marsh) having KNOWLEDGE they were proceeding in violation of Rule 11 of the Federal Rules of Civil Procedure and, therefore, entitled to SANCTIONS for the Motion to Dismiss and supporting Memorandum Brief in that they are IRRELEVANT and are: (i) an insufficient defense to the Complaint filed by Newsome; (ii) redundant; (iii) immaterial; (iv) impertinent and/or (v) scandalous and provided for purposes of delay, harassment, obstructing justice, embarrassment, sham/frivolousness, commit fraud upon this Court, and other reasons known to Defendants and their Counsel. See for instance PHELPS DUNBAR’S case: Alexander vs. Easy Finance of New Albany, Inc., 2007 WL 295220 (N.D. Miss.) - The Court found that the . . . had acted in an unreasonable, vexatious and reckless manner. . . EXHIBIT “53” – Alexander matter attached hereto and incorporated by reference. In fact, Named Defendants counsel ACKNOWLEDGES his clients’ receipt of the Waiver of the Service of Summons and attached Notification Accompanying Waiver of Service of Summons and their KNOWLEDGE of Rule 11 SANCTIONS for the submittal of documents/pleadings considered “legally FRIVOLOUS and without FOUNDATION in law or fact. Advising Newsome as stated in part: In your letter, you demand that Defendants execute the Waiver of the Service of Summons and return the same to you, along with the Notification Accompanying Waiver of Service of Summons that you prepared in the instant matter. Please be advised that the documents you submitted for waiver of service of process were modified in form and, therefore, Defendants were not required to execute such documents. . . Finally, as stated in Defendants’ Motion to Dismiss, the Complaint you filed in this matter was legally frivolous and without foundation in law or fact. Specifically, all of your claims against Defendants are timed barred, due to the expiration of your respective statutes of limitation. Should you not voluntarily dismiss your lawsuit immediately, Defendants reserve the right to seek all fees and costs incurred in defense of this matter from you in accordance with Fed. R. Civ. P. 11. Please accept this correspondence as notification of our intent to seek such fees and costs, as required by Rule 11(c). See EXHIBIT “54” – July 11, 2012 Letter from Phelps Dunbar/Marsh attached hereto and incorporated by reference as if set forth in full herein. Furthermore, supporting that Named Defendants and their counsel (Phelps Dunbar/Siler/Marsh) were timely, properly and adequately NOTIFIED of the Rule 11 SANCTION consequences for submitting such FRIVOLOUS pleadings as their Motion to Dismiss and Memorandum in Support Of Motion to Dismiss.58. The record evidence will support that the “Notification Accompanying Waiver of Service of Summon” provided “Named Defendants” with the following information to aid and/or assist them in the preparation of their Answer and/or “Responsive Pleading: At ¶ 4 of Page 1 it states in part: “Be subject to the provisions of Federal Rules of Civil Procedure Rule 11. Your ‘failure to comply with Rule 11 may be attacked by a motion to strike.’ ‘An attorney who willfully violates Rule 11 is subject to possible disciplinary action.’” Your signing of pleadings constitute a certificate of the following: a. That the attorney (or party) has conducted a reasonable inquiry; b. That he or she is satisfied that the paper is well grounded in fact; Page 30 of 39
  • 32. c. That the pleading has a basis in existing law or that the attorney (or party) has a good faith argument to amend or reverse existing law; and d. That the pleading is not imposed for any improper purpose, such as harassment, delay, or needless increase of his opponent’s costs of litigation. . . .If the pleading or other paper is signed in violation of this Rule, appropriate sanctions shall be imposed by the court on motion or on its own initiative. Sanctions may include an order to pay the other party the amount of reasonable expenses caused by the violation, including reasonable attorney’s fees. – Pp. 1-2.59. Newsome believes that the record evidence will support that Rule 11 liability is deemed appropriate at this time to deter and discourage “Named Defendants” and their counsel (Phelps Dunbar/Siler/Marsh) from coming before this Court with fraudulent intent, criminal intent and other willful, malicious and wanton unethical behavior known to them.60. Newsome believes that the record evidence will support that the 141-Page Complaint and the supporting 25 Exhibits attached thereto will support that “Named Defendants” and their counsel (Phelps Dunbar/Siler/Marsh) had enough facts, evidence and legal conclusion to support that their counsel knew and/or should have known that the Motion to Stay and supporting Memorandum In Support were frivolous and when he affixed his “electronic signature” to such sham/frivolous pleadings he knew and/or should have known he did so with the intent to commit fraud upon this Court and to cause needless and unwarranted delay, harassment and increase in costs of litigation and other reasons known to him and “Named Defendants.” Mercury Air Group, Inc. v. Mansour, 237 F.3d 542 (C.A.5. 2001) - Under Rule 11, an attorney must have made a reasonable inquiry into the facts and law of a case at the time which he or she affixes his or her signature on any papers to the court. Fed.Rules Civ.Proc.Rule 11, 28 U.S.C.A. Walker v. City of Bogalusa, 168 F.3d 237 (C.A.5.1999) - A signatory violates Rule 11 if he fails to conduct a reasonable inquiry into the law and facts underlying his motion, or if he makes a motion to delay, harass or increase the costs of litigation. Fed.Rules Civ.Proc.Rule 11, 28 U.S.C.A.61. Newsome believes that the record evidence will support that the 141-Page Complaint and the supporting 25 Exhibits attached thereto will support that “Named Defendants” had enough facts, evidence and legal conclusion to support that they knew and/or should have known that they were required to conduct reasonable inquiry in to the laws and/or legal basis of the Motion to Stay and the supporting Memorandum In Support filed by their counsel. Therefore, “Named Defendants” and their counsel have violated Rule 11.62. The nature and/or area of employment of “Named Defendants” is and/or has been the “LEGAL FIELD” – i.e. law firm, attorneys, executive for law firm (Manager/Human Resources Representative), etc.63. Newsome believes that a reasonable mind may conclude that had “Named Defendants” and/or their counsel conducted reasonable inquiry into the Motion to Stay and supporting Memorandum In Support, they would have found that there was NO legal basis or evidence to sustain such sham/frivolous pleadings. Moreover, that the arguments raised had already been ANSWERED and ADDRESSED in Newsome’s Complaint at Page 7 and Footnote 6 – i.e. for instance, she provides case law from Walton v. Utility Products, Inc., 424 F.Supp. 1145 (D.C.Miss. 1976 ); which clearly STRIPS and SLAMS-THE- DOOR-SHUT to sham/frivolous assertions (i.e. to Rule 12(b)(6) motions) made in Motion to Dismiss and the supporting Memorandum Briefs See EXHIBIT “14” – Walton v. Utility Products, Inc., 424 F.Supp. 1145 (D.C.Miss. 1976 ) attached hereto and incorporated by reference as if set forth in full herein. Thomas v. Capital Sec. Services, Inc., 812 F.2d 984 (5th Cir. Miss.1987 - BARBOUR) - Rule 11 is violated if attorney breaches duty to conduct reasonable inquiry into facts which support the document, if attorney fails to conduct reasonable inquiry into law such that document embodies existing legal principles or good-faith argument for extension, modification, or reversal of Page 31 of 39
  • 33. existing law, or if motion is interposed for purposes of delay, harassment, or increasing costs of litigation, as each is an independent duty of signing attorney. Fed.Rules Civ.Proc.Rules 11, 11 note, 28 U.S.C.A. Southern Leasing Partners, Ltd. v. McMullan, 801 F.2d 783 (5th Cir.Miss. 1986 - BARBOUR) - District court did not abuse its discretion in imposing Rule 11 sanctions against plaintiff and its attorneys for failure to make reasonable inquiry; if counsel had made sufficient inquiry, it would have discovered that plaintiffs complaint was barred by res judicata; moreover, such failure could not be explained away by approaching limitations bar, as counsels delay of almost three months in investigating merits of case created the problem. Fed.Rules Civ.Proc.Rule 11, 28 U.S.C.A. Marlin v. Moody Nat. Bank, N.A., 533 F.3d 374 (5th Cir. 2008) - “Snapshot rule” ensures that Rule 11 liability is assessed only for violation existing at moment of filing. II. MOTION FOR DEFAULT JUDGMENT Newsome moves this Court to enter a Default Judgment in this lawsuit of and Against “Named Defendants”– Page Kruger & Holland, P.A., Thomas Y. Page, Louis G. Baine III and Linda Thomas pursuant to FRCP Rule 55which state in part: FRCP Rule 55. Default; Default Judgment (a) Entering a Default. When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must enter the party’s default. (b) Entering a Default Judgment. (1) By the Clerk. If the plaintiff’s claim is for a sum certain or a sum that can be made certain by computation, the clerk – on the plaintiff’s request, with an affidavit showing the amount due – must enter judgment for that amount and costs against a defendant who has been defaulted for not appearing and who is neither a minor nor an incompetent person. (2) By the Court. In all other cases, the party must apply to the court for default judgment. A default judgment may be entered against a minor or incompetent person only if represented by general guardian, conservator, or other like fiduciary who has appeared. If the party against whom a default judgment is sought has appeared personally or by a representative, that party or its representative must be served with written notice of application at least 3 days before the hearing. The court 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.In further support thereof, Newsome states the following: 64. This instant Motion for Default Judgment (“MFDJ”) is submitted in good faith and is not submitted for purposes of delay, harassment, hindering proceedings, embarrassment, obstructing the administration of justice, vexatious litigation, increasing the cost of litigation, etc. and is filed to protect and preserve the rights of Newsome secured/guaranteed under the United States Constitution and other laws of the United States. 65. This instant MFDF is submitted to protect the rights of Newsome and the relief she is entitled to as a direct and proximate result of Defendants FAILURE to file an Answer and/or Responsive pleading required under the statutes/laws governing said matters. Page 32 of 39
  • 34. 66. All NOTIFICATION requirements have been met. “Named Defendants” were timely, properly and adequately notified that Default Judgment would be sought against them as early as about June 6, 2012, and received on or about June 8, 2012. Moreover, through the “Waiver of the Service of Summons” executed by “Named Defendants” which contained, “NOTIFICATION ACCOMPANYING WAIVER OF SERVICE OF SUMMONS,” they were advised of the following: You are further hereby NOTIFIED, that unless you serve and file a written responsive pleading within the specified time, the Plaintiff will take judgment against you by default (i.e. for instance, “Motion for Default Judgment”) for the relief demanded in the Complaint. See at Page 4 of EXHIBITS 25, 26, 27 and 28 respectively attached hereto and incorporated herein by reference. In an effort DECEIVE this Court and efforts of keeping this information out of the records, “Named Defendants” and their counsel (Phelps Dunbar/Siler/Marsh) RECREATED the “Waiver of the Service of Summons” to SHIELD/HIDE from this Court by removing information regarding the method of mailing information (i.e. CERTIFIED MAIL) and noted information stating, “NOTE: To save cost of litigation Plaintiff provided with "Notice of Lawsuit and Request for Waiver of Service of Summons" and "Waiver of Service of Summons" a document entitled, "Notification Accompanying Waiver of Service of Summons" which she believes contains pertinent information regarding ANSWERING of Complaint - a copy of which is attached to this "Waiver of Service of Summons" that was provided on the ORIGINAL “Waiver of the Service of Summons” and the attached “NOTIFICATION ACCOMPANYING WAIVER OF SERVICE OF SUMMONS.” Nevertheless, the record of this Court will support timely notification and evidence of what was received – See EXHIBITS 25, 26, 27, and 28 respectively attached hereto and incorporated by reference as if set forth in full herein.67. In support of this instant MFDJ, Newsome presents the following PRIMA FACIE CASE: (a) Newsome would be prejudiced by this Court’s denial of her Motion for Default Judgment. While Newsome is proceeding in this instant lawsuit pro se she is a PAYING LITIGANT and is NOT proceeding in this matter in forma pauperis and is governed by the rules and procedures of this Court and/or statutes/laws applicable to this action. Therefore, the attempts by Named Defendants’ counsel to assert this lawsuit is subject to the provisions of 42 USC § 1983 is WITHOUT merit, baseless and FRIVOLOUS. The record evidence supports that Newsome lost her job as a direct and proximate result of acts taken against her by “Named Defendants” and those conspiring with them to cause Newsome injury/harm. Said actions taken by “Named Defendants” and those conspiring against Newsome were to obtain an undue advantage over her in their expectation of the bringing of legal action and for means of financial devastation to prevent Newsome from successfully litigating this action. Newsome would be further prejudiced by denial of the relief sought in that she has already suffered irreparable injury/harm as a direct and proximate result of “Named Defendants’” culpable acts. Furthermore, should this Court deny Newsome’s Motion for Default Judgment, it would deprive her equal protection of the laws, equal privileges and immunities and due process of laws, etc. Rights secured/guaranteed under the Constitution, Civil Rights Act as well as other governing statutes/laws in such matters. (b) “Named Defendants” have no meritorious defense. “Named Defendants” made a conscious, willful and decision to file a FRIVOLOUS Responsive Pleading in this action under Rule 12(b)(6) of the Federal Rules of Civil Procedure which Newsome has timely, properly and adequately moved to have STRICKEN from the record – i.e. as a matter of law is to be GRANTED! (c) Not only did “Named Defendants’” culpable conduct lead to their default, said conduct led to Newsome being terminated from her place of employment – culpable acts done with intent to obtain an undue advantage in the bringing of this lawsuit against them. Furthermore the record evidence and that presented in this instant motion will support “Named Defendants’” culpable acts led to their default – a default which is as a direct and proximate result of “Named Defendants’” defiance and reckless disregard of the rules and procedures governing said matters. The record evidence supports that Newsome timely, properly and adequately notified “Named Defendants” of the consequences of failing to file a timely Answer and/or file a responsive pleading/motion in accordance to the statutes/laws governing said matters. To no avail. “Named Defendants” ignored said notifications provided them by Newsome through the “Notification Accompanying Waiver of Service of Summons” which was attached to the “Waiver of the Service of Summon” served on “Named Defendants.” In fact, Named Defendants’ and their counsel’s (Phelps Dunbar/Siler/Marsh) knowledge of said information and the Page 33 of 39
  • 35. EXHIBITS TABLEEXHIBIT DESCRIPTION 1 Affidavit Of Vogel Denise Newsome in Support of Motion to Strike 2 FRCP Rule 26 3 28 USC § 455 4 Phillips v. Joint Legislative Committee on Performance and Expenditure Review Of The State of Mississippi 5 Code of Judicial Conduct (Mississippi) 6 Docket Sheet (Newsome vs Page Kruger & Holland) 7 Waiver or Loss of Right To Disqualify Judge (Civil Cases) 8 FRCP Rule 73 9 DECLINE NOTICE – Notice, Consent and Reference of a Civil Action to a Magistrate Judge 10 Mississippi Rules of Professional Conduct 11 Plummer vs Chicago Journeyman Plumbers’ Local Union No. 130 12 Hall vs Small Business Administration 13 Woldum v. Roverud Construction 14 Walton vs Utility Products Inc. 15 Heath vs D. H. Baldwin Company 16 Howard vs Sun Oil Company 17 Truvillion vs King’s Daughters Hospital 18 05/16/06 Email – VOGEL NEWSOME – PKH’s Termination of Employment 19 Docket Sheet (Mitchell McNutt & Sams) 20 Phelps Dunbar Client Listing 21 DOCKET SHEET – Vogel Denise Newsome vs Entergy New Orleans et al. 22 Walker vs Epps 23 Judge Barnett’s MOTION Calendar 24 Callahan vs Bancorpsouth Insurance Services of Mississippi 25 WAIVER OF THE SERVICE OF SUMMONS – Page Kruger & Holland P.A. 26 WAIVER OF THE SERVICE OF SUMMONS – Thomas Y. Page Page 37 of 39
  • 36. EXHIBIT DESCRIPTION 27 WAIVER OF THE SERVICE OF SUMMONS – Louis G. Baine III 28 WAIVER OF THE SERVICE OF SUMMONS – Linda Thomas 29 NOTICE OF LAWSUIT – Page Kruger & Holland P.A. 30 NOTICE OF LAWSUIT – Thomas Y. Page 31 NOTICE OF LAWSUIT – Louis G. Baine III 32 NOTICE OF LAWSUIT – Linda Thomas 33 SLIDESHARE SCREENSHOT – 07/14/12 Motion To Strike 34 07/18/12 Facsimile To Phelps Dunbar/W Thomas Siler Jr/Jason T Marsh 35 Docket Sheet (Spring Lake Apartments) 36 Judge G Thomas Porteous Information 37 Judge Bobby DeLaughter Information 38 Notice of Appearance of Counsel 39 Linda Daschle Information 40 Hambrick vs Bear Stearns Residential Mortgage 41 Phelps Dunbar & Baker Donelson EMPLOYEES/EMPLOYMENT Ties 42 Disqualification Of Supreme Court Justices: The Certiorari Conundrum 43 RECUSAL ORDERS – Judge Tom Stewart Lee 44 MISSISSIPPI BAR ASSOCIATION INFORMATION – Judge Tom Stewart Lee 45 Judge’s Membership In Bar Association As Ground For Disqualification 28 USCS § 455 46 Baker Donelson GOVERNMENT Controlled/Run Positions 47 Disqualification of Judge Under 28 U.S.C.A. § 455(b)(4), Providing For Disqualification Where Judge Has Financial Or Other Interest In Proceeding 48 Disqualification of Judge Because of Political Association or Relation To Attorney In Case 49 Construction and Application of 28 USCS § 455(a) Providing for Disqualification of Justice, Judge, Magistrate, or Referee in Bankruptcy in ANY Proceeding in Which His Impartiality Might Reasonably Be Questioned 50 Safeguarding the Litigant’s Constitutional Right to a Fair and Impartial Forum: A Due Process Approach to Improprieties Arising from Judicial Campaign Contributions From Lawyers 51 Disqualification of Judge For Bias Against Counsel For Litigant Page 38 of 39
  • 37. EXHIBIT DESCRIPTION 52 Conduct or Bias of Law Clerk or Other Judicial Support Personnel As Warranting Recusal Of Federal Judge Or Magistrate 53 Alexander vs. Easy Finance of New Albany, Inc. 54 07/11/12 – Letter FROM Phelps Dunbar/Marsh to Vogel Denise Newsome 55 Judges Former Law Clerks/Judges Former Employment 56 Judges Knowledge of Evidentiary Facts 57 Judge As Material Witness In Proceeding 58 Judge Henry T. Wingate – Judgepedia Information 59 Howard Henry Baker Jr. – Wikipedia Information 60 Magistrate F. Keith Ball – Confirmed 61 MS Litigation Article – Judge Wingate Confirms Keith Ball 62 Judge Wingate Appoints Magistrate Selection Panel 63 Magistrate Keith Ball – Judgepeida Information 64 Magistrate Keith Ball - Baker Donelson Counsel In Copyright Matter 65 Docket Sheet – The Garretson Firm Resolution Group Inc. 66 Page Kruger & Holland (Stock Shares Authorized/Issued) Page 39 of 39
  • 38. IN THE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT – JACKSON DIVISIONVOGEL DENISE NEWSOME PLAINTIFFV. CIVIL ACTION NO. 3:12-cv-00342PAGE KRUGER & HOLLAND P.A., ET AL. DEFENDANTS VOGEL DENISE NEWSOME’S AFFIDAVIT IN SUPPORT OF PLAINTIFF’S MOTION TO STRIKE MOTION TO STAY ALL PROCEEDINGS PENDING A RULING ON DEFENDANTS’ MOTION TO DISMISS AND MEMORANDUM IN SUPPORT OF MOTION TO STAY ALL PROCEEDINGS PENDING A RULING ON DEFENDANTS’ MOTION TO DISMISS; MOTION FOR RULE 11 SANCTIONS OF AND AGAINST DEFENDANTS; AND MOTION FOR DEFAULT JUDGMENT (JURY TRIAL DEMANDED IN THIS ACTION) 1STATE OF OHIO ) ) SSCOUNTY OF HAMILTON )I, Vogel Denise Newsome (“Newsome”), being first duly sworn, deposes and states: 1. Newsome is the Plaintiff in the above-entitled action. 2. Newsome has personal knowledge as to the claims and facts set forth in the Motions and Memorandum Brief in which this Affidavit supports. Moreover, giving rise to the lawsuit filed in this action. 3. Newsome is competent to testify to the matters set forth in the Complaint and her subsequent pleadings filed. 4. The Motions and Memorandum Brief in which this Affidavit supports and this Affidavit is being filed in good faith and is NOT imposed for purposes of delay, harassment, hindering proceedings, embarrassment, obstructing the administration of justice, vexatious litigation, increasing the cost of litigation, etc. and is filed to protect and preserve the rights of Newsome secured/guaranteed under the United States Constitution and other laws of the United States. 5. Newsome OBJECTS to the appointment of this matter to Judge Tom Stewart Lee and believes that he is to RECUSE and/or DISQUALIFY himself from this lawsuit for the reasons set forth in her previous pleadings and this instant filing to which this Affidavit supports. 6. Newsome OPPOSES and OBJECTS to this Court’s allowing parties to abuse this Court’s Electronic Filing System. 1 NOTE: Boldface, caps, small-caps, italics, highlights and underline represents “emphasis” added. EXHIBIT Page 1 of 5 “1”
  • 39. 7. Newsome will be prejudiced by this Court’s allowing the sham and frivolous Motion To Stay All Proceedings Pending A ruling On Defendants’ Motion To Dismiss (“Motion to Stay”) and Memorandum In Support Of Motion To Stay All Proceedings Pending A Ruling On Defendants’ Motion To Dismiss (“Memorandum In Support”) to remain a part of the record in that they have been filed in violation of the statutes/laws governing said matters.8. There are genuine issues of material fact which precludes the filing of Motion to Stay and the supporting Memorandum In Support; wherein resulting in the Motion to Strike and Motion for Default Judgment as well as other relief set forth in the Motions to which this Affidavit supports.9. All facts and/or claim set forth in the Complaint are to be deemed as TRUE and to date remain UNCONTESTED!10. On or about June 6, 2012, Newsome timely, properly and adequately notified “Named Defendants” – Page Kruger & Holland, Thomas Y. Page, Louis G. Baine III and Linda Thomas [hereinafter “Named Defendants”] – of the consequences (i.e. that she will file Motion to Strike and/or Motion for Default Judgment) should they fail to comply with the statutes and laws governing said matters.11. Newsome believes that based upon the facts, evidence and legal conclusions provided in the Complaint and her subsequent pleading, that a reasonable mind may conclude that Named Defendants and/or their Counsel (Phelps Dunbar/W. Thomas Siler, Jr./Jason T. Marsh) did knowingly and willing submit Motion to Stay and Memorandum In Support with fraudulent intent – i.e. purposes of committing fraud upon this Court.12. Newsome believes that the record evidence will sustain that “Named Defendants” come before this Court with DIRTY HANDS! Moreover, may rely and encourage WILLFUL participants as their legal counsel (Phelps Dunbar/W. Thomas Siler, Jr./Jason T. Marsh) to this action to come before this Court with DIRTY HANDS!!!13. Newsome believes that it is important for this Court to be fully aware as to what is going on in matters outside this lawsuit so that this Court can better understand the unlawful/illegal acts of Named Defendants and/or their Counsel. Moreover, see through their HIDDEN MOTIVES and AGENDAS!14. The allegations set forth in Motions to which this Affidavit supports can be supported by factual evidence in the record of “Named Defendants” as well as pleading in this lawsuit.15. There is sufficient facts, evidence and legal conclusions contained in the Complaint to sustain the 13 Counts (i.e. while misnumbered does NOT take away from the merits, facts, evidence and legal conclusions sustaining them): (1) Count I - 42 USC § 1981: Equal Rights Under The Law Against Defendants; (2) Count II - 42 USC § 1985: Conspiracy To Interfere With Civil Rights and 42 USC § 1981: Equal Rights Under The Law Against Defendant(s); Page 2 of 5 USDC Southern District Mississippi (Jackson) CIVIL ACTION NO. 3:12-cv-00342
  • 40. (3) Count III - 42 USC § 1986: Action For Neglect To Prevent and 42 USC § 1981: Equal Rights Under The Law Against Defendant(s); (4) Count IV - Negligent Interference with Employment and 42 USC § 1981: Equal Rights Under The Law Against Defendant(s); (5) Count V - Discrimination in Employment and 42 USC § 1981: Equal Rights Under The Law Against Defendant(s); (6) Count II [Sic] – Retaliation and 42 USC § 1981: Equal Rights Under The Law Against Defendant(s); (7) Count IIIII [Sic] - Breach Of Express Employment Agreement 42 USC § 1981: Equal Rights Under The Law Against Defendant(s); (8) Count VIII – Breach Of The Covenant Of Good Faith And Fair Dealing 42 USC § 1981: Equal Rights Under The Law Against Defendant(s); (9) Count IX – Negligent Infliction Of Emotional Distress and 42 USC § 1981: Equal Rights Under The Law Against Defendant(s); (10) Count X – Fraud Against [sic] and 42 USC § 1981: Equal Rights Under The Law Against Defendant(s); (11) Count XI – Negligent Interference With Employment – Malicious Conspiracy To Cause Discharge From Employment and 42 USC § 1981: Equal Rights Under The Law Against Defendant(s); (12) Count IVII – Violation of the Fourteenth Amendment of the U.S. Constitution – Due Process and 42 USC § 1981: Equal Rights Under The Law; and (13) Count VII – Violation of the Fourteenth Amendment of the U.S. Constitution – Equal Protection and 42 USC § 1981: Equal Rights Under The Law Against Defendant(s) set forth. Furthermore, to sustain that this Court is to take “all the allegations in the complaint as TRUE even if doubtful in fact” - i.e. in a light more favorable to Newsome.16. Newsome believes that when this Court allows the UNLAWFUL/ILLEGAL practices as that in the submittal of Motion to Stay and supporting Memorandum In Support, it sends a message that such criminal and unethical practices are accepted – i.e. all you have to do is have BIG MONEY and be a BIG LAW FIRM with influences in HIGH PLACES.17. Newsome believes that Foreign Countries/Nations and Foreign Leaders are tired of the United States of America coming to them PREACHING to clean up their CORRUPTION, HUMAN RIGHTS VIOLATIONS, etc., yet and still the United States continue to engage in such unlawful/illegal practices itself – i.e. sending a message of HYPOCRISY and TWO-FACEDNESS. This instant lawsuit is a classic example of the BLATANT corruption, discrimination, employment Page 3 of 5 USDC Southern District Mississippi (Jackson) CIVIL ACTION NO. 3:12-cv-00342
  • 41. violations, etc. that employers engage in because they feel they are above the laws of the United States and/or feel they do not have to comply.18. Newsome believes that there is sufficient evidence in the record of this Court to sustain that the law firm (Baker Donelson Bearman Caldwell & Berkowitz [“Baker Donelson”]) that provides United States President Barack Obama with legal counsel and advice, may also be playing a role in the CONSPIRACIES and criminal/civil wrongs leveled against her. Rather than take this matter into her own hands, Newsome has initiated the appropriate legal action in the United States Supreme Court under its “ORIGINAL JURISDICTION.”19. Newsome believes that AFTER going public in regards to Baker Donelson’s role in the criminal/civil acts leveled against her and the HIGH POWER positions they hold in the Government – i.e. which includes the United States White House – Baker Donelson went out and SCRUBBED information from their Internet website. Baker Donelson advertising holding key positions as: − Chief of Staff to the President of the United States − United States Secretary of State − United States Senate Majority Leader − Members of the United States Senate − Members of the United States House of Representatives − Director of the Office of Foreign Assets Control for United States − Department of Treasury − Director of the Administrative Office of the United States − Chief Counsel, Acting Director, and Acting Deputy Director of United States Citizenship & Immigration Services within the United States Department of Homeland Security − Majority and Minority Staff Director of the Senate Committee on Appropriations − Member of United States President’s Domestic Policy Council − Counselor to the Deputy Secretary for the United States Department of HHS − Chief of Staff of the Supreme Court of the United States − Administrative Assistant to the Chief Justice of the United States − Deputy under Secretary of International Trade for the United States Department of Commerce − Ambassador to Japan − Ambassador to Turkey − Ambassador to Saudi Arabia − Ambassador to the Sultanate of Oman − Governor of Tennessee − Governor of Mississippi − Deputy Governor and Chief of Staff for the Governor of Tennessee − Commissioner of Finance & Administration (Chief Operating Officer) - State of Tennessee − Special Counselor to the Governor of Virginia Page 4 of 5 USDC Southern District Mississippi (Jackson) CIVIL ACTION NO. 3:12-cv-00342
  • 42. Rule 26. Duty to Disclose; General Provisions Governing Discovery | Fed... http://www.law.cornell.edu/rules/frcp/rule_26 RULE 26. DUTY TO DISCLOSE; GENERAL PROVISIONS GOVERNING DISCOVERY (a) REQUIRED DISCLOSURES. (1) Initial Disclosure. (A) In General. Except as exempted by Rule 26(a)(1)(B) or as otherwise stipulated or ordered by the court, a party must, without awaiting a discovery request, provide to the other parties: (i) the name and, if known, the address and telephone number of each individual likely to have discoverable information—along with the subjects of that information—that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment; (ii) a copy—or a description by category and location—of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, unless the use would be solely for impeachment; (iii) a computation of each category of damages claimed by the disclosing party—who must also make available for inspection and copying as under Rule 34 the documents or other evidentiary material, unless privileged or protected from disclosure, on which each computation is based, including materials bearing on the nature and extent of injuries suffered; and (iv) for inspection and copying as under Rule 34, any insurance agreement under which an insurance business may be liable to satisfy all or part of a possible judgment in the action or to indemnify or reimburse for payments made to satisfy the judgment. EXHIBIT "2"1 of 1 7/25/2012 10:07 AM
  • 43. 28 U.S.C.A. § 455 Page 1 Effective:[See Text Amendments]United States Code Annotated Currentness Title 28. Judiciary and Judicial Procedure (Refs & Annos) Part I. Organization of Courts (Refs & Annos) Chapter 21. General Provisions Applicable to Courts and Judges § 455. Disqualification of justice, judge, or magistrate judge(a) Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding inwhich his impartiality might reasonably be questioned.(b) He shall also disqualify himself in the following circumstances: (1) Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed eviden- tiary facts concerning the proceeding; (2) Where in private practice he served as lawyer in the matter in controversy, or a lawyer with whom he pre- viously practiced law served during such association as a lawyer concerning the matter, or the judge or such lawyer has been a material witness concerning it; (3) Where he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy; (4) He knows that he, individually or as a fiduciary, or his spouse or minor child residing in his household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding; (5) He or his spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person: (i) Is a party to the proceeding, or an officer, director, or trustee of a party; (ii) Is acting as a lawyer in the proceeding; EXHIBIT © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. "3"
  • 44. 28 U.S.C.A. § 455 Page 2 (iii) Is known by the judge to have an interest that could be substantially affected by the outcome of the pro- ceeding; (iv) Is to the judges knowledge likely to be a material witness in the proceeding.(c) A judge should inform himself about his personal and fiduciary financial interests, and make a reasonable ef-fort to inform himself about the personal financial interests of his spouse and minor children residing in hishousehold.(d) For the purposes of this section the following words or phrases shall have the meaning indicated: (1) “proceeding” includes pretrial, trial, appellate review, or other stages of litigation; (2) the degree of relationship is calculated according to the civil law system; (3) “fiduciary” includes such relationships as executor, administrator, trustee, and guardian; (4) “financial interest” means ownership of a legal or equitable interest, however small, or a relationship as director, adviser, or other active participant in the affairs of a party, except that: (i) Ownership in a mutual or common investment fund that holds securities is not a “financial interest” in such securities unless the judge participates in the management of the fund; (ii) An office in an educational, religious, charitable, fraternal, or civic organization is not a “financial in- terest” in securities held by the organization; (iii) The proprietary interest of a policyholder in a mutual insurance company, of a depositor in a mutual savings association, or a similar proprietary interest, is a “financial interest” in the organization only if the outcome of the proceeding could substantially affect the value of the interest; (iv) Ownership of government securities is a “financial interest” in the issuer only if the outcome of the pro- ceeding could substantially affect the value of the securities.(e) No justice, judge, or magistrate judge shall accept from the parties to the proceeding a waiver of any groundfor disqualification enumerated in subsection (b). Where the ground for disqualification arises only under sub-section (a), waiver may be accepted provided it is preceded by a full disclosure on the record of the basis for dis-qualification. © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
  • 45. 28 U.S.C.A. § 455 Page 3(f) Notwithstanding the preceding provisions of this section, if any justice, judge, magistrate judge, or bank-ruptcy judge to whom a matter has been assigned would be disqualified, after substantial judicial time has beendevoted to the matter, because of the appearance or discovery, after the matter was assigned to him or her, thathe or she individually or as a fiduciary, or his or her spouse or minor child residing in his or her household, has afinancial interest in a party (other than an interest that could be substantially affected by the outcome), disquali-fication is not required if the justice, judge, magistrate judge, bankruptcy judge, spouse or minor child, as thecase may be, divests himself or herself of the interest that provides the grounds for the disqualification.CREDIT(S)(June 25, 1948, c. 646, 62 Stat. 908; Dec. 5, 1974, Pub.L. 93-512, § 1, 88 Stat. 1609; Nov. 6, 1978, Pub.L.95-598, Title II, § 214(a), (b), 92 Stat. 2661; Nov. 19, 1988, Pub.L. 100-702, Title X, § 1007, 102 Stat. 4667;Dec. 1, 1990, Pub.L. 101-650, Title III, § 321, 104 Stat. 5117.)HISTORICAL AND STATUTORY NOTESRevision Notes and Legislative Reports1948 Acts. Based on Title 28, U.S.C., 1940 ed., § 24 (Mar. 3, 1911, c. 231, § 20, 36 Stat. 1090 [Derived fromR.S. § 601] ).Section 24 of Title 28, U.S.C., 1940 ed., applied only to district judges. The revised section is made applicableto all justices and judges of the United States.The phrase “in which he has a substantial interest” was substituted for “concerned in interest in any suit.”The provision of section 24 of Title 28, U.S.C., 1940 ed., as to giving notice of disqualification to the “seniorcircuit judge,” and words “and thereupon such proceedings shall be had as are provided in sections 17 and 18 ofthis title,” were omitted as unnecessary and covered by section 291 et seq. of this title relating to designation andassignment of judges. Such provision is not made by statute in case of disqualification or incapacity, for othercause. See sections 140, 143, and 144 of this title. If a judge or clerk of court is remiss in failing to notify thechief judge of the district or circuit, the judicial council of the circuit has ample power under section 332 of thistitle to apply a remedy.Relationship to a partys attorney is included in the revised section as a basis of disqualification in conformitywith the views of judges cognizant of the grave possibility of undesirable consequences resulting from a less in-clusive rule.Changes were made in phraseology. 80th Congress House Report No. 308.1974 Acts. House Report No. 93-1453, see 1974 U.S.Code Cong. and Adm.News, p. 6351. © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
  • 46. 28 U.S.C.A. § 455 Page 41978 Acts. Senate Report No. 95-989 and House Report No. 95-595, see 1978 U.S. Code Cong. and Adm.News, p. 5787.1988 Acts. House Report No. 100-889, see 1988 U.S.Code Cong. and Adm.News, p. 5982.Amendments1988 Amendments. Subsec. (f). Pub.L. 100-702 added subsec. (f).1978 Amendments. Pub.L. 95-598 struck out references to referees in bankruptcy in the section catchline and insubsecs. (a) and (e).1974 Amendments. Pub.L. 93-512 substituted “Disqualification of justice, judge, magistrate, or referee in bank-ruptcy” for “Interest of justice or judge” in section catchline, reorganized structure of provisions, and expandedapplicability to include magistrates and referees in bankruptcy and grounds for which disqualification may bebased, and added provisions relating to waiver of disqualification.Change of Name“United States magistrate judge” substituted for “United States magistrate” in text pursuant to section 321 ofPub.L. 101-650, set out as a note under 28 U.S.C.A. § 631.Effective and Applicability Provisions1978 Acts. Amendment by Pub.L. 95-598 effective Oct. 1, 1979, see section 402(c) of Pub.L. 95-598, set out asa note preceding section 101 of Title 11, Bankruptcy. For procedures relating to bankruptcy matters duringtransition period, see note preceding section 151 of this title.1974 Acts. Section 3 of Pub.L. 93-512 provided that: “This Act [amending this section] shall not apply to the tri-al of any proceeding commenced prior to the date of this Act [Dec. 5, 1974], nor to appellate review of any pro-ceeding which was fully submitted to the reviewing court prior to the date of this Act.”CROSS REFERENCES Application to other courts, see 28 USCA § 460. Arbitrators subject to disqualification rules under this section, see 28 USCA § 656. Bias or prejudice of judge, see 28 USCA § 144. Disqualification of trial judge to hear appeal, see 28 USCA § 47. United States Court of Veterans affairs, judges and proceedings of subject to this section, see 38 USCA § 7264. © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
  • 47. 28 U.S.C.A. § 455 Page 5LAW REVIEW COMMENTARIES Adjudicatory independence and the values of procedural due process. Martin H. Redish and Lawrence C. Marshall. 95 Yale L.J. 455 (1986). Adversary proceedings in bankruptcy. John Silas (“Si”) Hopkins, III, 39 Prac.Law. 55 (Sept.1993). Conflicts of interest in Bush v. Gore: Did some justices vote illegally? Richard K. Neumann, Jr., 16 Geo. J. Legal Ethics 375 (2003). Disqualification of Judges in California. J. Maloney. 16 U.S.F.L.Rev. 229 (1982). Disqualification of Supreme Court Justices: The certiorari conundrum. Steven Lubet, 80 Minn.L.Rev. 657 (1996). Divergence of standards of conduct and standards of review in corporate law. Melvin Aron Eisenberg, 62 Fordham L.Rev. 437 (1993). Expanding the reach of alternative dispute resolution in bankruptcy: The legal and practical bases for the use of mediation and the other forms of ADR. Ralph R. Mabey, Charles J. Tabb, and Ira S. Dizengoff, 46 S.C.L.Rev. 1259 (1995). Extrajudicial source doctrine and its implications for judicial disqualification. 48 Ark.L.Rev. 1059 (1995). Illegitimacy of the extrajudicial source requirement for judicial disqualification under 28 U.S.C. § 455(a). Note, 15 Cardozo L.Rev. 787 (1993). Impeach Brent Benjamin now!? Giving adequate attention to failings of judicial impartiality. Jeffrey W. Stempel, 47 San Diego L. Rev. 1 (February/March 2010). Informal methods of judicial discipline. Charles Gardner Geyh, 142 U.Pa.L.Rev. 243 (1993). Judicial bias and financial interest as grounds for disqualification of federal judges. Seth E. Bloom, 35 Case W.Res.L.Rev. 662 (1984-85). Liteky v. United States: Jeopardizing judicial integrity. 40 Loy.L.Rev. 995 (1995). On the danger of wearing two hats: Mistretta and Morrison revisited. Ronald J. Krotoszynski, Jr., 38 Wm. & Mary L.Rev. 417 (1997). Protecting the appearance of judicial impartiality in the face of law clerk employment negotiations. 62 Wash.L.Rev. 815 (1987). Questioning the impartiality of judges: Disqualifying federal district court judges under 28 U.S.C. § 455(a). Comment, 60 Temp.L.Q. 697 (1987). Safeguarding the litigants constitutional right to a fair and impartial forum: A due process approach to improprieties arising from judicial campaign contributions from lawyers. Note, 86 Mich.L.Rev. 382 (1987). © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
  • 48. 28 U.S.C.A. § 455 Page 6 Should bias and interest lead to dissimilar results in judicial qualification practice? 27 Ariz.L.Rev. 171 (1985).LIBRARY REFERENCESAmerican Digest System Judges 39 to 56. Key Number System Topic No. 227.Corpus Juris Secundum CJS Bankruptcy § 34, Bias or Knowledge. CJS Bankruptcy § 35, Personal or Family Involvement. CJS Bankruptcy § 36, Involvement of Former Law Associate. CJS Bankruptcy § 37, Financial or Other Interest. CJS Constitutional Law § 1624, Right to Qualified and Competent Judge--Disqualification of Judge or Ma- gistrate. CJS Federal Civil Procedure § 888, Disqualification. CJS Federal Courts § 525, Effect of Transfer of Cause or Proceedings Therefor. CJS Federal Courts § 630, Application of Rules to Particular Errors. CJS Judges § 235, Consent. CJS Judges § 243, Federal Statutes. CJS Judges § 248, Business, Political, and Social Relations. CJS Judges § 257, Judge as Witness. CJS Judges § 266, Particular Statements or Expressions--Public Comment. CJS Judges § 319, Review. CJS Justices of the Peace § 50, Disqualification to Act. CJS Mandamus § 83, Judges--Recusal.RESEARCH REFERENCESALR Library52 ALR, Fed. 2nd Series 227, Jurisdiction of and Standing Before the United States Judicial Conference or ItsCommittee on Judicial Conduct and Disability.34 ALR, Fed. 2nd Series 589, Disqualification of Federal Judge Under 28 U.S.C.A. § 455(B)(3), Providing forDisqualification of Judges Who Formerly Served in Government.11 ALR, Fed. 2nd Series 435, Bankruptcy Rule 9011 Sanctions in Chapter 7 Bankruptcy Proceedings.5 ALR, Fed. 2nd Series 31, Bankruptcy Rule 9011 Sanctions in Chapter 11 Bankruptcy Proceedings. © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
  • 49. Page 1637 F.2d 1014, 25 Fair Empl.Prac.Cas. (BNA) 120, 25 Empl. Prac. Dec. P 31,611, 31 Fed.R.Serv.2d 67(Cite as: 637 F.2d 1014) United States Court of Appeals, Fifth Circuit. Unit A Barbara PHILLIPS, Cornell Green Rice, Melvin Phillips, and Mississippi Council on Human Relations, a cor- poration, individually and on behalf of all others similarly situated, Plaintiffs-Appellants, v. The JOINT LEGISLATIVE COMMITTEE ON PERFORMANCE AND EXPENDITURE REVIEW OF the STATE OF MISSISSIPPI et al., Defendants-Appellees. The MISSISSIPPI COUNCIL ON HUMAN RELATIONS, a corporation, Barbara Phillips, Melvin Phillips and Cornell Green Rice, individually and on behalf of all others similarly situated, Plaintiffs-Appellants, v.The BOARD OF TRUSTEES OF the INSTITUTION OF HIGHER EDUCATION a/k/a The State College Board et al., Defendants-Appellees. Barbara PHILLIPS, Melvin Phillips and Cornell Green Rice, individually and on behalf of a class, Plaintiffs- Appellants, v. The STATE OF MISSISSIPPI AGRICULTURAL AND INDUSTRIAL BOARD et al., Defendants-Appellees. Nos. 79-2131, 79-2940 and 79-3550. Feb. 23, 1981. Rehearing Denied April 27, 1981. Employment discrimination actions were brought against three state agencies. The United States DistrictCourt for the Southern District of Mississippi, William Harold Cox and Walter L. Nixon, Jr., JJ., denied motionsfor recusal, denied most motions for class certification, and entered judgment on the merits in favor of the de-fendants and plaintiffs appealed. The Court of Appeals, Wisdom, Circuit Judge, held that: (1) evidence of state-ments made by district judge in prior cases involving racial discrimination did not provide basis for recusal; (2)class certification was improperly denied; (3) racial discrimination on a class basis on the part of one employerwas established; and (4) racial discrimination was shown in a number of the individual cases. Affirmed in part and reversed and remanded in part. West Headnotes[1] Judges 227 51(4)227 Judges 227IV Disqualification to Act 227k51 Objections to Judge, and Proceedings Thereon 227k51(4) k. Determination of Objections. Most Cited Cases If affidavit of recusal is timely and technically correct, its factual allegations must be taken as true; judgemust pass on legal sufficiency of the affidavit but may not pass on the truth of the matters alleged. 28 U.S.C.A. §144. EXHIBIT © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. "4"
  • 50. Page 2637 F.2d 1014, 25 Fair Empl.Prac.Cas. (BNA) 120, 25 Empl. Prac. Dec. P 31,611, 31 Fed.R.Serv.2d 67(Cite as: 637 F.2d 1014)[2] Judges 227 51(3)227 Judges 227IV Disqualification to Act 227k51 Objections to Judge, and Proceedings Thereon 227k51(3) k. Sufficiency of Objection or Affidavit. Most Cited Cases Affidavit of recusal is legally sufficient if the facts are material and stated with particularity, the facts aresuch that they would convince a reasonable person that bias exists if they are true, and the facts show that the bi-as is personal as opposed to judicial in nature. 28 U.S.C.A. §§ 144, 455.[3] Judges 227 51(4)227 Judges 227IV Disqualification to Act 227k51 Objections to Judge, and Proceedings Thereon 227k51(4) k. Determination of Objections. Most Cited Cases Under statute requiring a judge to disqualify himself in any proceeding in which his impartiality might bereasonably questioned, judge need not accept all the allegations by moving party as true and, in fact, no motionat all is required; the judge must disqualify himself if the facts cast doubt on his impartiality regardless of howor by whom they are drawn to his attention. 28 U.S.C.A. § 455.[4] Judges 227 49(1)227 Judges 227IV Disqualification to Act 227k49 Bias and Prejudice 227k49(1) k. In General. Most Cited Cases The alleged bias of a judge must be personal as distinguished from judicial in nature in order to require re-cusal. 28 U.S.C.A. §§ 144, 455.[5] Judges 227 49(1)227 Judges 227IV Disqualification to Act 227k49 Bias and Prejudice 227k49(1) k. In General. Most Cited Cases Motion for disqualification ordinarily may not be predicated on the judges rulings in the instant case or inrelated cases nor on a demonstrated tendency to rule in any particular way nor on any particular judicial leaningor attitude derived from his experience on the bench. 28 U.S.C.A. §§ 144, 455.[6] Judges 227 49(1)227 Judges 227IV Disqualification to Act 227k49 Bias and Prejudice 227k49(1) k. In General. Most Cited Cases The fact that a judges remarks or behavior take place in the judicial context does not exclude them from © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
  • 51. Page 3637 F.2d 1014, 25 Fair Empl.Prac.Cas. (BNA) 120, 25 Empl. Prac. Dec. P 31,611, 31 Fed.R.Serv.2d 67(Cite as: 637 F.2d 1014)scrutiny and from requiring recusal if they reflect such pervasive bias and prejudice as would constitute biasagainst one of the parties. 28 U.S.C.A. §§ 144, 455.[7] Judges 227 49(2)227 Judges 227IV Disqualification to Act 227k49 Bias and Prejudice 227k49(2) k. Statements and Expressions of Opinion by Judge. Most Cited Cases Where most of the allegations of bias concerned the trial judges rulings or comments on the merits in previ-ous cases, where some of the older remarks reflecting racial reactions which were outmoded and improper werenot gratuitous insults and did not show overt hostility, and where all of the allegations concerned the judges fi-nal conclusions or immediate reactions on points of law or facts in the case before him, they did not require re-cusal. 28 U.S.C.A. §§ 144, 455.[8] Federal Courts 170B 819170B Federal Courts 170BVIII Courts of Appeals 170BVIII(K) Scope, Standards, and Extent 170BVIII(K)4 Discretion of Lower Court 170Bk819 k. Change of Venue; Disqualifying Judge; Continuance. Most Cited CasesJudges 227 51(4)227 Judges 227IV Disqualification to Act 227k51 Objections to Judge, and Proceedings Thereon 227k51(4) k. Determination of Objections. Most Cited Cases Recusal motion is committed to the sound discretion of the district judge and on appeal it will be asked onlywhether he has abused his discretion. 28 U.S.C.A. §§ 144, 455.[9] Federal Civil Procedure 170A 184.10170A Federal Civil Procedure 170AII Parties 170AII(D) Class Actions 170AII(D)3 Particular Classes Represented 170Ak184 Employees 170Ak184.10 k. Discrimination and Civil Rights Actions in General. Most Cited Cases (Formerly 170Ak184) Where neither party could determine how many black applicants there were, let alone identify all of them,and where the class included future and deterred applicants who were necessarily unidentifiable, joinder was im-practicable even if the number was small. Fed.Rules Civ.Proc. Rule 23(a)(1), 28 U.S.C.A.[10] Federal Civil Procedure 170A 171 © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
  • 52. Page 4637 F.2d 1014, 25 Fair Empl.Prac.Cas. (BNA) 120, 25 Empl. Prac. Dec. P 31,611, 31 Fed.R.Serv.2d 67(Cite as: 637 F.2d 1014)170A Federal Civil Procedure 170AII Parties 170AII(D) Class Actions 170AII(D)2 Proceedings 170Ak171 k. In General; Certification in General. Most Cited Cases Requirement that the district court decide whether to certify a class in any case as soon as possible after thecommencement of the action is a command to the district court, not to the parties, and the court has an obliga-tion to make the determination on its own motion if necessary. Fed.Rules Civ.Proc. Rule 23(c)(1), 28 U.S.C.A.[11] Federal Civil Procedure 170A 164170A Federal Civil Procedure 170AII Parties 170AII(D) Class Actions 170AII(D)1 In General 170Ak164 k. Representation of Class; Typicality. Most Cited Cases Fact that plaintiffs had delayed in making motion to certify the case did not show that they would be inad-equate class representatives, especially where a good deal of the time had been consumed in litigating motionsfor change of venue and for recusal.[12] Federal Civil Procedure 170A 171170A Federal Civil Procedure 170AII Parties 170AII(D) Class Actions 170AII(D)2 Proceedings 170Ak171 k. In General; Certification in General. Most Cited Cases Even if attorney for plaintiffs would be disqualified from representing the class, it does not follow that theclass may not be certified; court may make certification contingent on replacement of counsel or on severance ofthe individual claim of the offending class representative.[13] Federal Civil Procedure 170A 164170A Federal Civil Procedure 170AII Parties 170AII(D) Class Actions 170AII(D)1 In General 170Ak164 k. Representation of Class; Typicality. Most Cited Cases Fact that one of the named plaintiffs was an attorney for the civil rights law firm representing the plaintiff,although she was not acting as an attorney in the case, did not preclude class representation on the theory thatshe was an inadequate representative because of a potential conflict with other class members where any attor-ney fees granted in the case would come directly from the defendants and not from any fund created for class re-lief. Civil Rights Act of 1964, § 706(k) as amended 42 U.S.C.A. § 2000e-5(k).[14] Federal Civil Procedure 170A 184.10170A Federal Civil Procedure © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
  • 53. Page 5637 F.2d 1014, 25 Fair Empl.Prac.Cas. (BNA) 120, 25 Empl. Prac. Dec. P 31,611, 31 Fed.R.Serv.2d 67(Cite as: 637 F.2d 1014) 170AII Parties 170AII(D) Class Actions 170AII(D)3 Particular Classes Represented 170Ak184 Employees 170Ak184.10 k. Discrimination and Civil Rights Actions in General. Most Cited Cases (Formerly 170Ak184) Where named plaintiffs did not seek to represent a class consisting exclusively of persons who had been de-terred from making applications because of the racial policies of the employer, but, rather, also sought to repres-ent unsuccessful applicants, the named plaintiffs could represent the persons who had been deterred from apply-ing.[15] Federal Courts 170B 858170B Federal Courts 170BVIII Courts of Appeals 170BVIII(K) Scope, Standards, and Extent 170BVIII(K)5 Questions of Fact, Verdicts and Findings 170Bk855 Particular Actions and Proceedings, Verdicts and Findings 170Bk858 k. Civil Rights Cases. Most Cited Cases District courts finding of nondiscrimination is a determination of ultimate fact to which the clearly erro-neous standard does not apply.[16] Civil Rights 78 154578 Civil Rights 78IV Remedies Under Federal Employment Discrimination Statutes 78k1543 Weight and Sufficiency of Evidence 78k1545 k. Prima Facie Case. Most Cited Cases (Formerly 78k383, 78k44(1)) Evidence that general population of the state was 37.2% black, that total civilian work force was 29.8%black, that 31.6% of the persons registering at the state Employment Security Commission for professional jobswere black, that 27.8% of those registering for clerical or sales jobs were black, and that the percentage ofblacks at one employer was between 1.5% and 6.5% black made out a prima facie case of discrimination.[17] Civil Rights 78 114278 Civil Rights 78II Employment Practices 78k1142 k. Educational Requirements; Ability Tests. Most Cited Cases (Formerly 78k199.1, 78k199, 78k13.11)Civil Rights 78 1331(5)78 Civil Rights 78III Federal Remedies in General 78k1328 Persons Protected and Entitled to Sue 78k1331 Persons Aggrieved, and Standing in General © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
  • 54. Page 6637 F.2d 1014, 25 Fair Empl.Prac.Cas. (BNA) 120, 25 Empl. Prac. Dec. P 31,611, 31 Fed.R.Serv.2d 67(Cite as: 637 F.2d 1014) 78k1331(5) k. Employment Practices. Most Cited Cases (Formerly 78k199.1, 78k199, 78k13.11) Named plaintiffs who all had college degrees lacked constitutional standing to challenge legality of employ-ers educational requirements for a college degree for certain positions.[18] Civil Rights 78 154478 Civil Rights 78IV Remedies Under Federal Employment Discrimination Statutes 78k1543 Weight and Sufficiency of Evidence 78k1544 k. In General. Most Cited Cases (Formerly 78k382.1, 78k382, 78k44(1)) Evidence of disparity between number of blacks in the work force and the number of blacks hired by em-ployer, evidence of employers history of discrimination in not having hired a single black during its first threedecades of existence, and evidence that hiring procedures relied heavily on subjective judgments of executivesfrom personal interviews demonstrated discrimination against blacks.[19] Civil Rights 78 112178 Civil Rights 78II Employment Practices 78k1121 k. Hiring. Most Cited Cases (Formerly 78k142, 78k9.10) Whether subjectivity in hiring is necessary or not, subjective judgments are suspect as job qualificationswhen they are exercised by members of an all white executive or supervisory staff.[20] Civil Rights 78 156278 Civil Rights 78IV Remedies Under Federal Employment Discrimination Statutes 78k1559 Relief 78k1562 k. Affirmative Action; Recruitment and Hiring. Most Cited Cases (Formerly 78k393, 78k46(4), 78k46) In view of past discrimination against blacks by state agency, court should direct the agency to set goals ofapproximately 20% black employment, separately for clerical and nonclerical positions, should require it to un-dertake an aggressive campaign of recruitment and advertising to procure sufficient qualified black applications,and should, until those goals were achieved, require that one-third of all persons hired within a predeterminedsix-month period for permanent clerical or nonclerical jobs be black.[21] Civil Rights 78 153678 Civil Rights 78IV Remedies Under Federal Employment Discrimination Statutes 78k1534 Presumptions, Inferences, and Burden of Proof 78k1536 k. Effect of Prima Facie Case; Shifting Burden. Most Cited Cases (Formerly 78k378, 78k43) © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
  • 55. Page 7637 F.2d 1014, 25 Fair Empl.Prac.Cas. (BNA) 120, 25 Empl. Prac. Dec. P 31,611, 31 Fed.R.Serv.2d 67(Cite as: 637 F.2d 1014)Civil Rights 78 154578 Civil Rights 78IV Remedies Under Federal Employment Discrimination Statutes 78k1543 Weight and Sufficiency of Evidence 78k1545 k. Prima Facie Case. Most Cited Cases (Formerly 78k383, 78k44(1)) To raise a prima facie case of employment discrimination, plaintiff must show that he belongs to a racialminority, that he applied and was qualified for job which the employer was seeking applicants, that he was re-jected despite his qualifications, and that the position remained open after his rejection; burden then shifts to theemployer to show some legitimate, nondiscriminatory reason for the applicants rejection; plaintiff is then af-forded an opportunity to show that the employers stated reason is, in fact, a pretext.[22] Civil Rights 78 154478 Civil Rights 78IV Remedies Under Federal Employment Discrimination Statutes 78k1543 Weight and Sufficiency of Evidence 78k1544 k. In General. Most Cited Cases (Formerly 78k382.1, 78k382, 78k44(1)) Employer bears the burden of showing a legitimate reason for rejection of minority applicant by a prepon-derance of the evidence.[23] Civil Rights 78 153678 Civil Rights 78IV Remedies Under Federal Employment Discrimination Statutes 78k1534 Presumptions, Inferences, and Burden of Proof 78k1536 k. Effect of Prima Facie Case; Shifting Burden. Most Cited Cases (Formerly 78k378, 78k44(1)) Evidence of employers belief that black applicant had taken another position did not rebut a prima facieshowing of employment discrimination where the employer claimed that an immediate decision to hire the ap-plicant had been made but the employer procrastinated for several weeks without making an offer and where theevidence showed that race was a consideration.[24] Civil Rights 78 153678 Civil Rights 78IV Remedies Under Federal Employment Discrimination Statutes 78k1534 Presumptions, Inferences, and Burden of Proof 78k1536 k. Effect of Prima Facie Case; Shifting Burden. Most Cited Cases (Formerly 78k378, 78k44(1)) Fact that black applicant had indicated that he left his previous position because it required excessive travelwas insufficient to rebut a prima facie case of discrimination against the black applicant on the theory that hehad expressed a reservation about job-related travel where the employer described the travel requirements to theapplicant but did not ask him if the travel requirements would be excessive. © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
  • 56. Page 8637 F.2d 1014, 25 Fair Empl.Prac.Cas. (BNA) 120, 25 Empl. Prac. Dec. P 31,611, 31 Fed.R.Serv.2d 67(Cite as: 637 F.2d 1014)[25] Civil Rights 78 154478 Civil Rights 78IV Remedies Under Federal Employment Discrimination Statutes 78k1543 Weight and Sufficiency of Evidence 78k1544 k. In General. Most Cited Cases (Formerly 78k382.1, 78k382, 78k44(1)) In view of evidence that it was the routine practice of the employer to make no effort to further contact“walk-in” applicants, black walk-in applicant did not establish that denial of employment was due to racial dis-crimination.[26] Civil Rights 78 154478 Civil Rights 78IV Remedies Under Federal Employment Discrimination Statutes 78k1543 Weight and Sufficiency of Evidence 78k1544 k. In General. Most Cited Cases (Formerly 78k382.1, 78k382, 78k44(1)) Evidence established that black applicant was not qualified for any vacant position.[27] Civil Rights 78 154478 Civil Rights 78IV Remedies Under Federal Employment Discrimination Statutes 78k1543 Weight and Sufficiency of Evidence 78k1544 k. In General. Most Cited Cases (Formerly 78k382.1, 78k382, 78k44(1)) Evidence that, during the year following black applicants application, only one white applicant was hiredfor position for which the black applicant might have been qualified and that the white applicant was more qual-ified demonstrated that black applicant had not been discriminated against on the basis of race.[28] Civil Rights 78 112178 Civil Rights 78II Employment Practices 78k1121 k. Hiring. Most Cited Cases (Formerly 78k141, 78k9.10) “Vacancy” within the meaning of the McDonnell Douglas test need not exist on the precise day of the ap-plication; any vacancies within a reasonable time must be considered as well.[29] Civil Rights 78 154478 Civil Rights 78IV Remedies Under Federal Employment Discrimination Statutes 78k1543 Weight and Sufficiency of Evidence 78k1544 k. In General. Most Cited Cases (Formerly 78k382.1, 78k382, 78k44(1)) © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
  • 57. Page 9637 F.2d 1014, 25 Fair Empl.Prac.Cas. (BNA) 120, 25 Empl. Prac. Dec. P 31,611, 31 Fed.R.Serv.2d 67(Cite as: 637 F.2d 1014) Evidence that white was hired as a secretary scarcely two months after black secretary applied and absenceof evidence that white was more qualified established that black was discriminated against because of her race.[30] Civil Rights 78 154578 Civil Rights 78IV Remedies Under Federal Employment Discrimination Statutes 78k1543 Weight and Sufficiency of Evidence 78k1545 k. Prima Facie Case. Most Cited Cases (Formerly 78k383, 78k44(1)) Establishment of liability on class claim of employment discrimination operates to establish a prima faciecase on behalf of each member of the class.[31] Civil Rights 78 154478 Civil Rights 78IV Remedies Under Federal Employment Discrimination Statutes 78k1543 Weight and Sufficiency of Evidence 78k1544 k. In General. Most Cited Cases (Formerly 78k382.1, 78k382, 78k44(1)) Evidence that, after employer obtained necessary federal funds for position which it intended to offer blackapplicant, it was informed that the black applicant had moved to another city to resume her law studies and thatit then abandoned its plans for the new job demonstrated that the failure to hire the black applicant was based ona belief that she was no longer interested in employment and not racial discrimination.[32] Civil Rights 78 153678 Civil Rights 78IV Remedies Under Federal Employment Discrimination Statutes 78k1534 Presumptions, Inferences, and Burden of Proof 78k1536 k. Effect of Prima Facie Case; Shifting Burden. Most Cited Cases (Formerly 78k378, 78k44(1)) Belief that black applicants were available for employment for only a short period of time based on the factthat they took other employment did not rebut prima facie case of racial discrimination.[33] Civil Rights 78 151178 Civil Rights 78IV Remedies Under Federal Employment Discrimination Statutes 78k1511 k. Civil Actions in General. Most Cited Cases (Formerly 78k361, 78k38) Black applicant for a job is not required to either remain permanently unemployed or forfeit his cause of ac-tion for racial discrimination.*1017 Frank R. Parker, Nausead Stewart, Jackson, Miss., for plaintiffs-appellants Barbara Phillips et al. in No.79-2131. © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
  • 58. Page 10637 F.2d 1014, 25 Fair Empl.Prac.Cas. (BNA) 120, 25 Empl. Prac. Dec. P 31,611, 31 Fed.R.Serv.2d 67(Cite as: 637 F.2d 1014)Stewart & Parker, Nausead Stewart, Lawyers Committee for Civil Rights Under Law, Jackson, Miss., McTeer,Walls, Bailey & Buck, Charles Victor McTeer, Greenville, Miss., for plaintiffs-appellants Miss. Council on Hu-man Relations et al.Ross, Hardies, OKeefe, Babcock & Parsons, William Freivogel, Susan G. Lichtenfeld, Chicago, Ill., NauseadStewart, Lawyers Committee for Civil Rights Under Law, Jackson, Miss., for plaintiffs-appellants Barbara Phil-lips et al. in No. 79-3550.James M. Ward, Sp. Counsel, Starkville, Miss., Hubbard T. Saunders, IV, Sp. Asst. Atty. Gen., A. F. Summer,Atty. Gen., State of Miss., Dept. of Justice, Jackson, Miss., for defendants-appellees Joint Leg. Committee et al.Ed. Davis Noble, Jr., Asst. Atty. Gen., Bill Allain, Atty. Gen., Jackson, Miss., M. M. Roberts, Hattiesburg,Miss., for defendants-appellees Bd. of Trustees of Institution of Higher Ed. et al.Bill Allain, Atty. Gen., Hubbard T. Saunders, IV, Sp. Asst. Atty. Gen., Jackson, Miss., James M. Ward, Sp.Counsel, Starkville, Miss., for defendants-appellees State of Miss. Agricultural and Indus. Bd. et al.Appeals from the United States District Court for the Southern District of Mississippi.Before WISDOM, RUBIN and SAM D. JOHNSON, Circuit Judges.WISDOM, Circuit Judge: These appeals concern three allied lawsuits brought against Mississippi state agencies for employment dis-crimination. The named plaintiffs are the same in the three *1018 cases: Barbara Phillips, Melvin Phillips (notrelated), and Cornell Green Rice.[FN1] All are black. In each case the plaintiffs sought to represent a class ofblack job applicants. FN1. The Mississippi Council on Human Relations was an original party plaintiff in all three cases. It was dismissed for lack of a real interest in the outcome in the PEER and A&I cases. The defendant [FN2] in No. 79-2940 is the Joint Legislative Committee on Performance Evaluation and Ex-penditure Review (“PEER”), an arm of the Mississippi legislature with power to conduct performance evalu-ations, investigations, and critical examinations of all expenditures by any state agency. It is composed of fivemembers of each House. It employs a staff of about twenty research analysts and clerical workers. Its offices arein Jackson. FN2. In all three cases there are also individual defendants: the members of each defendant board or committee, certain staff executives, and other present and former state officers. The defendant in No. 79-2131 is the Mississippi Agricultural and Industrial Board (“A&I”), an agency cre-ated to promote industrial and agricultural development and tourism. Its members are the Governor, the Lieuten-ant Governor, the Speaker of the Mississippi House, four state legislators, three other state officials, and twenty-five public members appointed by the Governor. Among its functions are approval of industrial bond issues,study and recommendation of tax exemptions for Mississippi ports and harbors, and dissemination of tourist in-formation. The Board employs a staff of sixty to eighty persons at its main office in Jackson. © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
  • 59. Page 11637 F.2d 1014, 25 Fair Empl.Prac.Cas. (BNA) 120, 25 Empl. Prac. Dec. P 31,611, 31 Fed.R.Serv.2d 67(Cite as: 637 F.2d 1014) The defendant in No. 79-3550 is the Board of Trustees of the Institutions of Higher Learning (commonlyknown as the College Board), the governing body for Mississippis state universities and colleges. Its membersare appointed by the Governor. The Board employs a staff of about eighteen financial analysts and clericalworkers in Jackson. This suit concerns the Boards employment practices with regard only to that staff and not tothe university system generally. All three suits were brought as class actions in the Northern District of Mississippi, alleging racial discrim-ination in the defendants employment practices in violation of Title VII of the Civil Rights Act of 1964 asamended. [FN3] The cases were transferred to the Southern District of Mississippi under 28 U.S.C. s 1404(a)(1976). Although the PEER and A&I cases were consolidated for some preliminary purposes, the three weretried separately.[FN4] In the PEER and A&I cases the plaintiffs moved for the district judges recusal. The mo-tions were denied, and this Court refused to issue a mandamus ordering recusal of the trial judge. In re Phillips,No. 76-4038 (5 Cir. Nov. 19, 1976). In the PEER and College Board cases, the court refused to certify the al-leged classes. In the A&I case the court certified a class of all past black unsuccessful job applicants, but refusedto broaden the class to include future black applicants or persons deterred from applying by A&Is alleged dis-criminatory practices or reputation. After full trials on the merits, the court granted judgments for the defendantson all claims. FN3. 42 U.S.C. ss 2000e to 2000e-17 (1976). The complaints also cited id. ss 1981, 1983. The plaintiffs appeal only on the Title VII judgments. FN4. The PEER and A&I cases were assigned to Hon. William Harold Cox. U.S. Magistrate John R. Countiss presided over the trials and most other proceedings in the cases. Judge Cox adopted Magistrate Countisss findings of fact and conclusions of law. The College Board case was assigned to and tried by Hon. Walter L. Nixon, Jr. On appeal, the plaintiffs contend (1) that the district judge erroneously refused to recuse himself in the A&Icase; [FN5] (2) that the court improperly refused to certify classes in the PEER and College Board cases; (3) thatthe court improperly narrowed the class certified in the A&I case; and (4) that the courts judgments on the mer-its are legally incorrect or clearly erroneous. We affirm the district courts decisions*1019 as to recusal and as tosome of the individual claims. We reverse, however, as to the remaining individual claims, as to the class certi-fication issues, and as to the merits of the class claim in the A&I case. FN5. As noted, the same judge refused recusal in the PEER case as well. The plaintiffs have chosen not to appeal that decision. I. RECUSAL Barbara Phillips, acting on behalf of her co-plaintiffs, filed an Affidavit of Personal Bias and Prejudice inthe A&I case, seeking the recusal of Judge William Harold Cox. Phillipss affidavit did not state any facts relat-ing to any bias against any of the particular plaintiffs or in favor of any of the particular defendants in the case.Rather, she attempted to show that Judge Cox is prejudiced against all blacks and that he is hostile to civil rightssuits. Some of her allegations are conclusory accusations, lacking in particularity. Others recite particular judi-cial rulings, quotations from written opinions, and alleged remarks from the bench, in five cases over JudgeCoxs nineteen-year judicial career. Phillips also recited statistics concerning the frequency with which thisCourt has affirmed or reversed Judge Coxs rulings in civil rights cases. [1][2] There are two statutes governing recusal of federal district judges. 28 U.S.C. ss 144, 455 (1976). Sec- © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
  • 60. Page 12637 F.2d 1014, 25 Fair Empl.Prac.Cas. (BNA) 120, 25 Empl. Prac. Dec. P 31,611, 31 Fed.R.Serv.2d 67(Cite as: 637 F.2d 1014)tion 144 provides in part: Whenever a party to any proceeding in a district court makes and files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party, such judge shall proceed no further therein, but another judge shall be assigned to hear such proceeding. If an affidavit filed under section 144 is timely and technically correct, its factual allegations must be takenas true for purposes of recusal. The judge must pass on the legal sufficiency of the affidavit, but he may not passon the truth of the matters alleged. Berger v. United States, 1921, 255 U.S. 22, 41 S.Ct. 230, 65 L.Ed. 481; Par-rish v. Board of Commissioners, 5 Cir. 1975, 524 F.2d 98, 100 (en banc), cert. denied, 425 U.S. 944, 96 S.Ct.1685, 48 L.Ed.2d 188 (1976); Davis v. Board of School Commissioners, 5 Cir. 1975, 517 F.2d 1044, 1051, cert.denied, 425 U.S. 944, 96 S.Ct. 1685, 48 L.Ed.2d 188 (1976); United States v. Roca-Alvarez, 5 Cir. 1971, 451F.2d 843, 847-48. In Parrish, we stated that an affidavit is legally sufficient if it meets a three-part test: 1. The facts must be material and stated with particularity. 2. The facts must be such that, if true, they would convince a reasonable person that bias exists. 3. The facts must show the bias is personal, as opposed to judicial in nature. 524 F.2d at 100, quoting United States v. Thompson, 3 Cir. 1973, 483 F.2d 527, 528, cert. denied, 415 U.S.911, 94 S.Ct. 1456, 39 L.Ed.2d 496 (1974). [3] Congress rewrote the second statute, section 455, in 1974. Subsection (b) of that section lists a numberof specific situations in which a judge must recuse himself; none apply here. Subsection (a), a more general pro-vision, requires that Any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned. Section 455, unlike section 144, does not stipulate a formal procedure by which it must be raised. Like sec-tion 144, however, it may be raised by motion. Davis, 517 F.2d at 1051. Substantively, the two statutes are quitesimilar, if not identical.[FN6] FN6. To the extent that there is a difference, section 455 imposes the stricter standard: a movant under section 144 must allege facts to convince a reasonable person that bias exists, Parrish, 524 F.2d at 100, while under the broader language of section 455, he must show only that a reasonable person “would harbor doubts about the judges impartiality”, Potashnick v. Port City Constr. Co., 5 Cir. 1980, 609 F.2d 1101, 1111 (emphasis added), cert. denied, -- U.S. --, 101 S.Ct. 78, 66 L.Ed.2d 22 (1980). See Com- ment, Disqualification of Federal Judges for Bias or Prejudice, 46 U.Chi.L.Rev. 236, 243-50 (1978). See also Note, Disqualification of Judges and Justices in the Federal Courts, 86 Harv.L.Rev. 736, 745-50 (1973). On the other hand, section 455, unlike section 144, does not require the judge to accept all allegations by a moving party as true. Indeed, the section requires no motion at all; the judge must disqualify himself if the facts cast doubt on his impartiality regardless of how or by whom they are drawn to his attention. See Fredonia Broadcasting Corp. v. RCA Corp., 5 Cir. 1978, 569 F.2d 251, 254-57, cert. © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
  • 61. Page 13637 F.2d 1014, 25 Fair Empl.Prac.Cas. (BNA) 120, 25 Empl. Prac. Dec. P 31,611, 31 Fed.R.Serv.2d 67(Cite as: 637 F.2d 1014) denied, 439 U.S. 859, 99 S.Ct. 177, 58 L.Ed.2d 167 (1979). Section 144, by contrast, requires allega- tion by affidavit within a stringent time limit and allows a party only one such affidavit in any case. If a party could bind a judge by his factual allegations in a section 455 motion, free from the formal re- quirements and more demanding standard of proof of section 144, the result would be a virtual open season for recusal. See 46 U.Chi.L.Rev. at 250. [4][5][6] *1020 Under either statute, the alleged bias must be “personal”, as distinguished from judicial, innature. Davis, 517 F.2d at 1052; Parrish, 524 F.2d at 100; Steering Committee v. Mead Corp., 5 Cir. 1980, 614F.2d 958, 964-65; United States v. Serrano, 5 Cir. 1979, 607 F.2d 1145, 1150, cert. denied, 445 U.S. 965, 100S.Ct. 1655, 64 L.Ed.2d 241 (1980); Whitehurst v. Wright, 5 Cir. 1979, 592 F.2d 834, 837-38; Heppele v. John-ston, 5 Cir. 1979, 590 F.2d 609, 613; United States v. Archbold-Newball, 5 Cir. 1977, 554 F.2d 665, 682, cert.denied, 434 U.S. 1000, 98 S.Ct. 644, 54 L.Ed.2d 496 (1973). The point of the distinction is that the bias “muststem from an extrajudicial source and result in an opinion on the merits on some basis other than what the judgelearned from his participation in the case”. United States v. Clark, 5 Cir. 1979, 605 F.2d 939, 942 (per curiam).Thus, a motion for disqualification ordinarily may not be predicated on the judges rulings in the instant case orin related cases, nor on a demonstrated tendency to rule any particular way, nor on a particular judicial leaningor attitude derived from his experience on the bench. United States v. Grinnell Corp., 1966, 384 U.S. 563, 583,86 S.Ct. 1698, 1710, 16 L.Ed.2d 778, 793; Berger, 255 U.S. at 31, 41 S.Ct. at 232; Steering Committee, 614F.2d at 964; Serrano, 607 F.2d at 1150; Clark, 605 F.2d at 942; United States v. Caicedo-Asprilla, 5 Cir. 1980,632 F.2d 1161, 1165. [FN7] FN7. The single fact that a judges remarks or behavior take place in a judicial context does not exclude them from scrutiny if they reflect “such pervasive bias and prejudice ... as would constitute bias against a party”. Davis, 517 F.2d at 1051; Whitehurst, 592 F.2d at 838. See also United States v. Ritter, 10 Cir. 1976, 540 F.2d 463 (per curiam), cert. denied, 429 U.S. 951, 97 S.Ct. 370, 50 L.Ed.2d 319 (1976). [7] Here, most of Phillipss allegations concern Judge Coxs rulings or comments on the merits in previouscases. Some of them are misleadingly quoted out of context. At times, especially in some of the older instances,his remarks reflected racial reactions not only outmoded but improper. These remarks were unseemly, and we donot condone them. Nevertheless, they are not enough to require recusal. The comments alleged are not gratuit-ous insults and do not show overt hostility or the like; in every instance they concern the district judges finalconclusions or immediate reactions on points of fact or law in the case before him. We would be reluctant, inany but an extreme case, to base a disqualification order on such allegations. It is a district judges duty to con-duct trials, weigh evidence, consider the law, exercise his discretion, and reach decisions in the cases on whichhe sits. If he understands that a seemingly harsh comment toward a party or an attorney, or a perceived tendencyto give severe sentences to some class of offenders, or an aggregate imbalance in victories for plaintiffs or de-fendants in a particular class of cases may subject him to a train of successful recusal motions in future cases, hemay consciously or subconsciously shape his judicial actions in ways unrelated to the merits of the cases beforehim. Whether his conclusions in every case are the same as those that we (or these plaintiffs) would havereached is immaterial. A judge is not a computing machine, and the judicial system is not constructed so thateach judge must reach the same result as all other judges in a given case. If a judges “error” amounts to incor-rect law or an abuse of discretion, appellate courts exist to correct it. Within that boundary, he not only may, butshould, exercise his independent judgment on the facts and on the law. Presumably, for this attribute, among*1021 others, he was appointed. See Serrano, 607 F.2d at 1150-51; United States v. Johnson, 4 Cir. 1976, 537F.2d 1170, 1175; Baskin v. Brown, 4 Cir. 1949, 174 F.2d 391, 394; B. Cardozo, The Nature of the Judicial Pro-cess 98-141 (1921); Davis, A System of Judicial Notice Based on Fairness and Convenience, in Perspectives of © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
  • 62. Page 14637 F.2d 1014, 25 Fair Empl.Prac.Cas. (BNA) 120, 25 Empl. Prac. Dec. P 31,611, 31 Fed.R.Serv.2d 67(Cite as: 637 F.2d 1014)Law 69, 73-74 (R. Pound, ed., 1964); Friendly, The Courts and Social Policy: Substance and Procedure, 33U.Miami L.Rev. 21 (1978); Advisory Committees Note, Fed.R.Evid. 201. We do not mean to hold that prejudice against a class, as opposed to a particular litigant, can never form thebasis for recusal. See Davis, 517 F.2d at 1051. Nor do we say that a clearly evinced policy of disregarding themerits in any class of cases can withstand a recusal motion. See United States v. Thompson, 3 Cir. 1973, 483F.2d 527, cert. denied, 415 U.S. 911, 94 S.Ct. 1456, 39 L.Ed.2d 496 (1974). See also United States v. Clements,5 Cir. 1981, 634 F.2d 183. But we caution against a district judge disqualifying himself on the basis of an allega-tion of a perceived history of rulings that a moving party dislikes. This case provides a good example of the res-ults that might follow. Phillipss affidavit contains nothing pertaining to the parties or subject matter of the A&Icase; it could be repeated, word for word, by literally any black civil rights plaintiff from now until Judge Coxsretirement. With only minor modifications, it could be used by any black party a black criminal defendant, say.This is a type of recusal for whole classes of cases, without the constitutional safeguards that protect a judgefrom removal from office save by impeachment. The Constitution does not contemplate that we dispense with ajudges service on such a grand scale on any but the most compelling showing. See Steering Committee, 614F.2d at 966; Archbold-Newball, 554 F.2d at 682; United States v. Partin, 5 Cir. 1977, 552 F.2d 621, 637 n.20,cert. denied, 434 U.S. 903, 98 S.Ct. 298, 54 L.Ed.2d 189 (1977). Congress has provided another remedy for ju-dicial intemperance. Judicial Councils Reform and Judicial Conduct and Disability Act of 1980, Public Law96-458, s 3, 96th Congress, 94 Stat. 2035, 2036 (1980), amending 28 U.S.C. s 372. [8] We also do not suggest that Judge Cox was required not to recuse himself. Another judge, facing a simil-ar question, might well decide the other way. A recusal motion is committed to the sound discretion of the dis-trict judge, and on appeal we ask only whether he has abused his discretion. Davis, 517 F.2d at 1052; UnitedStates ex rel. Weinberger v. Equifax, Inc., 5 Cir. 1977, 557 F.2d 456, 463-64, cert. denied, 434 U.S. 1035, 98S.Ct. 768, 54 L.Ed.2d 782 (1978). We cannot say here that he has done so. II. CLASS CERTIFICATION The plaintiffs assert errors in all three cases concerning class certification. In the PEER case the districtcourt refused to certify a class of unsuccessful past black applicants, future black applicants, and persons de-terred from applying because of the Committees reputation or history as an employer given to race discrimina-tion. The court held that the purported class was not numerous enough under Fed.R.Civ.P. 23(a)(1). In the Col-lege Board case the court refused to certify a similar class on the ground that the plaintiffs did not show that theycould adequately represent the class, in light of their delay in moving for class certification. In both cases the de-fendants assert an alternative ground for the courts refusal: an alleged conflict of interest between the plaintiffscounsel and the purported class. The A&I case presents the issues differently. There the court certified a class ofactual black applicants but refused to include future applicants and deterred persons, citing problems of numer-osity, delay in moving, and lack of nexus between the named plaintiffs and the excluded persons. We find thatnone of the asserted reasons justify the courts decisions to refuse certification or to narrow the class certified.A. Numerosity The district court in the PEER case noted that the plaintiffs had met all the requisites *1022 for certificationof a class under Rule 23(b)(2), except the requirement of Rule 23(a)(1) that the class be so numerous that joinderof all members is impracticable. Since PEER did not record the race of its applicants, it is impossible to tell ex-actly how many black applicants there were. The plaintiffs nonetheless established at a certification hearing thatthere were at least 33 such applicants; there may have been many more.[FN8] © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
  • 63. Page 15637 F.2d 1014, 25 Fair Empl.Prac.Cas. (BNA) 120, 25 Empl. Prac. Dec. P 31,611, 31 Fed.R.Serv.2d 67(Cite as: 637 F.2d 1014) FN8. The defendants tentatively identified eleven unsuccessful black applicants, based on the recollec- tion of PEER executives or on the fact that some applicants graduated from predominantly black uni- versities or colleges. Nausead Stewart, an attorney for the plaintiffs, testified that she was personally ac- quainted with eight other applicants and knew them to be black. Finally, fourteen black applicants were identified by comparing PEERs applicant list with a voter registration list for the City of Jackson. The court accepted the figure 33. 3 Record at 73. There may have been many more. Any black applicant who attended an integrated college, who did not register to vote in Jackson, and who did not know Stewart would not have been identified as black. [9] The problem before the district court, and now before us, is not simply to say whether 33 class membersare enough or too few to satisfy Rule 23(a)(1). Ample case law can be cited to show that smaller classes havebeen certified and larger ones denied certification for lack of numerosity. See 3B J. Moore & J. Kennedy, Feder-al Practice P 23.05 (2d ed. 1980). Such number comparisons miss the point of the Rule. The proper focus is noton numbers alone, but on whether joinder of all members is practicable in view of the numerosity of the classand all other relevant factors. Here, neither party can even count how many black applicants there are, let aloneidentify all of them. Moreover, the alleged class includes future and deterred applicants, necessarily unidentifi-able. In such a case the requirement of Rule 23(a)(1) is clearly met, for “joinder of unknown individuals is cer-tainly impracticable”. Jack v. American Linen Supply Co., 5 Cir. 1974, 498 F.2d 122 (per curiam); Jones v. Dia-mond, 5 Cir. 1975, 519 F.2d 1090, 1100; see B. Schlei & P. Grossman, Employment Discrimination Law1095-97 (1976). The same reasoning holds true in the A&I case, where the district court cited numerosity as a ground for ex-cluding future and deterred applicants from the class certified. Moreover, aside from the inherent impracticabil-ity of joinder of such parties, there is the fact that the court did certify a class of actual applicants. It is hard tosee how a class already numerous enough can become insufficiently numerous through the inclusion of an un-known number of additional members. See Hebert v. Monsanto Co., 5 Cir. 1978, 576 F.2d 77, 80, vacated onother grounds, 580 F.2d 178 (5 Cir. 1978).B. Delay [10] Rule 23(c)(1) commands the district court to decide whether to certify a class in any case “as soon aspracticable” after commencement of the action.[FN9] The district court invoked the principle of that rule in re-fusing to certify a class in the College Board case, finding that the plaintiffs had delayed too long in moving forclass certification. This lapse, it held, warranted denial of the motion because it cast doubt on the plaintiffs abil-ity to represent the class adequately. See East Texas Motor Freight v. Rodriguez, 1977, 431 U.S. 395, 404-05, 97S.Ct. 1891, 1897, 52 L.Ed.2d 453, 463. Similarly, the court cited delay as a reason for narrowing the class in theA&I case.[FN10] FN9. Rule 23(c)(1) is cast as a command to the district court, not the parties; hence, a district court has an obligation to make the determination on its own motion if necessary. Gore v. Turner, 5 Cir. 1977, 563 F.2d 159, 165; United States v. United States Steel Corp., 5 Cir. 1975, 520 F.2d 1043, 1052, cert. denied, 429 U.S. 817, 97 S.Ct. 61, 50 L.Ed.2d 77 (1976); Garrett v. City of Hamtramck, 6 Cir. 1974, 503 F.2d 1236, 1243; Castro v. Beecher, 1 Cir. 1972, 459 F.2d 725, 731. FN10. This, of course, is inconsistent with the courts certification of the narrowed class in the A&I case. Since we conclude that delay would not justify a complete refusal to certify either the lesser or the greater class, we need not decide how best to resolve the inconsistency. © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
  • 64. Page 16637 F.2d 1014, 25 Fair Empl.Prac.Cas. (BNA) 120, 25 Empl. Prac. Dec. P 31,611, 31 Fed.R.Serv.2d 67(Cite as: 637 F.2d 1014) [11] *1023 We think the court went too far in both cases. Neither East Texas Motor Freight nor any otherprecedent that we have found has held that delay in moving for certification is sufficient in itself to disqualify aparty as a class representative. The case would be different if the plaintiffs motion had been untimely under anapplicable local rule, but here there was no such rule.[FN11] Although the plaintiffs doubtless could have beenmore diligent in making their motion, in the circumstances of these cases we do not think their delay was so in-excusable as to render their representation inadequate. The record reflects that a good deal of the time was con-sumed in litigating the defendants motions in all three cases for a change of venue, the plaintiffs motions in twocases for recusal, and the plaintiffs attempt to obtain mandamus relief in this Court on the recusal issue. The restof the time was spent in extensive discovery, much of which was relevant to the class certification question. Ac-cordingly, we find that the district court was too draconian in refusing certification on this ground. FN11. S.D.Miss. Local Rule 18, requiring that plaintiffs move for class certification within 45 days of the filing of the last answer, had not been adopted at the time of trial.C. Conflict of Interest [12] The defendants in the PEER and College Board cases raise another ground for noncertification, one notrelied on by the district court.[FN12] This Court has adopted a per se rule under Canon 9 of the Code of Profes-sional Responsibility [FN13] that an attorney who is the partner or spouse of a named class representative is dis-qualified from acting as counsel for the class. Zylstra v. Safeway Stores, Inc., 5 Cir. 1978, 578 F.2d 102, follow-ing Kramer v. Scientific Control Corp., 3 Cir. 1976, 534 F.2d 1085, cert. denied, 429 U.S. 830, 97 S.Ct. 90, 50L.Ed.2d 94 (1976). In the PEER and College Board cases, counsel for the plaintiffs are the Lawyers Committeefor Civil Rights Under Law and two of its attorneys. Barbara Phillips, one of the three named plaintiffs in thetwo cases, is one of the attorneys for the Lawyers Committee (although she is not acting as an attorney in thesecases). Accordingly, the defendants argue, if the class were certified, the Lawyers Committee would be disqual-ified as counsel. For that reason, they say the plaintiffs are not adequate class representatives under Rule23(a)(4). [FN14] FN12. The district court has expressly rejected this contention in a related case. Mississippi Council on Human Relations v. Mississippi Dept. of Justice, Civil No. J76-118(R) (S.D.Miss.) (Opinion of June 18, 1980, on motion to disqualify counsel). FN13. “A lawyer should avoid even the appearance of professional impropriety.” FN14. The defendants attempted use of the Kramer-Zylstra rule requires something of a leap in logic. Kramer and Zylstra both involved motions to disqualify counsel. Each of the cases before us, by con- trast, involves a contention that a would-be class representative should not be allowed to serve. As the Kramer Court noted, the issues raised in the two contexts are “related, but not identical.... (One) relates to who may serve as class representative, while the (other) relates to who may serve as counsel.” 534 F.2d at 1088. Supposing that the Lawyers Committee is disqualified from representing the class under Zylstra, it does not necessarily follow that the class may not be certified. For example, the district court could make certification contingent on replacement of counsel or on severance of the individual claim of the offending class representative. We need not reach this problem, however, since we hold that the Lawyers Committee may properly represent the classes. [13] Although we agree wholeheartedly with the rule announced in Zylstra and Kramer, we hold that it doesnot apply here. Our holding in Zylstra is an exception to our general rejection of per se rules under Canon 9 in © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
  • 65. Page 17637 F.2d 1014, 25 Fair Empl.Prac.Cas. (BNA) 120, 25 Empl. Prac. Dec. P 31,611, 31 Fed.R.Serv.2d 67(Cite as: 637 F.2d 1014)Woods v. Covington County Bank, 5 Cir. 1976, 537 F.2d 804. The Zylstra rule is directed at a particular ethicalproblem: the potential conflict that arises when a class representative stands (or appears to stand) to gain finan-cially from an award of attorneys fees made out of a class fund. Put simply, the cause for concern is that theclass representative may be too generous with the classs money in granting a fee to his own partner or spouse.*1024 See Zylstra, 578 F.2d at 104; Kramer, 534 F.2d at 1089-90, 1091; id. at 1093 (Rosenn, J., concurring).Here the problem does not arise. Any attorneys fee granted in these cases will come directly from the defend-ants under 42 U.S.C. s 2000e-5(k) (1976), and not from any fund created for class relief; hence, Ms. Phillipswould never have the opportunity for overgenerosity.D. Nexus [14] The district court in the A&I case concluded that it should exclude from the plaintiff class persons de-terred by A&Is policies from applying there because the named plaintiffs lack any “nexus” with deterred per-sons. The court reasoned that, since the named plaintiffs did apply to A&I, they have no standing to representpersons whose grievance is that they have been prevented from applying. This ground for narrowing the class is faulty as a matter of law. The argument would be sound if theseplaintiffs sought to represent a class consisting exclusively of deterred persons; in such a case the plaintiffswould lack standing to represent the putative class, in the same sense that a high school graduate lacks standingto bring a class action challenging a high school requirement. Payne v. Travenol Laboratories, Inc., 5 Cir. 1978,565 F.2d 895, 898-99, cert. denied, 439 U.S. 835, 99 S.Ct. 118, 58 L.Ed.2d 131 (1978); see East Texas MotorFreight v. Rodriguez, 1977, 431 U.S. 395, 403-04, 97 S.Ct. 1891, 1897, 52 L.Ed.2d 453, 461-63. Here, however,the plaintiffs are members of the class they seek to represent, and the only issue is the breadth of the definitionof that class. The requirement that the named plaintiffs claims be “typical” of the claims of the class,Fed.R.Civ.P. 23(a)(3), does not mean that all claims must be identical. Rather, a named plaintiff who has al-legedly suffered from the defendants racial discrimination may bring an “across the board” class action to rep-resent all persons who have suffered from the same discriminatory policies, whether or not all have experienceddiscrimination in the same way. Satterwhite v. City of Greenville, 5 Cir. 1978, 578 F.2d 987, 993-94 n.8 (enbanc), vacated on other grounds, 445 U.S. 940, 100 S.Ct. 1334, 63 L.Ed.2d 773 (1979); Hebert v. Monsanto Co.,5 Cir. 1978, 576 F.2d 77, vacated on other grounds, 580 F.2d 178 (1978); Long v. Sapp, 5 Cir. 1974, 502 F.2d34; Johnson v. Georgia Highway Express, 5 Cir. 1969, 417 F.2d 1122. Hence, we have approved the practice ofallowing rejected applicants to represent classes including those deterred from applying. E. g., Jack v. AmericanLinen Supply Co., 5 Cir. 1974, 498 F.2d 122 (per curiam). Indeed, if this were not the case, most such personswould go without relief entirely, since it is unlikely that one of them would sue and qualify as a class represent-ative. Because the district court erred in refusing to certify any class in the PEER and College Board cases, we re-mand them for trial as to the class allegations. [FN15] The A&I case went to trial as a class action. It does notappear that the courts error in restricting the class scope could have affected the trial in any important way. Wetherefore reach the class merits in that case. FN15. Despite counsels statements to the contrary, it is apparent from the record that the court in each case conducted the trial solely as an action on the named plaintiffs individual claims, and that evidence pertaining to class allegations was excluded. PEER Transcript at 17-18; College Board Transcript at 21, 44, 49. We therefore decline to reach the class merits of these cases. III. THE MERITS: THE A&I CLASS ACTION © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
  • 66. Page 18637 F.2d 1014, 25 Fair Empl.Prac.Cas. (BNA) 120, 25 Empl. Prac. Dec. P 31,611, 31 Fed.R.Serv.2d 67(Cite as: 637 F.2d 1014) [15] In reviewing the merits of the case as to alleged class discrimination, we keep in mind that the districtcourts finding of nondiscrimination is a determination of ultimate fact to which the “clearly erroneous” standardof review does not apply. (We are bound, of course, by the district courts findings of subsidiary fact and judg-ments of credibility unless they are clearly erroneous.) Fed.R.Civ.P. 52(a); Williams v. Tallahassee Motors, Inc.,5 Cir. 1979, 607 F.2d 689, 690; East v. Romine, Inc., 5 Cir. 1975, 518 F.2d 332, 338-39; Causey v. Ford MotorCo., 5 Cir. 1975, 516 F.2d 416, 420-21. *1025 The record indicates that the A&I Board employed no blacks from its inception in 1942 through1972. In 1973 the first black was hired to form and head a new subunit, the Office of Minority Business Enter-prise (OMBE). According to a stipulated set of employee lists, the Board employed five blacks in December1974 (7.9 percent of the Boards total); eleven blacks in December 1975 (12.0 percent); fifteen blacks in Decem-ber 1976 (17.6 percent); and thirteen blacks in 1977 (12.5 percent). These figures are skewed, however, by theinclusion of the OMBE staff and short-term employees hired under the federal Comprehensive Employment andTraining Act (CETA).[FN16] Both programs derive most of their funds from federal sources. OMBE has its ownhiring procedure, separate from the rest of the Board.[FN17] Its staff has always been all or nearly all black. Therecord does not reflect how CETA employees are hired, but their positions are temporary. The CETA program issubject to closer federal scrutiny as to equal employment practices than is A&Is employment generally. Exclud-ing these persons, the figures are much lower: one black (1.5 percent) in 1974; one black (1.4 percent) in 1975;seven blacks (9.5 percent) in 1976; and six blacks (6.5 percent) in 1977. Even these statistics hide another keyfact: although roughly half of the Boards staff is professional, technical or managerial, A&I has never hired ablack permanent employee (outside of OMBE) for anything but a clerical position. FN16. Pub.L.No.93-203, 87 Stat. 839 (1973), later codified at 29 U.S.C. ss 801 to 999 (Supp. III 1979). FN17. There is much dispute between the parties as to whether OMBE is really “part of” A&I. The point is unimportant. Thomas Espy, the OMBE director, did all the hiring for OMBE (subject to the ap- proval of the executive director), while Harold Cross, administrative assistant to the executive director, hired the staff for all other parts of A&I (likewise subject to approval). Thus, whether or not OMBE is operationally part of A&I, we cannot consider it as all of a piece with the rest of the Board for purposes of evaluating the fairness of A&Is hiring procedures. Most of the real debate between the parties concerns the relevant labor market to which A&Is hiring statist-ics are to be compared.[FN18] Actual applicant flow, often the best measurement, is unavailable here becauseA&I does not identify its applicants by race. Other statistical measures are necessarily imperfect in differingways and varying degrees. The best the court can do is to accept what figures are available; allow for imperfec-tions, skewing factors, and margins of error; and then take the figures for what they are worth. Sometimes this ismuch, sometimes little. See United Brotherhood of Teamsters v. United States, 1977, 431 U.S. 324, 340, 97S.Ct. 1843, 1856, 52 L.Ed.2d 396, 418; Williams, 607 F.2d at 693; Hester v. Southern Ry., 5 Cir. 1974, 497 F.2d1374, 1379-81. FN18. Besides the problem of which demographic measurement best suits the case, there is disagree- ment as to the proper geographical area. Here, perhaps, is where a purely numerical analysis fails most visibly. There is never any ascertainable demarcation line showing from where a particular employer can or cannot draw employees. Whether a potential employee will commute or relocate to take a job de- pends not only on his personal tastes, but also on the types of work he does, prevailing economic condi- tions, the features of the two communities concerned, and any number of other factors. Moreover, the © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
  • 67. Page 19637 F.2d 1014, 25 Fair Empl.Prac.Cas. (BNA) 120, 25 Empl. Prac. Dec. P 31,611, 31 Fed.R.Serv.2d 67(Cite as: 637 F.2d 1014) problem is inevitably complicated by the effect of the employers own recruiting and hiring practices. See generally Hazelwood School District v. United States, 1977, 433 U.S. 299, 97 S.Ct. 2736, 53 L.Ed.2d 768. In this case, the parties dispute whether the proper area is the entire state or only the Jackson Standard Metropolitan Statistical Area. The relevant figures, however, are remarkably close for both areas in nearly all important measures. The only substantial difference is that blacks make up a higher fraction of applicants for white collar jobs (professional, technical, managerial, clerical, and sales) in the Jack- son area than in the state at large. [16] The general population of Mississippi was 37.2 percent black at the time of the 1970 census. Accordingto figures from the Mississippi Employment Security Commission, the total civilian work force was 29.8 percentblack in 1977. In February 1978, 31.6 percent of persons registering at that Commission for professional, tech-nical, or managerial employment were black; 27.8 *1026 percent of registrants for clerical or sales jobs wereblack. Although these statistics have their flaws, we think the disparity between them and the Boards hiring re-cord is sufficient to raise a prima facie case of class discrimination and to shift the burden to the Board to showthat the discrepancy results from other causes. Robinson v. Union Carbide Corp., 5 Cir. 1976, 538 F.2d 652,659-61, modified on other grounds, 544 F.2d 1258 (5 Cir. 1977), cert. denied, 434 U.S. 822, 98 S.Ct. 65, 54L.Ed.2d 78 (1977). [17] A&Is only substantial response is to point out that only 11.5 percent of all high school graduates in theMississippi work force were black (as of 1973, the latest year for which figures are in evidence).[FN19] This ismaterial, but, by itself, it is insufficient. Many of A&Is clerical positions do not require a high school diploma,according to the Boards own job descriptions. Moreover, almost all of the nonclerical positions require a collegedegree; blacks made up 18.1 percent of the Mississippi work force with degrees. Considered against the figurefor A&Is black nonclerical hiring zero, outside of OMBE that figure does much to deflate the rebuttal argument.[FN20] FN19. Actually, the defendants state that 14.9 percent of such graduates are black. Appellees Brief at 12. This is due to the Boards misreading of the M.E.S.C. table, Plaintiffs Exhibit 32 at table 6: what that table states is that 14.9 percent of Mississippi blacks in the labor force are high school graduates. The error becomes more serious with regard to college graduates: the Board reports that only 3.7 per- cent of Mississippi college graduates are black, but a little long division shows that the correct figure is 18.1 percent. FN20. Because the named plaintiffs all have college degrees, they lack constitutional standing to chal- lenge the legality of A&Is educational requirements under Griggs v. Duke Power Co., 1971, 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158, and Scott v. City of Anniston, 5 Cir. 1979, 597 F.2d 897, cert. denied, 446 U.S. 917, 100 S.Ct. 1850, 64 L.Ed.2d 271 (1980). See Payne v. Travenol Laboratories, Inc., 5 Cir. 1978, 565 F.2d 895, 898-99, cert. denied, 439 U.S. 835, 99 S.Ct. 118, 58 L.Ed.2d 131 (1978). Accordingly, that issue is not presented in these cases, either here or in the district court. [18][19] Even so, we might hesitate to find discrimination in this case on the basis of these statistics alone.Here, however, there are other indicators. The district court found that A&I has a clear history of discrimination,not having hired a single black during its first three decades of existence. Its hiring procedures rely heavily onthe subjective judgments of its executives from personal interviews, a procedure that can easily be used to mask © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
  • 68. Page 20637 F.2d 1014, 25 Fair Empl.Prac.Cas. (BNA) 120, 25 Empl. Prac. Dec. P 31,611, 31 Fed.R.Serv.2d 67(Cite as: 637 F.2d 1014)racially motivated hiring decisions.[FN21] Such facts can buttress statistical evidence by suggesting a qualitat-ive explanation for a quantitative result. FN21. To note this fact is not necessarily to find fault with A&Is procedure or job criteria. In fact, the Boards bulky set of job descriptions is about as detailed and specific as can reasonably be expected. Given the nature of A& Is work, some subjectivity in hiring is unavoidable, especially with regard to nonclerical positions. Whether necessary or not, however, subjective judgments are suspect as job qual- ifications when they are exercised by members of an all-white executive or supervisory staff. See Jen- kins v. Caddo-Bossier Assn for Retarded Children, 5 Cir. 1978, 570 F.2d 1227, 1229 (per curiam). [20] In light of these facts, as found by the district court and amply supported by the record, we concludethat the district court erred in its conclusion of nondiscrimination against the class. On remand, the district courtshould direct the Board to set goals of about twenty percent black employment outside OMBE, separately forclerical and nonclerical positions. A&I should undertake an aggressive campaign of recruitment and advertise-ment to procure sufficient qualified black applicants to make these goals feasible. Further, until these goals areachieved, one third of all persons hired within predetermined six-month periods for permanent clerical or non-clerical jobs outside OMBE shall be black. The district court shall take any other concurrent or later actions ne-cessary to eliminate the effects of past discrimination at A&I and to procure the rights of the plaintiff class andits members. See Morrow v. Crisler, 5 Cir. 1974, 491 F.2d 1053 (en banc), cert. denied, 419 U.S. 895, 95 S.Ct.173, 42 L.Ed.2d 139 (1979); *1027Franks v. Bowman Transportation Co., 5 Cir. 1974, 495 F.2d 398, 418-20,revd in part on other grounds, 424 U.S. 747, 96 S.Ct. 1251, 47 L.Ed.2d 444 (1976); NAACP v. Allen, 5 Cir.1974, 493 F.2d 614; Davis v. County of Los Angeles, 9 Cir. 1977, 566 F.2d 1334, 1342-44, vacated as moot,440 U.S. 625, 99 S.Ct. 1379, 59 L.Ed.2d 642 (1979); United States v. City of Chicago, 7 Cir. 1977, 549 F.2d415, 436-37, cert. denied, 434 U.S. 875, 98 S.Ct. 225, 54 L.Ed.2d 155 (1978); Boston Chapter, NAACP, Inc. v.Beecher, 1 Cir. 1974, 504 F.2d 1017, 1026-28, cert. denied, 421 U.S. 910, 96 S.Ct. 1561, 43 L.Ed.2d 775 (1975); United States v. Masonry Contractors Assn, 6 Cir. 1974, 497 F.2d 871, 877; Erie Human Relations Commis-sion v. Tullio, 3 Cir. 1974, 493 F.2d 371; Bridgeport Guardians, Inc. v. Members of Bridgeport Civil ServiceCommission, 2 Cir. 1973, 482 F.2d 1333, 1339-41, cert. denied, 421 U.S. 991, 95 S.Ct. 1997, 44 L.Ed.2d 481(1975); Carter v. Gallagher, 8 Cir. 1971, 452 F.2d 315, 330-31 (en banc), cert. denied, 406 U.S. 950, 92 S.Ct.2045, 32 L.Ed.2d 338 (1972). IV. THE MERITS: THE INDIVIDUAL CLAIMS [21][22] The standard and order of proof in an individual claim under Title VII are by now familiar. Toraise a prima facie case, the plaintiff must show (1) that he belongs to a racial minority; (2) that he applied andwas qualified for a job for which the employer was seeking applicants; (3) that, despite his qualifications, he wasrejected; and (4) that, after his rejection, the position remained open. The burden then shifts to the employer toshow some legitimate, nondiscriminatory reason for the applicants rejection.[FN22] The plaintiff is then af-forded a fair opportunity to show that the employers stated reason is in fact a pretext. McDonnell Douglas Corp.v. Green, 1973, 422 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668; Furnco Construction Co. v. Waters, 1978, 438U.S. 567, 98 S.Ct. 2943, 57 L.Ed.2d 957. This formula must not be applied mechanically, but flexibly, with aview toward the particular hiring procedures and factual situation presented. McDonnell Douglas, 411 U.S. at802, 93 S.Ct. at 1824; Peters v. Jefferson Chemical Co., 5 Cir. 1975, 516 F.2d 447, 450. On appellate review, weare bound by the district courts findings of credibility and of subsidiary fact unless they are clearly erroneous.The clear error standard, however, does not apply to the ultimate conclusion of discrimination or nondiscrimina-tion. Williams v. Tallahassee Motors, Inc., 5 Cir. 1979, 607 F.2d 689, 690; East v. Romine, Inc., 5 Cir. 1975,518 F.2d 332, 338-39; Causey v. Ford Motor Co., 5 Cir. 1975, 516 F.2d 416, 420-21. © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
  • 69. Page 21637 F.2d 1014, 25 Fair Empl.Prac.Cas. (BNA) 120, 25 Empl. Prac. Dec. P 31,611, 31 Fed.R.Serv.2d 67(Cite as: 637 F.2d 1014) FN22. This Court has consistently held that the employer bears the burden of showing his legitimate reason by a preponderance of the evidence. Burdine v. Texas Department of Community Affairs, 5 Cir. 1979, 608 F.2d 563, 567; Turner v. Texas Instruments, Inc., 5 Cir. 1977, 555 F.2d 1251, 1255; Whiting v. Jackson State University, 5 Cir. 1980, 616 F.2d 116, 121; Jefferies v. Harris County Community Ac- tion Assn, 5 Cir. 1980, 625 F.2d 1025, 1030. The Supreme Court has granted certiorari on the question, however. Texas Department of Community Affairs v. Burdine, 447 U.S. 920, 100 S.Ct. 3009, 65 L.Ed.2d 1112 (1980). We, of course, adhere to the Fifth Circuit rule pending the Supreme Courts de- cision, but it is not a matter of importance; under our view of the cases, none of the nine individual claims present turn on the applicability or nonapplicability of the Burdine rule.A. The PEER Case [23] 1. Barbara Phillips. Barbara Phillips applied to the PEER Committee on July 12, 1974. She had inter-views with John Hamilton, the Director of the Committee staff, and John Turcotte, a staff auditor. Both mentestified that they were very favorably impressed with Phillipss credentials, her manner, and her knowledge ofPEERs functions.[FN23] At their request, she brought in a writing sample. The two men decided right away tohire Phillips, but they did not inform her of that. After the initial interview, Phillips was never told *1028 thatshe was under serious consideration.[FN24] Three weeks after their interview with her, Hamilton and Turcottesaw reports on television and in a newspaper that Ms. Phillips had filed EEOC complaints against PEER andother agencies and that she was acting as a consultant to the Mississippi Council on Human Relations.[FN25]The district court found that she would have been hired but for these news reports. Hence, it concluded, PEERestablished a legitimate reason for not hiring Phillips Hamiltons and Turcottes beliefs that she was already em-ployed. The court also held that Phillips had not shown that reason to be a pretext.[FN26] FN23. Transcript at 114, 188-89, 397-98. Usually we do not give transcript and record citations. We make an exception in this case for the convenience of this Court, should there be a petition for a rehear- ing en banc, and for the convenience of the Supreme Court, should there be an application for a writ of certiorari. FN24. Transcript at 128, 188, 345, 400. FN25. Transcript at 114-16, 128, 430-31. FN26. Record at 676-77. After carefully examining the record, we believe that this finding is clearly erroneous. The defendants the-ory fails because it cannot adequately explain why, if Hamilton and Turcotte were so impressed with Ms. Phil-lipss qualifications that they decided immediately to hire her, they procrastinated for several weeks. In fact, therecord shows that race was very much on their minds. Hamilton testified that hiring Phillips was “an importantdecision” because she would have been the first black employee at PEER. He and Turcotte were concernedabout the reaction of the white legislators on the Committee and the white staff to such a step, as well as Phil-lipss own reaction to the “alien world” of the white-dominated agency. The reason for the delay, both men testi-fied, was that they were mulling over the “significance” or “complexities” of hiring blacks at PEER.[FN27] Oneneed not question the good faith of Hamilton and Turcotte to conclude that the ultimate decision not to hire Ms.Phillips was as much due to her race as was the delay in offering her a position. Given their enthusiasm for herqualifications, it is hard to believe that they would not have at least inquired as to the possibility of hiring heraway from her “consulting” position but for their apprehensions about her race. [FN28] We do not mean to say © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
  • 70. Page 22637 F.2d 1014, 25 Fair Empl.Prac.Cas. (BNA) 120, 25 Empl. Prac. Dec. P 31,611, 31 Fed.R.Serv.2d 67(Cite as: 637 F.2d 1014)that Title VII always requires an employer to pursue black applicants even after they are hired elsewhere. Wehold only that, on the record in this case, we cannot avoid the conclusion that the reason offered was a conveni-ent way out of an uncomfortable decision in other words, a pretext. FN27. Transcript at 113, 118-19, 128-29, 144, 346-47, 362; see id. at 210, 262-63. FN28. Her position was, in fact, unpaid. Transcript at 224-25. [24] 2. Melvin Phillips. Melvin Phillips applied to PEER on August 30, 1974. John Turcotte interviewedhim. When he called back the next day he was told that there were no openings. The district court found thatTurcotte rejected Mr. Phillips because he had expressed a reservation during the interview about job-relatedtravel.[FN29] FN29. Record at 672. The court also noted that the next person hired, Susan Hymel, was better qualified than Phillips. This is immaterial, since Turcotte testified that the hiring of Hymel was not at all connec- ted with the rejection of Phillips. Transcript at 441. This finding is clearly erroneous. There is literally no evidence that Mr. Phillips said in his interview that hewas unwilling to travel. On the contrary: although Turcotte testified that he had told Phillips about the travel re-quirements of the job, he was certain that Phillips had not expressed any reservation about them.[FN30] FN30. Transcript at 463-64. Presumably, what the district court had in mind was Mr. Phillipss statement on his employment applicationthat he had left his last job because it required excessive travel.[FN31] Turcotte testified that it was this expres-sion of reluctance that had led to the decision not to hire Phillips.[FN32] If this was indeed the reason for the re-jection, it is insufficient as a matter of law to rebut Phillipss prima facie case. Turcottes reason was, at best, abare assumption about *1029 Phillipss intentions at the time of his application an assumption made all the moreunreasonable by Phillipss silence about the travel requirements Turcotte described to him and Turcottes failureto ask the obvious question. We have held that an unchecked assumption that an applicant would not accept ajob cannot be a legitimate reason for failing to offer the job, or at least to make inquiry about the assumption.Davis v. Jackson County Port Authority, 5 Cir. 1980, 611 F.2d 577. Here, in fact, Phillips testified that he hadnot said anything about travel because he was unemployed and needed the job to support his family. He latertook a job requiring travel. [FN33] FN31. Defendants Exhibit 2; see Transcript at 327. FN32. Transcript at 412, 415. FN33. Transcript at 331, 483. 3. Cornell Green Rice. On September 19, 1974, Cornell Rice visited PEERs offices to apply for a clerical orsecretarial job. She left a completed (although unsigned) application form with a receptionist, but she did notspeak with anyone else or set up an interview. She never called back or made any further effort to keep in con-tact with PEER. [25] The district court found that Rice did not make out a prima facie case because there were no vacanciesfor which she was qualified. This is probably incorrect.[FN34] Even so, it is clear from the record that the de- © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
  • 71. Page 23637 F.2d 1014, 25 Fair Empl.Prac.Cas. (BNA) 120, 25 Empl. Prac. Dec. P 31,611, 31 Fed.R.Serv.2d 67(Cite as: 637 F.2d 1014)fendants showed a valid, nondiscriminatory reason for not hiring Rice. According to the uncontradicted testi-mony of Turcotte and Hamilton, it was routine practice at PEER to make no effort to make further contact with“walk-in” applicants those who do nothing more than leave or mail in a resume or application form. [FN35]Rices attempt to impeach this explanation by counterexample only reinforced it.[FN36] It is not for us to saywhether this procedure is sensible, or even fair; it is sufficient for our purposes that it is race-neutral and that ithas not been shown to be pretextual. Accordingly, we decline to disturb the district courts ruling on this claim. FN34. As we shall discuss later, a vacancy within the meaning of the McDonnell Douglas test does not mean only an opening existing at the precise date of application, but any opening during the time that the application remains active. The record shows that two white secretaries were hired within two months of Rices application. Record at 185-86. FN35. Transcript at 178-79, 454-55; see id. at 135. FN36. Transcript at 452-55.B. The College Board Case 1. Barbara Phillips. On July 9, 1974, Barbara Phillips went to the receptionists desk on the first floor of thebuilding in which the Boards offices are located. She took an application form home, filled it out, and mailed itin. Ten days later, Dr. E. E. Thrash, the Boards executive director, sent her a letter stating that there were no va-cancies for a person of Phillipss qualifications. [26] We find no clear error in the district courts finding that Ms. Phillips was not qualified for any vacantposition. The Board employs a staff of about 18 persons; most of its work concerns the financial problems ofMississippi higher education. Thrash testified that he rejected Phillips because there was nothing in her applica-tion to suggest that she had any experience or expertise in financial matters or in higher education.[FN37] Hereducation had been in history and in law, proficiency at which would not qualify her for any of the Boards pro-fessional positions.[FN38] Nor did she appear to be qualified for most clerical jobs, since she left blank thespace on her application for typing and shorthand skills.[FN39] She was qualified, Thrash testified, for the posi-tion of file clerk, but that job has not been open since before 1974. [FN40] We believe that this evidenceprovides adequate support for the district courts ruling. FN37. Transcript at 72, 76, 94; Plaintiffs Exhibit 13. FN38. Transcript at 72-74, 76, 94, 98. The Board handles none of its own legal work. Id. at 94-95. FN39. Plaintiffs Exhibit 13; Transcript at 72, 79. FN40. Transcript at 74, 79. *1030 2. Melvin Phillips. Melvin Phillips testified that he went to the College Board on September 6, 1974.A receptionist informed him that there were no application forms, but he had an informal interview with CharlesCoffman, an associate director. Coffman, Phillips said, told him that there were no openings then and that therewere no positions for persons with B.A. degrees. [FN41] FN41. Transcript at 213-15. The district court rejected Mr. Phillipss testimony and found that he had not applied to the Board. This was © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
  • 72. Page 24637 F.2d 1014, 25 Fair Empl.Prac.Cas. (BNA) 120, 25 Empl. Prac. Dec. P 31,611, 31 Fed.R.Serv.2d 67(Cite as: 637 F.2d 1014)error. This finding rests on a misreading of Coffmans testimony; indeed, the parties stipulated in the pretrial or-der that Phillips did apply.[FN42] FN42. Record at 735. Coffman did not testify that he never interviewed Mr. Phillips, but only that he did not recall doing so. He pointed out that he interviews many applicants and easily might not remem- ber one in particular. Transcript at 265-66. [27] Despite this discrepancy, we affirm the district courts ruling. Examination of the record reveals that,during the year following Mr. Phillipss application, only one white applicant was hired in a position that Phil-lips might have filled. That one, Ward Shaw, had a masters degree in economics and experience as a college in-structor. He was hired on a temporary basis to do a study of the feasibility of certain proposed program additionsat Alcorn State University, a job for which he was better qualified than Phillips. [FN43] Given this absence ofany relevant vacancies, we must agree that Phillips did not make out a prima facie case of racial discrimination. FN43. Plaintiffs Exhibit 4; Transcript at 77, 96-97. 3. Cornell Green Rice. Cornell Rice interviewed with Thrash on September 19, 1974. He told her that therewere no jobs open then and would be none in the foreseeable future. She left her resume and application. Shenever heard from the Board.[FN44] FN44. Transcript at 227-28. [28][29] The district court found that Rice was not hired because there were no vacancies when she applied.[FN45] This is clearly erroneous. The evidence shows that Bonnie Childers, a white, was hired as a secretaryscarcely two months after Rices application.[FN46] The defense made no attempt to show that Childers wasbetter qualified than Rice, and there is no indication of how long the vacancy she filled had existed.[FN47] Avacancy, within the meaning of the McDonnell Douglas test, need not exist on the precise day of application;any vacancies within a reasonable time must be considered as well. [FN48] McLean v. Phillips-Ramsey, Inc., 9Cir. 1980, 624 F.2d 70, 72 (per curiam); Neely v. City of Grenada, 1977, N.D.Miss., 438 F.Supp. 390, 409; seeEast v. Romine, Inc., 5 Cir. 1975, 518 F.2d 332, 338. Since no attempt was made to show a legitimate reason forhiring Childers instead of Rice, we hold that Rice is entitled to judgment. FN45. Record at 920. The court also adverted to testimony that Robert Harrison, a black member of the Board, had approached Rice about working at the Board and that Rice had said she was not interested. It is not clear how much the court relied on that fact, but any reliance would have been misplaced. The evidence shows that, when Harrison approached Rice, she was earning more than the Board would pay. At the time of her application, by contrast, she was unemployed. Transcript at 137-40, 227. FN46. Plaintiffs Exhibit 4. FN47. Childerss application is in the record, Record at 392, but it is not obvious that her credentials or experience exceed Rices. She was not mentioned at trial. Through an apparent clerical error, the depar- ture date for the person Childers replaced is plainly misreported. Record at 559, 569. FN48. There is at least one example on the record, occurring a few months before Rices application, of a white applicant being hired months after applying. Plaintiffs Exhibit 3 (Martha DAquino).C. The A & I Case © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
  • 73. Page 25637 F.2d 1014, 25 Fair Empl.Prac.Cas. (BNA) 120, 25 Empl. Prac. Dec. P 31,611, 31 Fed.R.Serv.2d 67(Cite as: 637 F.2d 1014) [30] The individual claims in the A & I case come to us in a different posture from those in the other twocases because of our holding that the plaintiffs proved that A & I is guilty of discrimination against the *1031plaintiff class.[FN49] The establishment of liability on the class claim operates to establish a prima facie case onbehalf of each member of the class. Once the individual plaintiff proves that he applied unsuccessfully, the bur-den shifts to the employer to establish that its failure to hire that individual was the result of legitimate nondis-criminatory reasons. International Brotherhood of Teamsters v. United States, 1977, 431 U.S. 324, 357-62, 97S.Ct. 1843, 1865-68, 52 L.Ed.2d 396, 428-32; Franks v. Bowman Transportation Co., 1976, 424 U.S. 747,771-73 & n.32, 96 S.Ct. 1251, 96 S.Ct. 1267-68 & n.32, 47 L.Ed.2d 444, 466-67. FN49. We also note that in this case, unlike the other two, there is no claim for backpay or other money relief. The complaint is expressly limited to a cause of action for injunctive and declaratory relief, and neither party introduced any evidence as to the propriety or amount of backpay awards. [31] 1. Barbara Phillips. Barbara Phillips visited the A & I Board during July 1974. She testified that shewas interviewed by Harold Cross, administrative assistant to the director, but other evidence shows (and the dis-trict court found) that Phillips actually spoke with Robert Robinson, the executive director.[FN50] Robinsontestified that he was very impressed with Phillipss credentials and intelligence, but that he had no positions atthat time suitable for her. He offered to assist her in obtaining a job at another agency. At the same time,however, he described to her a new position that he wanted to create in the Industrial Department, for which hethought Phillips would be well suited. He took two telephone numbers for her and asked her to check back. Overthe next three weeks Robinson worked at arranging federal funds for the new position. When he succeeded, hecalled Phillipss telephone numbers to speak to her about the job. At one there was no answer; at the other, hewas told that Phillips had moved to Chicago to resume her law school studies at Northwestern University. Heabandoned his plans for the new job. [FN51] FN50. Record at 456; Transcript at 58, 145-46, 160-62. FN51. Transcript at 160-62, 164. The district court credited Robinsons testimony and found that the sole reason why Phillips was not hiredwas because Robinson believed she was no longer interested in employment in Jackson. There is abundant evid-ence to support this finding. In light of the facts, it is not clear that Phillips was rejected at all. Even if she was,we agree with the district court that Robinsons testimony adequately established a legitimate, nondiscriminatoryreason for the rejection.[FN52] FN52. This holding is not in conflict with Davis v. Jackson County Port Authority, 5 Cir. 1980, 611 F.2d 577, or our holding on Melvin Phillipss claim in the PEER case. In those cases the employers jumped to unwarranted conclusions while foregoing obvious opportunities to ask about them. The dif- ference here is simply a matter of reasonableness; there is a point at which Title VII does not require an employer otherwise acting in good faith to verify every possible logical assumption on which he might rely. We are influenced in this determination by Robinsons remarkable efforts to create a position for Phillips when he found none available. 2. Melvin Phillips. Melvin Phillips applied at the A & I Board on August 28, 1974. After filling out an ap-plication, he spoke briefly with Harold Cross. Cross said there were no jobs available in A & I, but referred himto Thomas Espy, head of OMBE. Espy also had no jobs. Phillips called Espy a few times, but he never heardfrom A & I again.[FN53] © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
  • 74. Page 26637 F.2d 1014, 25 Fair Empl.Prac.Cas. (BNA) 120, 25 Empl. Prac. Dec. P 31,611, 31 Fed.R.Serv.2d 67(Cite as: 637 F.2d 1014) FN53. Transcript at 72-80. [32][33] The district court held against Phillips because, it concluded, he was only available for employ-ment for a short period of time, and all white applicants hired during that period were better qualified than he.[FN54] We think that the court improperly constricted its scrutiny of the Boards hiring. Title VII does not re-quire a plaintiff to remain permanently unemployed or forfeit his cause of action for racial discrimination. Norcan the Board contend here, as it did in the case of Barbara Phillips, that *1032 Phillipss apparent departurefrom the job market was a legitimate reason for not hiring him, for there is no evidence that anyone at A & Iever learned that he had taken another job. According to A & Is own written procedures and Crosss testimony,applicants remain under active consideration for all openings within a year of the date of application.[FN55]During the year following Phillipss application, A & I hired seventeen non-clerical employees, fourteen ofwhom were white. Excluding OMBE and temporary CETA appointments, they hired four such persons, allwhite.[FN56] A & Is failure to show a legitimate business reason for hiring these persons instead of Phillips isfatal to its defense. FN54. Record at 458-59. FN55. Plaintiffs Exhibit 18; Transcript at 87-88, 150-51. FN56. Plaintiffs Exhibit 8. 3. Cornell Green Rice. Cornell Rice applied at A & I on September 18, 1974, and interviewed briefly withEspy. He said he would refer her application “upstairs” (i. e., to A & I). She later received a letter from Espy ad-vising her that there were no jobs available.[FN57] FN57. Plaintiffs Exhibit 1; Transcript at 23-27, 47-48. Rices case is similar to Melvin Phillipss. The district court ruled against Rice because it found that she hadbeen available for employment for only a few days, and there were no secretarial or clerical vacancies duringthat time. Again, though, there was no suggestion that Rices application was removed from consideration pre-maturely, for no one at A & I knew of her new job. During the year following her application, A & I hired nine-teen whites and six blacks in clerical jobs. If OMBE and CETA jobs are excluded, the figures are nine white,one black.[FN58] As with Melvin Phillips, the absence of any business justification for these hirings defeats theBoards rebuttal of the prima facie case established under Franks and Teamsters. FN58. Plaintiffs Exhibit 8. SUMMARY To summarize our disposition of these cases: We AFFIRM the judgment in the A & I case with regard to the issue of recusal. We REVERSE the district courts refusal to certify the alleged classes in the PEER and College Boardcases. Those cases are REMANDED for appropriate proceedings as to the administration of the class action andthe merits of the class allegations. We MODIFY the class certification order in the A & I case to include in thatclass future applicants and persons deterred from applying for jobs with A & I. We REVERSE the judgment in the A & I case that the plaintiffs did not establish discrimination against the © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
  • 75. Page 27637 F.2d 1014, 25 Fair Empl.Prac.Cas. (BNA) 120, 25 Empl. Prac. Dec. P 31,611, 31 Fed.R.Serv.2d 67(Cite as: 637 F.2d 1014)class. The case is REMANDED for appropriate relief consistent with this opinion. We REVERSE the courts judgments on the merits with respect to Barbara Phillipss individual claim in thePEER case; Melvin Phillipss individual claims in the PEER and A & I cases; and Cornell Rices individualclaims in the A & I and College Board cases. We REMAND the cases for appropriate relief. We AFFIRM thedistrict courts judgments as to the remaining individual claims. Although we have refused to overturn the district courts denial of the plaintiffs recusal motion, in light oflater developments and all of the circumstances presented in these cases, we suggest that any proceedings on re-mand should be heard before a judge other than the Hon. William Harold Cox. We do so without in any wayquestioning the integrity or impartiality of that Judge; we act solely in the interest of preserving the complete ap-pearance of impartiality. See Webbe v. McGhie Land Title Co., 10 Cir. 1977, 549 F.2d 1358, 1361; Eckles v.Sharman, 10 Cir. 1977, 548 F.2d 905, 911; United States v. Bray, 10 Cir. 1976, 546 F.2d 851, 860; United Statesv. Ritter, 10 Cir. 1976, 540 F.2d 459, 464-65, cert. denied, 429 U.S. 951, 97 S.Ct. 370, 50 L.Ed.2d 319 (1976).C.A.Miss., 1981.Phillips v. Joint Legislative Committee on Performance and Expenditure Review of State of Miss.637 F.2d 1014, 25 Fair Empl.Prac.Cas. (BNA) 120, 25 Empl. Prac. Dec. P 31,611, 31 Fed.R.Serv.2d 67END OF DOCUMENT © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
  • 76. CODE OF JUDICIAL CONDUCT Adopted by the Mississippi Supreme Court April 4, 2002 Table of RulesPREAMBLETERMINOLOGYCANON 1 - A Judge Shall Uphold the Integrity and Independence of the Judiciary.CANON 2 - A Judge Shall Avoid Impropriety and the Appearance of Impropriety inAll Activities.CANON 3 - A Judge Shall Perform the Duties of Judicial Office Impartially andDiligently.CANON 4 - A Judge Shall So Conduct the Judge’s Extra-judicial Activities as toMinimize the Risk of Conflict with Judicial Obligations.CANON 5 - A Judge or Judicial Candidate Shall Refrain From InappropriatePolitical Activity.APPLICATION OF THE CODE OF JUDICIAL CONDUCT . CODE OF JUDICIAL CONDUCT Adopted by the Mississippi Supreme Court April 4, 2002 PREAMBLE Our legal system is based on the principle that an independent, fair and competentjudiciary will interpret and apply the laws that govern us. The role of the judiciary iscentral to American concepts of justice and the rule of law. Intrinsic to all sections of thisCode are the precepts that judges, individually and collectively, must respect and honorthe judicial office as a public trust and strive to enhance and maintain confidence in our EXHIBIT "5"
  • 77. legal system. The judge is an arbiter of facts and law for the resolution of disputes and ahighly visible symbol of government under the rule of law. The Code of Judicial Conduct is intended to establish standards for ethical conductof judges. It consists of broad statements called Canons, specific rules set forth inSections under each Canon, a Terminology Section, an Application Section andCommentary. The text of the Canons and the Sections, including the Terminology andApplication Sections, is authoritative. The Commentary, by explanation and example,provides guidance with respect to the purpose and meaning of the Canons and Sections.The Commentary is not intended as a statement of additional rules. When the text uses"shall" or "shall not," it is intended to impose binding obligations the violation of whichcan result in disciplinary action. When "should" or "should not" is used, the text isintended as hortatory and as a statement of what is or is not appropriate conduct but not asa binding rule under which a judge may be disciplined. When "may" is used, it denotespermissible discretion or, depending on the context, it refers to action that is not coveredby specific proscriptions. The Canons and Sections are rules of reason. They should beapplied consistent with constitutional requirements, statutes, other court rules anddecisional law and in the context of all relevant circumstances. The Code is to beconstrued so as not to impinge on the essential independence of judges in making judicialdecisions. The Code is designed to provide guidance to judges and candidates for judicialoffice and to provide a structure for regulating conduct through disciplinary agencies. It isnot designed or intended as a basis for civil liability or criminal prosecution. Furthermore,the purpose of the Code would be subverted if the Code were invoked by lawyers formere tactical advantage in a proceeding. The text of the Canons and Sections is intended to govern conduct of judges and tobe binding upon them. It is not intended, however, that every transgression will result indisciplinary action. Whether disciplinary action is appropriate, and the degree ofdiscipline to be imposed, should be determined through a reasonable and reasonedapplication of the text and should depend on such factors as the seriousness of thetransgression, whether there is a pattern of improper activity and the effect of theimproper activity on others or on the judicial system. The Code of Judicial Conduct is not intended as an exhaustive guide for theconduct of judges. They should also be governed in their judicial and personal conduct bygeneral ethical standards. The Code is intended, however, to state basic standards whichshould govern the conduct of all judges and to provide guidance to assist judges inestablishing and maintaining high standards of judicial and personal conduct. TERMINOLOGY 2
  • 78. "Appropriate authority" denotes the authority with responsibility for initiation ofdisciplinary process with respect to the violation to be reported. See Sections 3D(1) and3D(2). "Candidate." A candidate is a person seeking selection for judicial office byelection or appointment. Persons become candidates for judicial office as soon as theymake public announcements of candidacy, declare or file as candidates with the electionor appointment authority, or authorize solicitation or acceptance of contributions orsupport. The term "candidate" has the same meaning when applied to a judge seekingelection or appointment to non-judicial office. See Preamble and Canon 5. "Court personnel" does not include the lawyers in a proceeding before a judge. SeeSections 3B(7)(c) and 3B(9). "De minimis" denotes an insignificant interest that could not raise reasonablequestion as to a judges impartiality. See Sections 3E(1)(c) and 3E(1)(d). "Economic interest" denotes ownership of a more than de minimis legal orequitable interest, or a relationship as officer, director, advisor or other active participantin the affairs of a party, except that: (i) ownership of an interest in a mutual or common investment fund that holds securities is not an economic interest in such securities unless the judge participates in the management of the fund or a proceeding pending or impending before the judge could substantially affect the value of the interest; (ii) service by a judge as an officer, director, advisor or other active participant in an educational, religious, charitable, fraternal or civic organization, or service by a judges spouse, parent or child as an officer, director, advisor or other active participant in any organization does not create an economic interest in securities held by that organization; (iii) a deposit in a financial institution, the proprietary interest of a policy holder in a mutual insurance company, of a depositor in a mutual savings association or of a member in a credit union, or a similar proprietary interest, is not an economic interest in the organization unless a proceeding pending or impending before the judge could substantially affect the value of the interest; (iv) ownership of government securities is not an economic interest in the issuer unless a proceeding pending or impending before the judge 3
  • 79. could substantially affect the value of the securities. See Sections 3E(1)(c) and 3E(2). "Fiduciary" includes such relationships as executor, administrator, trustee, andguardian. See Sections 3E(3) and 4E. "Independent persons, committees or organizations" shall mean an individualperson or organization not required to report as affiliated with a campaign for judicialoffice. See Section 5F. "Knowingly," "knowledge," "known" or "knows" denotes actual knowledge of thefact in question. A persons knowledge may be inferred from circumstances. See Sections3D, 3E(1), and 5A(3). "Law" denotes court rules as well as statutes, constitutional provisions anddecisional law. See Sections 2A, 3A, 3B(2), 3B(7), 4B, 4C, 4F, 4I, 5A(2), 5A(3), 5B(2),5C, 5D, and 5F. “Major donor”, for the purposes of Section 3E(2), shall be defined as follows: (a) If the donor is an individual, "donor" means that individual, the individuals spouse, or the individual’s or the individual’s spouse’s child, mother, father, grandmother, grandfather, grandchild, employee and employees spouse. (b) If the donor is an entity other than an individual, "donor” means the entity, its employees, officers, directors, shareholders, partners members, and contributors and the spouse of any of them. (c) A “major donor” is a donor who or which has, in the judges most recent election campaign, made a contribution to the judges campaign of (a) more than $2,000 if the judge is a justice of the Supreme Court or judge of the Court of Appeals, or (b) more than $1,000 if the judge is a judge of a court other than the Supreme Court or the Court of Appeals. (d) The term “contribution to the judges campaign" shall be the total of all contributions to a judges campaign and shall be deemed to include all contributions of every kind and type whatsoever, whether in the form of cash, goods, services, or other form of contribution, and whether donated directly to the judges campaign or donated to any other person or entity for the purpose of supporting the judges campaign and/or opposing the campaign of the judges opponent(s). The term "contribution to a 4
  • 80. judge’s campaign" shall also be deemed to include any publication, advertisement or other release of information, or payment therefor, other than a bona fide news item published by existing news media, which contains favorable information about the judge or which contains unfavorable information about the judges opponent(s). "Member of the candidates family" denotes a spouse, child, grandchild, parent,grandparent, siblings, or other relative or person with whom the candidate maintains aclose familial relationship. See Section 5A(3)(a). "Member of the judges family" denotes a spouse, child, grandchild, parent,grandparent, siblings, or other relative or person with whom the judge maintains a closefamilial relationship. See Sections 4D, 4E and 4G. "Member of the judges family residing in the judges household" denotes anyrelative of a judge by blood or marriage, or a person treated by a judge as a member of thejudges family, who resides in the judges household. See Sections 3E(1) and 4D. "Nonpublic information" denotes information that, by law, is not available to thepublic. Nonpublic information may include but is not limited to: information that is sealedby statute or court order, impounded or communicated in camera; and information offeredin grand jury proceedings, presentencing reports, dependency cases or psychiatric reports.See Sections 3B(11) and 4D(4). "Part-time judge" denotes a judge who serves for an extended, fixed term, but isallowed to practice law or any other profession or occupation. The term does not apply tomagistrates, court commissioners, special masters or referees. "Political organization" denotes a political party or other group, the principalpurpose of which is to further the election or appointment of candidates to political office.See Sections 5A(1). "Public election." This term includes primary and general elections; it includespartisan elections and nonpartisan elections. See Section 5C. "Require." The rules prescribing that a judge "require" certain conduct of othersare, like all of the rules in this Code, rules of reason. The use of the term "require" in thatcontext means a judge is to exercise reasonable direction and control over the conduct ofthose persons subject to the judges direction and control. See Sections 3B(3), 3B(4),3B(5), 3B(6), 3B(9) and 3C(2). 5
  • 81. "Special judge" denotes a judge, including a retired judge, other than one who isserving to fill the unexpired term of a regularly elected or appointed judge who hasvacated the office, who serves by appointment for a limited period or in a particularmatter due to the unwillingness or inability of a sitting judge to hear a case or attendcourt, or who is appointed on an emergency basis. "Third degree of relationship." The following persons are relatives within the thirddegree of relationship: great-grandparent, grandparent, parent, uncle, aunt, brother, sister,child, grandchild, great-grandchild, nephew or niece. See Section 3E(1)(d). Commentary In defining “members of the candidate’s family” and “members of the judge’sfamily” siblings of the candidate and judge are included. The phrase “major donor” isalso included. Likewise, no reference is made to retention elections. In these respects,this section differs from the ABA Model Code of Judicial Conduct. The ABA Model Code defines “continuing part-time judge,” “periodic part-timejudge,” and “pro tempore part-time judge.” Also, in the Application Section, the ABAmodel refers to “retired judge subject to recall.” In the adaption of the model forMississippi application, these are reduced to “part-time judge,” and “special judge,”which covers non-standard positions subject to special treatment. See ApplicationSection. CANON 1 A Judge Shall Uphold the Integrity and Independence of the Judiciary An independent and honorable judiciary is indispensable to justice in oursociety. A judge should participate in establishing, maintaining, and enforcing highstandards of conduct, and shall personally observe those standards so that theintegrity and independence of the judiciary will be preserved. The provisions of thisCode should be construed and applied to further that objective. Commentary Deference to the judgments and rulings of courts depends upon public confidencein the integrity and independence of judges. The integrity and independence of judgesdepends in turn upon their acting without fear or favor. Although judges should beindependent, they must comply with the law, including the provisions of this Code. Publicconfidence in the impartiality of the judiciary is maintained by the adherence of each 6
  • 82. judge to this responsibility. Conversely, violation of this Code diminishes publicconfidence in the judiciary and thereby does injury to the system of government underlaw. CANON 2 A Judge Shall Avoid Impropriety and the Appearance of Impropriety in All Activities A. A judge shall respect and comply with the law and shall act at all times ina manner that promotes public confidence in the integrity and impartiality of thejudiciary. Commentary Public confidence in the judiciary is eroded by irresponsible or improper conductby judges. A judge must avoid all impropriety and appearance of impropriety. A judgemust expect to be the subject of constant public scrutiny. A judge must therefore acceptrestrictions on the judges conduct that might be viewed as burdensome by the ordinarycitizen and should do so freely and willingly. The prohibition against behaving with impropriety or the appearance ofimpropriety applies to both the professional and personal conduct of a judge. Because itis not practicable to list all prohibited acts, the proscription is necessarily cast in generalterms that extend to conduct by judges that is harmful although not specifically mentionedin the Code. Actual improprieties under this standard include violations of law, courtrules or other specific provisions of this Code. The test for appearance of impropriety iswhether, based on the conduct, the judge’s impartiality might be questioned by areasonable person knowing all the circumstances. See also Commentary under Section 2C. B. Judges shall not allow their family, social, or other relationships toinfluence the judges’ judicial conduct or judgment. Judges shall not lend theprestige of their offices to advance the private interests of the judges or others; norshall judges convey or permit others to convey the impression that they are in aspecial position to influence the judges. Judges shall not testify voluntarily ascharacter witnesses. 7
  • 83. Commentary 8
  • 84. Maintaining the prestige of judicial office is essential to a system of government inwhich the judiciary functions independently of the executive and legislative branches.Respect for the judicial office facilitates the orderly conduct of legitimate judicialfunctions. Judges should distinguish between proper and improper use of the prestige ofoffice in all of their activities. For example, it would be improper for judges to allude totheir judgeships to gain a personal advantage such as deferential treatment when stoppedby a police officer for a traffic offense. Similarly, judicial letterhead must not be used forconducting a judges personal business. A judge must avoid lending the prestige of judicial office for the advancement ofthe private interests of others. For example, a judge must not use the judges judicialposition to gain advantage in a civil suit involving a member of the judges family. Incontracts for publication of a judges writings, a judge should retain control over theadvertising to avoid exploitation of the judges office. Although a judge should be sensitive to possible abuse of the prestige of office, ajudge may, based on the judges personal knowledge, serve as a reference or provide aletter of recommendation. However, a judge must not initiate the communication ofinformation to a sentencing judge or a probation or corrections officer but may provideto such persons information for the record in response to a formal request. Judges may participate in the process of judicial selection by cooperating withappointing authorities and screening committees seeking names for consideration, and byresponding to official inquiries concerning a person being considered for a judgeship.See also Canon 5 regarding use of a judges name in political activities. A judge must not testify voluntarily as a character witness because to do so maylend the prestige of the judicial office in support of the party for whom the judge testifies.Moreover, when a judge testifies as a witness, a lawyer who regularly appears before thejudge may be placed in the awkward position of cross-examining the judge. A judge may,however, testify when properly summoned. Except in unusual circumstances where thedemands of justice require, a judge should discourage a party from requiring the judge totestify as a character witness. C. A judge shall not hold membership in any organization that practicesinvidious discrimination on the basis of race, gender, religion or national origin. Commentary Membership of a judge in an organization that practices invidious discriminationgives rise to perceptions that the judges impartiality is impaired. Section 2C refers to thecurrent practices of the organization. Whether an organization practices invidious 9
  • 85. discrimination is often a complex question to which judges should be sensitive. Theanswer cannot be determined from a mere examination of an organizations currentmembership rolls but rather depends on how the organization selects members and otherrelevant factors, such as that the organization is dedicated to the preservation ofreligious, ethnic or cultural values of legitimate common interest to its members, or that itis in fact and effect an intimate, purely private organization whose membershiplimitations could not be constitutionally prohibited. Absent such factors, an organizationis generally said to discriminate invidiously if it arbitrarily excludes from membership onthe basis of race, religion, gender or national origin persons who would otherwise beadmitted to membership. See New York State Club Assn. v. City of New York, U.S., 108 S.Ct. 2225, 101 L.Ed.2d 1 (1988); Board of Directors of Rotary International v.Rotary Club of Duarte, 481 U.S. 537, 107 S.Ct. 1940, 95 L.Ed.2d 474 (1987); Roberts v.United States Jaycees, 468 U.S. 609, 104 S.Ct. 3244, 82 L.Ed.2d 462 (1984). Although Section 2C relates only to membership in organizations that invidiouslydiscriminate on the basis of race, gender, religion or national origin, a judgesmembership in an organization that engages in any discriminatory membership practicesprohibited by the law of the jurisdiction also violates Canon 2 and Section 2A and givesthe appearance of impropriety. In addition, it would be a violation of Canon 2 andSection 2A for a judge to arrange a meeting at a club that the judge knows practicesinvidious discrimination on the basis of race, gender, religion or national origin in itsmembership or other policies, or for the judge to regularly use such a club. Moreover,public manifestation by a judge of the judges knowing approval of invidiousdiscrimination on any basis gives the appearance of impropriety under Canon 2 anddiminishes public confidence in the integrity and impartiality of the judiciary, in violationof Section 2A. When a person who is a judge on the date this Code becomes effective learns thatan organization to which the judge belongs engages in invidious discrimination thatwould preclude membership under Section 2C or under Canon 2 and Section 2A, thejudge is permitted, in lieu of resigning, to make immediate efforts to have theorganization discontinue its invidiously discriminatory practices, but is required tosuspend participation in any other activities of the organization. If the organization failsto discontinue its invidiously discriminatory practices as promptly as possible (and in allevents within a year of the judges first learning of the practices), the judge is required toresign immediately from the organization. CANON 3 A Judge Shall Perform the Duties of Judicial Office Impartially and Diligently 10
  • 86. A. Judicial Duties in General. The judicial duties of judges take precedenceover all their other activities. The judges’ judicial duties include all the duties oftheir office prescribed by law. In the performance of these duties, the followingstandards apply: B. Adjudicative Responsibilities. (1) A judge shall hear and decide all assigned matters within the judge’sjurisdiction except those in which disqualification is required. (2) A judge shall be faithful to the law and maintain professional competencein it. A judge shall not be swayed by partisan interests, public clamor, or fear ofcriticism. (3) A judge shall require order and decorum in proceedings before the judge. (4) Judges shall be patient, dignified, and courteous to litigants, jurors,witnesses, lawyers, and others with whom they deal in their official capacities, andshall require similar conduct of lawyers, and of their staffs, court officials, andothers subject to their direction and control. Commentary The duty to hear all proceedings fairly and with patience is not inconsistent withthe duty to dispose promptly of the business of the court. Courts can be efficient andbusiness like while being patient and deliberate. (5) A judge shall perform judicial duties without bias or prejudice. A judgeshall not, in the performance of judicial duties, by words or conduct manifest bias orprejudice, including but not limited to bias or prejudice based upon race, gender,religion, national origin, disability, age, sexual orientation or socioeconomic status,and shall not permit staff, court officials and others subject to the judges directionand control to do so. A judge shall refrain from speech, gestures or other conductthat could reasonably be perceived as sexual harassment and shall require the samestandard of conduct of others subject to the judge’s direction and control. Commentary A judge must perform judicial duties impartially and fairly. A judge who manifestsbias on any basis in a proceeding impairs the fairness of the proceeding and brings thejudiciary into disrepute. Facial expression and body language, in addition to oralcommunication, can give to parties or lawyers in the proceeding, jurors, the media and 11
  • 87. others an appearance of judicial bias. A judge must be alert to avoid behavior that maybe perceived as prejudicial. (6) A judge shall require lawyers in proceedings before the judge to refrainfrom manifesting, by words or conduct, bias or prejudice based upon race, gender,religion, national origin, disability, age, sexual orientation or socioeconomic status,against parties, witnesses, counsel or others. This Section 3B(6) does not precludelegitimate advocacy when race, gender, religion, national origin, disability, age,sexual orientation or socioeconomic status, or other similar factors, are issues in theproceeding. (7) A judge shall accord to all who are legally interested in a proceeding, ortheir lawyers, the right to be heard according to law. A judge shall not initiate,permit, or consider ex parte communications, or consider other communicationsmade to the judge outside the presence of the parties concerning a pending orimpending proceeding except that: (a) where circumstances require, ex parte communications for scheduling, administrative purposes or emergencies that do not deal with substantive matters or issues on the merits are authorized: provided: (i) the judge reasonably believes that no party will gain a procedural or tactical advantage as a result of the ex parte communication, and (ii) the judge makes provision promptly to notify all other parties of the substance of the ex parte communication and allows an opportunity to respond. (b) Judges may obtain the advice of a disinterested expert on the law applicable to a proceeding before them if the judges give notice to the parties of the person consulted and the substance of the advice, and afford the parties reasonable opportunity to respond. (c) A judge may consult with court personnel whose function is to aid the judge in carrying out the judges adjudicative responsibilities or with other judges. (d) A judge may, with the consent of the parties, confer separately with the parties and their lawyers in an effort to mediate or settle matters pending before the judge. 12
  • 88. (e) A judge may initiate or consider any ex parte communications when expressly authorized by law to do so. Commentary The proscription against communications concerning a proceeding includescommunications from lawyers, law teachers, and other persons who are not participantsin the proceeding, except to the limited extent permitted. To the extent reasonablypossible, all parties or their lawyers shall be included in communications with a judge.Whenever presence of a party or notice to a party is required by Section 3B(7), it is thepartys lawyer, or if the party is unrepresented, the party, who is to be present or to whomnotice is to be given. An appropriate and often desirable procedure for a court to obtain the advice of adisinterested expert on legal issues is to invite the expert to file a brief amicus curiae. Certain ex parte communication is approved by Section 3B(7) to facilitatescheduling and other administrative purposes and to accommodate emergencies. Ingeneral, however, a judge must discourage ex parte communication and allow it only ifall the criteria stated in Section 3B(7) are clearly met. A judge must disclose to all partiesall ex parte communications described in Sections 3B(7)(a) and 3B(7)(b) regarding aproceeding pending or impending before the judge. A judge must not independentlyinvestigate facts in a case and must consider only the evidence presented. A judge may request a party to submit proposed findings of fact and conclusions oflaw, so long as the other parties are apprized of the request and are given an opportunityto respond to the proposed findings and conclusions. A judge must make reasonable efforts, including the provision of appropriatesupervision, to ensure that Section 3B(7) is not violated through law clerks or otherpersonnel on the judges staff. If communication between the trial judge and the appellate court with respect to aproceeding is permitted, a copy of any written communication or the substance of anyoral communication should be provided to all parties. (8) A judge shall dispose of all judicial matters promptly, efficiently andfairly. Commentary In disposing of matters promptly, efficiently and fairly, a judge must demonstratedue regard for the rights of the parties to be heard and to have issues resolved without 13
  • 89. unnecessary cost or delay. Containing costs while preserving fundamental rights ofparties also protects the interests of witnesses and the general public. A judge shouldmonitor and supervise cases so as to reduce or eliminate dilatory practices, avoidabledelays and unnecessary costs. A judge should encourage and seek to facilitate settlement,but parties should not feel coerced into surrendering the right to have their controversyresolved by the courts. Prompt disposition of the courts business requires a judge to devote adequate timeto judicial duties, to be punctual in attending court and expeditious in determiningmatters under submission, and to insist that court officials, litigants and their lawyerscooperate with the judge to that end. (9) A judge shall not, while a proceeding is pending or impending in anycourt, make any public comment that might reasonably be expected to affect itsoutcome or impair its fairness or make any nonpublic comment that mightsubstantially interfere with a fair trial or hearing. The judge shall require similarabstention on the part of court personnel subject to the judges direction andcontrol. This Section does not prohibit judges from making public statements in thecourse of their official duties or from explaining for public information theprocedures of the court. This Section does not apply to proceedings in which thejudge is a litigant in a personal capacity. Commentary The requirement that judges abstain from public comment regarding a pending orimpending proceeding continues during any appellate process and until final disposition.This Section does not prohibit a judge from commenting on proceedings in which thejudge is a litigant in a personal capacity, but in cases such as a writ of mandamus wherethe judge is a litigant in an official capacity, the judge must not comment publicly. Theconduct of lawyers relating to trial publicity is governed by Rule 3.6 of the Rules ofProfessional Conduct. (10) A judge shall not commend or criticize jurors for their verdict other thanin a court order or opinion in a proceeding, but may express appreciation to jurorsfor their service to the judicial system and the community. Commentary Commending or criticizing jurors for their verdict may imply a judicialexpectation in future cases and may impair a jurors ability to be fair and impartial in asubsequent case. 14
  • 90. (11) A judge shall not disclose or use, for any purpose unrelated to judicialduties, nonpublic information acquired in a judicial capacity. (12) Except as may be authorized by rule or order of the Supreme Court, ajudge should prohibit broadcasting, televising, recording, or taking photographs inthe courtroom and areas immediately adjacent thereto during sessions of court orrecesses between sessions, except that a judge may authorize: (a) the use of electronic or photographic means for the presentation of evidence, for the perpetuation of a record, or for other purposes of judicial administration; (b) the broadcasting, televising, recording, or photographing of investitive, ceremonial, or naturalization proceedings; (c) the photographic or electronic recording and reproduction of appropriate court proceedings under the following conditions: (i) the means of recording will not distract participants or impair the dignity of the proceedings; (ii) the parties have consented, and the consent to being depicted or recorded has been obtained from each witness appearing in the recording and reproduction; (iii) the reproduction will not be exhibited until after the proceeding has been concluded and all direct appeals have been exhausted; and (iv) the reproduction will be exhibited only for instructional purposes in educational institutions. Commentary The ABA Model Code does not address broadcasting, televising, recording orphotographing in the courtroom. This provision is taken from the Section 3A(7) of theprior Mississippi Code of Judicial Conduct. Section 3B(12) prohibits broadcasting, televising, recording, or takingphotographs in the courtroom and areas immediately adjacent thereto except asauthorized by rule or order of the Supreme Court. The Supreme Court has now adoptedthe Rules for Electronic and Photographic Coverage of Proceedings which providesdetailed guidance for such coverage. 15
  • 91. [Commentary amended effective April 17, 2003.] C. Administrative Responsibilities. (1) A judge shall diligently discharge the judges administrativeresponsibilities without bias or prejudice and maintain professional competence injudicial administration, and shall cooperate with other judges and court officials inthe administration of court business. (2) A judge shall require staff, court officials and others subject to the judgesdirection and control to observe the standards of fidelity and diligence that apply tothe judge and to refrain from manifesting bias or prejudice in the performance oftheir official duties. (3) A judge with supervisory authority for the judicial performance of otherjudges shall take reasonable measures to assure the prompt disposition of mattersbefore them and the proper performance of their other judicial responsibilities. (4) A judge shall not make unnecessary appointments. A judge shall exercisethe power of appointment impartially and on the basis of merit. A judge shall avoidnepotism and favoritism. A judge shall not approve compensation of appointeesbeyond the fair value of services rendered. Commentary Appointees of a judge include assigned counsel, officials such as referees,commissioners, special masters, receivers and guardians and personnel such as clerks,secretaries and bailiffs. Consent by the parties to an appointment or an award ofcompensation does not relieve the judge of the obligation prescribed by Section 3C(4). (5) A judge shall not appoint a major donor to the judge’s election campaignto a position if the judge knows or learns by means of a timely motion that the majordonor has contributed to the judges election campaign unless (a) the position is substantially uncompensated; (b) the person has been selected in rotation from a list of qualified and available persons compiled without regard to their having made political contributions; or (c) the judge or another presiding or administrative judge affirmatively finds that no other person is willing, competent and able to accept the position. 16
  • 92. D. Disciplinary Responsibilities. (1) A judge who receives information indicating a substantial likelihood thatanother judge has committed a violation of this Code should take appropriateaction. A judge having knowledge that another judge has committed a violation ofthis Code that raises a substantial question as to the other judges fitness for officeshall inform the appropriate authority. (2) A judge who receives information indicating a substantial likelihood that alawyer has committed a violation of the Rules of Professional Conduct should takeappropriate action. A judge having knowledge that a lawyer has committed aviolation of the Rules of Professional Conduct that raises a substantial question as tothe lawyers honesty, trustworthiness or fitness as a lawyer in other respects shallinform the appropriate authority. (3) Acts of a judge, in the discharge of disciplinary responsibilities, requiredor permitted by Sections 3D(1) and 3D(2) are part of a judges judicial duties andshall be absolutely privileged, and no civil action predicated thereon may beinstituted against the judge. Commentary Appropriate action may include direct communication with the judge or lawyerwho has committed the violation, other direct action if available, and reporting theviolation to the appropriate authority or other agency or body. E. Disqualification. (1) Judges should disqualify themselves in proceedings in which theirimpartiality might be questioned by a reasonable person knowing all thecircumstances or for other grounds provided in the Code of Judicial Conduct orotherwise as provided by law, including but not limited to instances where: Commentary Under this rule, a judge should disqualify himself or herself whenever the judgesimpartiality might be questioned by a reasonable person knowing all the circumstances,regardless whether any of the specific rules in Section 3E(1) apply. A judge should disclose on the record information that the judge believes theparties or their lawyers might consider relevant to the question of disqualification, even ifthe judge believes there is no real basis for disqualification. 17
  • 93. By decisional law, the rule of necessity may override the rule of disqualification.For example, a judge might be required to participate in judicial review of a judicialsalary statute, or might be the only judge available in a matter requiring immediatejudicial action, such as a hearing on probable cause or a temporary restraining order. Inthe latter case, the judge must disclose on the record the basis for possibledisqualification and use reasonable efforts to transfer the matter to another judge as soonas practicable. For procedures concerning motions for recusal and review by the Supreme Courtof denial of motions for recusal as to trial court judges, see M.R.C.P. 16A, URCCC 1.15,Unif. Chanc. R. 1.11, and M.R.A.P. 48B. For procedures concerning motions for recusalof judges of the Court of Appeals or Supreme Court justices, see M.R.A.P. 27(a). (a) the judge has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding; (b) the judge served as lawyer in the matter in controversy, or a lawyer with whom the judge previously practiced law served during such association as a lawyer concerning the matter, or the judge or such lawyer has been a material witness concerning it; Commentary A lawyer in a government agency doe