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08/13/12 - OBJECTION(S) TO 08/02/12 ORDER BY JUDGE TOM S. LEE - Motion To Disqualify
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08/13/12 - OBJECTION(S) TO 08/02/12 ORDER BY JUDGE TOM S. LEE - Motion To Disqualify

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  • 1. OBJECTION(S) TO 08/02/12 JUDGE TOM S. LEE ORDER DEADLINE IS 10 DAYS FROM DATE OF ORDER: 08/16/12The following information ispertinent/relevant to understand UnitedStates of America President BarackObama’s and his LegalCounsel/Advisor/Grand Duke Of Ku KluxKlan Baker Donelson’s and theirCONSPIRATORS/CO-CONSPIRATORS Role and Interest in this Lawsuit. Baker Donelson Bearman Caldwell & Berkowitz (“Baker Donelson”) is Legal Counsel/Advisor for the United States of America Presidents (i.e. which includes President Barack Obama), United States Congressional Members, United States Supreme Court Justices, FEDERAL JUDGES ASSOCIATION, etc. http://www.slideshare.net/VogelDenise/leggitt-lance-bresearchinfo http://www.slideshare.net/VogelDenise/leggitt-lancesr- advisortopresidenthhscounselorgovofva http://www.slideshare.net/VogelDenise/bd-oilfield-patents http://www.slideshare.net/VogelDenise/duff-james-duff-legal-counsel-for-federal-judges- associationhighlighted 1) Page Kruger & Holland is the law firm Vogel Denise Newsome was employed at, at the time of her February 14, 2006 KIDNAPPING. 2) Baker Donelson appears orchestrated and directed the February 14, 2006, KIDNAPPING of Vogel Denise Newsome – i.e. working with its Clients: Liberty Mutual Insurance Company, Spring Lake Apartment, Judge William Skinner, Constable Jon Lewis, and other CONSPIRATORS/CO-CONSPIRATORS 3) Baker Donelson, it appears, then SWIFTLY moved to have its employees MOVED into the following positions for purposes of OBSTRUCTING and COVERING UP their CRIMES and that of their Client(s) – Spring Lake Apartment/Melody Crews, Hinds County Mississippi/Constable Jon Lewis/Willliam Skinner, and other Conspirators: (a) About 2006 – Lee Rawls was placed in the United State Department of Justice Federal Bureau of Investigation as CHIEF OF STAFF and also served as SENIOR Counsel to FBI Director/Robert Mueller 06/06/2006 – http://www.slideshare.net/VogelDenise/062606- fbicomplaint-mississippi-matter 10/13/08 - http://www.slideshare.net/VogelDenise/101308-fbi-complaint-gmm-properties 09/24/09 –http://www.slideshare.net/VogelDenise/092409-fbicomplaint-storall 12/28/09 - http://www.slideshare.net/VogelDenise/122809-fbicomplaint-ohio-supreme-court 06/09/10 - http://www.slideshare.net/VogelDenise/060910-fbi-complaint-public-storage (b) About July 2006 – James C. Duff to the position of DIRECTOR of the Administrative Office of the United States Courts (c) About May 2007 - Bradley S. Clanton to the position of CHAIRMAN of the Mississippi Advisory Commission – i.e. provides assistance in INVESTIGATIONS, etc. to United States Commission on Civil Rights/United States Department of Justice 4) Hinds County Mississippi Constable Jon Lewis was the person ORDERED to carry out the KIDNAPPING of Vogel Denise Newsome. At the time of this KIDNAPPING, it appears that Jon Lewis was a member of Mississippi GOVERNOR Haley Barbour’s Administration – i.e. CHAIRMAN of the Mississippi Athletic Commission. Haley Barbour is a Client of Baker Donelson. http://www.slideshare.net/VogelDenise/mississippi-athletic-commission-jon-lewis http://www.slideshare.net/VogelDenise/bd-c-leelottiiigovbarbour 5) Judge Tom S. Lee is the Judge attempting to ABUSE his AUTHORITY and preside over the above reference lawsuit over Vogel Denise Newsome’s OBJECTIONS. Judge Tom S. Lee is one of Baker Donelson’s PURCHASED Judges/Justices. http://www.slideshare.net/VogelDenise/baker-donelson-ties-to-judgesjustices-as-of120911 16, 2012
  • 2. 08/13/12 – USPS PROOF OF MAILING RECEIPTUSDC SOUTHERN DISTRICT MISSISSIPPI (Jackson)OBJECTION(S) To 08/02/12 Order By Judge Tom S. Lee
  • 3. VOGEL DENISE NEWSOME Post Office Box 14731 Cincinnati, Ohio 45250 (601) 885-9536 or (513) 680-2922 August 13, 2012VIA PRIORITY MAIL: Tracking No. 03113260000101213594United States District Court - Southern District (Jackson, MS)ATTN: J. T. Noblin (Clerk of Court)500 E. Court Street, Suite 2.500Jackson, Mississippi 39201 RE: Vogel Denise Newsome v. Page Kruger & Holland P.A., et al., Civil Action No. 3:12-cv-00342, United States District Court Southern District (Jackson, MS) PLEASE NOTE: Newsome is requesting to be advised of ANY/ALL Conflict-Of-Interests in regards to this lawsuit.Dear Mr. Noblin: Attached please find the following document(s): 1) DVD containing Newsome’s OBJECTION(S) To August 2, 2012 Order Of Judge Tom S. Lee; Motion For DISQUALIFICATION; AND DEMAND FOR JURY TRIAL and supporting Memorandum Brief with EXHIBITS in accordance with the Federal Rules of Civil Procedure – i.e. for Costs efficiency purposes. 2) EXHIBIT “39” for the July 25, 2012 (DOC. NO. 19) submittal entitled, 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). The Clerk advised Newsome that this Exhibit was corrupted. Newsome encloses TWO copies of the FIRST Page only of her pleading. Please stamp“FILED” one of these copies and return to her in in the self-addressed postage-paid envelopeenclosed. By copy of this letter, Newsome is providing opposing counsel with a copy of the abovereferenced pleading on DVD as well. Newsome has in good faith also placed these pleadings at thefollowing locations via the INTERNET due to the PUBLIC/GLOBAL/INTERNATIONAL interestsin matters involving her, United States of America President Barack Obama, United States ofAmerica Government, Florida A&M University Robert Champion matter, Trayvon Martin/GeorgeZimmerman matter, etc. which appears to have a DIRECT impact and/or connection to the recentand VICIOUS attacks and ONGOING Conspiracies (i.e. involving BAKER DONELSONBEARMAN CALDWELL & BERKOWITZ and their CLIENTS and PARTNER Law Firms asPHELPS DUNBAR, etc.) that have been leveled against Newsome for sharing information that arematters of PUBLIC interests. Therefore, please feel free to retrieve these pleadings, should problemsoccur with viewing, from http://www.slideshare.net/VogelDenise/reserved-for-objection-to-080212-judge-tom-s-lee-order and https://secure.filesanywhere.com/fs/v.aspx?v=8a7164865a6770a66d9d .
  • 4. 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 OBJECTION(S) TO AUGUST 2, 2012 ORDER OF JUDGE TOM S. LEE; MOTION FOR DISQUALIFICATION AND DEMAND FOR JURY TRIAL1 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, herOBJECTION(S) To August 2, 2012 Order Of Judge Tom S. Lee; Motion For DISQUALIFICATION; AND DEMANDFOR JURY TRIAL (“OBJECTION(S) To 08/02/12 Order”) in the preservation of her rights and pursuant to FederalRules of Civil Procedure (“FRCP”) Rule 60: Federal Rule of Civil Procedure – Rule 60: Relief from Judgment or Order (b) Grounds for Relief from a Final Judgment, Order, or Proceeding. On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; . . . (3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party; (4) the judgment is void; . . . (6) any other reason that justifies relief. See EXHIBIT “A” – Rule 60 of the FRCP attached hereto and incorporated by reference as if set forth in full herein.FRCP Rule 12(G) governing matters regarding consolidation of defenses and objections. To have this Lawsuit triedby a JURY (i.e. NOT Bench Trial before Judge Tom S. Lee and/or the Court) of Newsome’s peers pursuant to Rule38 of the FRCP and Seventh Amendment of the United States Constitution as well as the Fourteenth Amendment of 1 NOTE: Boldface, underline, italics, HIGHLIGHTS, caps/small caps added for emphasis. Use of LEGAL RESOURCESAS: Federal Procedural Forms (Lawyers Edition), American Jurisprudence Practice and Procedures, United States CodeAnnotated, and other resource materials as guide in preparation of this document to aid in meeting pleading requirements asrequired by rules and laws governing said matters. Page 1 of 35
  • 5. the United States Constitution and other statutes/laws of the United States governing said matters. In support of thisinstant “OBJECTION(S) TO 08/02/12 ORDER,” Newsome further states: 1. This instant “OBJECTION(S) To 08/02/12 Order” 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. I. OBJECTION(S) TO AUGUST 2, 2012 ORDER Plaintiff Vogel Denise Newsome OBJECTS to the August 2, 2012 Order executed by this Court’s JudgeTom Stewart Lee (“Tom S. Lee” and/or “Judge Lee”) and states the following for said OBJECTION(S): 2. Newsome’s OBJECTION(S) to the August 2, 2012 Order executed by Judge Tom S. Lee/this Court is NULL/VOID pursuant to Rule 60 of the FRCP and other statutes/laws governing said matters in that it: (a) Has been entered by mistake over Newsome’s OBJECTIONS to Judge Tom S. Lee. (b) Is an ABUSE of discretion by Judge Tom S. Lee. (c) KNOWINGLY, DELIBERATELY and with MALICIOUS intent entered with FRAUDULENT intent as well as CRIMINAL intent to deprive Newsome rights secured under United States statutes/laws governing said matters. (d) Is NULL/VOID! (e) Has been obtained as a direct and proximate result of BIAS and PREJUDICE towards Newsome, for pecuniary/financial interests as well as other reasons KNOWN to this Court/Judge Tom S. Lee and the KEY role being played out in CONSPIRACIES and “Tacit Agreements” reached: TACIT AGREEMENT - Occurs when two or more persons pursue by their acts the same object by the same means. One person performing one part and the other another part, so that upon completion they have obtained the object pursued. Regardless whether each person knew of the details or what part each was to perform, the end results being they obtained the object pursued. Agreement is implied or inferred from actions or statements. Colonial Refrigerated Transp., Inc. v. Mitchell, 403 F.2d 541 (5th Cir. 1968) - Purpose of rule requiring party to inform court at time order or ruling is made to make known the action which he desires court to take, or his objection to action of court and his grounds therefor, is to inform trial judge of possible errors so that he may have an opportunity to reconsider his ruling and make any changes deemed advisable. Fed.Rules Civ.Proc. rule 46, 28 U.S.C.A. Jenkins v. General Motors Corp., 446 F.2d 377 (5th Cir. 1971) - Timely objection is necessary to bring to trial courts attention alleged errors in conduct of a trial. Page 2 of 35
  • 6. Fort Worth & D. Ry. Co. v. Harris, 230 F.2d 680 (5th Cir. 1956) - Federal Rule of Civil Procedure requiring a party to make known his objections and grounds therefor is not a mere technicality, but is of substance in the administration of business in the courts. Fed.Rules Civ.Proc. rule 46, 28 U.S.C.A.3. Newsome believes that the facts, evidence and legal conclusions provided herein as well as in her previous filings will sustain that the August 2, 2012 Order entered by Judge Tom S. Lee was entered for purposes of depriving Newsome DUE PROCESS as well as rights secured under the Fourteenth Amendment of the United States Constitution and other statutes/laws of the United States.4. It appears from the facts and evidence presented in this lawsuit, this Court’s Judge Tom S. Lee is CONSPIRING with Baker Donelson Bearman Caldwell & Berkowitz (“Baker Donelson”) to allow the use of Defendants’ Legal Counsel/Attorney’s Phelps Dunbar/W. Thomas Siler, Jr./Jason T. Marsh as a “FRONTING” Firm for purposes of shielding/hiding their CRIMINAL/CIVIL violations as well as the BIAS and PREJUDICE towards Newsome, EXTRAJUDICIAL sources that are at play which are having a direct impact on Judge Lee’s unlawful/illegal practices as well as the IMPROPRIETIES, etc. that exist out of view of Newsome and the PUBLIC/GLOBAL eyes. Liteky v. U.S., 114 S.Ct. 1147 (1994) - Revision made in 1974 to statute prohibiting judges participation in case which he has an interest or relationship to a party brought into the statute elements of general bias and prejudice recusal that had previously been addressed only in statute dealing with recusal of a district judge for bias in general; it entirely duplicated the grounds of recusal set forth in the latter statute but made them applicable to all justices, judges, and magistrates, not just district judges, and placed the obligation to identify the existence of those grounds upon the judge himself, rather than requiring recusal only in response to a partys affidavit. 28 U.S.C.A. §§ 144, 455(b)(1). . . Revisions made in 1974 to statute dealing with disqualification of judge who has an interest in the case or relationship to a party require all interest or relationship and bias or prejudice grounds to be evaluated on an objective basis so that what matters is not the reality of bias or prejudice, but its appearance; recusal is required whenever impartiality might reasonably be questioned. 28 U.S.C.A. § 455(a). . . . Catch-all provision of the disqualification statute as a broader reach than subsection setting forth specific grounds for disqualification, but the provisions have some ground in common and should not be applied inconsistently. 28 U.S.C.A. § 455(a, b). See EXHIBIT “N” - Liteky v. United States: The Extrajudicial Source Doctrine and Its Implications for Judicial Disqualification attached hereto and incorporated by reference as if set forth in full herein.5. Pursuant to 28 U.S.C.A. § 455 and other statutes/laws governing said matters, Judge Tom S. Lee is MANDATORILY (i.e. it is NOT discretionary) to RECUSE/DISQUALIFY himself from this lawsuit. Furthermore, Newsome does NOT consent to Judge Tom S. Lee presiding over this lawsuit and USURPING authority and ABUSING discretion in the handling of this lawsuit.6. UNDISPUTED IS THE FACT: That Defendants Page Kruger & Holland, P.A., Thomas Y. Page, Louis G. Baine III, and Linda Thomas (hereinafter, “Named Defendants”) and their Legal Counsel/Attorney’s Phelps Dunbar/W. Thomas Siler, Jr./Jason T. Marsh do NOT dispute Newsome’s TIMELY demand as required by statutes/laws for a JURY Trial on any and all triable issues raised allowed under Rule 38 of the FRCP, the Seventh Amendment of the United States Constitution and other statutes/laws governing said matters. See EXHIBIT “B” – Rule 38 of the Federal Rules of Civil Procedure which states in part: Rule 38. Right to a Jury Trial; Demand Page 3 of 35
  • 7. (a) Right Preserved. The right of trial by jury as declared by the Seventh Amendment to the Constitution—or as provided by a federal statute—is preserved to the parties inviolate. (b) Demand. On any issue triable of right by a jury, a party may demand a jury trial by: (1) serving the other parties with a written demand—which may be included in a pleading—no later than 14 days after the last pleading directed to the issue is served; and (2) filing the demand in accordance with Rule 5(d). (c) Specifying Issues. In its demand, a party may specify the issues that it wishes to have tried by a jury; otherwise, it is considered to have demanded a jury trial on all the issues so triable. If the party has demanded a jury trial on only some issues, any other party may—within 14 days after being served with the demand or within a shorter time ordered by the court—serve a demand for a jury trial on any other or all factual issues triable by jury. and EXHIBIT “C” – Seventh Amendment of the United States Constitution attached hereto and incorporated by reference as if set forth in full herein. II. MOTION TO DISQUALIFY (“MotionToDisqualify”) Plaintiff Vogel Denise Newsome respectfully moves under 28 U.S.C.A. § 455 that the Honorable TomS. Lee be disqualified from presiding as Judge in the above-entitled matter. In support of saidMotionToDisqualify, Newsome attaches her supporting Affidavit. See EXHIBIT “E” - Vogel Denise Newsome’sAFFIDAVIT of Disqualification of Judge Tom S. Lee attached hereto and incorporated by reference as if set forthin full herein. Newsome further states the following in support of MotionToDisqualify:A. PRIOR TO AUGUST 2, 2012 ORDER EXECUTED BY JUDGE TOM STEWART LEE KNOWLEDGE OF MANDATORY DISQUALIFICATION/RECUSAL REQUIRED WAS KNOWN TO COURT: 7. In keeping with Newsome’s May 12, 2012 pleading entitled, Request for Conflict of Interest Information, Notice of Opposition to Magistrate Judge Assignment; and Notice of Address (“Request for Conflict Of Interest Information”) – See Doc. No. 2 of this instant Lawsuit as well as EXHIBIT “D” attached hereto and incorporated by reference as if set forth in full herein, she AGAIN, respectfully REITERATES and moves under 28 U.S.C.A. § 455 that the Honorable Tom S. Lee be DISQUALIFIED from presiding as Judge in the above-entitled matter. Newsome files with this instant “OBJECTION(S) To 08/02/12 Order” her Affidavit in support thereof as required by 28 U.S.C.A. § 144, to show that Judge Tom S. Lee has a personal bias and/or prejudice against her in favor of Defendants Page Kruger & Holland, P.A., Thomas Y. Page, Louis G. Baine III, and Linda Thomas (hereinafter “Named Defendants”) and their Legal Counsel/Attorney’s Phelps Dunbar/W. Thomas Siler, Jr./Jason T. Marsh. See EXHIBIT “E” – Vogel Denise Newsome’s AFFIDAVIT Of Disqualification Of Judge Tom S. Lee attached hereto and incorporated by reference as if set forth in full herein. Berger v. U.S., 41 S.Ct. 230 (1921) - Under 28 U.S.C.A. § 144, providing that, when a party shall file an affidavit that the judge has a personal bias or prejudice against him, the judge shall proceed no further, but another judge shall be designated, and that such affidavit shall state the facts and the reasons for the belief that such bias or prejudice exists, when an affidavit legally sufficient is filed, the judge against whom it is filed cannot pass on the truth of the matters alleged or preside on the trial . Page 4 of 35
  • 8. 8. Based on the Affidavit, Newsome respectfully moves that the Honorable Judge Tom S. Lee proceed NO further in this action and that another judge be assigned to hear this case. Furthermore, that the Honorable Tom S. Lee declare himself DISQUALIFIED to sit as a Judge in this lawsuit and that another judge be assigned this lawsuit.9. This “MotionToDisqualify” has been TIMELY and properly submitted in compliance with 28 U.S.C.A. § 455 and/or statutes/laws governing said matters. See “Request for Conflict Of Interest Information” Doc. No. 2/EXHIBIT “D” attached hereto and incorporated by reference as if set forth in full herein. U.S. v. York, 888 F.2d 1050 (5th Cir. 1989) - In regard to statute pertaining to duty of judge to recuse himself, section which addresses appearances of impropriety, as well as section which addresses actual bias for conflict of interest on part of judge, both require timeliness. 28 U.S.C.A. § 455(a, b). Pomeroy v. Merritt Plaza Nursing Home, Inc., 760 F.2d 654 (5th Cir. 1985) - Literal ten- day requirement of rule that party alleging bias or prejudice of judge file an affidavit stating facts and reasons for belief that bias or prejudice exists not less than ten days before beginning of term at which the proceeding is to be heard no longer applies, since formal terms of court have been abolished. 28 U.S.C.A. § 144. Grambling University Nat. Alumni Assn v. Board of Suprs for Louisiana System, 286 Fed.Appx. 864 (5th Cir. 2008) - Plaintiffs motion for recusal, on ground that judges impartiality might reasonably be questioned, was untimely; while knowing facts underlying recusal argument plaintiff allowed case to linger for nearly ten months and only brought recusal motion after judge dismissed claims. 28 U.S.C.A. § 455(a).10. Newsome in support of her “Request for Conflict Of Interest Information” (Doc. No. 2) and this instant Motion, shows that the Honorable Tom S. Lee is disqualified from presiding as a judge in the above- numbered and entitled cause under provisions 28 U.S.C.A. § 455, due to: a) Bias and prejudice towards Newsome. b) Judge Lee’s direct and personal financial/pecuniary interest in this Lawsuit. c) Deprive Newsome of life, liberty, pursuit of happiness and property, etc. d) The SAME reasons giving rise to Judge Lee’s RECUSAL/DISQUALIFICATIONS in KKLM vs. Marsh USA, Joni B. Tyler vs. JPF1 and Joyce Walker vs. Captain D’s LLC, etc. - See EXHIBIT “F” attached hereto and incorporated by reference as if set forth in full herein – in that it appears that Baker Donelson has and is playing a MAJOR/KEY role in the running and controlling of this lawsuit; however, has relied upon its CONSPIRATOR Law Firm Phelps Dunbar LLP to act as a “FRONT” to shield/mask their criminal/civil wrongs from Newsome as well as the PUBLIC-AT-LARGE! e) Baker Donelson is Legal Counsel/Attorneys for Federal Judges Association. See EXHIBIT “S” attached hereto and incorporated by reference as if set forth in full herein. f) Baker Donelson played a MAJOR/KEY role in having Judge Tom S. Lee appointed to the Judicial Bench. g) Baker Donelson and Named Defendants’ Counsel/Attorneys Phelps Dunbar SHARE/SWAP attorneys. See EXHIBIT “T” attached hereto and incorporated by reference as if set forth in full herein. Moreover, SHARE Clients. Information they are attempting to SHIELD/HIDE from Newsome as well as the PUBLIC-AT-LARGE! h) Judge Tom S. Lee has been named in other legal proceedings brought by Newsome before the United States of America Congress, etc. addressing his unlawful/illegal and judicial misconduct. i) Newsome is presently engaging in Congressional and/or further legal proceedings in which a reasonable person knowing the following facts and evidence regarding the Governmental positions held/controlled by Baker Donelson Bearman Caldwell & Berkowitz (“Baker Donelson”):  Chief of Staff to the President of the United States  United States Secretary of State Page 5 of 35
  • 9.  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  United States Circuit Court of Appeals Judge  United States District Court Judges  United States Attorneys  Presidents of State and Local Bar Associations See Exhibit “XVIII” of the Complaint in this Lawsuit as well as EXHIBIT “R” attached hereto and incorporated by reference as if set forth in full herein. However, AFTER Newsome released this information to the PUBLIC – i.e. United States President Barack Obama, some of the members of his Administration and employees therein, the media, churches, selective public organizations, and United Nation/Foreign Leaders and their media – Baker Donelson moved swiftly to SCRUB this information. j) Judge Tom S. Lee is in a position in which he has now usurping powers in which he lacks and/or is prohibited to assert and attempting to perform dual roles as investigator and adjudicator – i.e. encroaching upon the duties and/or responsibilities of the Jury DEMANDED by Newsome in this Lawsuit. k) Judge Lee’s fulfillment of role in CONSPIRACY(S) with Named Defendants, their Counsel/Attorneys and other CONSPIRATORS/CO-CONSPIRATORS in Conspiracies leveled against Newsome. l) Any/All other reasons known to Judge Tom Stewart Lee.aforementioned reasons, as more fully set forth in the Affidavit attached and incorporated by referenceas if set forth in full in this Motion. See EXHIBIT “E” – “Affidavit of Vogel Denise Newsome In Page 6 of 35
  • 10. Support of Motion to DISQUALIFY Judge Tom Stewart Lee” attached hereto and incorporated by reference as if set forth in full herein. Tumey v. State of Ohio, 47 S.Ct. 437 (1927) - Subjecting liberty and property of defendant to court, judge of which has direct, substantial, pecuniary interest against him, is denial of due process. U.S.C.A.Const.Amend. 14. Buntion v. Quarterman, 524 F.3d 664 (5th Cir. 2008) - There are three situations in which the Supreme Court has found presumptive bias on the part of a judge: (1) the decision maker has a direct personal, substantial, and pecuniary interest in the outcome of the case, (2) an adjudicator has been the target of personal abuse or criticism from the party before him, and (3) a judicial or quasi-judicial decision maker has the dual role of investigating and adjudicating disputes and complaints.11. In order to preserve the issue of disqualification should further review become necessary, the record evidence will support that Newsome has done so. Through this instant pleading, her “Request for Conflict Of Interest Information” (Doc. No. 2), and her subsequent pleadings (Motions To Strike) filed in this instant lawsuit to REITERATE and PERSERVE this issue and protect Newsome’s rights. – Hardy vs. U.S., 878 F.2d 94 (2nd Cir. 1989).12. UNDISPUTED IS THE FACT: That a CONFLICT-OF-INTEREST presently exist 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. . .” [See EXHIBIT “D” - Request for Conflict of Interest Information, Notice of Opposition to Magistrate Judge Assignment; and Notice of Address attached hereto and incorporated by reference as if set forth in full herein. 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 EXHIBIT “G” – FRCP Rule 26 and EXHIBIT “K” - 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 Page 7 of 35
  • 11. 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 “I” – 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 IMPROPRIETYis inevitable through Judge Tom Stewart Lee’s acts and projects an appearance that this Lawsuit can bewon 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 EXHIBITS “J” – Code of Judicial Conduct (Mississippi) and “V” - LITEKYvs. UNITED STATES - Jeopardizing Judicial Integrity attached hereto and incorporated by referenceas 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. Page 8 of 35
  • 12. (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 “K” - 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 specifically enumerated in statute applies – i.e. for instance, as in this instant lawsuit, grounds for Judge Tom Stewart Lee’s disqualification is required pursuant to 28 USC § 455 and/or the applicable statutes/laws governing 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). UNDISPUTED IS THE FACT: Judge Tom S. Lee is adamant and it appears is refusing to RECUSE himself as required by statutes/laws governing said matters. Therefore, it appears that the proper INVESTIGATION(S), as with 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 “L” – 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!13. This instant pleading, the Request for Conflict Of Interest Information” (Doc. No. 2) and Newsome’s subsequent pleadings (i.e. Motions To Strike) support timely filing for purposes of preserving the issues raised should further review and/or legal action become necessary to resolve it. Judge Tom S. Lee under the general disqualification statute is to RECUSE and/or DISQUALIFY himself from this lawsuit. Noli vs. C.I.R., 860 F.2d 1521 (9th Cir. 1988). Named Defendants and their Legal Counsel/Attorney Phelps Dunbar/W. Thomas Siler, Jr./Jason T. Marsh do NOT rebut and/or dispute that a “CONFLICT-OF-INTEREST” exist and that Judge Tom S. Lee is adamant about proceeding in this lawsuit with KNOWLEDGE that he is MANDATORILY required to recuse himself. Furthermore, it is UNDISPUTED that Named Defendants and their Legal Counsel/Attorneys DELIBERATELY and with MALICIOUS intent, did KNOWINGLY fail to advise Newsome of the Conflict-of-Interest and, in FURTHERANCE of CONSPIRACIES (i.e. in which TOLLING DOCTRINE regarding statute of limitation applies to RESTART from each OVERT act of Named Defendants, their Counsel/Attorneys and those PARTY to such unlawful/illegal criminal acts) are proceeding before this Court and in this lawsuit in violation Page 9 of 35
  • 13. of the Mississippi Rules of Professional Conduct, Code of Judicial Conduct (Mississippi) as well as other statutes/laws governing said matters.14. 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 “M” – “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.15. Statutes/Laws governing said matters require that a judge disqualify himself/herself under the “general disqualification” statute where he/she has a personal bias or prejudice concerning a party. 22 U.S.C.A. § 455(b)(1). Recusal under the subsection of the judicial qualification statute setting forth specific circumstances establishing partiality is MANDATORY, because the potential for conflicts of interest is readily apparent. U.S. vs. Patti, 337 F.3d 1317 (11th Cir. 2003).16. The facts, evidence and legal conclusions set forth in this instant pleading as well as in Newsome’s prior pleadings: a) Request for Conflict of Interest Information, Notice of Opposition to Magistrate Judge Assignment; and Notice of Address (Doc. No. 2) b) 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) (Doc. No. 12) c) 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) (Doc. No. 19) and Judge Tom S. Lee’s “RUSH TO ENTER A NULL/VOID ORDER” (Doc. No. 20) for purposes of providing Named Defendants, their Counsel/Attorneys and CONSPIRATORS/CO-CONSPIRATORS to Conspiracies leveled against Newsome with an UNLAWFUL/ILLEGAL and UNDUE advantage in this lawsuit with KNOWLEDGE of his “DUTY TO DISQUALIFY” as a direct and proximate result of the personal bias, prejudice, financial/pecuniary interest, conflict of interest, etc. and other reasons known to Judge Lee warranting his disqualification further SOLIDIFIES his disqualification to preside and sit as judge over matters in this Lawsuit. Newsome believes that a reasonable person given the facts, evidence and legal conclusions presented herein as well as in her previous pleadings filed with this Court, would be convinced Judge Tom S. Lee is biased and/or prejudice towards Newsome. Furthermore, have personal and financial/pecuniary interests in this lawsuit. Grove Fresh Distributors, Inc. vs. John Labatt, Ltd., 299 F.3d 635 (7th Cir. 2002).17. Judge Tom S. Lee has a disposition so EXTREME as to display a CLEAR INABILITY to render a fair judgment and CANNOT perform his duties as required under the OATH taken to become Judge, Code of Judicial Conduct, 28 U.S.C.A. § 455 and other statutes/laws governing said matters which warrants his DISQUALIFICATION/RECUSAL. U.S. vs. Denton, 434 F.3d 1104 (8th Cir. 2006).18. The general disqualification statute (28 U.S.C.A. § 455(b)(1)) encompasses situations in which there is an actual conflict of interest, even if there is NO appearance of one, and also describes situations that create an apparent conflict because it provides examples of situations in which Judge Tom S. Lee’s impartiality might reasonably be questioned. Preston vs. U.S., 923 F.2d 731 (9th Cir. 1991)19. Statutes/Laws governing said matters are clear that any federal judge MUST disqualify himself/herself in any proceeding in which his/her impartiality might reasonably be questioned. In the instant lawsuit, Judge Tom Stewart Lee’s impartiality is reasonably questioned. Moreover, that BIAS and PREJUDICE towards Newsome as well as Judge Lee’s personal and financial/pecuniary interest in the outcome of Page 10 of 35
  • 14. this Lawsuit. See EXHIBIT “U” - JUDICIAL BIAS AND FINANCIAL INTEREST AS GROUNDS FOR DISQUALIFICATION OF FEDERAL JUDGES attached hereto and incorporated by reference as if set forth in full herein. Limeco, Inc. v. Division of Lime, 571 F.Supp. 710 (N.D.Miss.Greenville.Div.,1983) - Even if no bias or prejudice of judge may actually exist, it is enough to disqualify that there be mere appearance of partiality. U.S. v. Miranne, 688 F.2d 980 (5th Cir. 1982) - Under statute requiring judge to disqualify himself when his impartiality might reasonably be questioned, actual demonstrated prejudice need not exist in order for judge to be required to recuse himself. 28 U.S.C.A. § 455(a). Bradshaw v. McCotter, 785 F.2d 1327 (5th Cir. 1986) - Fair tribunal on appeal requires not only an absence of actual bias but the absence of an appearance of bias.20. When a judge is the actual trier of fact, the need to preserve the appearance of impartiality is especially pronounced. LaSalle Nat. Bank vs. First Connecticut Holding Group, LLC, 287 F.3d 279, 58 Fed.R.Evid. Serv. 1216 (3rd Cir. 2002). In fact, the impartiality provision (28 U.S.C.A. § 455(a)) requires NO determination of bias in fact (U.S. vs. Chantal, 902 F.2d 1018 (1st Cir. 1990), and thus applies even though NO actual bias or prejudice has been shown. Fletcher vs. Conoco Pipe Line Co., 323 F.3d 661 (8th Cir. 2003). For instance, it is of NO consequence that Judge Tom S. Lee is not actually biased under the impartiality provision inasmuch as the statutes/laws governing said matters require not ONLY fairness to individual litigants, but also the PUBLIC’s CONFIDENCE in the judiciary, which may be IRREPARABLY harmed if this lawsuit is allowed to proceed before Judge Tom S. Lee who appears is TAINTED and DETERMINED to COMPROMISE this lawsuit. In Re Kensington Intern. Ltd., 353 F.3d 211 (3rd 2003). Thus, the statute governs circumstances that constitute an APPEARANCE of PARTIALITY, even though actual partiality has not been shown. Chase Manhatten Bank vs. Affiliated FM Ins. Co., 343 F.3d 120 (2nd Cir 2003) Because of the recusal statute is to exact the APPEARANCE of IMPARTIALITY, recusal may be required even though the judge is not actually partial. Patterson vs. Mobil Oil Corp., 335 F.3d 476 (5th Cir. 2003). U.S. v. Jordan, 49 F.3d 152 (5th Cir. 1995) - Facts not known at the time of recusal motion are nonetheless considered in determining whether judge should have been recused, and statute governing recusal because of the appearance of partiality may be applied retroactively by rectifying oversight and taking steps necessary to maintain public confidence in impartiality of judiciary. 28 U.S.C.A. § 455(a). Ryals v. Pigott, 580 So.2d 1140 (Miss.,1990) - Parties are expected to know Supreme Courts composition and reveal any information which might warrant justices recusal from case.21. The IMPARTIALITY provisions of 28 U.S.C.A. § 455 places Judge Tom S. Lee under a self-enforcing OBLIGATION to recuse himself because the proper legal grounds exist. Glassroth vs. Moore, 229 F.Supp.2d 1283 (2002).22. Judge Tom S. Lee’s disqualification is REQUIRED if a reasonable FACTUAL basis exists for DOUBTING his IMPARTIALITY. U.S. vs. Cherry, 330 F.3d 658 (4th Cir. 2003). Therefore, based upon the facts, evidence and legal conclusions set forth in this instant “OBJECTION(S) To 08/02/12 Order,” the supporting Affidavit at EXHIBIT “E” and Newsome’s pleadings filed in this Lawsuit, factual/legal basis exists for doubting Judge Lee’s impartiality.23. Because of the record evidence supporting Newsome’s May 12, 2012 “Request for Conflict Of Interest Information” (Doc. No. 2) and her subsequent Motions To Strike at Doc. Nos. 12 and 19 filed with this Court, it was NOT necessary for Judge Tom S. Lee/this Court to wait for Newsome to move for his DISQUALIFICATION before disqualifying himself in this lawsuit in which his IMPARTIALITY is reasonably questioned, as it is a judge’s DUTY to ENSURE that his/her presence does NOT TAINT the PROCESS of justice or the INTEGRITY of the United States Courts. Obert vs. Republic Western Ins. Co., 190 F.Supp.2d 279 (2002). See EXHIBIT “V” - LITEKY vs. UNITED STATES - Jeopardizing Judicial Integrity attached hereto and incorporated by reference as if set forth in full herein. Page 11 of 35
  • 15. 24. Newsome would rather error on the side of caution and take the EXTRA precautions and file this instant “OBJECTION(S) To 08/02/12 Order” then not preserve said right and issues. Therefore, this instant “OBJECTION(S) To 08/02/12 Order” has in GOOD FAITH been submitted in that it appears that Judge Tom S. Lee has failed to remove himself sua sponte under the IMPARTIALITY provision of 28 U.S.C.A. § 455 and is ADAMENT and DETERMINED to DEFY the laws and TAINT the PROCESS and COMPROMISE the INTEGRITY of this United States Court for purposes of providing Named Defendants, their Counsel/Attorneys and CONSPIRATORS/CO-CONSPIRATORS with an UNDUE/UNLAWFUL/ILLEGAL advantage in this lawsuit. U.S. vs. Cooper, 283 F.Supp.2d 1215 (2003).25. FAILURE TO DISCLOSE: Judge Tom S. Lee has with MALICIOUS and CRIMINAL intent FAILED to DISCLOSE on the record circumstances that may give rise to a reasonable question about his IMPARTIALITY. In Re McCarthey, 368 F.3d 1266 (10th 2004). Therefore, it may become necessary to bring additional legal actions against Judge Tom S. Lee, in that this is a matter of PUBLIC/GLOBAL interest, to ascertain the TRUTH for his arbitrary acts and ROLE in CONSPIRACIES leveled against Newsome. Taylor v. Louisiana, 95 S.Ct. 692 - Purpose of a jury is to guard against the exercise of arbitrary power, to make available common-sense judgment of the community as a hedge against the overzealous or mistaken prosecutor and in preference to the professional or perhaps overconditioned or biased response of a judge. Chiarella v. U. S., 100 S.Ct. 1108 (1980) - One who fails to disclose material information prior to the consummation of a transaction commits common-law fraud only when he is under a duty to do so; the duty to disclose arises when one party has information that the other is entitled to know because of a fiduciary or other similar relation of trust and confidence between them. Washington Mut. Finance Group, LLC v. Blackmon, 925 So.2d 780 (Miss.,2004) - Canon on disqualification of judge for having financial interest in the subject matter in controversy or any other interest that could be substantially affected by the outcome of the proceeding requires recusal only if the judge owns an interest in a party litigant or, if he does not, there is a showing-not mere speculation-that he will be substantially affected by the decision of the case. Code of Jud.Conduct, Canon 3, subd. E(1)(c, d).26. Even where the facts may not suffice for recusal (however, in this lawsuit it does) on the ground that Judge Tom S. Lee has actual personal bias or prejudice toward Newsome as well as a financial/pecuniary interest in this lawsuit or to Defendants, those same facts may be examined as part of the inquiry into whether recusal is MANDATED on the ground that Judge Tom S. Lee’s PARTIALITY might reasonably be questioned. In Re Certain Underwriter, 294 F.3d 297 (2nd Cir. 2002).27. Newsome timely, properly and adequately submit her OBJECTION(S) to Judge Tom Stewart Lee’s August 2, 2012 Order staying proceedings for the reasons set forth in this instant (“OBJECTION(S) To 08/02/12 Order”) and supporting Affidavits and Exhibits and by so doing, PRESERVES said issue(s) regarding same. Judge Lee’s acts are a clear ABUSE of discretion, USURPATION of power in which he LACKED jurisdiction to enter Order, INFRINGES upon Newsome’s Constitutional Rights and other rights secured/guaranteed by statutes/laws and affect the fairness, integrity or PUBLIC reputation of judicial proceedings if left uncorrected. Rushing v. Kansas City Southern Ry. Co., 185 F.3d 496 (5th Cir. 1999) - [13] Court of Appeals may exercise its discretion to reverse under plain error review only when it finds an error that is clear and obvious under current law, that affects substantial rights, and that seriously would affect the fairness, integrity, or public reputation of judicial proceedings if left uncorrected. [13] As a result, we review for plain error. We may exercise our discretion to reverse under plain error review only when we find an error that is clear and obvious under current law, that affects the defendants substantial rights, and that seriously would affect the fairness, integrity or public reputation of judicial proceedings Page 12 of 35
  • 16. if left uncorrected. See Marceaux, 124 F.3d at 734; United States v. Calverley, 37 F.3d 160, 162-63 (5th Cir.1994) (en banc). [20] A failure to make a procedural objection waives the error, precluding review by Court of Appeals. [20] Here, however, the Rushings object to the supplemental affidavits on the ground that KCS failed to comply with the procedural rules governing the admission of evidence. Specifically, the arguments merit rests on our interpretation of Fed. R. Civ. P. 6 and 56. A failure to make a procedural objection waives the error, precluding our review.FN11 Because the Rushings waived any objection to the affidavits untimeliness, we may not review the alleged error. FN11. See Donaghey, 974 F.2d at 650 n. 3 (finding procedural objections to admissibility of summary judgment evidence waived by failure to challenge in district court); McCloud River R.R. v. Sabine River Forest Prods., Inc., 735 F.2d 879, 882 (5th Cir.1984) (holding that party waived right to raise untimeliness of supplemental affidavit by failing to object or move to strike in district court); Hicks v. Harris, 606 F.2d 65, 68 n. 3 (5th Cir.1979) (refusing to review procedural objection to affidavit raised for the first time on appeal, without a motion to strike in the district court); Auto Drive-Away Co. of Hialeah, Inc. v. Interstate Commerce Comn, 360 F.2d 446, 448-49 (5th Cir.1966) (holding that, absent timely motion to strike, affidavits non-compliance with procedural rules waived); see also Calverley, 37 F.3d at 162 (discussing difference between waiver and forfeiture).28. REASONABLE PERSON STANDARD: Under the “IMPARTIALITY” provision of 28 U.S.C.A. § 455(a), the GENERAL disqualification statute provides that Judge Tom S. Lee be disqualified in any proceeding in which is IMPARTIALITY might be reasonably questioned. Under this statute, it questions whether a reasonable person perceives a SIGNIFICANT RISK that Judge Tom S. Lee will resolve the case on a basis other than the merits. The answer being YES! Clemens vs. U.S. Dist. Court for Central District of California, 428 F.3d 1175 (9th Cir. 2005). Meaning that in determining whether Judge Tom S. Lee should be disqualified for IMPARTIALTY under this provision, an objective or “reasonable person” standard is to be used to determine whether his IMPARTIALITY is to be QUESTIONED. S.E.C. vs. Loving Spirit Foundation Inc., 392 F.3d 486 (D.C. Cir. 2004); In Re Kensington Intern. Ltd., 368 F.3d 289 (3rd Cir. 2004); Tyler vs. Purkett, 413 F.3d 696 (8th Cir. 2005) A truly disqualifying appearance MUST be determined by a reasonable person STANDARD and NOT by the ability of the complaining party to voice its concerns through the media. Chase Manhattan Bank vs. Affiliated FM Ins. Co., 343 F.3d 120 (2nd Cir. 2003). U.S. v. Dozier, 707 F.2d 862 (5th Cir. 1983) - Statutory provisions impose a reasonable man standard for determining whether judge should recuse himself. Therefore, supporting why Newsome DEMANDS a Jury Trial on issue(s) raised and NOT have matters tried before a Judge because of the risk and temptation(s) exhibited to give in to criminal acts – i.e. such as BRIBES, BLACKMAIL, EXTORTION, THREATS, CONSPIRACIES, etc. - as shown from the facts, evidence and legal conclusions in this instant lawsuit, it is CLEAR that Judge Tom S. Lee is ADAMENT and determined to DEFY the statutes/laws governing said matters29. The reasonable person in this context means a well-informed, thoughtful observer, as opposed to a hypersensitive, cynical, and suspicious person. Sensley vs. Albritton, 385 F.3d 591 (5th Cir. 2004). Clemens vs. U.S. Dist. Court for Central District of California, 428 F.3d 1175 (9th Cir. 2005). The TEST for disqualification for IMPARTIALITY provision of the “GENERAL” disqualification statute is whether an OBJECTIVE observer with knowledge of ALL facts, evidence and legal conclusion(s) would QUESTION Judge Tom S. Lee’s IMPARTIALITY. Page 13 of 35
  • 17. Fifth Circuit: Potashnick v. Port City Const. Co., 609 F.2d 1101 (5th Cir. 1980) - Goal of judicial disqualification statute is to foster appearance of impartiality. 28 U.S.C.A. § 455. Chitimacha Tribe of Louisiana v. Harry L. Laws Co., Inc., 690 F.2d 1157 (5th Cir. 1982) - Goal of statute governing disqualification of district court judges is to foster impartiality by requiring even its appearance. 28 U.S.C.A. § 455. U.S. v. Anderson, 160 F.3d 231 (5th Cir. 1998) - The goal of recusal statute is to avoid even the appearance of partiality. 28 U.S.C.A. § 455(a). Other Courts: In Re Brooks, 383 F.3d 1036 (2004) – Whether reasonable and informed observer would question the judge’s impartiality. Comfort vs. Lynn School Committee, 418 F.3d 1, 200 Ed. Law Rep. 541 (1 st Cir. 2005) – Whether objective, knowledgeable member of the public would find a reasonable basis for doubting judge’s impartiality. U.S. vs. Cherry, 330 F.3d 658 (4th Cir. 2003) – Whether another with knowledge of all of the circumstances might reasonably question the judge’s impartiality. Patterson vs. Mobil Oil Corp., 335 F.3d 476 (5th Cir. 2003) – Whether a reasonable and objective person, knowing all the facts, would harbor doubts concerning the judge’s impartiality. Fletcher vs. Conoco Pipe Line Co., 323 F.3d 661 (8th Cir. 2003) – Disqualification is required if a reasonable person who knew the circumstances would question the judge’s impartiality. Clemens vs. U.S. Dist. Court for Central District of California, 428 F.3d 1175 (9th Cir. 2005) – Whether a reasonable person with knowledge of all the facts would conclude that the judge’s impartiality might reasonably be questioned. U.S. vs. Nickl, 427 F.3d 1286, 68 Fed. R. Evid. Serv. 837 (10th Cir. 2005) – A judge must recuse him or herself if sufficient factual grounds exist to cause a reasonable, objective person, knowing all the relevant facts, to question the judge’s impartiality. Thomas vs. Tenneco Packaging Co. Inc., 293 F.3d 1306, 53 Fed. R. Serv. 3d 318 (11th Cir. 2002) – Whether an objective, fully informed lay observer would entertain significant doubt about judge’s impartiality. Hewlett-Packard Co. vs. Bausch & Lomb Inc., 882 F.2d 1556 (Fed. Cir. 1989) – What a reasonable person would believe in view of all the facts.30. It is important to note that the reasonable person’s knowledge of all of the circumstances is a VITAL element of this standard, and the decision whether Judge Tom S. Lee’s “IMPARTIALITY might REASONABLY BE QUESTIONED” should not be made in disregard of any relevant facts. Sao Paulo State of Federative Republic of Brazile vs. American Tobacco Co. Inc., 535 U.S. 229, 122 S.Ct. 1290, 152 L.Ed.2d 346 (2002). Therefore, it should be noted that Judge Tom S. Lee’s actual state of mind or prejudice is NOT at issue (U.S. vs. Nickl, 427 F.3d 1286, 68 Fed. R. Evid. Serv. 837 (10th Cir. 2005)) and any doubts MUST be resolved in FAVOR of RECUSAL. U.S. vs. Patti, 337 F.3d 1317 (11th Cir. 2003).31. For a violation of the statute (28 U.S.C.A. § 455) to occur, it requires that Judge Tom S. Lee disqualify himself in any proceeding in which his IMPARTIALITY might reasonably be questioned does NOT require scienter - Scienter Defined: 1. A degree of knowledge that makes a person legally responsible for the consequences of his or her act or omission; the fact of an act’s having been done knowingly, esp. as a ground for civil damages or criminal Page 14 of 35
  • 18. punishment. 2. A mental state consisting of an intent to deceive, manipulate, or defraud. Black’s Law Dictionary (8th Edition) Even if Judge Tom S. Lee wanted to assert “lack of knowledge of a disqualifying circumstance” bearing on the question of remedy, it does NOT eliminate the possibility that his IMPARTIALTY might easily be questioned by other persons based on the facts, evidence and legal conclusions set forth in this instant “OBJECTION(S) To 08/02/12 Order,” the supporting Affidavit at EXHIBIT “E” and Newsome’s Motions To Strike at Doc. Nos. 12 and 19 filed in this Lawsuit. Liljeberg vs. Health Services Acquisition Corp., 486 U.S. 847, 108 S.Ct. 2194, 100 L.Ed.2d 855, 47 Ed. Law Rep. 366, 11 Fed. R. Serv. 3d 433 (1988). See EXHIBIT “__” - __ attached hereto and incorporated by reference as if set forth in full herein.32. The record evidence supports Judge Tom S. Lee’s bias and/or prejudice towards Newsome being personal and extrajudicial. Therefore, warranting his recusal. U.S. vs. Grinnel Corp., 384 U.S. 563, 86 S.Ct. 1698, 16 L.Ed.2d 778 (1966). U.S. vs. Jamieson, 427 F.3d 394, 68 Fed. R. Evid. Serv. 825, 2005 FED App. 0430P (6th Cir. 2005).33. KNOWLEDGE OF EVIDENTIARY FACTS: The facts, evidence and legal conclusion in this instant “OBJECTION(S) To 08/02/12 Order” as well as Newsome’s pleadings filed in this lawsuit will support Judge Tom S. Lee’s disqualification because he has personal knowledge of the disputed evidentiary facts concerning this lawsuit. W. Clay Jackson Enterprises Inc. vs. Greyhound Leasing & Financial Corp., 467 F.Supp. 801 (1979).34. Judge Tom S. Lee’s disqualification is further required in that his KNOWLEDGE of disputed facts consist of matters of EXTRAJUDICIAL source. U.S. vs. Widgery, 778 F.2d 325 (7th Cir. 1985); Hale vs. Firestone Tire & Rubber Co., 756 F.2d 1322, 17 Fed. R. Evid. Serv. 928, 1 Fed. R. Serv. 3d 1602 (8th Cir. 1985).35. The record evidence will further support Judge Tom S. Lee’s disqualification in that he has UNDERLYING KNOWLEDGE as the claims raised in this lawsuit and has a direct personal and financial interest in its outcome. Plechner vs. Widener College Inc., 569 F.2d 1250, 24 Fed. R. Serv. 2d 921, 42 A.L.R. Fed. 313 (3rd Cir. 1977) In re Murchison, 75 S.Ct. 623 (1955) - No man can be a judge in his own case, and no man is permitted to try cases where he has an interest in the outcome. . . The interest which will disqualify a man from trying a case depends on circumstances and relationships.36. MATERIAL WITNESS: The facts, evidence and legal conclusions in the Complaint filed in this lawsuit and Newsome’s subsequent pleadings (i.e. including instant “OBJECTION(S) To 08/02/12 Order”) supports that Judge Tom S. Lee may become a MATERIAL witness concerning any/all matters of controversy in this lawsuit; therefore AUTOMATICALLY requiring his disqualification. Newsome looks forward to discovery proceedings as well as the “INITIAL Disclosure” information that Named Defendants and/or their Counsel Attorneys are MANDATORILY required release to her. Blue Cross & Blue Shield of Rhode Island vs. Delta Dental of Rhode Island, 248 F.Supp. 2d 39 (2003). Newsome further looks to have any/all such evidence presented to a JURY for purposes of deciding any and/all disputes raised in this Lawsuit. Mireles v. Waco, 112 S.Ct. 286 (1991) - Judicial immunity is not overcome by allegations of bad faith or malice, existence of which ordinarily cannot be resolved without engaging in discovery and eventual trial.37. INTEREST OF JUDGE LEE: Aside from Judge Tom S. Lee’s FINANCIAL interest in this lawsuit, he must disqualify himself based on his KNOWLEDGE and other DIRECT interest that could be substantially affected by the outcome of the proceeding. 28 U.S.C.A. § 455(b)(4). Furthermore, Judge Tom S. Lee, it appears, may become a party to this instant lawsuit – i.e. this is why Newsome listed “UNNAMED” Defendants as “DOES 1 – 100” in the Complaint based on additional facts and Page 15 of 35
  • 19. evidence obtained through “INITIAL DISCLOSURE” mandatorily required and discovery proceedings. 28 U.S.C.A. § 455(b)(5)(i). See Complaint at Doc. No. 1.38. The facts, evidence and legal conclusion supports that Judge Tom S. Lee have interests that could be SUBSTANTIALLY affected – i.e. meaning an interest in the subject matter of this lawsuit and/or the Defendants, Counsel/Attorneys, etc. to it. In Re Drexel Burnham Lambert Inc., 861 F.2d 1307 (2nd Cir. 1988)39. FINANCIAL INTEREST: Based upon the facts, evidence, legal conclusions and further investigations and discovery to be conducted in this lawsuit, Judge Tom S. Lee is to disqualify himself because of his KNOWLEDGE that he has a FINANCIAL interest in the subject matter in controversy and/or Defendants and their Counsel/Attorneys in this instant lawsuit. 28 U.S.C.A. § 455. See EXHIBIT “K” attached hereto and incorporated by reference as if set forth in full therein.40. Statutes/Laws governing Judge Tom S. Lee’s disqualification because his interest in the outcome of lawsuit is pecuniary and, therefore, BIAS is CLEAR. 28 U.S.C.A. § 455(f). Should it become necessary, Newsome believes that the proper legal action against Judge Tom S. Lee which may require the subpoena of his FINANCIAL information (i.e. Tax Returns, Business Investments, Stocks, etc.) will further support that Newsome’s DEMAND for RECUSAL has been made in GOOD FAITH and PROPERLY before this Court before the entry of the NULL/VOID August 2, 2012 Order executed by Judge Lee to stay proceedings. See EXHIBIT “O” – August 2, 2012 Order attached hereto. Highlands Ins. Co. v. National Union Fire Ins. Co. of Pittsburgh, 27 F.3d 1027 (5th Cir. 1994) - In order for appellant in civil case to prevail with new argument on appeal he must show: (1) that error occurred; (2) error was plain, which means either clear or obvious; (3) plain error must affect substantial rights; and (4) not correcting error would seriously affect fairness, integrity or public reputation of judicial proceedings. Fed.Rules Civ.Proc.Rule 51, 28 U.S.C.A. Ford v. United Gas Corp., 254 F.2d 817 (5th Cir. Miss. 1958) - A litigant may not, speculating on verdict without making objections, keep silent while matters are transpiring in trial court and then put trial judge in error by assigning error in appellate court in respect of them, except in case of plainly prejudicial error.41. Judge Tom S. Lee has a MANDATORY duty to inform himself about his personal financial interests and this MANDATORY duty continues throughout the litigation. In Re McCarthey, 368 F.3d 1266 (10th 2004).42. Judge Tom S. Lee bears the principal burden of COMPLIANCE with the statute(s) requiring his disqualification when it is clear he has a FINANCIAL interest in the litigation and/or Defendants (28 U.S.C.A. § 455(b)(4)) since the statute’s provisions are DIRECTIVE and REQUIRE some reasonable INVESTIGATION and action on Judge Lee’s OWN initiative. Chase Manhattan Bank vs. Affiliated FM Ins. Co., 343 F.3d 120 (2nd Cir 2003)43. Judge Tom S. Lee has KNOWLEDGE of the Law Firm of Baker Donelson Bearman Caldwell & Berkowitz’ and their Clients (i.e. such as Liberty Mutual Insurance Company’s) FINANCIAL interest in the outcome of this Lawsuit. Moreover, Baker Donelson’s usage of Named Defendant’s counsel (Phelps Dunbar) as a FRONTING firm representing Named Defendants while “PULLING THE SHOOTS” and “CONTROLLING” the outcome of this lawsuit “BEHIND THE SCENES.” Furthermore, the record evidence will support that Judge Tom S. Lee’s KNOWLEDGE of nonparties (i.e. as Baker Donelson, etc.). Judge Tom S. Lee having KNOWLEDGE: a) Of his BIAS and PREJUDICE towards Newsome. b) His direct personal, substantial and pecuniary interest in the outcome of this Lawsuit. Page 16 of 35
  • 20. c) That Newsome is seeking legal action against him before the United States of America Congress. d) That Newsome as early as May 12, 2012, timely, properly and adequately submitted for filing with this Court her pleading entitled, Request for Conflict of Interest Information, Notice of Opposition to Magistrate Judge Assignment; and Notice of Address which addresses concerns of CONFLICT-OF-INTEREST regarding Judge Tom S. Lee. See EXHIBIT “D” at Pages 2 and 4 attached hereto and incorporated by reference as if set forth in full herein. e) That he is a MATERIAL witness to the criminal/civil wrongs – i.e. such as CONSPIRACIES – leveled against Newsome and is playing a KEY/MAJOR role in said conspiracies. f) Judge Tom S. Lee is in a position in which he is usurping powers in which he lacks jurisdiction and/or is prohibited to assert and attempting to perform dual roles as investigator and adjudicator – i.e. encroaching upon the duties and/or responsibilities of the Jury DEMANDED by Newsome in this Lawsuit. Buntion v. Quarterman, 524 F.3d 664 (5th Cir. 2008) - There are three situations in which the Supreme Court has found presumptive bias on the part of a judge: (1) the decision maker has a direct personal, substantial, and pecuniary interest in the outcome of the case, (2) an adjudicator has been the target of personal abuse or criticism from the party before him, and (3) a judicial or quasi-judicial decision maker has the dual role of investigating and adjudicating disputes and complaints. Therefore, requiring Judge Tom S. Lee’s disqualification. Draper vs. Reynolds, 369 F.3d 1270 (11th Cir. 2004).44. Newsome DEMANDS Judge Tom S. Lee’s disqualification in this Lawsuit as a direct and proximate result of his “FINANCIAL” interest – i.e. however small and/or other active participation in the affairs of Named Defendants and/or their Legal Counsel Phelps Dunbar as well as that of Baker Donelson and the interest of their Clients’ Insureds, etc.. 28 U.S.C.A. § 455(d)(4). Thus, requiring Judge Tom S. Lee’s disqualification no matter how insubstantial the financial interest and regardless of whether or not the interest actually creates an appearance of impropriety. Liljeberg vs. Health Services Acquisition Corp., 486 U.S. 847, 108 S.Ct. 2194, 100 L.Ed.2d 855, 47 Ed. Law Rep. 366, 11 Fed. R. Serv. 3d 433 (1988).45. Judge Tom S. Lee, as a matter of law, is DISQUALIFIED from presiding over this lawsuit in that he has is BIAS and PREJUDICE toward Newsome, has a FINANCIAL/PECUNIARY interest in this lawsuit, has KNOWLEDGE of extrajudicial matters regarding Newsome to which he is and/or may be a party, may be a MATERIAL WITNESS in legal proceedings to which he has been named in other lawful actions brought by Newsome, has been appointed for purposes of COMPROMISING and TAINTING these proceeding, and has FAILED to NOTIFY all parties to this lawsuit as to the CONFLICT-OF- INTEREST and the grounds requiring his DISQUALIFICATION. Should it become necessary to bring legal against Judge Tom S. Lee, Newsome intends to SUBPOENA any and/or all of his personal financial records (i.e. Tax Returns, Stocks Portfolio, etc.) for presentation to JURY in the TRIAL on this matter.46. Defendants’ Page Kruger & Holland, P.A., Thomas Y. Page, Louis G. Baine III, and Linda Thomas and their Legal Counsel/Attorney’s Phelps Dunbar/W. Thomas Siler, Jr./Jason T. Marsh at the time of executing and submitting Defendants’ Motion to Strike Motion To Stay All Proceedings Pending A ruling On Defendants’ Motion To Dismiss and the supporting Memorandum Brief KNEW that it was frivolous, WITHOUT merits and provided with FRAUDLENT intent and for purposes of: 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 Named Defendants and their Counsel. Therefore, warranting the relief set forth in this instant “OBJECTION(S) To 08/02/12 Order.” Page 17 of 35
  • 21. 47. Pursuant to Rule 8 (i.e. specifically (b)) of the Federal Rules of Civil Procedure (“FRCP”), Named Defendants’ Motion to Strike Motion To Stay All Proceedings Pending A ruling On Defendants’ Motion To Dismiss fail to meet the pleading requirements for responses. Said Rule 8 states in part: Rule 8. General Rules of Pleading (a) Claim for Relief. A pleading that states a claim for relief must contain: (1) a short and plain statement of the grounds for the courts jurisdiction, unless the court already has jurisdiction and the claim needs no new jurisdictional support; (2) a short and plain statement of the claim showing that the pleader is entitled to relief; and (3) a demand for the relief sought, which may include relief in the alternative or different types of relief. (b) Defenses; Admissions and Denials. (1) In General. In responding to a pleading, a party must: (A) state in short and plain terms its defenses to each claim asserted against it; and (B) admit or deny the allegations asserted against it by an opposing party. (2) Denials—Responding to the Substance. A denial must fairly respond to the substance of the allegation. (3) General and Specific Denials. A party that intends in good faith to deny all the allegations of a pleading—including the jurisdictional grounds—may do so by a general denial. A party that does not intend to deny all the allegations must either specifically deny designated allegations or generally deny all except those specifically admitted. (4) Denying Part of an Allegation. A party that intends in good faith to deny only part of an allegation must admit the part that is true and deny the rest. (5) Lacking Knowledge or Information. A party that lacks knowledge or information sufficient to form a belief about the truth of an allegation must so state, and the statement has the effect of a denial. (6) Effect of Failing to Deny. An allegation—other than one relating to the amount of damages—is admitted if a responsive pleading is required and the allegation is not denied. If a responsive pleading is not required, an allegation is considered denied or avoided. (c) Affirmative Defenses. (1) In General. In responding to a pleading, a party must affirmatively state any avoidance or affirmative defense, including: • accord and satisfaction; • arbitration and award; • assumption of risk; • contributory negligence; • duress; • estoppel; • failure of consideration; • fraud; • illegality; Page 18 of 35
  • 22. • injury by fellow servant; • laches; • license; • payment; • release; • res judicata; • statute of frauds; • statute of limitations; and • waiver. (2) Mistaken Designation. If a party mistakenly designates a defense as a counterclaim, or a counterclaim as a defense, the court must, if justice requires, treat the pleading as though it were correctly designated, and may impose terms for doing so. (d) Pleading to Be Concise and Direct; Alternative Statements; Inconsistency. (1) In General. Each allegation must be simple, concise, and direct. No technical form is required. (2) Alternative Statements of a Claim or Defense. A party may set out 2 or more statements of a claim or defense alternatively or hypothetically, either in a single count or defense or in separate ones. If a party makes alternative statements, the pleading is sufficient if any one of them is sufficient. (3) Inconsistent Claims or Defenses. A party may state as many separate claims or defenses as it has, regardless of consistency. (e) Construing Pleadings. Pleadings must be construed so as to do justice. See EXHIBIT “P” – Rule 8 of FRCP attached hereto and incorporated by reference as if set forth in full herein.48. While Newsome’s Motion to Strike Motion To Stay All Proceedings Pending A ruling On Defendants’ Motion To Dismiss (“MTSMTStay”) meet the pleading requirements of Rule 8 of the FRCP, Defendants’ Motion To Stay All Proceedings Pending A ruling On Defendants’ Motion To Dismiss FAIL to address the issues raised NOR rebut the FACTS, EVIDENCE/EXHIBITS and LEGAL CONCLUSION supporting Newsome’s MTSMTStay. This Court’s record/docket in this lawsuit remains SILENT on the issues raised and the TIME for Named Defendants to provide a REBUTTAL to each and every issues raised has EXPIRED/LAPSED – i.e. has been WAIVED by Named Defendants and any claim(s) alleging FAILURE to provide a timely response because of RELIANCE on Judge Tom S. Lee’s August 2, 2012, will be met with a “MOTION TO STRIKE” in that Named Defendants and their Counsel/Attorney Phelps Dunbar/W. Thomas Siler, Jr./Jason T. Marsh having KNOWLEDGE that Judge Tom S. Lee’s August 2, 2012 was obtained through CRIMINAL and FRAULENT means – i.e. moreover, as a direct and proximate result of BIAS and PREJUDICE towards Newsome as well as the FINANCIAL/PECUNIARY interest of Judge Tom S. Lee and other reasons KNOWN to them reached in the CONSPIRACY(S) leveled against Newsome to OBSTRUCT the administration of justice. Therefore, as a matter of law, statements/averments in Newsome’s MTSMTStay are deemed ADMITTED and/or TRUE!49. Named Defendants and/or their Counsel/Attorney have FAILED to file a TIMELY response to Newsome’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). Any such pleadings that Named Defendants and/or their Counsel/Attorney may attempt to file in response to this Motion to Strike will be met with a similar filing by Newsome to STRIKE that pleading as well. The laws are clear that the August 2, 2012 Order by Judge Tom S. Lee was not FINAL and that it is subject to rebuttal pleadings. Moreover, Named Defendants’ acknowledging and encouraging Newsome to continue to file; therefore, Page 19 of 35
  • 23. they having KNOWLEDGE as well that they had an OBLIGATION and DUTY to protect any claims/issues through timely rebuttal pleadings.50. Named Defendants and/or their Counsel/Attorney having KNOWLEDGE at the time of Judge Tom S. Lee’s August 2, 2012, that said Order was NULL/VOID for lack of jurisdiction, done in furtherance of CONSPIRACIES leveled against Newsome and 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 Named Defendants and their Counsel.51. 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 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.52. UNDISPUTED IS THE FACT: Due to the Conflict-Of-Interest, BIAS, PREJUDICE towards Newsome, FINANCIAL/PECUNIARY interest and other reasons known to Judge Tom S. Lee requiring his DISQUALIFICATION and/or RECUSAL, as a matter of law, he LACKS jurisdiction to preside as Judge in this instant Lawsuit and the matters therein and has CLEARLY ABUSED discretion which he also LACKED to exercise for violations under 28 U.S.C.A. § 455 and other statutes/laws of the United States governing said matters.53. For this Court to grant Defendants’ Motion To Stay All Proceedings Pending A ruling On 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.54. IMMUNITY: The statutes/laws are clear that any claims of defense that Judge Tom Stewart Lee may assert that he may be entitled to avoid legal actions that may be brought by Newsome against him will be FRIVOLOUS in that he is KNOWINGLY, WILLINGLY and with MALICIOUS intent engaging in CRIMINAL/CIVIL wrongs prohibited by law and in violation under the Code of Judicial Conduct, 28 U.S.C.A. § 455 and any/all statutes/laws governing said violations and prosecution for same. Furthermore, because Judge Tom Lee prior to the August 2, 2012 execution of Order having KNOWLEDGE that he clearly LACKED all jurisdictional powers to execute same; nevertheless proceeded for purposes of fulfilling his role in CONSPIRACIES leveled against Newsome and deprive her rights secured/guaranteed under the Constitution and other laws of the United States governing said matters. Mireles v. Waco, 112 S.Ct. 286 (1991) - Judicial immunity is overcome in only two sets of circumstances: judge is not immune from liability for nonjudicial actions, i.e., actions not taken in judges judicial capacity; and judge is not immune for actions, though judicial in nature, taken in complete absence of all jurisdiction. Stump v. Sparkman, 98 S.Ct. 1099 (1978) - Judge will not be deprived of immunity because action he took was in error, was done maliciously, or was in excess of his authority; rather, he will be subject to liability only when he has acted in clear absence of all jurisdiction. Page 20 of 35
  • 24. III. JURY TRIAL TIMELY DEMANDED IN THIS LAWSUIT While the record evidence will support TIMELY “JURY DEMAND” by Plaintiff Vogel Denise Newsome(“Plaintiff” and/or “Newsome”) through the Civil Cover Sheet (See EXHIBITS “Q” – Civil Cover Sheet and “X” -RIGHT To A JURY Trial In CIVIL Actions attached hereto and incorporated by reference as if set forth in fullherein) and said demand appears on the Docket Sheet of this Court, through her Complaint and referenced thereinwith a designation also made beginning at Page 136, as well as through Newsome’s subsequent “Motions to Strike”in further preservations of those issues/claims raised with those address in this instant OBJECTION(S) To August 2,2012 Order Of Judge Tom S. Lee; Motion For DISQUALIFICATION; AND DEMAND FOR JURY TRIAL(“OBJECTION(S) To 08/02/12 Order”), Newsome states to this Court and:TO DEFENDANTS: Page Kruger & Holland, P.A. Thomas Y. Page Louis G. Baine, III Linda Thomas c/a Their Legal Counsel/Attorneys Phelps Dunbar LLP W. Thomas Siler, Jr. Jason T. Marsh That “JURY DEMAND” in this Lawsuit has been timely, properly and adequately made. 55. That as early as about June 6, 2012, Pursuant to Rule 5 of the Federal Rules of Civil Procedure, Defendants Defendants Page Kruger & Holland, P.A., Thomas Y. Page, Louis G. Baine III, and Linda Thomas (hereinafter, “Named Defendants”) were timely, properly and adequately served with “JURY DEMAND” in this Lawsuit through her Complaint. See Doc. No. 1: Paragraph Page Paragraph Page ¶ 56 21 ¶ 178 75 ¶ 99 39 ¶ 200 ¶ 103 41 ¶ 218 87 ¶ 108 43 ¶ 239 95 ¶ 120 49 ¶ 262 109 ¶ 141 62 ¶ 299 116 ¶ 170 71 ¶¶ 310 thru 312 136 56. Newsome through her subsequent pleadings entitled (i.e. which clearly reflect Jury Demand): d) 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) e) 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) Page 21 of 35
  • 25. AGAIN reiterated her DEMAND; moreover RIGHT to “JURY TRIAL” on any/all triable issues and does NOT waive said right to have issues/claims tried by a Jury! Therefore, the record sustains that TIMELY “Jury Demand” made as to any/all DISPUTABLE issue(s)/claims in this Lawsuit.57. Newsome further demands a JURY trial (i.e. NOT a Bench Trial) on triable issues. Newsome is proceeding in this instant lawsuit as a PAYING Litigant and the Docket Sheet in this matter clearly reflects “JURY DEMAND: Plaintiff.” See EXHIBIT “L” attached hereto and incorporated by reference. Furthermore, asserts article at EXHIBIT “W” – REexaming The RIGHT To Trial By JURY attached hereto and incorporated by reference as if set forth in full herein.58. The facts, evidence and legal conclusions set forth in Newsome’s Complaint and subsequent pleadings (Motions To Strike) at Doc. Nos. 12 and 19 supports that there are genuine issues of material facts that are in dispute. Therefore, a JURY trial is MANDATORILY required under Rule 38 of the FRCP, Seventh Amendment of the United States and other statutes/laws governing said matters to resolve questions of facts, disputes and/or conflicts regarding the claims/issue(s) raised. See EXHIBIT “Y” - The RIGHT To A JURY Decision On QUESTIONS of FACT Under The Seventh Amendment attached hereto and incorporated by reference as if set forth in full herein. Hare v. City of Corinth, Miss., 949 F.Supp. 456 (N.D.Miss.E.Div.,1996) - Essential characteristic of federal system is the manner in which, in civil common-law actions, it assigns trial functions between judge and jury and, under the influence if not the command of Seventh Amendment, assigns decisions of disputed questions of fact to jury. U.S.C.A. Const.Amend. 7. [22] [23] As already noted by the court in this case, this court has determined that there remain genuine issues of material fact as to whether the actions of the . . . defendants amount to deliberate indifference in this case. These same defendants now argue to the court that “[t]his court made [its previous] holding based upon a set of undisputed facts leaving only a legal question to be decided. If this court cannot determine after diligent research and the benefit of hindsight whether the defendants actions were deliberately indifferent based upon a set of undisputed facts, then the defendants should certainly could not in July, 1989, . . . The ultimate factual determination of whether or not these defendants were deliberately indifferent is itself a disputed question of fact. See, e.g., Estate of Cole by Pardue v. Fromm, 94 F.3d 254, 260 (7th Cir.1996); Miller v. Schoenen, 75 F.3d 1305, 1311 (8th Cir.1996); Kirk v. Simpson, 35 F.3d 566, 1994 WL 443461, *1 (6th Cir.(Tenn.)); Archibeque v. Wylie, 16 F.3d 415, 1994 WL 41272, *3 (10th Cir.(N.M.)); Greason v. Kemp, 891 F.2d 829, 835 (11th Cir.1990). Its determination is the responsibility of the jury in this case, and does not rest with this court as it is a determination of fact: The federal system is an independent system for administering justice to litigants who properly invoke its jurisdiction. An essential characteristic of that system is the manner in which, in civil common- law actions, it distributes trial functions between judge and jury and, under the influence—if not the command—of the Seventh Amendment, assigns the decisions of disputed questions of fact to the jury. Gasperini v. Center for Humanities, Inc., 518 U.S. 415, 116 S.Ct. 2211, 135 L.Ed.2d 659 (1996) (quoting Byrd v. Blue Ridge Rural Elec. Cooperative, Inc., 356 U.S. 525, 537, 78 S.Ct. 893, 901, 2 L.Ed.2d 953 (1958)). This court is nevertheless fully capable of making findings of fact as well as conclusions of law if the parties wish to waive their right to a jury trial in this case. That it is not this courts place to make this factual determination at the summary judgment stage lends no decisive weight to the determination of whether the defendants are actually entitled to the protection of qualified immunity. There remain genuine issues of material fact as to whether the actions of the . . Page 22 of 35
  • 26. .defendants were objectively reasonable in light of existing law. As such, an award of summary judgment on the issue is inappropriate. The defendants are not entitled to the entry of a judgment as a matter of law. See EXHIBIT “Z” – Hare vs. City of Corinth attached hereto and incorporated by reference as if set forth in full herein.59. Because of the disputed questions and/or issues raised in the Complaint and Newsome’s subsequent pleadings (Motions To Strike – Doc. Nos. 12 and 19), ALL material issues raised by the pleadings and supported by evidence adduced at trial are to be submitted to jury for consideration. Jackson v. Firestone Tire & Rubber Co., 788 F.2d 1070 (5th Cir. 1986)60. The record evidence clearly supports that Newsome’s Complaint provides facts, evidence and legal conclusions to support claims raised as well as the pleading requirements of Rule 8 of the FRCP and other governing statutes/laws. Newsome as early as the filing of her Complaint at Page 136 clearly makes a “JURY DEMAND.” See Complaint at Doc. No. 1 Page 136. Therefore, the jury has traditional function as finder of facts. Dobson v. Masonite Corp., 359 F.2d 921 (5th Cir. Miss. 1966). See EXHIBIT “AA” – Dobson attached hereto and incorporated by reference as if set forth in full herein.61. Under the federal judicial system, determination of disputed questions of fact in civil common-law action is for the jury. Byrd v. Blue Ridge Rural Elec. Co-op., Inc., 78 S.Ct. 893 (1958). Magenau v. Aetna Freight Lines, Inc., 79 S.Ct. 1184 (1959).62. While Newsome’s Complaint and Motions to Strike (Doc. Nos. 12 and 19) have gone UNCONTESTED in accordance with Rule 8 of the Federal Rules of Civil Procedure and failure by Named Defendants to CONTEST/REBUT claims and issues raised pursuant to Rule 8 of the FRCP, require their failure to be an ADMISSION to the claims and issues raised, this Court’s Judge Tom S. Lee has ABUSED his discretion and USURPED powers in which he clearly lacks pursuant to 28 U.S.C.A. § 455 and other statutes/laws governing disqualification for purposes of providing Named Defendants and their Counsel/Attorneys with an UNDUE/UNLAWFUL/ILLEGAL advantage in this lawsuit. Newsome’s Complaint and her subsequent pleadings clearly support her REPEATED “JURY DEMAND” in each of her pleadings filed with this Court. Therefore, under the federal judicial system, determination of disputed questions of fact in civil common-law action is for the jury. Byrd v. Blue Ridge Rural Elec. Co- op., Inc., 78 S.Ct. 893 (1958). Magenau v. Aetna Freight Lines, Inc., 79 S.Ct. 1184 (1959).63. The fact issue(s) raised in Newsome’s Complaint and her subsequent Motions to Strike in that reasonable person could differ on conclusion(s) as that provided by Judge Tom S. Lee, who ABUSED discretion and USURPED authority over matters in which he lacked jurisdiction, MUST be submitted to a jury. Newsome’s CONSTITUTIONAL right to have the issue(s) tried by JURY has NOT been waived and will NOT be waived in that she believes that a reasonable person could differ on conclusions to be reached from the evidence presented. Helene Curtis Industries, Inc. v. Pruitt, 385 F.2d 841 (5th Cir. 1967). Andrade v. Chojnacki, 338 F.3d 448 (5th Cir. 2003) - Judge abuses his or her discretion in denying recusal where reasonable person, cognizant of relevant circumstances surrounding judges failure to recuse, would harbor legitimate doubts about that judges impartiality. 28 U.S.C.A. § 455. Parliament Ins. Co. v. Hanson, 676 F.2d 1069 (5th Cir. 1982) - Statutory provision governing disqualification of federal judges imposes a reasonable man standard in determining whether a judge should recuse himself. 28 U.S.C.A. § 455(a).64. There is a CREDIBILITY issue with not only Named Defendants and its Counsel/Attorneys, but NOW with Judge Tom S. Lee which clearly requires a JURY Trial to weigh the evidence presented in the Complaint and Newsome’s subsequent Motions to Strike (Doc. Nos. 12 and 19). Weighing of evidence in which Newsome STRONGLY objects to Judge Tom S. Lee ABUSING his discretion and URSURPING powers in which he clearly LACKS jurisdiction. Page 23 of 35
  • 27. Reeves v. Sanderson Plumbing Products, Inc., 120 S.Ct. 2097 (U.S.Miss.,2000) - [12] It is permissible for trier of fact in employment discrimination case to infer the ultimate fact of discrimination from the falsity of the employers explanation; proof that defendants explanation is unworthy of credence is simply one form of circumstantial evidence that is probative of intentional discrimination, and it may be quite persuasive. [13] As general principle of evidence law, fact finder is entitled to consider a partys dishonesty about a material fact as affirmative evidence of guilt. . . . [17] Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge. . . [17] [18] In doing so, however, the court must draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations or weigh the evidence. Lytle v. Household Mfg., Inc., 494 U.S. 545, 554-555, 110 S.Ct. 1331, 108 L.Ed.2d 504 (1990); Liberty Lobby, Inc., supra, at 254, 106 S.Ct. 2505; Continental Ore Co. v. Union Carbide & Carbon Corp., 370 U.S. 690, 696, n. 6, 82 S.Ct. 1404, 8 L.Ed.2d 777 (1962). “Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge.” *151 Liberty Lobby, supra, at 255, 106 S.Ct. 2505. Thus, although the court should review the record as a whole, it must disregard all evidence favorable to the moving party that the jury is not required to believe. See Wright & Miller 299. That is, the court should give credence to the evidence favoring the nonmovant as well as that “evidence supporting the moving party that is uncontradicted and unimpeached, at least to the extent that that evidence comes from disinterested witnesses.” Id., at 300. See EXHIBIT “BB” - Reeves attached hereto and incorporated by reference as if set forth in full herein. Food Machinery & Chemical Corp. v. Meader, 294 F.2d 377 (1961) - [3] It is jurys function to say whether plaintiffs version of case is sustained by greater weight of evidence.65. It is the DUTY of the Jury to settle DISPUTES and NOT Judge Tom S. Lee and/or this Court and the record evidence clearly supports Newsome’s DEMAND that a Jury decide the issue(s) so triable. Planters Mfg. Co. v. Protection Mut. Ins. Co., 380 F.2d 869 (5th Cir. Miss.,1967) - As respects federal standard to be applied in determining whether evidence in diversity case is sufficient to raise question for jury, it is immaterial that evidence may equally support an inconsistent inference, if in fact fairminded men might draw from that evidence inference sought by party against whom peremptory instruction is sought, and in such case, it is function of jury to settle dispute by choosing what seems to them to be most reasonable inference. U.S.C.A.Const. Amend. 7. Named Defendants’, their Counsel/Attorneys’ and Judge Tom S. Lee’s/this Court’s attempt to take issue(s) from the JURY when DEMAND for Jury Trial has been made is PROHIBITED by the Seventh Amendment to the United States Constitution, Rule 38 and other statutes/laws governing said matters. Newsome believes that reasonable and fair-minded men and women in exercise of IMPARTIAL judgment WILL reach a different conclusion on the claims/issues raised in Newsome Complaint and her subsequent pleadings (Motions to Strike) than that reached by Judge Tom S. Lee/this Court. Newsome in the drafting and preparation of the Complaint and her subsequent pleadings did so with the presentation of Motion issue(s) to be submitted to a JURY. Newsome is a paying litigant in this lawsuit and DEMANDS that just be served in this matter. Johnson v. William C. Ellis & Sons Iron Works, Inc., 604 F.2d 950 (5th Cir. Miss. 1979) - [11] Issue cannot be taken from the jury if there are facts on which reasonable and fair-minded men and women in the exercise of impartial judgment might reach different conclusions. [12] Fact-finding power which belongs to the jury includes the drawing and rejecting of inferences from the facts. . . . [11] [12] The sufficiency of the evidence on any issue to make a case for jury consideration is a question of law for the trial judge. Reuter v. Eastern Air Lines, 5 Cir. 1955, 226 F.2d 443. The judge must determine whether the evidence is sufficiently in conflict to permit differing views concerning disputed issues of fact and, whether, even if the evidence is not contradicted, conflicting inferences can be drawn from it. An issue cannot be taken from the jury if there are facts on which reasonable and fair minded men and women in the exercise of impartial judgment might reach different conclusions. E. g., Boeing Co. v. Shipman, 5 Cir. 1969, 411 F.2d 365; United States v. Fewell, 5 Cir. 1958, 255 F.2d 496. It is also clear that the fact-finding power that belongs to the jury includes the drawing and rejecting of inferences from the facts. Nunez v. Superior Oil Page 24 of 35
  • 28. Co., 5 Cir. 1978, 572 F.2d 1119, 1124; Winter Park Telephone Co. v. Southern Bell Telephone & Telegraph Co., 5 Cir. 1950, 181 F.2d 341. Prassel Enterprises, Inc. v. Allstate Ins. Co., 405 F.2d 616 (5th Cir. Miss. 1968) - If evidence is of such a character that reasonable men, exercising impartial judgment, may differ in their conclusion, then case should be submitted to the jury.66. It is the duty of a JURY and NOT Judge Tom S. Lee/this Court to weigh CONFLICTING evidences and inferences as well as the CREDIBILITY of witnesses. Therefore, Newsome is CONFIDENT that based upon the facts, evidence and legal conclusions in her UNCONTESTED Complaint and UNCONTESTED Motions to Strike in accordance with Rule 8 of the FRCP will provide JURY with SUBSTANTIAL evidence to support the Claims/Issues raised. Mosley v. Excel Corp., 109 F.3d 1006 (5th Cir. 1997) - It is function of jury as traditional finder of facts, and not court, to weigh conflicting evidence and inferences, and determine credibility of witnesses. Owens v. International Paper Co., 528 F.2d 606 (5th Cir. 1976) - It is function of jury as traditional finder of facts and not the court to weigh conflicting evidence and inferences and determine the credibility of witnesses. Vess v. Gardner, 413 F.2d 424 (5th Cir. Miss.,1969) - It is the function of the jury as the traditional finder of the facts, and not the court, to weigh conflicting evidence and inferences and determine the credibility of witnesses. Liberty Mut. Ins. Co. v. Davis, 412 F.2d 475 (5th Cir. 1969) - It is function of jury as judicial finder of facts and not the court to weigh conflicting evidence and inferences and determine credibility of witnesses. Southern Glass & Builders Supply Co. v. U. S., 398 F.2d 109 (5th Cir. 1968) - Whenever evidence is such that fair minded men may draw different inferences or different conclusions therefrom, a question of fact has been presented which only jury may decide. Planters Mfg. Co. v. Protection Mut. Ins. Co., 244 F.Supp. 721 (N.D.Miss.Delta.Div.,1965) - If it can be said that fair-minded men might differ as to conclusions of fact to be drawn from evidence, issue must go to jury.67. Newsome’s JURY DEMANDS are sustained by the Seventh Amendment, Rule 38 of the FRCP and other statutes/laws governing said matters. Therefore, Seventh Amendment right to jury trial applies to actions enforcing statutory rights and requires that Newsome be afforded jury on the TIMELY demands made by her. Curtis v. Loether, 94 S.Ct. 1005 - Seventh Amendment right to jury trial applies to actions enforcing statutory rights and requires jury on demand if statute creates legal rights and remedies enforceable in action for damages in ordinary courts of law. U.S.C.A.Const. Amend. 7. City of Monterey v. Del Monte Dunes at Monterey, Ltd., 119 S.Ct. 1624 (1999) - Seventh Amendment jury guarantee extends to statutory claims unknown to the common law, so long as the claims can be said to sound basically in tort, and seek legal relief. U.S.C.A. Const.Amend. 7. Allison v. Citgo Petroleum Corp., 151 F.3d 402 (5th Cir. 1998) - Seventh Amendment right to jury trial encompasses all actions in which legal rights are to be determined, as opposed to those in which only equitable rights and remedies are involved. U.S.C.A. Const.Amend. 7.68. Newsome suffers from IRREPARABLE injury/harm as a direct and proximate result of Judge Tom S. Lee’s/this Court’s August 2, 2012 Order which seeks to STRIP Newsome of rights guaranteed under the Constitution and/or statutes/laws governing right to Jury. The August 2, 2012 Order executed by Judge Tom S. Lee is a clear ABUSE of discretion and USURPATION of power which he clearly LACKED to Page 25 of 35
  • 29. execute said Order. Judge Tom S. Lee/this Court erred when it allowed Judge Tom S. Lee to substitute himself as the JURY to decide disputable issue(s) raised regarding Motion to Stay. Baylis v. Travelers Ins. Co., 113 U.S. 316, 5 S.Ct. 494 (U.S. 1885) - Without a waiver of the right of trial by jury in a United States circuit court, by consent of parties, the court errs if it substitutes itself for the jury, and, passing upon the effect of the evidence, finds the facts involved in the issue and renders judgment thereon. See EXHIBIT “CC” – Baylis attached hereto and incorporated by reference as if set forth in full herein. Maxey v. Freightliner Corp., 665 F.2d 1367 (5th Cir. 1982) - It is function of jury as traditional finder of fact, and not court, to weigh conflicting evidence and inferences, and to determine credibility of witnesses. Krivo Indus. Supply Co. v. National Distillers & Chemical Corp., 483 F.2d 1098 (5th Cir. 1973) - There must be conflict in substantial evidence to create jury question. Fed.Rules Civ.Proc. rule 50, 28 U.S.C.A. U.S. v. Hale, 2012 WL 2369572 (5th Cir. 2012) - Court of Appeals reviews district courts administrative handling of a case, including its enforcement of the local rules and its own scheduling orders, for abuse of discretion. Newsome through her JURY DEMANDS, did so for purposes of leaving it to a JURY to settle disputed matters that cannot be settled between the parties and/or determined as a matter of law. Woods v. Holy Cross Hospital, 591 F.2d 1164 (5th Cir. 1979) - Nothing in the Seventh Amendment requires that a jury make its findings at earliest possible moment in the course of civil litigation; requirement is only that jury ultimately determine issues of fact if they cannot be settled by parties or determined as a matter of law. U.S.C.A.Const. Amend. 7.69. The facts, evidence and legal conclusions will support that this Court’s Judge Tom Stewart Lee has ABUSED discretion and USURPED authority over Motion to Stay issue(s) in which he clearly LACKED jurisdiction. Furthermore, that this Court’s Judge Lee’s August 2, 2012 Order was executed for purposes of ABRIDGMENT of Newsome’s right to Jury Trial and subject her to further BIAS and PREJUDICES by Judge Lee/this Court. Unlawful/Illegal acts which are clearly PROHIBITED by statutes/laws governing said matters. Employers Mut. Cas. Co. v. Ainsworth, 164 So.2d 412 (Miss.,1964) - Court has duty to assure litigants right to trial by jury without abridgement and at same time protect litigants against jury that is partial, biased or prejudiced.70. The DENIAL of right of JURY Trial after Newsome DEMANDED a Jury on the Motion to Stay issue(s) is an UNCONSTITUTIONAL “ABUSE of POWER” because there is NO evidence in the record of this Court to support that Newsome has waived her right to JURY Trial. Therefore, as a direct an proximate result of said violation(s) by this Court’s Judge Tom S. Lee in executing August 2, 2012 Order WITHOUT due process of law, has rendered said Order NULL/VOID as a matter of law and it CANNOT be enforced! Bass v. Hoagland, 172 F.2d 205 (5th Cir. 1949) - The denial of right of jury trial after demand in federal court is an unconstitutional abuse of power in absence of waiver. U.S.C.A.Const. Amend. 7. . . . [9] A federal court judgment, whether in a civil or a criminal case, that is reached without due process of law is void and may be attacked collaterally . . . or by resistance to its enforcement if a civil judgment for money. [10] The denial of right of jury trial after demand in federal court is an unconstitutional abuse of power in absence of waiver. U.S.C.A.Const. Amend. 7. [11] The right to jury trial may be waived and in a civil case a waiver is shown by mere acquiescence, when the party or his counsel is present and not objecting. U.S.C.A.Const. Amend. 7. [9] [10] [11] But the last defense requires careful consideration. It asserts that the jury trial of the fact issues in the case which is guaranteed by the Seventh Amendment of the Constitution, and was required by the original Judiciary Act Page 26 of 35
  • 30. of 1799 before the Amendment was adopted, the requirement being carried in 28 U.S.C.A. § 770,FN1 was denied though demanded; and that default was recited in the judgment as its basis when there was no default, but an answer to the merits; and that if there was default the notice required by Rule of Civil Procedure 55(b)(2) before proceeding to judgment by default was not given by plaintiff, nor the jury trial had as to the amount of such unliquidated damages as required by the same Rule; and no evidence at all *209 was heard; and that it all amounts to a denial of due process of law under the Fifth Amendment. We believe that a judgment, whether in a civil or criminal case, reached without due process of law is without jurisdiction and void, and attackable collaterally . . . or by resistance to its enforcement if a civil judgment for money, because the United States is forbidden by the fundamental law to take either life, liberty or property without due process of law, and its courts are included in this prohibition. In Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461, 146 A .L.R. 357, the court was declared to have lost its jurisdiction in a trial . . . when it denied the constitutional right . . . The right of jury trial, if not waived but denied after demand, the judge usurping the function of the jury, would seem to be similarly an unconstitutional abuse of power. But the right to jury trial, like the right to assistance of counsel . . . may be waived, and in a civil case a waiver is shown by mere acquiescence, when the party or his counsel if present and not objecting. Among many cases it is enough to cite Kearney v. Case, 12 Wall. 275, 20 L.Ed. 395, and compare it with Patton v. United States, 281 U.S. 276, 50 S.Ct. 253, 74 L.Ed. 854, 70 A.L.R. 263. Rule of Civil Procedure 38 requires that the right be asserted by a demand for it. We have found no federal case which has treated as a mere procedural error a flat denial of a jury trial demanded in a civil case. . . See EXHIBIT “DD” – Bass attached hereto and incorporated by reference as if set forth in full herein.71. Not only does Newsome’s Complaint at Page 136 support timely JURY DEMAND, her timely Motions to Strike (Doc. Nos. 12 and 19) also are supported by TIMELY Jury Demands. Therefore, supporting facts, evidence and legal conclusions to sustain Newsome has NOT waived her right to have disputed TRIABLE issue(s) decided by Jury. Priest v. Rhodes, 56 F.R.D. 478 (N.D.Miss.E.Div.,1972) - Failure of defendant to file written demand for jury trial within ten-day period allowed by rule constituted a waiver of the right to a trial by jury. Fed.Rules Civ.Proc. Rules 5(b), 38(b, d), 28 U.S.C.A. State of Miss. for Use and Benefit of Richmond v. Hurst, 41 F.R.D. 186 (N.D.Miss.W.Div.,1966) - Those defendants who did not make timely demand for trial by jury pursuant to Federal Rules of Civil Procedure waived their right to trial by jury. Fed.Rules Civ.Proc. Rule 38(b, d), 28 U.S.C.A.; U.S.C.A.Const. Amend. 7. U.S. v. Moore, 71 S.Ct. 524 - Where no demand for jury trial was made by defendants as required by Federal Rules of Civil Procedure, any right to jury trial was waived, and defendants contention that trial of proceeding as an action for equitable relief denied their constitutional right to jury trial would be denied. Fed.Rules Civ.Proc. rule 38, 28 U.S.C.A. Kearney v. Case, 79 U.S. 275 (1870) - Where a party is present by counsel and goes to trial before the court without objection or exception, he has voluntarily waived his right to a jury and must be held in the Supreme Court to the legal consequences of such waiver.72. Newsome’s Complaint alleges claims of Racial Discrimination and seeks relief for compensatory and punitive damages and at Page 136 timely requested “JURY DEMAND.” As a matter of law, Newsome is entitled to JURY TRIAL on ALL triable issues. Jones v. Birdsong, 679 F.2d 24 (5th Cir. Miss.,1982) - Plaintiff in racial discrimination case was not improperly denied her right of jury trial as to her federal and state claims for compensatory and punitive damages, where she had repeated opportunities to file motion for jury trial and chose not to do so and never made known to the district judge that she desired a jury trial. Fed.Rules Civ.Proc.Rule 38(b), 28 U.S.C.A. Page 27 of 35
  • 31. 73. The record evidence supports that disputable issue(s) regarding LIMITATIONS exist and that Named Defendants are seeking a Motion to Dismiss based on such FRIVOLOUS/BOGUS defense. Therefore, as a matter of law, Newsome is entitled to a JURY Trial on said issue and has TIMELY demanded issue(s) to be tried before JURY and through this instant “OBJECTION(S) To 08/02/12 Order” as well as her previous Motions to Strike (Doc. Nos. 12 and 19) the record sustains TIMELY objections as well as NON-Waiver to JURY Trial. National Family Ins. Co. v. Exchange Nat. Bank of Chicago, 474 F.2d 237 (7th Cir. 1973) - [6] If plaintiff had right to jury trial on limitations issue on motion to dismiss, plaintiff waived it by proceeding to trial of that issue before the court without objection. While Newsome is a Pro Se litigant and NON-Attorney, she has timely, properly and adequately prepared and presented TRIABLE issues/claims through the Complaint and her subsequent Motion to Strikes (Doc. Nos. 12 and 19) of this Lawsuit and warranting a JURY Trial as DEMANDED! Lewis v. Thigpen, 767 F.2d 252 (5th Cir. 1985) - [5] Right to trial by jury under the Seventh Amendment is a basic and fundamental feature of the American judicial system. U.S.C.A. Const.Amend. 7. [5] We find the Seventh Circuits analysis particularly helpful in that it employs the Swofford standard that has been adopted by this Court. Further, the defendant in the instant case concedes that Lewis claim of ignorance, if explicitly stated to the trial court, would have shifted “the burden of proof to ... [the defendant] Floyd to state strong and compelling reasons why the motion [for jury trial] should be denied.” Floyd Supplemental Brief at 11. It should also be remembered that this Courts holding in Swofford -that the Rule 39(b) motion should be granted in the absence of strong and compelling reasons to the contrary-is based on the long accepted observation that the right to trial by jury “is a basic and fundamental feature of our system.” Swofford, 336 F.2d at 409. The Seventh Circuits holding in Merritt is consistent with this Courts favorable treatment of Rule 39(b) motions. It is also consistent with the observation that “pro se litigants are not held to the same standards of compliance with formal or technical pleading rules applied to attorneys.” Gordon v. Watson, 622 F.2d 120, 123 (5th Cir.1980) (per curiam). See also Barker v. Norman, 651 F.2d 1107, 1129 n. 26 (5th Cir.1981). See EXHIBIT “EE” – Lewis attached hereto and incorporated by reference as if set forth in full herein.74. The record evidence supports that the Complaint and subsequent pleadings (Motions to Strike) raises claims/issue(s) of CONSPIRACY(S) and punitive damages, etc. for same. Therefore, as a matter of law, these are disputable issue(s) in which Newsome has TIMELY demanded a JURY Trial and Judge Tom S. Lee/this Court CANNOT substitute itself for the JURY! National Union Elec. Corp. v. Wilson, 434 F.2d 986 (1970) - [2] Averments in causes of action for damages for conspiracy, return of salary payments, accounting and punitive damages stated actions at law in which defendants were entitled to trial by jury as of right. Fed.Rules Civ.Proc. Rules 38(b), 39(a), 28 U.S.C.A.75. The record evidence supports that the Complaint and subsequent pleading (Motion to Strike) raises claims/issue(s) regarding BREACH OF CONTRACT and punitive damages, etc. for same. Therefore, as a matter of law, such issue(s) being disputable in which Newsome has TIMELY demanded a JURY Trial and Judge Tom S. Lee/this Court CANNOT substitute itself for the JURY! Heyman v. Kline, 456 F.2d 123 (2nd Cir. 1972) - [5] The right to jury trial is too important, and usual procedure for waiver of the right too clearly set out by the federal rules for courts to find a knowing and voluntary relinquishment of the right in a doubtful situation. Fed.Rules Civ.Proc. Rule 38, 28 U.S.C.A. . . . [8] Where defendant sued for breaches of employment contracts had yet to file his answer and counterclaim, the nature of all the issues in the case could not have been known at time of the conference where judge determined that defendant allegedly waived jury trial, defendant was entitled to jury trial on his counterclaim which alleged that employer had breached the employment contract by discharging defendant without cause. Fed.Rules Civ.Proc. Rule 38, 28 U.S.C.A. Page 28 of 35
  • 32. Cox v. C.H. Masland & Sons, Inc., 607 F.2d 138 (5th Cir. 1979) - Suit by a discharged employee against employer for breach of . . . contract was common-law claim, and thus one for which jury trial could be invoked. U.S.C.A.Const. Amend. 7.76. Prior to this Court’s filing of Newsome’s Complaint, it screened it to determine whether or not it met the pleading requirements of Rule 8 FRCP and/or statutes/laws of the United States. This Court docketed Newsome’s Lawsuit noting her timely “JURY DEMAND!” See EXHIBIT “L” – Docket attached hereto and incorporated by reference as if set forth in full herein. This Court has found that party has right to have jury hear case once it is determined that litigation should proceed before the court. Based upon this Court’s receipt of Newsome’s Complaint, it docketed her Lawsuit on or about May 15, 2012 and noted her JURY demand on the docket as well. New South Federal Sav. Bank v. Anding, 414 F.Supp.2d 636 (S.D.Miss.Jackson.Div.,2005) - Seventh Amendment does not confer right to trial, but only right to have jury hear case once it is determined that litigation should proceed before court. U.S.C.A. Const.Amend. 7. This Court did NOT merely rely upon Newsome’s Civil Cover Sheet to determine whether or not she DEMANDED a Jury Trial but at Page 136 of her Complaint, Newsome clearly makes known “JURY DEMAND!” Therefore, pursuant to Rule 5 of the FRCP Named Defendants were timely, properly and adequately notified of Newsome’s “JURY DEMAND.” Pinemont Bank v. Belk, 722 F.2d 232 (5th Cir. 1984) - Checking jury demand box on complaints cover sheet and timely serving it on opposing party is not preferred method of compliance with Federal Rule of Civil Procedure governing demand for jury trial of right, and it is dangerous for party to rely on such as sufficient demand. Fed.Rules Civ.Proc.Rule 38(d), 28 U.S.C.A. . . Federal district court abused its discretion in denying motion for trial by jury where plaintiff mistakenly checked jury demand box on complaints cover sheet, defendant in good faith relied upon such indication of jury demand and court was ready up until one week before trial to try case to jury. Fed.Rules Civ.Proc.Rule 39(b), 28 U.S.C.A. Schacht v. Javits, 53 F.R.D. 321 (1971) - [8] Proper course to demand trial by jury was to serve demand upon other parties pursuant to rule. Fed.Rules Civ.Proc. rule 38, 28 U.S.C.A. Hensley v. E. R. Carpenter Co., Inc., 633 F.2d 1106 (5th Cir. 1980) - [2] Whether employee has been discharged is generally question of fact for jury in breach of contract suit rather than question for court sitting as court of equity. . . [8] If party asserts legal claim, he is entitled to jury determination on factual issues relating to that claim even if those issues also relate to equitable claim brought by that party or equitable counterclaims brought by opposing party. See EXHIBIT “H” – Hensley attached hereto and incorporated by reference as if set forth in full herein. Continental Ore Co. v. Union Carbide & Carbon Corp., 82 S.Ct. 1404 (1962) - If there is sufficient evidence to go to jury, it is for jury to weigh contradictory evidence and inferences and to draw ultimate conclusions as to facts. Woodhouse v. Magnolia Hosp., 92 F.3d 248 (5th Cir. Miss. 1996) - Conflict in substantial evidence must exist to give rise to a jury question.77. Statutes/Laws governing Judge Tom S. Lee’s disqualification because his interest in the outcome of lawsuit is pecuniary and, therefore, BIAS is CLEAR. 28 U.S.C.A. § 455(f). Should it become necessary, Newsome believes that the proper legal action against Judge Tom S. Lee which may require the subpoena of his FINANCIAL information (i.e. Tax Returns, Business Investments, Stocks, etc.) will further support that Newsome’s DEMAND for RECUSAL has been made in GOOD FAITH and PROPERLY before this Court before the entry of the NULL/VOID August 2, 2012 Order executed by Judge Lee to stay proceedings. Page 29 of 35
  • 33. In re Turpentine & Rosin Factors, 238 F.2d 458 (5th Cir. 1956) - Mandamus may issue under the All Writs Statute where the action of the trial court, in a case yet untried or incomplete, is a denial of a requested jury trial existing as of right; nevertheless the writ is extraordinary and is reserved for rare cases of compelling need, and its issuance is declined where, on the record presented, the matter under scrutiny is, or may be, non-use or misuse of discretionary power. 28 U.S.C.A. § 1651. In re Pan-American Life Ins. Co., 188 F.2d 833 (5th Cir. 1951) - In a case where a jury is denied to persons who are entitled to jury as a matter of right mandamus lies to compel trial judge to grant jury trial. 78. Newsome is CONFIDENT that the facts, evidence and legal conclusions provided in the Complaint in this Lawsuit as well as her subsequent pleadings (Motions to Strike) as Doc. No. 12 and 19 will support a PATTERN-OF-DISCRIMINATORY practices in furtherance of CONSPIRACIES directed to OBSTRUCT the administration of justice and subject Newsome to further unlawful/illegal OPPRESSIVE and RACIALLY MOTIVATED acts by Named Defendants, their Counsel/Attorneys and those with whom they CONSPIRE as Baker Donelson and the ABUSE of the Judicial process by members of CONSPIRACIES as Judge Tom S. Lee. Newsome through her Complaint filed TIMELY demands for Jury. The purpose of the Jury Trial is to PREVENT the OPPRESSIVE practices of the Government as that being carried out by Judge Tom S. Lee in the ROLE he is PLAYING in the CONSPIRACIES leveled against Newsome and OBSTRUCTION OF JUSTICE to keep the PUBLIC/WORLD from seeing just how RACIST the United States of America’s Government Officials are and the FORCES – i.e. as Baker Donelson - behind such EVIL/WICKEDNESS! Williams v. Florida, 90 S.Ct. 1893 (1970) - Purpose of jury trial is to prevent oppression by government. [1] An efficacious general jury demand preserves right to jury trial on any issue triable by jury. Fed.Rules Civ.Proc. rule 38, 28 U.S.C.A.; U.S.C.A.Const. Amend. 7. 79. While Named Defendants’ FRIVOLOUS/BOGUS/SHAM Motion to Dismiss asserts that Newsome’s Complaint is premised on 42 U.S.C.A. § 1983 claims – i.e. when it is NOT – said Motion to Dismiss was met with Newsome’s TIMELY Motion to Strike as well as DEMANDED a Jury Trial. Priest v. Rhodes, 56 F.R.D. 478 (N.D.Miss.E.Div.,1972) - Rule providing that whenever a party has the right or is required to do some act within prescribed period after service of a notice or other paper upon him, and the notice or paper is served upon him by mail, three days shall be added to the prescribed period, did not require finding that plaintiff, who had been served by mail with defendants answer on June 2, had until June 15 within which to serve written demand for jury trial, and that defendant should have the same privilege, since defendant was the party who served the answer, and not the party upon whom service was made. Fed.Rules Civ.Proc. rule 6(e), 28 U.S.C.A. Lewis v. Thigpen, 767 F.2d 252 (5th Cir. 1985) - Pro se prisoner waived his right to a jury trial in his § 1983 action against former director of county restitution center by failing to demand a jury within the ten-day limit following the last pleading. Fed.Rules Civ.Proc.Rule 38(b, d), 28 U.S.C.A. WHEREFORE, PREMISES CONSIDERED Defendant moves this Court to: (a) Vacate the August 2, 2012Order (i.e. to which TIMELY OBJECTION(S) and Motion for DISQUALIFICATION with supporting Affidavithave been provided) executed by Judge Tom S. Lee (Doc. No. 20) in that it is NULL/VOID for “Lack ofJurisdiction,” “ABUSE of Discretion,” 28 U.S.C.A. § 455 violations, in violation of the Code of Judicial Conduct(Mississippi), United States Constitution and other laws of the United States governing said matters. Moreover, hasbeen obtained through unlawful/illegal practices and or criminal intent; and (b) to IMMEDIATELY set this matterfor TRIAL pursuant to Rule 38 of the Federal Rules of Civil Procedure, Seventh Amendment of the United States Page 30 of 35
  • 34. EXHIBITS TABLEEXHIBIT DESCRIPTION A FRCP Rule 60 B FRCP Rule 38 C Seventh Amendment to U.S. Constitution D Request for Conflict of Interest Information, Notice of Opposition to Magistrate Judge Assignment; and Notice of Address E Vogel Denise Newsome’s AFFIDAVIT of Disqualification of Judge Tom S. Lee F RECUSAL Orders Executed By Judge Tom S. Lee G FRCP Rule 26 H Hensley vs. E. R. Carpenter I Phillips vs. Joint Legislative Committee J Code of Judicial Conduct K 28 USCA § 455 L Docket Sheet (Newsome vs. Page Kruger & Holland) M Waiver or Loss of Right To Disqualify Judge (Civil Cases) N LITEKY vs UNITED STATES - Extrajudicial Source For Disqualification O 08/02/12 – ORDER (Judge Tom S. Lee) P FRCP Rule 8 Q Civil Cover Sheet (Newsome vs. Page Kruger & Holland) R Baker Donelson – Government Positions Held/Controlled S Baker Donelson – Legal Counsel For Federal Judges Association T Baker Donelson & Phelps Dunbar – SHARING/SWAPING of Attorneys/Employees U JUDICIAL BIAS & FINANCIAL INTEREST V LITEKY vs UNITED STATES - Jeopardizing Judicial Integrity W Reexamining The Right To Trial By Jury X Right To A Jury Trial In Civil Actions Y The RIGHT To A JURY Decision On QUESTIONS of FACT Z HARE vs. CITY OF CORINTH Page 34 of 35
  • 35. EXHIBIT DESCRIPTION AA DOBSON vs. MASONITE BB REEVES vs SANDERSON CC BAYLIS vs TRAVELERS DD BASS vs HOAGLAND EE LEWIS vs THIGPEN Page 35 of 35
  • 36. Rule 60. Relief from a Judgment or Order | Federal Rules of Civil Procedure | LII / Legal ... Page 1 of 4 RULE 60. RELIEF FROM A JUDGMENT OR ORDER (a) CORRECTIONS BASED ON CLERICAL MISTAKES; OVERSIGHTS AND OMISSIONS. The court may correct a clerical mistake or a mistake arising from oversight or omission whenever one is found in a judgment, order, or other part of the record. The court may do so on motion or on its own, with or without notice. But after an appeal has been docketed in the appellate court and while it is pending, such a mistake may be corrected only with the appellate courts leave. (b) GROUNDS FOR RELIEF FROM A FINAL JUDGMENT, ORDER, OR PROCEEDING. On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or (6) any other reason that justifies relief. (c) TIMING AND EFFECT OF THE MOTION. (1) Timing. A motion under Rule 60(b) must be made within a reasonable time—and for reasons (1), (2), and (3) no more than a year after the entry of the judgment or order or the date of the proceeding. (2) Effect on Finality. The motion does not affect the judgments finality or suspend its operation. (d) OTHER POWERS TO GRANT RELIEF. This rule does not limit a courts power to: (1) entertain an independent action to relieve a party from a judgment, order, or proceeding; (2) grant relief under 28 U.S.C. §1655 to a defendant who was not personally notified of the action; or (3) set aside a judgment for fraud on the court. (e) BILLS AND WRITS ABOLISHED. The following are abolished: bills of review, bills in the nature of bills of review, and writs of coram nobis, coram vobis, and audita querela. NOTES (As amended Dec. 27, 1946, eff. Mar. 19, 1948; Dec. 29, 1948, eff. Oct. 20, 1949; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 30, 2007, eff. Dec. 1, 2007.) NOTES OF ADVISORY COMMITTEE ON RULES—1937 Note to Subdivision (a). See [former] Equity Rule 72 (Correction of Clerical Mistakes in Orders and Decrees); Mich.Court Rules Ann. (Searl, 1933) Rule 48, §3; 2 Wash.Rev.Stat.Ann. (Remington, 1932) §464(3); Wyo.Rev.Stat.Ann. (Courtright, 1931) §89– EXHIBIT “A”http://www.law.cornell.edu/rules/frcp/rule_60 8/13/2012
  • 37. Rule 60. Relief from a Judgment or Order | Federal Rules of Civil Procedure | LII / Legal ... Page 2 of 4 2301(3). For an example of a very liberal provision for the correction of clerical errors and for amendment after judgment, see Va.Code Ann. (Michie, 1936) §§6329, 6333. Note to Subdivision (b). Application to the court under this subdivision does not extend the time for taking an appeal, as distinguished from the motion for new trial. This section is based upon Calif.Code Civ.Proc. (Deering, 1937) §473. See also N.Y.C.P.A. (1937) §108; 2 Minn.Stat. (Mason, 1927) §9283. For the independent action to relieve against mistake, etc., see Dobie, Federal Procedure, pages 760–765, compare 639; and Simkins, Federal Practice, ch. CXXI (pp. 820 –830) and ch. CXXII (pp. 831–834), compare §214. NOTES OF ADVISORY COMMITTEE ON RULES—1946 AMENDMENT Subdivision (a). The amendment incorporates the view expressed in Perlman v. 322 West Seventy-Second Street Co., Inc. (C.C.A.2d, 1942) 127 F.(2d) 716; 3 Moores Federal Practice (1938) 3276, and further permits correction after docketing, with leave of the appellate court. Some courts have thought that upon the taking of an appeal the district court lost its power to act. See Schram v. Safety Investment Co. (E.D.Mich. 1942) 45 F.Supp. 636; also Miller v. United States (C.C.A.7th, 1940) 114 F.(2d) 267. Subdivision (b). When promulgated, the rules contained a number of provisions, including those found in Rule 60(b), describing the practice by a motion to obtain relief from judgments, and these rules, coupled with the reservation in Rule 60(b) of the right to entertain a new action to relieve a party from a judgment, were generally supposed to cover the field. Since the rules have been in force, decisions have been rendered that the use of bills of review, coram nobis, or audita querela, to obtain relief from final judgments is still proper, and that various remedies of this kind still exist although they are not mentioned in the rules and the practice is not prescribed in the rules. It is obvious that the rules should be complete in this respect and define the practice with respect to any existing rights or remedies to obtain relief from final judgments. For extended discussion of the old common law writs and equitable remedies, the interpretation of Rule 60, and proposals for change, see Moore and Rogers, Federal Relief from Civil Judgments (1946) 55 Yale L.J. 623. See also 3 Moores Federal Practice (1938) 3254 et seq.; Commentary, Effect of Rule 60b on Other Methods of Relief From Judgment (1941) 4 Fed.Rules Serv. 942, 945; Wallace v. United States (C.C.A.2d, 1944) 142 F.(2d) 240, cert. den. (1944) 323 U.S. 712. The reconstruction of Rule 60(b) has for one of its purposes a clarification of this situation. Two types of procedure to obtain relief from judgments are specified in the rules as it is proposed to amend them. One procedure is by motion in the court and in the action in which the judgment was rendered. The other procedure is by a new or independent action to obtain relief from a judgment, which action may or may not be begun in the court which rendered the judgment. Various rules, such as the one dealing with a motion for new trial and for amendment of judgments, Rule 59, one for amended findings, Rule 52, and one for judgment notwithstanding the verdict, Rule 50(b), and including the provisions of Rule 60(b) as amended, prescribe the various types of cases in which the practice by motion is permitted. In each case there is a limit upon the time within which resort to a motion is permitted, and this time limit may not be enlarged under Rule 6(b). If the right to make a motion is lost by the expiration of the time limits fixed in these rules, the only other procedural remedy is by a new or independent action to set aside a judgment upon those principles which have heretofore been applied in such an action. Where the independent action is resorted to, the limitations of time are those of laches or statutes of limitations. The Committee has endeavored to ascertain all the remedies and types of relief heretofore available by coram nobis, coram vobis, audita querela, bill of review, or bill in the nature of a bill of review. See Moore and Rogers, Federal Relief from Civil Judgments (1946) 55 Yale L.J. 623, 659–682. It endeavored then to amend the rules to permit, either by motion or by independent action, the granting of various kinds of relief from judgments which were permitted in the federal courts prior to the adoption of these rules, and the amendment concludes with a provision abolishing the use of bills of review and the other common law writs referred to, and requiring the practice to be by motion or by independent action.http://www.law.cornell.edu/rules/frcp/rule_60 8/13/2012
  • 38. Rule 60. Relief from a Judgment or Order | Federal Rules of Civil Procedure | LII / Legal ... Page 3 of 4 To illustrate the operation of the amendment, it will be noted that under Rule 59(b) as it now stands, without amendment, a motion for new trial on the ground of newly discovered evidence is permitted within ten days after the entry of the judgment, or after that time upon leave of the court. It is proposed to amend Rule 59(b) by providing that under that rule a motion for new trial shall be served not later than ten days after the entry of the judgment, whatever the ground be for the motion, whether error by the court or newly discovered evidence. On the other hand, one of the purposes of the bill of review in equity was to afford relief on the ground of newly discovered evidence long after the entry of the judgment. Therefore, to permit relief by a motion similar to that heretofore obtained on bill of review, Rule 60(b) as amended permits an application for relief to be made by motion, on the ground of newly discovered evidence, within one year after judgment. Such a motion under Rule 60(b) does not affect the finality of the judgment, but a motion under Rule 59, made within 10 days, does affect finality and the running of the time for appeal. If these various amendments, including principally those to Rule 60(b), accomplish the purpose for which they are intended, the federal rules will deal with the practice in every sort of case in which relief from final judgments is asked, and prescribe the practice. With reference to the question whether, as the rules now exist, relief by coram nobis, bills of review, and so forth, is permissible, the generally accepted view is that the remedies are still available, although the precise relief obtained in a particular case by use of these ancillary remedies is shrouded in ancient lore and mystery. See Wallace v. United States (C.C.A.2d, 1944) 142 F.(2d) 240, cert. den. (1944) 323 U.S. 712; Fraser v. Doing (App.D.C. 1942) 130 F.(2d) 617; Jones v. Watts (C.C.A.5th, 1944) 142 F.(2d) 575; Preveden v. Hahn (S.D.N.Y. 1941) 36 F.Supp. 952; Cavallo v. Agwilines, Inc. (S.D.N.Y. 1942) 6 Fed.Rules Serv. 60b.31, Case 2, 2 F.R.D. 526; McGinn v. United States (D.Mass. 1942) 6 Fed.Rules Serv. 60b.51, Case 3, 2 F.R.D. 562; City of Shattuck, Oklahoma ex rel. Versluis v. Oliver (W.D.Okla. 1945) 8 Fed.Rules Serv. 60b.31, Case 3; Moore and Rogers, Federal Relief from Civil Judgments (1946) 55 Yale L.J. 623, 631–653; 3 Moores Federal Practice (1938) 3254 et seq.; Commentary, Effect of Rule 60b on Other Methods of Relief From Judgment, op. cit. supra. Cf. Norris v. Camp (C.C.A.10th, 1944) 144 F.(2d) 1; Reed v. South Atlantic Steamship Co. of Delaware (D.Del. 1942) 6 Fed.Rules Serv. 60b.31, Case 1; Laughlin v. Berens (D.D.C. 1945) 8 Fed.Rules Serv. 60b.51, Case 1, 73 W.L.R. 209. The transposition of the words “the court” and the addition of the word “and” at the beginning of the first sentence are merely verbal changes. The addition of the qualifying word “final” emphasizes the character of the judgments, orders or proceedings from which Rule 60(b) affords relief; and hence interlocutory judgments are not brought within the restrictions of the rule, but rather they are left subject to the complete power of the court rendering them to afford such relief from them as justice requires. The qualifying pronoun “his” has been eliminated on the basis that it is too restrictive, and that the subdivision should include the mistake or neglect of others which may be just as material and call just as much for supervisory jurisdiction as where the judgment is taken against the party through his mistake, inadvertence, etc. Fraud, whether intrinsic or extrinsic, misrepresentation, or other misconduct of an adverse party are express grounds for relief by motion under amended subdivision (b). There is no sound reason for their exclusion. The incorporation of fraud and the like within the scope of the rule also removes confusion as to the proper procedure. It has been held that relief from a judgment obtained by extrinsic fraud could be secured by motion within a “reasonable time,” which might be after the time stated in the rule had run. Fiske v. Buder (C.C.A.8th, 1942) 125 F.(2d) 841; see also inferentially Bucy v. Nevada Construction Co. (C.C.A.9th, 1942) 125 F.(2d) 213. On the other hand, it has been suggested that in view of the fact that fraud was omitted from original Rule 60(b) as a ground for relief, an independent action was the only proper remedy. Commentary, Effect of Rule 60b on Other Methods of Relief From Judgment (1941) 4 Fed.Rules Serv. 942, 945. The amendment settles this problem by making fraud an express ground for relief by motion; and under the saving clause, fraud may be urged as a basis for relief by independent action insofar as established doctrine permits. See Moore and Rogers, Federal Relief from Civil Judgments (1946) 55 Yale L.J. 623, 653–659; 3 Moores Federal Practice (1938) 3267 et seq. And the rule expressly does not limit the power of the court, when fraud has been perpetrated upon it, to give relief under the saving clause. As anhttp://www.law.cornell.edu/rules/frcp/rule_60 8/13/2012
  • 39. Rule 60. Relief from a Judgment or Order | Federal Rules of Civil Procedure | LII / Legal ... Page 4 of 4 illustration of this situation, see Hazel-Atlas Glass Co. v. Hartford Empire Co. (1944) 322 U.S. 238. The time limit for relief by motion in the court and in the action in which the judgment was rendered has been enlarged from six months to one year. It should be noted that Rule 60(b) does not assume to define the substantive law as to the grounds for vacating judgments, but merely prescribes the practice in proceedings to obtain relief. It should also be noted that under §200(4) of the Soldiers’ and Sailors’ Civil Relief Act of 1940 (50 U.S.C. [App.] §501 et seq. [§520(4)]), a judgment rendered in any action or proceeding governed by the section may be vacated under certain specified circumstances upon proper application to the court. NOTES OF ADVISORY COMMITTEE ON RULES—1948 AMENDMENT The amendment substitutes the present statutory reference. NOTES OF ADVISORY COMMITTEE ON RULES—1987 AMENDMENT The amendment is technical. No substantive change is intended. COMMITTEE NOTES ON RULES—2007 AMENDMENT The language of Rule 60 has been amended as part of the general restyling of the Civil Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. The final sentence of former Rule 60(b) said that the procedure for obtaining any relief from a judgment was by motion as prescribed in the Civil Rules or by an independent action. That provision is deleted as unnecessary. Relief continues to be available only as provided in the Civil Rules or by independent action.http://www.law.cornell.edu/rules/frcp/rule_60 8/13/2012
  • 40. Federal Rules of Civil Procedure Rule 38 Page 1United States Code Annotated Currentness Federal Rules of Civil Procedure for the United States District Courts (Refs & Annos) Title VI. Trials Rule 38. Right to a Jury Trial; Demand(a) Right Preserved.The right of trial by jury as declared by the Seventh Amendment to the Constitution--or asprovided by a federal statute--is preserved to the parties inviolate.(b) Demand.On any issue triable of right by a jury, a party may demand a jury trial by: (1) serving the other parties with a written demand--which may be included in a pleading--no later than 14 days after the last pleading directed to the issue is served; and(2) filing the demand in accordance with Rule 5(d).(c) Specifying Issues. In its demand, a party may specify the issues that it wishes to have tried by a jury; other-wise, it is considered to have demanded a jury trial on all the issues so triable. If the party has demanded a jurytrial on only some issues, any other party may--within 14 days after being served with the demand or within ashorter time ordered by the court--serve a demand for a jury trial on any other or all factual issues triable byjury.(d) Waiver; Withdrawal.A party waives a jury trial unless its demand is properly served and filed. A properdemand may be withdrawn only if the parties consent.(e) Admiralty and Maritime Claims.These rules do not create a right to a jury trial on issues in a claim that isan admiralty or maritime claim under Rule 9(h).CREDIT(S)(Amended February 28, 1966, effective July 1, 1966; March 2, 1987, effective August 1, 1987; April 22, 1993,effective December 1, 1993; April 30, 2007, effective December 1, 2007; March 26, 2009, effective December1, 2009.)ADVISORY COMMITTEE NOTES1937 Adoption EXHIBIT “B” © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
  • 41. Federal Rules of Civil Procedure Rule 38 Page 2This rule provides for the preservation of the constitutional right of trial by jury as directed in the enabling act(act of June 19, 1934, 48 Stat. 1064, U.S.C., Title 28, § 723c [sec. 2072]), and it and the next rule make definiteprovision for claim and waiver of jury trial, following the method used in many American states and in Englandand the British Dominions. Thus the claim must be made at once on initial pleading or appearance underIll.Rev.Stat. (1937) ch. 110, § 188; 6 Tenn.Code Ann. (Williams, 1934) § 8734; compare Wyo.Rev.Stat.Ann.(1931) § 89-1320 (with answer or reply); within 10 days after the pleadings are completed or the case is at issueunder 2 Conn.Gen.Stat. (1930) § 5624; Hawaii Rev.Laws (1935) § 4101; 2 Mass.Gen.Laws (Ter.Ed.1932) ch.231, § 60; 3 Mich.Comp.Laws (1929) § 14263; Mich. Court Rules Ann. (Searl, 1933) Rule 33 (15 days); Eng-land (until 1933) O. 36, r.r. 2 and 6; and Ontario Jud. Act (1927) § 57(1) (4 days, or, where prior notice of trial,2 days from such notice); or at a definite time varying under different codes, from 10 days before notice of trialto 10 days after notice, or, as in many, when the case is called for assignment, Ariz.Rev.Code Ann.(Struckmeyer, 1928) § 3802; Calif. Code Civ.Proc. (Deering, 1937) § 631, par. 4; Iowa Code (1935) § 10724; 4Nev.Comp.Laws (Hillyer, 1929) § 8782; N.M. Stat.Ann. (Courtright, 1929) § 105-814; N.Y.C.P.A. (1937) §426, subdivision 5 (applying to New York, Bronx, Richmond, Kings, and Queens Counties); R.I. Pub. Laws(1929), ch. 1327, amending R.I. Gen.Laws (1923) ch. 337, § 6; Utah Rev.Stat.Ann. (1933) § 104-23-6; 2Wash.Rev.Stat.Ann. (Remington, 1932) § 316; England (4 days after notice of trial), Administration of JusticeAct (1933) § 6 and amended rule under the Judicature Act (The Annual Practice, 1937), O. 36, r. 1; AustraliaHigh Court Procedure Act (1921) § 12, Rules, O. 33, r. 2; Alberta Rules of Ct. (1914) 172, 183, 184; BritishColumbia Sup.Ct.Rules (1925) O. 36, r.r. 2, 6, 11, and 16; New Brunswick Jud. Act (1927) O. 36, r.r. 2 and 5.See James, Trial by Jury and the New Federal Rules of Procedure (1936), 45 Yale L.J. 1022.Rule 81(c) provides for claim for jury trial in removed actions.The right to trial by jury as declared in U.S.C., Title 28, § 770 (Trial of issues of fact; by jury; exceptions), andsimilar statutes, is unaffected by this rule. This rule modifies U.S.C., Title 28, [former] § 773 (Trial of issues offact; by court).1966 AmendmentsSee Note to Rule 9(h), supra.1987 AmendmentsThe amendments are technical. No substantive change is intended.1993 AmendmentsLanguage requiring the filing of a jury demand as provided in subdivision (d) is added to subdivision (b) toeliminate an apparent ambiguity between the two subdivisions. For proper scheduling of cases, it is importantthat jury demands not only be served on other parties, but also be filed with the court.2007 AmendmentThe language of Rule 38 has been amended as part of the general restyling of the Civil Rules to make them moreeasily understood and to make style and terminology consistent throughout the rules. These changes are intendedto be stylistic only.2009 AmendmentsThe times set in the former rule at 10 days have been revised to 14 days. See the Note to Rule 6.CROSS REFERENCES © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
  • 42. Federal Rules of Civil Procedure Rule 38 Page 3 Admiralty and maritime case, trial of issues of fact by jury, see 28 USCA § 1873. Calendar to designate cases as “jury actions”, see Fed.Rules Civ.Proc. Rule 79, 28 USCA. Declaratory judgment actions, right to jury trial, see Fed.Rules Civ.Proc. Rule 57, 28 USCA. Default judgment, right of trial by jury, see Fed.Rules Civ.Proc. Rule 55, 28 USCA. Directed verdict, motion for which is not granted, not a waiver of trial by jury, see Fed.Rules Civ.Proc. Rule 50, 28 USCA. Juries generally, see 28 USCA § 1861 et seq. Recovery of forfeitures in actions on bonds and specialties, jury assessment of amount due, see 28 USCA § 1874. Removed actions, time for service of jury demand, see Fed.Rules Civ.Proc. Rule 81, 28 USCA. Supreme Court, jury trial in original actions at law, see 28 USCA § 1872. Trial by jury or by the court, see Fed.Rules Civ.Proc. Rule 39, 28 USCA. Trustee and receivers, right to jury trial in actions against, see 28 USCA § 959. United States, jury trial denied in actions against, see 28 USCA § 2402.LAW REVIEW COMMENTARIES Inadvertent waiver of a jury trial under Federal Rules of Civil Procedure. Robert Vilensky, 213 N.Y.L.J. 1 (Feb. 1, 1995). Lenders can enforce contractual jury waivers. Steven A. Beckelman and Joseph T. Boccassini, 136 N.J.L.J. 675 (1994). Role of the federal magistrate judge in civil justice reform. R. Lawrence Dessem, 67 St.Johns L.Rev. 799 (1993).LIBRARY REFERENCESAmerican Digest System Admiralty 80. Jury 9 to 19, 25, 28. Key Number System Topic Nos. 16, 230.Corpus Juris Secundum CJS Admiralty § 190, Jury Trial. CJS Bankruptcy § 12, Federal Rules of Civil Procedure. CJS Bankruptcy § 310, General Procedures. CJS Federal Courts § 592, De Novo Review. CJS Juries § 7, Under Federal Rules of Civil Procedure. CJS Juries § 16, Persons Entitled. CJS Juries § 67, Maritime Actions. CJS Juries § 154, Necessity. CJS Juries § 156, Time. CJS Juries § 158, Form. © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
  • 43. CRS/LII Annotated Constitution Seventh Amendment http://www.law.cornell.edu/anncon/html/amdt7frag1_user.html#amdt7_hd4 SEVENTH AMENDMENT CIVIL TRIALS In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re–examined in any Court of the United States, than according to the rules of the common law. TRIAL BY JURY IN CIVIL CASES The Right and the Characteristics of the Civil Jury History.—On September 12, 1787, as the Convention was in its final stages, Mr. Williamson of North Carolina “observed to the House that no provision was yet made for juries in Civil cases and suggested the necessity of it.” The comment elicited some support and the further observation that because of the diversity of practice in civil trials in the States it would be impossible to draft a suitable provision.1 When on September 15 it was moved that a clause be inserted in Article III, § 2, to guarantee that “a trial by jury shall be preserved as usual in civil cases,” this objection seems to have been the only one urged in opposition and the motion was defeated. 2 The omission, however, was cited by many opponents of ratification and “was pressed with an urgency and zeal . . . well–nigh preventing its ratification.”3 A guarantee of right to jury in civil cases was one of the amendments urged on Congress by the ratifying conventions4 and it was included from the first among Madison’s proposals to the House.5 It does not appear that the text[p.1452]of the proposed amendment or its meaning was debated during its passage.6 Composition and Functions of Civil Jury.—Traditionally, the Supreme Court has treated the Seventh Amendment as preserving the right of trial by jury in civil cases as it “existed under the English common law when the amendment was adopted.”7 The right was to “a trial by a jury of twelve men, in the presence and under the superintendence of a judge … empowered to instruct them on the law and to advise them on the facts and (except in acquittal of a criminal charge) to set aside their verdict if in his opinion it is against the law or the evidence.”8 Decision of the jury must be by unanimous verdict.9 In Colgrove v. Battin,10 however, the Court by a five–to–four vote held that rules adopted in a federal district court authorizing civil juries composed of six persons were permissible under the Seventh Amendment and congressional enactments. By the reference in the Amendment to … the “common law,” the Court thought, “the Framers of the Seventh Amendment were concerned with preserving the right of trial by jury in civil cases where it existed at common law, rather than the various incidents of trial by jury.”11 The Amendment has for its primary purpose the preservation of “the common law distinction between the province of the court and that of the jury, whereby, in the absence of express or implied consent to the contrary, issues of law are resolved by the court and issues of fact are to be determined by the jury under appropriate[p.1453]instructions by the court.”12 But it “does not exact the retention of old forms of procedure” nor does it “prohibit the introduction of new methods of ascertaining what facts are in issue” or new … rules of evidence.13 Those matters which were tried by a jury in England in 1791 are to be so tried today and those matters which, as in equity, were tried by the judge in England in 1791 are to be so tried today,14 and when new rights and remedies are created “the right of action should be analogized to its historical counterpart, at law or in equity, for the purpose of determining whether there is a right of jury trial,” unless Congress has expressly prescribed the mode of trial.15 Courts in Which the Guarantee Applies.—The Amendment governs only courts which sit under the authority of the United States,16 including courts in the territories17 and the District of Columbia,18 and does not apply generally to state courts. 19 But when a state court is enforcing a federally created right, of which the right to trial by jury is a substantial EXHIBIT part the States may not eliminate trial by jury as to one or more elements 20 Ordinarily a “C"1 of 3 8/10/2012 12:27 PM
  • 44. CRS/LII Annotated Constitution Seventh Amendment http://www.law.cornell.edu/anncon/html/amdt7frag1_user.html#amdt7_hd4 part, the States may not eliminate trial by jury as to one or more elements. 20 Ordinarily, a federal court enforcing a state–created right will follow its own rules with regard to the allocation of functions between judge and jury, a rule the Court based on the “interests” of the federal court system, eschewing reliance on the Seventh Amendment but noting its influence.21 Waiver of the Right.—Parties may enter into a stipulation waiving a jury and submitting the case to the court upon an agreed[p.1454]statement of facts, even without any legislative provision for waiver.22 Prior to adoption of the Federal Rules, Congress had, “by statute, provided for the trial of issues of fact in civil cases by the court without the intervention of a jury, only when the parties waive their right to a jury by a stipulation in writing.”23 Under the Federal Rules of Civil Procedure, any party may make a timely demand for a trial by jury of any issue triable of right by a jury by serving upon the other parties a demand therefor in writing, and failure so to serve a demand constitutes a waiver of the right.24 However, a waiver is not to be implied from a request for a directed verdict.25 Footnotes 1 2 M. Farrand, Records of the Federal Convention of 1787, at 587 (rev. ed. 1937). 2 Id. at 628. 3 J. Story, Commentaries on the Constitution of the United States 1757 (1833). “[I]t is a most important and valuable amendment; and places upon the high ground of constitutional right the inestimable privilege of a trial by jury in civil cases, a privilege scarcely inferior to that in criminal cases, which is conceded by all to be essential to political and civil liberty.” Id. at 1762. 4 J. Elliott, The Debates in the Several State Conventions on the Adoption of the Federal Constitution 326 (2d ed. 1836) (New Hampshire); 2 id. at 399–414 (New York); 3 id. at 658 (Virginia). 5 1 Annals of Congress 436 (1789). “In suits at common law, between man and man, the trial by jury, as one of the best securities to the rights of the people, ought to remain inviolate.” 6 It is simply noted in 1 Annals of Congress 760 (1789), that on August 18 the House “considered and adopted” the committee version: “In suits at common law, the right of trial by jury shall be preserved.” On September 7, the Senate Journal states that this provision was adopted after insertion of “where the consideration exceeds twenty dollars.” 2 B. Schwartz, The Bill of Rights: A Documentary History 1150 (1971). 7 Baltimore & Carolina Line v. Redman, 295 U.S. 654, 657 (1913) ; Parsons v. Bedford, 28 U.S. (3 Pet.) 433, 446–48 (1830). 8 Capital Traction Co. v. Hof, 174 U.S. 1, 13 (1899) . 9 Maxwell v. Dow, 176 U.S. 581 (1900) ; American Publishing Co. v. Fisher, 166 U.S. 464 (1897) ; Springville v. Thomas, 166 U.S. 707 (1897) . 10 413 U.S. 149 (1973) . Justices Marshall and Stewart dissented on constitutional and statutory grounds, id. at 166, while Justices Douglas and Powell relied only on statutory grounds without reaching the constitutional issue. Id. at 165, 188. 11 Id. at 155–56. The Court did not consider what number less than six, if any, would fail to satisfy the Amendment’s requirements. “What is required for a ‘jury’ is a number large enough to facilitate group deliberation combined with a likelihood of obtaining a representative cross section of the community. . . . It is undoubtedly true that at some point the number becomes too small to accomplish these goals . . .” Id. at 160 n.16. Application of similar reasoning has led the Court to uphold elimination of the unanimity as well as the 12– person requirement for criminal trials. See Williams v. Florida, 399 U.S. 78 (1970) (jury size); Apodaca v. Oregon, 406 U.S. 404 (1972) (unanimity); and discussion supra pp.1408–10. 12 Baltimore & Carolina Line v. Redman, 295 U.S. 654, 657 (1935) ; Walker v. New Mexico & So. Pac. R.R., 165 U.S. 593, 596 (1897) ; Gasoline Products Co. v. Champlin Ref. Co., 283 U.S. 494, 497–99 (1931) ; Dimick v. Schiedt, 293 U.S. 474, 476, 485–86 (1935) . 13 Gasoline Products Co. v. Champlin Ref. Co., 283 U.S. 494, 498 (1931) ; Ex parte Peterson, 253 U.S. 300, 309 (1920) . 14 Parsons v. Bedford, 28 U.S. (3 Pet.) 433, 446–47 (1830); Slocum v. New York Life Ins. Co., 228 U.S. 364, 377–78 (1913) ; Baltimore & Carolina Line v. Redman, 295 U.S. 654, 657 (1935) ; Dimick v. Schiedt, 293 U.S. 474, 476 (1935) . But see Ross v. Bernhard, 396 U.S. 531 (1970) , which may foreshadow a new analysis. 15 Luria v. United States, 231 U.S. 9, 27–28 (1913) . 16 Pearson v. Yewdall, 95 U.S. 294, 296 (1877) ; Edwards v. Elliott, 88 U.S. (21 Wall.) 532, 557 (1874); The Justices v. Murray, 76 U.S. (9 Wall.) 274, 277 (1870); Walker v. Sauvinet, 92 U.S. 90 (1876)2 of 3 8/10/2012 12:27 PM
  • 45. CRS/LII Annotated Constitution Seventh Amendment http://www.law.cornell.edu/anncon/html/amdt7frag1_user.html#amdt7_hd4 (1874); The Justices v. Murray, 76 U.S. (9 Wall.) 274, 277 (1870); Walker v. Sauvinet, 92 U.S. 90 (1876) ; St. Louis & K.C. Land Co. v. Kansas City, 241 U.S. 419 (1916) . 17 Webster v. Reid, 52 U.S. (11 How.) 437, 460 (1851); Kennon v. Gilmer, 131 U.S. 22, 28 (1889) . 18 Capital Traction Co. v. Hof, 174 U.S. 1, 5 (1899) . 19 Minneapolis & St. Louis R.R. v. Bombolis, 241 U.S. 211 (1916) . See also Melancon v. McKeithen, 345 F. Supp. 105 (E.D.La.) (three–judge court), aff’d. per curiam, 409 U.S. 943 (1972) ; Alexander v. Virginia, 413 U.S. 836 (1973) . 20 Dice v. Akron, C. & Y. R.R., 342 U.S. 359 (1952) . Four dissenters contended that the ruling was contrary to the unanimous decision in Bombolis. 21 Byrd v. Blue Ridge Rural Elec. Coop., 356 U.S. 525 (1958) (citing Herron v. Southern Pacific Co., 283 U.S. 91 (1931) ). 22 Henderson’s Distilled Spirits, 81 U.S. (14 Wall.) 44, 53 (1872); Rogers v. United States, 141 U.S. 548, 554 (1891) ; Parsons v. Armor, 28 U.S. (3 Pet.) 413 (1830); Campbell v. Boyreau, 62 U.S. (21 How.) 223 (1859). 23 Baylis v. Travellers’ Ins. Co., 113 U.S. 316, 321 (1885) . The provision did not preclude other kinds of waivers, Duignan v. United States, 274 U.S. 195, 198 (1927) , though every reasonable presumption was indulged against a waiver. Hodges v. Easton, 106 U.S. 408, 412 (1883) . 24 Fed. R. Civ. P. 38. 25 Aetna Life Ins. Co. v. Kennedy, 301 U.S. 389 (1937) ; Fed. R. Civ. P. 50(a).3 of 3 8/10/2012 12:27 PM
  • 46. IN THE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT – JACKSON DIVISIONVOGEL DENISE NEWSOME PLAINTIFFV. CIVIL ACTION NO. _____________________________PAGE KRUGER & HOLLAND , P.A.;a Mississippi Corporation;THOMAS Y. PAGE, in his official andindividual capacity; LOUIS G. BAINE, III,in his official and individual capacity;LINDA THOMAS, in her official andindividual capacity; and DOES 1-100, in theirofficial and individual capacities DEFENDANTSPLAINTIFF’S REQUEST FOR CONFLICT OF INTEREST INFORMATION, NOTICE OF OPPOSITION TO MAGISTRATE JUDGE ASSIGNMENT; AND NOTICE OF ADDRESS1 COMES NOW Plaintiff, Vogel Denise Newsome (“Plaintiff” or “Newsome”) and files thisher Request for Conflict of Interest Information, Notice of Opposition to Magistrate JudgeAssignment; and Notice of Address in the above referenced matter. In support thereof, Newsomestates the following: REQUEST FOR “CONFLICT OF INTEREST INFORMATION” 1. Newsome through this instant pleading is requesting that this Court notify her of all “Conflict of Interest” regarding this matter as it relates to the following – highlighting names that are to also be included if in body of one of the listed persons/businesses: a) Page Kruger & Holland, P.A. (“PKH”) – This is a law firm. b) Thomas Y. Page – (“TPage”) At time of Newsome’s employment with PKH, TPage was an Attorney and Shareholder/Partner. c) Louis G. Baine III – (“LBaine”) At time of Newsome’s employment with PKH, LBaine was an Attorney and Shareholder/Partner. 1 NOTE: Boldface, italics and underline in Exhibits and Complaint represents “emphasis” added. EXHIBIT Page 1 of 17 “D”
  • 47. d) Linda Thomas – (“LThomas”) At time of Newsome’s employment with PKH, LThomas was the Officer Manager/Human Resources Representative.e) Baker Donelson Bearman Caldwell & Berkowitz (“BDBC&D”)– This is a law firm. Newsome believes the following information is pertinent to this matter: i. BDBC&D was Legal Counsel in the matter of Vogel Denise Newsome v. Entergy New Orleans, et al; USDC Eastern District of Louisiana (New Orleans), Case No. 2:99-cv-03109-GTP. 1. Judge G. Thomas Porteous was assigned this matter. See EXHIBIT “1” – Docket Sheet in Entergy matter attached hereto and incorporated by reference as if set forth in full herein. 2. Newsome made known her concerns about possible unethical practices by Judge Porteous. 3. On or about September 9, 2004, Newsome filed a pleading entitled, “Petition Seeking Intervention/Participation of the United States Department of Justice” regarding Judge Porteous, BDBC&D and others. 4. Judge G. Thomas Porteous has been IMPEACHED – i.e. removed from the federal bench. ii. BDBC&D is Legal Counsel for one of their largest clients – Liberty Mutual Insurance Company. iii. Liberty Mutual’s major client being Entergy. iv. BDBC&D appears on “Recusal List” of Judge Tom S. Lee. See EXHIBIT “2” – Recusal Orders attached hereto and incorporated by reference as if set forth in full herein. v. Newsome is presently in the process of having the handling of this matter addressed before the United States Congress out of concerns of SYSTEMATIC discriminatory practices and SYSTEMATIC CRIMINAL/CIVIL violations. However, filing is necessary for the PRESERVATION of protected rights. Page 2 of 17
  • 48. vi. Current and former Baker Donelson attorneys and advisors include, among many other highly distinguished individuals, people who have served 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 Page 3 of 17
  • 49. Commissioner of Finance & Administration (Chief Operating Officer) - State of Tennessee Special Counselor to the Governor of Virginia United States Circuit Court of Appeals Judge United States District Court Judges United States Attorneys Presidents of State and Local Bar Associations See EXHIBIT “3” attached hereto and incorporated by reference as if set forth in full herein. EMPHASIS ADDED in that information is pertinent to establish the CONSPIRACY and PATTERN-OF-CRIMINAL/CIVIL wrongs leveled against Newsome. This information was originally located at: http://www.martindale.com/Baker- Donelson-Bearman-Caldwell/law- firm-307399.htm Since Newsome has gone PUBLIC and is releasing this information, Baker Donelson has SCRUBBED this information from the Internet. It was a good thing Newsome retained copy for her record to EVIDENCE information posted on the Internet. Information supporting FINANCIAL SUPPORT and SPECIAL/PERSONAL Interest of Baker Donelson and the role it may have played can also be found in information Newsome was able to retrieve from the Internet to support role BDBC&D may have played in cases 3:07-cv-00099 and 3:07-cv-00560 before the USDC Southern District of Mississippi (Jackson) wherein Judge Tom S. Lee and Judge William H. Barbour appear on a list of judges with ties to BDBC&D. See EXHIBIT “4” attached hereto and incorporated by reference as if set forth in full herein.vii. BDBC&D post information on their website advising of its being SENIOR ADVISOR to the Executive Office – i.e. United States of America White House (President Barack Obama). See EXHIBIT “5” – Lance Leggitt Information attached hereto and incorporated by reference as if set forth in full herein.viii. Newsome believes that BDBC&D’s SHADY dealings behind the scene with JUDICIAL Officials as well as Page 4 of 17
  • 50. Administrative/Congressional Officials have played a MAJOR role in the COVER-UP and SYSTEMATIC injustices leveled against her and, therefore, is information of PUBLIC INTEREST! f) Liberty Mutual Insurance Company – Just in case it surfaces that Liberty Mutual is the insurance carrier for PKH. Since it seems to have stuck its nose an approximately ALL of the legal matters in which Newsome is involved. g) Page Kruger & Holland (“PKH”) – Law firm that is representing Hinds County Defendants (i.e. which include Sheriff Malcom McMillan), Judge William Skinner and Constable Jon Lewis in the Dial Equities/Crews/Spring Lake Apartments matters - 3:07-cv-00099 and 3:07-cv-00560 before the USDC Southern District of Mississippi (Jackson). i. During Newsome’s employment with PKH, it employed John Noblin.. Newsome believes John Noblin is the son of the Clerk of the USDC Southern District of Mississippi (J. T. Noblin). See EXHIBIT “6” attached hereto and incorporated by reference as if set forth in full herein. ii. Newsome believes that based upon such information and the “Conflict of Interest” that arose in the handling of 3:07-cv-00099 and 3:07-cv-00560 before the USDC Southern District of Mississippi (Jackson), the record of this Court may have compromised for purposes of AIDING and ABETTING the cover-up of criminal/civil wrongs leveled against Newsome. iii. The Court failed to notify Newsome of this Conflict of Interest. iv. Newsome’s employment with PKH was terminated upon its being contacted and notified of the legal actions regarding Spring Lake Apartments/Melody Crews matter. v. Newsome is presently in the process of having the handling of this matter addressed before the United States Congress; however, in the meantime files this Complaint for purposes of PRESERVING her rights. h) Other reasons known to this Court that Newsome at this time may be ignorant of.2. Newsome believes that this instant Lawsuit is one of PUBLIC Policy and one which is a matter of SOCIAL and ECONOMICAL Interest. Newsome has gone PUBLIC (i.e. Nationally and INTERNATIONALLY) in exposing the SYSTEMATIC Racial/Discriminatory attacks not only leveled against her but other African- Americans and People-of-Color by CORRUPT Government Officials and the WHITE Racist/Supremacist Groups they CONSPIRE with to destroy citizens’ lives without just cause. Information which it appears has brought a Page 5 of 17
  • 51. GLOBAL/INTERNATIONAL Interest in the United States of America’sCIVIL/HUMAN Rights violations, WAR Crimes, TERRORISTS Acts, etc. and isbeing shared online for instance at: http://www.slideshare.net/VogelDenise/as well as at www.vogeldenisenewsome.net. Page 6 of 17
  • 52. Because it is very rare that such CRIMINALS (i.e. as Baker Donelson, Page Kruger& Holland, etc.) leaves the “SMOKING GUN” behind as they have done in theirattacks leveled against Newsome: Conducting a Thorough Investigation2 Because discrimination often is subtle, and there rarely is a “smoking gun,” [Fn. 45 - See Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1081-82 (3rd Cir. 1996)(“It has become easier to coat various forms of discrimination with the appearance of propriety, or to ascribe some other less odious intention to what is in reality discriminatory behavior. In other words, while discriminatory conduct persists, violators have learned not to leave the proverbial ‘smoking gun’ behind.”); cf. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 801 (1973). . .] determining whether race played a role in the decision making requires examination of all of the surrounding facts and circumstances. The presence or absence of any one piece of evidence often will not be determinative. Sources of information can include witness statements, including consideration of their credibility; documents; direct observation; and statistical evidence such as EEO-1 data, among others.Furthermore, how often are PRO SE litigants as Newsome able to win Lawsuitsagainst BIG MONEY Law Firms (i.e. as Baker Donelson, Page Kruger & Holland)because of their CORRUPTION, CRIMINAL activities – i.e. bribes, blackmail,extortion practices, etc.) that appears to take place behind closed doors for purposesof obtaining favors on their behalf and/or that of their clients: The United States Constitution as well as laws passed by the United States Congress will further support the need for the passing of House Report No. 92-238. Congress demonstrated its awareness that claimants might not be able to take advantage of the federal remedy without appointment of counsel. As explained in House Report No. 92-238: By including this provision in the bill, the committee emphasizes that the nature of . . .actions more often than not pits parties of unequal strength and resources against each other. The complainant, who is usually a member of the disadvantaged class, is opposed by an employer who . . . has at his disposal a vast of resources and legal talent. H.R. Rep. No. 238, 92nd Cong., 2d Sess., reprinted in 1972 U.S.C.C.A.N. 2137, 2148.2 Taken from EEOC’s Compliance Manual Section 15: Race and Color Discrimination Page 7 of 17
  • 53. Well they have come after the WRONG African- American and now it appears they have taken down a WHOLE Country – i.e. the United States of America – as a direct and proximate result of their OBSESSIONS/FETTISH and DETERMINATION to destroy Newsome’s life. On about August 31, 2011, Newsome contacted her Senator – United States Kentucky Senator Rand Paul – and provided him with “UNITED STATES KENTUCKY SENATOR RAND PAUL: Request Of Status Of INVESTIGATION(S) Request Regarding United States President Barack Obama and Government Agencies/Officials; Assistance In Getting Petition For Extraordinary Writ Filed; and Assistance In Receipt of Relief PRESENTLY/IMMEDIATELY Due Newsome - WRITTEN Response Requested By THURSDAY, SEPTEMBER 15, 2011.” See Exhibit “9” attached hereto and incorporated by reference as if set forth in full herein. Information is PERTINENT/ RELEVANT in that it concerns matters of PUBLIC Interest. In fact, in efforts of COVERING up the “CONFLICT-OF-INTEREST” the three BRANCHES OF GOVERNMENT – Executive/White House, Legislature and Congress – are working hard to keep information out of the PUBLIC eyes; however, have FAILED! With Newsome’s going PUBLIC and exposing CRIMINAL/CIVIL wrongs such as Baker Donelson Bearman Caldwell & Berkowitz and those who CONSPIRE with it, it “SMOKED OUT” Baker Donelson’s employee James C. Duff who was placed in a position such as DIRECTOR of the Administrative Office of the United States Courts and just COINCIDENTALLY resigned on September 15, 2011 – i.e. the SAME date Newsome requested a “WRITTEN Response” regarding INVESTIGATIONS she has initiated. See Exhibit “13” – James C. Duff Information attached hereto and incorporated by reference. Information PERTINENT/RELEVANT in that it will support what appears to be Baker Donelson’s CONTROL over TOP/KEY Government positions.3. Information which is of PUBLIC/GLOBAL interest in that it appears that Baker Donelson has STRATEGICALLY placed their employees in TOP/KEY Government positions and/or Baker Donelson has RECRUITED/EMPLOYED former TOP/KEY Government Officials for purposes of carrying out their CRIMINAL/CIVIL violations – i.e. which are RACIST and/or DISCRIMINATORIALLY/PREJUDICIALLY motivated. Just as Baker Donelson and those with whom they have CONSPIRED have gone to PUBLIC Forums – i.e. such as the INTERNET – to destroy Vogel Denise Newsome’s life, Newsome has resorted to using the SOCIAL/PUBLIC Forums (i.e. as the INTERNET) to expose Page 8 of 17
  • 54. the OVER 20 Years CRIMINAL Stalking and CYBER Bullying of the likes of Baker Donelson and those who CONSPIRE with it. Newsome starting at the TOP with the United States White House. For instance submitting for filing her pleading entitled, “NOTIFICATION FOR TERMINATION - REQUEST FOR IMPEACHMENT OF PRESIDENT BARACK HUSSEIN OBAMA II – RESPONSE TO THE ATTACKS ON FLORIDA A&M UNIVERSITY REGARDING ALLEGED HAZING INCIDENT – REQUEST FOR INTERNATIONAL MILITARY INTERVENTION MAY BE NECESSARY.” See Exhibit “10” attached hereto and incorporated by reference as if set forth in full herein. No Baker Donelson and its CONSPIRATORS/CO-CONSPIRATORS having knowledge of Newsome being an Alumnus of Florida A&M University thought that it would use the alleged hazing incident reported about November 2011, to take down the University and go after the President as well as Faculty and Students. It is a good thing that Newsome NOTIFIED Florida A&M with the TRUE reasons for the attacks leveled against it – i.e. RETALIATION against Vogel Newsome being MASKED/SHIELDED behind the death of Robert Champion. The Official “PINK SLIP” served on United States of America President Barack Obama is on the INTERNET. See Exhibit “11” attached hereto and incorporated by reference as if set forth in full herein. It appears that President Barack Obama and people such as his Legal Advisor Baker Donelson attempted to have EVIDENCE of Service – i.e. the Certified Mail Return Receipt GREEN CARD – destroyed. However, on AFTER Newsome went PUBLIC/GLOBAL and released the CRIMINAL/CIVIL violations of the Executive Office, did they have the GREEN CARD they had RIPPED up TAPED back together and returned to Newsome. See Exhibit “12” attached hereto and incorporated by reference.4. SERIAL LITIGATOR ISSUE: Newsome, through this instant Complaint, hereby notifies this Court of concerns that Defendants in this instant lawsuit may attempt to subject her to MALICIOUS labeling and/or implication of such labeling as a “serial litigator.” Therefore, through this pleading, Newsome is SLAMING THE DOOR SHUT on such frivolous assertion if Defendants intend to continue on the course that BDBC&D (Baker Donelson) and those conspiring with it has set out on through its CRIMINAL STALKING of Newsome. Furthermore, a NEXUS can be established through a PATTERN-OF-PRACTICE that BDBC&D, its major client (Liberty Mutual) and those conspiring with them ABUSE of such labeling (i.e. serial litigator, etc.) and reliance upon such labeling when contacting Newsome’s former employers (i.e. for purposes of getting her employment terminated to provide it and its clients with an undue/unlawful/illegal advantage in legal actions. With intent, get Newsome terminated to financially devastate her and hinder/preclude her from being successful in legal actions) and using such MALICIOUS attacks in ALL legal matters that their clients/insureds are involved and in which Newsome is a party. There is record evidence to support BDBC&D, its major client (Liberty Mutual) and those conspiring with them, use of such MALICIOUS labeling (i.e. serial litigator, etc.) is done for purposes of depriving Newsome EQUAL protection of the laws, EQUAL privileges and immunities of the laws and DUE PROCESS of laws. Furthermore, this Court did nothing to deter Page 9 of 17
  • 55. such UNETHICAL and unlawful/illegal practices of BDBC&D, its client (Liberty Mutual) and their co-conspirators. Neither does did this Court in the past require that BDBC&D, its client (Liberty Mutual) and their co-conspirators provide evidence to sustain such frivolous and malicious attacks on Newsome provided for purposes of defamation, slander and other reasons known to them. In re McDonald, 489 U.S. 180, 109 S.Ct. 993 (1989) Jessie McDonald may well have abused his right to file petitions in this Court without payment of the docketing fee; the Courts order documents that fact. I do not agree, however, that he poses such a threat to the orderly administration of justice that we should embark on the unprecedented and dangerous course the Court charts today. . . . I am most concerned, however, that if, as I fear, we continue on the course we chart today, we will end by closing our doors to a litigant with a meritorious claim. It is rare, but it does happen on occasion that we grant review and even decide in favor of a litigant who previously had presented multiple unsuccessful*188 petitions on the same issue. See, e.g., Chessman v. Teets, 354 U.S. 156, 77 S.Ct. 1127, 1 L.Ed.2d 1253 (1957); see id., at 173-177, 77 S.Ct. at 1136-1138 (Douglas, J., dissenting). "Petitioner is no stranger to us. Since 1971, he has made 73 separate filings with the Court, not including this petition, which is his eighth so far this Term. These include 4 appeals, 33 petitions for certiorari, 99 petitions for extraordinary writs, 7 applications for stay and other injunctive relief, and 10 petitions for rehearing." Id. pp. 994- 995. "But paupers filing pro se petitions are not subject to the financial considerations - filing fees and attorneys fees - that deter other litigants from filing frivolous petitions." Id. p. 996. The Supreme Court (even after all of McDonalds filings) did not close the door to McDonald. A litigant who is identified as filing 73 separate filings in a one-year period; however, ruled, "Petitioner remains free under the present order to file in forma pauperis requests for relief other than an extraordinary writ, if he qualifies under the Courts Rule 46 and does not similarly abuse that privilege." Id. p. 996. Based on the evidence in this Court’s records in 3:07-cv-00099 and 3:07-cv-00560, Newsome believes it is necessary to address the “SERIAL LITIGATOR”bogus/frivolous defense that may be used by Defendants in this instant Complaint.Moreover, possible PREMEDITATION by Defendant(s) in attempts in using such afrivolous/sham defense against this instant Complaint. Newsome is a paying litigantin this instant lawsuit, has paid the required JURY FEE, and Complaint has meritsand can be sustained by the facts, evidence and legal conclusions presented therein. Newsome attaches to this pleading a listing of Judges/Justices that BakerDonelson PUBLICLY advertise and/or broadcast on the Internet in support of itsSPECIAL TIES/RELATIONSHIPS to members on the judicial bench – SeeEXHIBIT “4” attached hereto and incorporated by reference as if set forth in full Page 10 of 17
  • 56. herein. This information was originally posted on the INTERNET at:http://www.bakerdonelson.com/courtclerks.htm; however, transferred to anotherwebsite location at: http://www.bakerdonelson.com/appellate-practice-sub-practice-areas/. Nevertheless, Newsome was able to find it. Newsome provides this listbecause she believes it is of PUBLIC/WORLDWIDE interest and pertinent/relevantto sustain the issues raised in this instant Complaint. Since BDBC&D, its client(Liberty Mutual) and their co-conspirators have set out to destroy Newsome’s life, itis a matter of public policy that their criminal/civil violations leveled againstNewsome be exposed to the PUBLIC/WORLD. Milkovich v. Lorain Journal Co., 110 S.Ct. 2695 (1990) - Where statement of “opinion” on matter of public concern reasonably implies false and defamatory facts involving private figure, plaintiff must show that false implications were made with some level of fault to support recovery. U.S.C.A. Const.Amend. 1.Newsome believes a reasonable mind may conclude from said listing of associationwith judges may have been produced and posted on the INTERNET to send asubliminal message to clients and/or potential clients and those who oppose BakerDonelson and its clients, that these judges/justices have been purchased by BakerDonelson and just how well-rooted it is with Justices/Judges. If this is the case,Newsome believes that a reasonable mind may conclude that the integrity of thecourts in which these Judges/Justices serve may have been compromised if theyfailed to recuse/remove themselves involving Baker Donelson and its client, LibertyMutual. Furthermore, that BDBC&D, its client (Liberty Mutual) and their co-conspirators involved in the CONSPIRACY leveled against Newsome have takendecisions of the Fifth Circuit Court of Appeals and other courts to FUEL theircriminal/civil violations against Newsome – i.e. criminal/civil violations whichclearly are RACIALLY motivated, reprehensible, unacceptable, embarrassing,disgraceful, and an obstruction of justice, deprivation of Constitutional Rights andrights secured/guaranteed under the United States - Newsome finds it hard to believethat the Justices of the Fifth Circuit Court and/or of any other court would intend fortheir decisions to be taken as a “LICENSE TO COMMIT CRIMES/CIVILWRONGS” against Newsome and/or any other citizen(s) because they engage inprotected activities. In Newsome’s case, she is/has engaged in legal actions – i.e.approximately five (5) separate lawsuits in approximately twenty-three (23) years.Furthermore, Newsome has only brought approximately three (3) separate NON-MONETARY mandamus actions in approximately twenty-three (23) years forpurposes of compelling the EEOC to perform the MANDATORY ministerial dutiesowed Newsome as well as other citizens – i.e. which based upon the facts, evidenceand legal conclusions contained herein, will support that the United StatesDepartment of Labor and others have RETALIATED and may be engaging inCONSPIRACIES for purposes of COVERING UP corrupt and unlawful/illegalemployment practices by employers as a DIRECT and PROXIMATE result ofNewsome having brought mandamus actions as well as depriving her EQUALprotection of the laws and DUE PROCESS of laws secured/guaranteed under theConstitution and other laws of the United States. Page 11 of 17
  • 57. Pittston Coal Group v. Sebben, 109 S.Ct. 414 (1988) - Extraordinary remedy of mandamus will issue only to compel performance of clear nondiscretionary duty. 28 U.S.C.A. § 1361. U.S. ex rel. McLennan v. Wilbur, 51 S.Ct. 502 (1931) - Writ of mandamus will issue only where duty to be performed is ministerial and obligation to act peremptory and plainly defined. Supervisors v. U.S., 85 U.S. 71 (1873) - The office of a writ of mandamus is not to create duties but to compel the discharge of those already existing. Reeside v. Walker, 52 U.S. 272 (1850) - A mandamus is only to compel performance of some ministerial, as well as legal duty. In response to Newsome’s MANDAMUS (non-monetary) actions, the FifthCircuit made it clear that she had other remedies available to her – i.e. for instance, “.. . plaintiff is instructed to seek any further relief to which she feels entitled in theFifth Circuit Court of Appeals, as may be appropriate in due course” (2002 WL1303123), and “Newsome also is not entitled to the writ because she has anotheradequate remedy available, i.e. she could file suit in court against her employer. . .”(37 Fed.Appx. 87). See EXHIBIT “14” attached hereto and incorporated byreference as if set forth in full herein. A lawsuit assigned to Judge G. ThomasPorteous who has been IMPEACHMENT and removed from the Federal Bench.See EXHIBIT “7” – Impeachment Information attached hereto and incorporated byreference as if set forth in full herein. This instant Complaint against Page Kruger &Holland P.A. and other Defendants is in compliance with court’s ruling. It is also important for Newsome to note that the Judge (Bobby DeLaughter) that handled the unemployment issues involving Mitchell McNutt & Sams matter has been INDICTED for corrupt and criminal practices. A story that made HEADLINE NEWS in Jackson, Mississippi in 2009. Therefore, in approximately a one-year period, two Judges associated with legal matters involving Newsome have been brought up on criminal charges or IMPEACHMENT. There is record evidence to support that while BDBC&D, its client (LibertyMutual) and their co-conspirators want it to appear that Newsome is a “seriallitigator” there is nothing in the record of this Court and/or any other courts tosustain/support such a slanderous and outrageous characterization of Newsome.Any attempt by Defendants (Page Kruger & Holland and others) to continue on sucha destructive course is not to be taken lightly and Newsome will seek the appropriatesanctions and punishment allowed under the laws. IMPORTANT TO NOTE: Newsome in this instant lawsuit is NOT proceeding in forma pauperis and has demanded a JURY TRIAL. Newsome has also Page 12 of 17
  • 58. submitted the required $350.00 filing fee associated with filing Complaint with this Court. See EXHIBIT “8” attached hereto and incorporated by reference.This instant lawsuit was INITIATED as a direct and proximate result of theemployment violations alleged in Complaint. Furthermore, said labeling of Newsomeas a “serial litigator” neither fits description provided by the United States SupremeCourt nor any other court. In fact, the United States Supreme Court provides anexample of a pro se in forma pauperis litigant who filed numerous complaints;however, said Court did not close the door to his filing in the future as the USDCSouthern District of Mississippi (Jackson) is attempting to do with Newsome in 3:07-cv-00099 and 3:07-cv-00560; in keeping with ROLE in the CONSPIRACY leveledagainst Newsome and initiated/orchestrated by BDBC&D, its client (Liberty Mutual)and their co-conspirators: Carter v. Telectron, Inc., 452 F.Supp. 944 (1977) - [n.1] Number of actions filed is not, by itself, a determinative factor which would legally support use of district courts power to regulate a . . . litigant on ground of abuse of privilege of proceeding in forma pauperis; instead, court must analyze the nature of plaintiffs litigation in light of the scope of such privilege and additionally pinpoint specific abuses to which appropriate responsive remedies can be tied. 28 U.S.C.A. § 1915. [1] In assessing whether plaintiff has abused the privilege of proceeding in forma pauperis, it is indeed a highly probative fact that plaintiff has filed pro se a minimum of 178 actions, almost all of which have been filed in forma pauperis. However, the number of actions filed is not, by itself, a determinative factor which would legally support the use of this Courts power to regulate plaintiff as a litigant. See, e. g., Ruderer v. United States, 462 F.2d 897, 899 (8th Cir. 1972), appeal dismissed, 409 U.S. 1031, 93 S.Ct. 540, 34 L.Ed.2d 482 (1973). Instead, one must analyze the nature of plaintiffs litigation in light of the scope of the Section 1915 privilege and additionally pinpoint specific abuses to which appropriate responsive remedies can be tied. While BDBC&D, its client (Liberty Mutual) and their co-conspirators havesubjected Newsome to such unfounded labeling, BDBC&D, its client (LibertyMutual) and their co-conspirators fail to mention that Newsome is a PAYINGlitigant. The Supreme Court finding in, Lakes v. State, 333 S.c. 382, 510 S.E.2d 228(1998) that: According to the State, Lakes has submitted one direct appeal, three PCR applications, two petitions for writ of certiorari, a federal petition for writ of habeas corpus, petitions for writs Page 13 of 17
  • 59. of mandamus, attorney grievances, and proposed orders for release. Although Lakess requests for relief are numerous, the trial judge failed to make factual findings to show the requests rise to the level of repetitive and abusive filings as in Maxton or those cases cited in Maxton. [FN2] Therefore, **231 we reverse the order of the trial judge and remand the case for further proceedings consistent with this opinion. In so doing, we make no comment as to the merit of Lakess claims. Lakes still bears the burden of proving why his application should not be dismissed as successive pursuant to *387 S.C.Code Ann. § 17-27-90 (1976). See Foxworth v. State, 275 S.c. 615, 274 S.E.2d 415 (1981). FN2. The United States Supreme Court denies litigants who have repeatedly filed frivolous petitions the right to proceed in forma pauperis. However, the Court has done so pursuant to its Rule 39.8. See, e.g., In re Whitaker, 513 U.S. 1, 115 S.Ct. 2, 130 L.Ed.2d 1 (1994) (petitioner filed 23 claims for relief that had all been denied without dissent); In re Anderson, 511 U.S. 364, 114 S.Ct. 1606,128 L.Ed.2d 332 (1994) (petitioner submitted 22 separate petitions and motions in a three year time span); In re Demos. 500 U.S. 16, III S.Ct. 1569, 114 L.Ed.2d 20 (1991) (petitioner made 32 in forma pauperis filings with the Supreme Court, most of which challenged sanctions imposed by the lower court); In re Sindram, 498 U.S. 177, III S.Ct. 596, 112 L.Ed.2d 599 (1991) (petitioner filed 42 separate petitions and motions in three year time span, all of which were denied without dissent); In re McDonald, 489 U.S. 180, 109 S.Ct. 993, 103 L.Ed.2d 158 (1989) (petitioner made 71 separate filings, all of which were denied without dissent). Rule 39.8 states: If satisfied that a petition for writ of certiorari, jurisdictional statement, or petition for an extraordinary writ, as the case may be, is frivolous or malicious, the Court may deny a motion for leave to proceed in forma pauperis.Again, supporting that any attempts to that Defendant Page Kruger & Holland andothers to label Newsome a “serial litigator” is NOT befitting and neither applicablebecause Newsome is NOT proceeding in this lawsuit in forma pauperis and has paidthe United States District Court’s $350.00 filing fee to bring her action which hasmerits and can be sustained/supported by facts, evidence and legal conclusions (i.e.in accordance with previous decisions by the United States Supreme Court as well asother State Supreme Courts and/or lower courts). The United States SupremeCourt finding in In re Maxton, 325 S.C. 3, 478 S.E.2d 679 (S.C.,1996) that: Petitioner, . . . has submitted sixty-four pro se petitions over the past three years, including forty-six so far this year, asking this Court to hear matters in its original jurisdiction or issue various extraordinary writs. Each petition submitted by petitioner has been frivolous and dismissed Page 14 of 17
  • 60. pursuant to Key v. Currie, 305 S.C. 115, 406 S.E.2d 356 (1991), because no extraordinary reason existed to entertain the matter in the original jurisdiction of this Court . . . . The courts in other jurisdictions have responded in a variety of ways to abusive filings such as those by petitioner. The United States Supreme Court has denied litigants who have filed repetitive, frivolous petitions the right to proceed in forma pauperis, resulting in the litigants having to pay the required filing fee with that Court. In re Whitaker, 513 U.S. I, 115 S.Ct. 2, 130 L.Ed.2d 1 (1994); In re Anderson, 511 U.S. 364, 114 S.Ct. 1606, 128 L.Ed.2d 332 (1994); In re Demos, 500 U.S. 16, III S.Ct. 1569, 114 L.Ed.2d 20 (1991); In re Sindram, 498 U.S. 177, III S.Ct. 596, 112 L.Ed.2d 599 (1991); In re McDonald, 489 U.S. 180, 109 S.Ct. 993, 103 L.Ed.2d 158 (1989). Other courts have required that the abusive litigant file an affidavit certifying that he believes the petition raises an original claim or is nonfrivolous before accepting filings from the litigant. In the Matter of Verdone, 73 F.3d 669 (7th Cir.l995); Abdul-Akbar v. Watson, 901 F.2d 329 (3d Cir.1990); Green v. Warden, 699 F.2d 364 (7th Cir.), cert. denied, 461 U.S. 960, 103 S.Ct. 2436, 77 L.Ed.2d 1321 (1983). Again, supporting that there is no evidence to support/sustain that Newsome is a “serial litigator.” Furthermore, Newsome following the instructions of the Fifth Circuit Court of Appeals and bringing legal action against former employer, Page Kruger & Holland and other Defendants. NOTICE OF OPPOSITION TO MAGISTRATE JUDGE ASSIGNMENT NOTICE IS HEREBY GIVEN that Newsome opposes and objects to a Magistrate Judgebeing assigned the above referenced lawsuit. No offense is intended; however, notice is given as adirect and proximate result of the irreparable injury/harm that Newsome has already sustained byMagistrate Anderson and Judge Lee in cases 3:07-cv-00099 and 3:07-cv-00560 before this Court.Furthermore, said request is made in good faith for purposes of protecting Newsome’s rights and toassure that she is given equal protection of the laws, equal privileges and immunities under the lawsand due process of laws secured and guaranteed under the United States Constitution and other lawsof the United States governing said matters in the handling of this instant Complaint. Page 15 of 17
  • 61. This instant Lawsuit involves matters of PUBLIC Policy and matters of SOCIAL,ECONOMICAL and INTERNATIONAL interest and pleadings filed will be posted inPUBLIC/SOCIAL forums for those interested in following this Lawsuit: Page 16 of 17
  • 62. LAED CM/ECF - Live Page 1 of 11 U. S. District Court Eastern District of Louisiana (New Orleans) CIVIL DOCKET FOR CASE #: 2:99-cv-03109-GTPNewsome v. Entergy NO Inc, et al gy , Date Filed: 11/03/1999Assigned to: Judge G. Thomas Porteous, Jr Date Terminated:Demand: $0 Jury Demand: PlaintiffCase in other court: 00-30521 Nature of Suit: 442 Civil Rights: JobsCause: 42:2000 Job Discrimination (Race) Jurisdiction: Federal QuestionPlaintiffVogel Denise Newsome represented by Vogel Denise Newsome P. O. Box 31265 Jackson, MS 39286-1265 601-885-9536 PRO SE Michelle Ebony Scott-Bennett Justice for All Law Center, LLC Gretna Plaza Bldg. 1500 Lafayette St. Suite 122 Gretna, LA 70053 504-368-1711 Email: jfalc@bellsouth.net TERMINATED: 04/03/2002 LEAD ATTORNEYV.DefendantEntergy New Orleans, Inc. represented by Allyson Kessler HowieTERMINATED: 01/18/2000 Entergy Services, Inc. (New Orleans) 639 Loyola Avenue 26th Floor P. O. Box 61000 New Orleans, LA 70113 504-576-5849 Email: ahowie@entergy.com TERMINATED: 01/18/2000 LEAD ATTORNEY Renee Williams Masinter Entergy Services, Inc. (New Orleans) 639 Loyola Avenue 26th Floor EXHIBIT "1"https://ecf.laed.uscourts.gov/cgi-bin/DktRpt.pl?62797950399544-L_96_0-1 9/22/2010
  • 63. LAED CM/ECF - Live Page 2 of 11 P. O. Box 61000 New Orleans, LA 70113 504-576-2266 Email: AMASINT@entergy.com TERMINATED: 01/18/2000DefendantEntergy Services Inc represented by Allyson Kessler Howie (See above for address) TERMINATED: 06/13/2000 LEAD ATTORNEY Renee Williams Masinter (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Amelia Williams Koch Baker Donelson Bearman Caldwell & Berkowitz (New Orleans) 201 St. Charles Ave. Suite 3600 New Orleans, LA 70170 504-566-5200 Fax: 504-636-4000 Email: akoch@bakerdonelson.com ATTORNEY TO BE NOTICED Jennifer F. Kogos Jones Walker (New Orleans) Place St. Charles 201 St. Charles Ave. Suite 5100 New Orleans, LA 70170-5100 (504) 582-8000 Email: jkogos@joneswalker.com ATTORNEY TO BE NOTICED Date Filed # Docket Text 11/03/1999 1 COMPLAINT ( 1 summons(es) issued ) (daf) (Entered: 11/04/1999) 11/03/1999 2 ORDER granting pla leave to proceed in forma pauperis by Magistrate Sally Shushan (daf) (Entered: 11/04/1999) 11/03/1999 Automatic Referral (Utility Event) to Magistrate Sally Shushan (daf) (Entered: 11/04/1999) 11/10/1999 3 RETURN OF SERVICE of summons and complaint upon defendant Entergy NO Inc on 11/10/99 (cca) (Entered: 11/12/1999)https://ecf.laed.uscourts.gov/cgi-bin/DktRpt.pl?62797950399544-L_96_0-1 9/22/2010
  • 64. EXHIBIT "2"
  • 65. LexisNexis® Martindale-Hubbell® Page 1 Print Close Window Baker, Donelson, Bearman, Caldwell & Berkowitz, PC Baker, Donelson, Bearman, Caldwell & Berkowitz, PC Size of Organization: 550 Year Established: 1888 Main Office: Memphis, Tennessee Web Site: http://www.bakerdonelson.com Telephone: 901-526-2000 Telecopier: 901-577-2303 Send Email Law Firm Snapshot Martindale-Hubbell has augmented a firms provided information with third-party sourced data to present a more comprehensive overview of the firms expertise. Profile Visibility #42 in weekly profile views out of 233,261 total law firms Overall Bar Register Practice Areas Baker, Donelson, Bearman, Caldwell & Berkowitz, PC, is ranked by The National Law Journal as one of the 100 largest law firms in the country. Through strategic acquisitions and mergers over the past century, the Firm has grown to include more than 550 attorneys and public policy and international advisors. Baker Donelson has offices located in five states in the southern U.S. as well as Washington, D.C., plus a representative office in London, England. Current and former Baker Donelson attorneys and advisors include, among many other highly distinguished individuals, people who have served as: Chief of Staff to the President of the United States; U.S. Senate Majority Leader; U.S. Secretary of State; Members of the United States Senate; Members of the United States House of Representatives; Acting Administrator and Deputy Administrator of the Federal Aviation Administration; Director of the Office of Foreign Assets Control for the U.S. Department of the Treasury; Director of the Administrative Office of the United States Courts; Chief Counsel, Acting Director, and Acting Deputy Director of U.S. Citizenship & Immigration Services within the United States Department of Homeland Security; Majority and Minority Staff Director of the Senate Committee on Appropriations; a member of Presidents 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 for International Trade for the U.S. 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; United States Circuit Court of Appeals Judge; United EXHIBIT "3"http://www.martindale.com/print.aspx 3/26/2010
  • 66. LexisNexis® Martindale-Hubbell® Page 2 States District Court Judges; United States Attorneys; and Presidents of State and Local Bar Associations. Baker Donelson represents local, regional, national and international clients. The Firm provides innovative, results-oriented solutions, placing the needs of the client first. Our state-of-the-art technologies seamlessly link all offices, provide instant information exchange, and support clients nationwide with secure access to our online document repository. Baker Donelson is a member of several of the largest legal networks that provide our attorneys quick access to legal expertise throughout the United States and around the world.http://www.martindale.com/print.aspx 3/26/2010
  • 67. BakerDonelson.com is a law firm with locations on the US east coast & London, UK Page 1 of 2 BakerDonelson.com is a law firm with locations on the US east coast & London, UK Robert L Poole Law Office Federal Employment Lawyer Accident, Injury & Wrongful Death Get help from experienced federal NO FEE Unless You Win -Attorneys employment lawyer. Contact our firm www.robertpoole.com MelvilleJohnson.com BakerDonelson.com is featured on 2 lists... Hire a Lawyer for Your Legal Problems # 695 of 23,910 The Best New Orleans Lawyer Sites Rank not available flag get page alerts Title for BakerDonelson.com Baker, Donelson, Bearman, Caldwell & Berkowitz, PC Description for BakerDonelson.com Baker, Donelson, Bearman, Caldwell & Berkowitz, PC was ranked in 2004 as one of the 10 fastest growing law firms in the U.S. by The National Law Journal and is one of the 100 largest law firms in the country. Through strategic acquisitions and mergers over the past century, the Firm has grown to include more than 440 attorneys, and public policy and international advisors, in 10 U.S. markets, as well as a representative office in Beijing, China. Baker Donelson represents clients across the U.S. and abroad from offices in Memphis, Nashville, Chattanooga, Knoxville and Johnson City, Tennessee; Atlanta, Georgia; Birmingham, Alabama; Jackson, Mississippi; New Orleans and Mandeville, Louisiana; Washington, D.C.; and Beijing, China. Logoshttp://www.aboutus.org/BakerDonelson.com 8/10/2010
  • 68. Project Vote Smart - Senator Lamar Alexander - Biography Page 1 of 2 Receive Our Newsletter: Enter Email Find Your Representatives Print Share Senator Lamar Alexander (TN) Search by Candidates or Officials Last Name, or Enter Your ZIP Code: Current Office: U.S. Senate Seniority: Senior Seat First Elected: 11/05/2002 Last Elected: 11/04/2008 Search Vote Smart Next Election: 2014 Party: Republican Background Information Gender: Male Family: Wife: Honey Buhler 4 Children: Andrew, Leslee, Kathryn, William. Basic Categories: Birth Date: 07/03/1940 Biographical Information Birthplace: Maryville, TN Home City: Nashville, TN Voting Records Religion: Presbyterian Issue Positions (Political Courage Test) Education: Interest Group Ratings Biographical JD, New York University Law School, 1965 Public Statements BA, Latin American History, Vanderbilt University, 1962. Voting Record Campaign Finances Professional Experience: Issue Positions Lawyer, Law Firm of Fowler, Roundree and Robertson, 1993-present (Political Courage Test) Voter Registration Lawyer, Law Firm of Baker, Worthington, Crossley, Stansberry and Woolf, 1998 Interest Group Ratings Ballot Measures Lawyer, Law Firm of Baker, Donelson, Bearman and Caldwell, 1993- Issues and Legislation 1995 Position Papers Political Resources Chair, Republican Exchange Satellite Network, 1993-1995 President, University of Tennessee, 1988-1991 Speeches and Public Statements My State Chair, Leadership Institute at Belmont University, 1987-1988 Co-Founder, Corporate Child Care Services with 1200 employees Additional Biographical Information today, 1987 For Candidates Special Counsel to Senate Minority Leader Howard Baker, 1977 Campaign Finances For Journalists Commentator, WSM Television in Nashville, 1975-1977 Lawyer/Founding Partner, Law Firm of Dearborn and Ewing, 1970- Contact Information 1976 About Us Executive Assistant to Bryce Harlow, White House Congressional Washington, D.C. Webmail: Liaison for President Richard Nixon, 1969-1970 http://alexander.senate.gov/pu ... Contact Us Legislative Assistant, Tennessee Republican Senator Howard Baker, Washington, D.C. Website: Internships 1967-1968 http://alexander.senate.gov/ Job Opportunities Law Clerk, United States Circuit Court Judge John Minor Wisdom, 5th Press Releases Circuit Court of Appeals, New Orleans, 1965-1966 Washington, D.C. Address Author 455 Dirksen Senate Office Building Voters Speakeasy Blog Goodman Professor, Harvard University Kennedy School of Washington, DC 20510 Government. Phone: 202-224-4944 TTYD: 202-224-1546 Vote Smart API Political Experience: Fax: 202-228-3398 RSS Feeds Senator, United States Senate, 2002-present Widgets Primary candidate, United States President, 2000 District Address Candidate for United States President, 1996 Terminal Building, #101 Log In Secretary, Department of Education, 1991-1993 Tri-Cities Regional Airport Governor of Tennessee, 1979-1987 2525 Highway 75 Candidate for Governor of Tennessee, 1974 Post Office Box 1113 Director, Tennessee Governor Winfield Dunns Election Campaign, Blountville, TN 37617 1970 Phone: 423-325-6240 Director, Howard Bakers campaign for United States Senate, 1966. Fax: 423-325-6236 District Address Organizations: 3322 West End Avenue, Suite 120 President/Co-Director, Empower America, 1994-1995 Nashville, TN 37203 Senior Fellow, Hudson Institute, 1994-1995 Phone: 615-736-5129 President, Common Arms Outdoors, 1985-1987 Fax: 615-269-4803 Chair, National Governors Association, 1985-1986 Member, Phi Beta Kappa District Address Member, Tennessee Bar Association Howard H. Baker, Jr. Elder, Westminster Presbyterian Church. United States Courthouse 800 Market Street, Suite 112 Caucuses/Non-Legislative Committees: Knoxville, TN 37902 Chairman, President Reagans Commission on Americans Outdoors Phone: 865-545-4253 Operators Offline ^ x > Fax: 865-545-4252http://www.votesmart.org/bio.php?can_id=15691 11/17/2009
  • 69. Project Vote Smart - Senator Lamar Alexander - Biography Page 2 of 2 Chairman, Senate Republican Conference Chairman, Tennessee Valley Authority Caucus, 2003-2004. District Address Clifford Davis Federal Building Committees: 167 North Main Street, Suite 1068 Appropriations, Member Memphis, TN 38103 Budget, Member Phone: 901-544-4224 Fax: 901-544-4227 Environment and Public Works, Member Health, Education, Labor and Pensions, Member District Address Rules and Administration, Member Joel E. Soloman Federal Building Subcommittee on Children and Families, Ranking Member 900 Georgia Avenue, Suite 260 Subcommittee on Commerce, Justice, Science, and Related Chattanooga, TN 37402 Agencies, Member Phone: 423-752-5337 Subcommittee on Energy And Water Development, Member Fax: 423-752-5342 Subcommittee on Financial Services and General Government, Member District Address Subcommittee on Interior, Environment, and Related Agencies, Federal Building Ranking Member 109 South Highland Street, Suite B- Subcommittee on Labor, Health and Human Services, Education, 9 and Related Agencies, Member Jackson, TN 38301 Subcommittee on Public Sector Solutions to Global Warming, Phone: 731-423-9344 Oversight, and Children s Health Protection, Member Fax: 731-423-8918 Subcommittee on Retirement and Aging, Member Subcommittee on Transportation, Housing and Urban Key Staff Address Edward Pitts Development, and Related Agencies, Member Media Director Subcommittee on Water and Wildlife, Member 455 Dirksen Senate Office Building Washington, DC 20510 Phone: 202-224-4944 Fax: 202-228-3398 Key Staff Address Bonnie Sansonetti Scheduler 455 Dirksen Senate Office Building Washington, DC 20510 Phone: 202-224-4944 Fax: 202-228-3398 Key Staff Address Tom Ingram Chief of Staff 455 Dirksen Senate Office Building Washington, DC 20510 Phone: 202-224-4944 Fax: 202-228-3398 About Us | Contact Us | Project Vote Smart • One Common Ground, Philipsburg, MT 59858 • Hotline: 888-Vote-Smart (888-868-3762) All content © 2002-2008 Project Vote Smart • Legislative Demographic Data provided by Aristotle International, Inc. Operators Offline ^ x >http://www.votesmart.org/bio.php?can_id=15691 11/17/2009
  • 70. Baker, Donelson, Bearman, Caldwell & Berkowitz, PC | Practices | Appellate Practice Page 1 of 2State Supreme Court Clerks z Jonathan Geisen, Alabama Supreme Court, Honorable Harold F. See z Steven Griffith Jr., Louisiana Supreme Court, Honorable Pascal Calogero, Chief Justice z Mary Ann Jackson, Arkansas Supreme Court, Honorable Robert Brown z George Lewis, Tennessee Supreme Court, Honorable Frank Drowota z Stacy Thomas, Mississippi Supreme Court, Honorable Dan M. Lee z Wendy Thompson, Fifth Circuit Court of Appeals, Honorable Rhesa H. Barksdale z Michael F. Weiner, Louisiana Supreme Court, Honorable James L. Dennis z Anne Winter, Mississippi Supreme Court, Honorable Neville Patterson z Adam Zuckerman, Louisiana Supreme Court, Honorable Pascal Calgero, Chief JusticeFederal Court Clerks z Gerardo R. Barrios, Ninth Circuit Court of Appeals, Judge Robert R. Beezer z Amy Champagne, Fifth Circuit Court of Appeals, Honorable W. Eugene Davis z Bradley Clanton, Sixth Circuit Court of Appeals Appellate Clerk, Honorable David A. Nelson z Spencer Clift, U.S. Bankruptcy Court, Western District of Tennessee, Honorable David S. Kennedy z Angie Davis, First Court of Appeals, Houston, Texas, Honorable Sam Nuchia z James Delanis, Sixth Circuit Court, Davidson County, Tennessee, Honorable James M. Swiggart z William Fones, Court of Appeals for Federal Circuit, Honorable Marion T. Bennett z Jonathan Green, Court of appeals for Eleventh Circuit z W. Patton Hahn, U.S. Court of Federal Claims, Honorable Eric G. Bruggink z Thomas Helton, Sixth Circuit Court of Appeals, Honorable Paul C. Wieck, Chief Judge z Aubrey "Copper" Hirsch, U.S. District Court, Eastern District of Louisiana, Chief Judge Frederick Heebe z Steven W. King, Tennessee Court of Criminal Appeals, Judge Wedemeyer z Lynn Landau, Eleventh Circuit Court of Appeals, Honorable James C. Hill z Ronald Range, Fourth Circuit Court of Appeals, Honorable H. Emory Widener Jr. z William Reed, Fifth Circuit Court of Appeals, Honorable Elbert P. Tuttle z Sandi S. Varnado, Fifth Circuit Court of Appeals, Honorable James L. DennisState Court of Appeals Clerks z Allisa J. Allison, U.S. District Court, Northern District of Mississippi, Judge L.T. Senter z Brian M. Ballay, U.S. District Court, Eastern District of Louisiana, Judge Carl J. Barbier z Sam Blair, Tennessee Court of Appeals, Western Section, Honorable W. Frank Crawford z John Burns, Tennessee Court of Appeals Staff Attorney z Laurie Clark, U.S. District Court, Eastern District of Louisiana, Judge Morey L. Sear and U.S. District Court, Middle District of North Carolina, Judge P. Trevor Sharp z Jay Ebelhar, Tennessee Court of Appeals, Honorable Holly M. Kirby z Doreen Edelman, Circuit Court of Prince Georges County, Maryland, Honorable William Mccullough, Chief Judge z Desiree Franklin, Tennessee Court of Appeals, Honorable Charles E. Nearn z Russell Gray, U.S. District Court, Eastern District of Tennessee, Honorable Allan Edgar z Russell Headrick, U.S. District Court, Western District of Tennessee, Honorable Harry W. Wellford z John Hicks, Tennessee Chancery Court, Shelby County, Honorable George T. Lewis Jr. z Cameron Hill, U.S. District Court, Eastern District of Tennessee, Honorable Curtis L. Collier z J. Forrest Hinton, U.S. District Court, Southern District of Alabama, Honorable Virgil Pittman z Aubrey "Copper" Hirsch, Louisiana Third Circuit Court of Appeals, Appellate Clerk, Judge William A. Culpepper z Frank James, U.S. District Court, Southern District of Alabama, Honorable Virgil Pittman z Brandon Jolly, United States District Judge for the Southern District of Mississippi, Judge William H. Barbour Jr. z Stephen Kennedy, U.S. District Court, Southern District of Mississippi, Honorable Tom S. Lee, Chief Judge z Kenneth Klemm, U.S. District Court, Eastern District of Louisiana, Judge George Arceneaux Jr. z William Lawrence, U.S. District Court, Northern District of Alabama, Honorable Robert B. Propst, (also sitting by designation on Eleventh Circuit) z C. Lee Lott, U.S. District Court, Northern District of Mississippi, Honorable Glen H. Davison z Randal Mashburn, Tennessee Court of Appeals, Honorable Lewis H. Conner Jr. z Brett McCall, Mississippi Court of Appeals, Honorable David Ishee z Carla Peacher-Ryan, Tennessee Court of Appeals, Honorable Charles E. Nearn z Kathlyn Perez, U.S. District Court, Eastern District of Louisiana, Honorable Henry A. Mentz Jr. EXHIBIT "4"http://www.bakerdonelson.com/appellate-practice-sub-practice-areas/ 8/5/2010
  • 71. Baker, Donelson, Bearman, Caldwell & Berkowitz, PC | Practices | Appellate Practice Page 2 of 2z Paul Peyronnin, U.S. District Court, Eastern District of Louisiana, Honorable Henry A. Mentz Jr.z Andrew Potts, U.S. Bankruptcy Court, Southern District of Alabama, Honorable Gordon B. Kahn, Chief Judgez Joshua Powers, Shelby County, Tennessee Circuit Court, Honorable Janice Holderz Fredrick N. Salvo, III, U.S. District Court, Southern District of Mississippi, Honorable John M. Roper, Chief U.S. Magistratez Carolyn Schott, Second Judicial Circuit Court, Berrien County Michigan, Honorable Ronald J. Taylor & Honorable Casper O. Grathwohlz Gary Shockley, Tennessee Court of Appealsz Alan Lee Smith, Mississippi Court of Appealsz D. Nathan Smith, Mississippi Court of Appeals, Honorable Donna Barnesz Eric Thiessen, U.S. District Court, Western District of Virginia, Honorable Cynthia D. Kinser, Magistrate (currently Justice, Supreme Court of Virginia)z Susan Wagner, U.S. District Court, Northern District of Alabama, Honorable Sam C. Pointer Jr.z William West, Tennessee Court of Appeals, Honorable Kirby Mathernehttp://www.bakerdonelson.com/appellate-practice-sub-practice-areas/ 8/5/2010
  • 72. LANCE B. LEGGITT SENIOR Advisor to the Executive Office of the United States President; COUNSEL to the Deputy Secretary of the United States Department of Health & Human Services; CHAIR Federal Health Policy Group at Baker Donelson Bearman Caldwell & Berkowitz. EXHIBIT "5"
  • 73. Baker, Donelson, Bearman, Caldwell & Berkowitz, PC | Professionals | Lance B. Leggitt Page 1 of 2Lance B. Leggitt Shareholder 920 Massachusetts Avenue, N.W. T: 202.508.3483 Suite 900 F: 202.220.2283 Washington, District of Columbia 20001Lance Leggitt is chair of the federal health policy group and a shareholder in the Firms Washington, D.C., office. He joined thefirm in September 2006 after more than 12 years of government and policy experience at the federal and state levels.Mr. Leggitt most recently served in the White House as a Senior Advisor to the President. In this position, he was thePresidents principal health policy advisor in charge of a broad range of federal departments and agencies, including theDepartment of Health and Human Services, the Department of Labor (health insurance), the Department of Veterans Affairs,the Department of Defense (health care and benefits) and the Department of Justice (health policy). Mr. Leggitt regularlyengaged these and other federal agencies as a part of his policy development and implementation responsibilities. He alsoworked closely with White House Legislative Affairs staff to develop strategies for advancing the Administrations policies inCongress.Prior to his service as a presidential policy advisor, Mr. Leggitt served as Counselor to the Deputy Secretary for the U.S.Department of Health and Human Services (HHS). As the principal health policy advisor to the Deputy Secretary, he hadextensive management and policy oversight of HHS agencies, including the Centers for Medicare and Medicaid Services,Food & Drug Administration, National Institutes of Health, Centers for Disease Control and Prevention, Indian Health Services,Health Resources and Services Administration, and the Substance Abuse and Mental Health Services Administration.From 1998 to 2001, Mr. Leggitt was a Senior Policy Advisor and Special Counselor to the Governor of Virginia, serving asprincipal advisor to the Governor on policy matters related to Health and Human Resources and Public Safety Secretariats. AsAssistant Attorney General for Virginia from 1994 to 1998, he was lead counsel in trials and appeals concerning torts, civilrights and criminal cases in federal and state courts throughout Virginia.Mr. Leggitt concentrates his practice on federal health care related areas, including Medicare, Medicaid, Food & DrugAdministration policy, health IT, health care transparency, health insurance, medical privacy, federal health research,pandemic and bioterrorism preparedness, veterans and Department of Defense health care systems and the agencies thatadminister these programs. He has successfully represented clients on numerous federal funding and regulatory mattersincluding CMS reimbursement and regulatory issues. His clients include health insurance plans, health care associations,hospitals and hospitals systems, long-term care providers, medical device providers and companies, emergency medicaltransport providers, independent diagnostic testing facilities, drug and biotech companies, pathology labs, oncology centersand other specialty providers.http://www.bakerdonelson.com/lance-b-leggitt/ 6/28/2011
  • 74. Baker, Donelson, Bearman, Caldwell & Berkowitz, PC | Professionals | Lance B. Leggitt Page 2 of 2Professional Honors & Activities z Granted Top Secret and SCI security clearances in federal governmentAdmissions z District of Columbia, 2004 z Virginia, 1994 z Georgia, 1993Education z Mercer University School of Law, J.D., 1993 z University of Georgia, B.A., 1990http://www.bakerdonelson.com/lance-b-leggitt/ 6/28/2011
  • 75. EXHIBIT "6"
  • 76. Senate removes federal judge in impeachment conviction - CNN.comSenate removes federal judge inimpeachment convictionBy the CNN Wire StaffDecember 8, 2010 12:46 p.m. ESTJudge G. Thomas Porteous is "forever disqualified to hold and enjoy any office of honor, trust or profit underthe United States."(CNN) -- The U.S. Senate found Federal Judge G.Thomas Porteous of Louisiana guilty on fourarticles of impeachment on Wednesday, whichwill remove him from the federal bench.He had been accused of accepting kick-backsand lying to the Senate and FBI.The vote makes Porteous, 63, only the eighthfederal judge in the nations history to beimpeached and convicted.Porteous is also "forever disqualified to hold andenjoy any office of honor, trust or profit underthe United States," Sen. Daniel Inouye said duringWednesdays Senate hearing. EXHIBIT "7"http://www.cnn.com/2010/POLITICS/12/08/washington.impeach.judge/index.html 12/8/2010
  • 77. Senate removes federal judge in impeachment conviction - CNN.comThe Senate adopted the motion barring Porteous from holding a future federal office by avote of 94 to 2.In March, the House of Representatives voted unanimously to impeach Porteous oncorruption charges."Our investigation found that Judge Porteous participated in a pattern of corrupt conduct foryears," U.S. Rep. Adam Schiff, D-California, chairman of the House Judiciary Committee TaskForce on Judicial Impeachment.In a statement at the time, Porteous lawyer, Richard W. Westling, said the Justice Departmenthad decided not to prosecute because it did not have credible evidence."Unfortunately, the House has decided to disregard the Justice Departments decision and tomove forward with impeachment," he said. "As a result, we will now turn to the Senate to seeka full and fair hearing of all of the evidence."Porteous, who turns 64 this year, was appointed to the federal bench in 1994. He has notworked as a judge since he was suspended with pay in the fall of 2008, Westling said.The most recent previous impeachment of a federal judge by the House was last year.Judge Samuel B. Kent of the U.S. District Court forthe Southern District of Texas resigned afterbeing impeached on charges of sexual assault,obstructing and impeding an official proceedingand making false and misleading statements,according to the website of the Federal JudicialCenter.Before then, Judge Walter L. Nixon of U.S. DistrictCourt for the Southern District of Mississippiwas impeached in 1989 on charges of perjurybefore a federal grand jury. The Senate convictedhim and removed him from office that year.Log in or sign up to comment cnn.com/2010/POLITICS/12/08/washington.impeach.judge/index.html 12/8/2010
  • 78. House votes to impeach federal judge from Louisiana - CNN.com Page 1 of 2 Powered by House votes to impeach federal judge from LouisianaSTORY HIGHLIGHTS z Judge G. Thomas Porteous Jr. was impeached by U.S. House of Representatives z Porteous is from U.S. District Court for the Eastern District of Louisiana z Rep. Adam Schiff: Porteous "participated in a pattern of corrupt conduct for years"RELATED TOPICS z U.S. Congress z Louisiana z U.S. Senate z Bill ClintonWashington (CNN) -- The House of Representatives voted unanimously Thursday to impeach Judge G. Thomas Porteous Jr. of U.S.District Court for the Eastern District of Louisiana, making him the nations 15th federal judge ever impeached."Our investigation found that Judge Porteous participated in a pattern of corrupt conduct for years," said U.S. Rep. Adam Schiff, D- fCalifornia, chairman of the House Judiciary Committee Task Force on Judicial Impeachment."Litigants have the right to expect a judge hearing their case will be fair and impartial, and avoid even the appearance of impropriety.Regrettably, no one can have that expectation in Judge Porteous courtroom."After the impeachment vote, Schiff and Rep. Bob Goodlatte, R-Virginia, were named the lead impeachment managers for the Senate trial,which will decide whether to remove Porteous from the bench."Todays vote marks only the second time in over 20 years that this has occurred," Goodlatte said in a House news release. "However,when evidence emerges that an individual is abusing his judicial office for his own advantage, the integrity of the entire judicial systembecomes compromised."In a statement, Porteous lawyer Richard W. Westling said the Justice Department had decided not to prosecute because it did not havecredible evidence."Unfortunately, the House has decided to disregard the Justice Departments decision and to move forward with impeachment. As a result,we will now turn to the Senate to seek a full and fair hearing of all of the evidence."In a telephone interview, Westling said he did not know when the Senate trial would be held. "There are no clear rules that dictate timing,"he said.Last year, the Task Force on Judicial Impeachment held evidentiary hearings that led to unanimous approval of the four articles ofimpeachment, citing evidence that Porteous "intentionally made material false statements and representations under penalty of perjury,engaged in a corrupt kickback scheme, solicited and accepted unlawful gifts, and intentionally misled the Senate during his confirmationproceedings," the House release said.Porteous was appointed to the federal bench in 1994.In 2007, after an FBI and federal grand jury investigation, the Justice Department alleged "pervasive misconduct" by Porteous and evidence"that Judge Porteous may have violated federal and state criminal laws, controlling canons of judicial conduct, rules of professionalresponsibility, and conducted himself in a manner antithetical to the constitutional standard of good behavior required of ahttp://cnn.site.printthis.clickability.com/pt/cpt?action=cpt&title=House+votes+to+impeach... 9/15/2010
  • 79. House votes to impeach federal judge from Louisiana - CNN.com Page 2 of 2The complaint said the department opted not to seek criminal charges for reasons that included issues of statute of limitations and otherfactors. But Westling said the statute of limitations was not applicable.An Impeachment Task Force held four hearings late last year that focused on allegations of misconduct by Porteous, including:-- Involvement in a corrupt kickback scheme-- Failure to recuse himself from a case he was involved in-- Allegations that Porteous made false and misleading statements, including concealing debts and gambling losses-- Allegations that Porteous asked for and accepted "numerous things of value, including meals, trips, home and car repairs, for hispersonal use and benefit" while taking official actions on behalf of his benefactors-- Allegations that Porteous lied about his past to the U.S. Senate and to the FBI about his nomination to the federal bench "in order toconceal corrupt relationships," Schiff said in his floor statement as prepared for deliveryPorteous was invited to testify, but he declined to do so, Schiff said. "His long-standing pattern of corrupt activity, so utterly lacking inhonesty and integrity, demonstrates his unfitness to serve as a United States District Court judge," he said.Porteous, 63, has not worked as a judge since he was suspended with pay in the fall of 2008, Westling said.The last federal judge impeachment occurred last year, when Judge Samuel B. Kent of the U.S. District Court for the Southern District ofTexas resigned after being impeached on charges of sexual assault, obstructing and impeding an official proceeding, and making false andmisleading statements, according to the Web site of the Federal Judicial Center.The Senate, sitting as a court of impeachment, dismissed the articles.Before then, Judge Walter L. Nixon of U.S. District Court for the Southern District of Mississippi was impeached in 1989 on charges ofperjury before a federal grand jury. The Senate convicted him and removed him from office that year.Find this article at:http://www.cnn.com/2010/POLITICS/03/11/louisiana.judge.impeached/index.html?iref=allsearch Check the box to include the list of links referenced in the article.© 2008 Cable News Networkhttp://cnn.site.printthis.clickability.com/pt/cpt?action=cpt&title=House+votes+to+impeach... 9/15/2010
  • 80. FOXNews.com - Senate Begins Impeachment Trial of Federal Judge Page 1 of 1 Print Close Senate Begins Impeachment Trial of Federal Judge Published September 13, 2010 | Associated Press WASHINGTON -- A federal judge from Louisiana is corrupt and unfit to serve on the ADVERTISEMENT bench, House members said Monday as they began a rare congressional impeachment trial by laying out their case against the jurist. Playing the role of prosecutors, Reps. Adam Schiff, D-Calif., and Bob Goodlatte, R-Va., used their opening statements to a Senate impeachment panel to outline what they called a decades- long pattern of unethical behavior by New Orleans-area U.S. District Judge G. Thomas Porteous. They said that included taking cash, expensive meals and gifts from lawyers and a bail bondsman, lying to Congress and filing for bankruptcy under a false name. "It is the unanimous view of the House of Representatives that his conduct is not only wrong but so violative of the public trust that he cannot be allowed to remain on the bench without making a mockery of the court system," Schiff said. Porteous attorney, Jonathan Turley, denied some allegations but acknowledged others such as accepting meals, which he said is perfectly legal. He said the judges behavior, while perhaps reflecting poor judgment, doesnt meet the high crimes and misdemeanors standard set in the Constitution for impeachment. "Judge Porteous has never been indicted, let alone convicted, of any crime," Turley said. "What the Congress has impeached this judge for is an appearance of impropriety." Turley also said much of the conduct in question occurred when Porteous was a state judge and that Congress would be breaking from precedent by convicting him for behavior that occurred before he joined the federal bench. The Senate trial is the first since the 1999 case against former President Bill Clinton. Porteous, who was appointed by Clinton in 1994, would be just the eighth judge to be impeached and convicted by Congress. The House voted unanimously in March to impeach Porteous. A two-thirds vote is needed in the Senate to convict him. Senators hearing the case appear ready to resolve it quickly, scheduling a series of all-day hearings this week and next. Porteous behavior was uncovered in a five-year FBI investigation in Jefferson Parish dubbed "Operation Wrinkled Robe." Although the sting netted convictions against more than a dozen others, Porteous was never charged with a crime. He was, however, suspended from the bench. Turley said Porteous, 63, plans to retire next year regardless of what happens. Print Close URL http://www.f oxnews.com/polit ics/2010/09/ 13/senate-begins-impeachment-trial-federal-judge/ Home U.S. World Politics Health Business SciTech Entertainment Video Opinion Sports Leisure Careers Internships - FNCU Fox Around the World RSS Feeds Advertise With Us Terms of Use Privacy Policy Contact Us Email Newsroom Topics This material may not be published, broadcast, rewritten, or redistributed. © 2010 FOX News Network, LLC. All rights reserved. All market data delayed 20 minutes.http://www.foxnews.com/politics/2010/09/13/senate-begins-impeachment-trial-federal-jud... 9/15/2010
  • 81. Senate opens impeachment trial against judge Page 1 of 2 Senate opens impeachment trial against judge By BEN EVANS Constitution for impeachment. The Associated Press Monday, September 13, 2010; 5:16 PM "Judge Porteous has never been indicted, let alone convicted, of any crime," Turley said. WASHINGTON -- A federal judge from j g "What the Congress has impeached this judge Louisiana is corrupt and unfit to serve on the p for is an appearance of impropriety." bench, House members said Monday as they y y began a rare congressional impeachment trial g g p Turley also said much of the conduct in by laying out their case against the jurist. question occurred when Porteous was a state judge and that Congress would be breaking Playing the role of prosecutors, Reps. Adam from precedent by convicting him for Schiff, D-Calif., and Bob Goodlatte, R-Va., behavior that occurred before he joined the used their opening statements to a Senate federal bench. impeachment panel to outline what they called a decades-long pattern of unethical The Senate trial is the first since the 1999 behavior by New Orleans-area U.S. District case against former President Bill Clinton. Judge G. Thomas Porteous. They said that g y Porteous, who was appointed by Clinton in included taking cash, expensive meals and g p 1994, would be just the eighth judge to be other gifts from lawyers and a bail g y impeached and convicted by Congress, and bondsman, lying to Congress and filing for y g g the first in more than 20 years. bankruptcy under a false name. The House voted unanimously in March to "It is the unanimous view of the House of Representatives that his conduct is not only p Advertisement wrong but so violative of the public trust g f p that he cannot be allowed to remain on the bench without making a mockery of the court system," Schiff said. Porteous attorney, Jonathan Turley, denied some allegations but acknowledged others such as accepting meals, which he said is perfectly legal. He said the judges behavior, while perhaps reflecting poor judgment at times, doesnt meet the high crimes and misdemeanors standard set in the http://www.washingtonpost.com/wp-dyn/content/article/2010/09/13/AR2010091300954_pf.html Print Powered Byhttp://www.washingtonpost.com/wp-dyn/content/article/2010/09/13/AR2010091300954_p... 9/15/2010
  • 82. Senate opens impeachment trial against judge Page 2 of 2 Senate opens impeachment trial against judge bring charges. A two-thirds vote is needed in the Senate to convict him. Porteous behavior was uncovered in a five- year FBI investigation in Jefferson Parish y g The Senate panel hearing the case, chaired by p dubbed "Operation Wrinkled Robe." Although Sen. Claire McCaskill, D-Mo., appears ready to the sting netted convictions against more g g resolve it quickly, scheduling a series of all- than a dozen others, Porteous was never day hearings this week and next. charged with a crime. He was, however, g suspended from the bench, and the Judicial p House investigators who spent months p Conference of the United States investigating say Porteous was struggling g g y