MEMO
TO: Hon. Mary M. Schroeder, Chief Judge
c/o Cathy A. Catterson, Clerk of Court
U.S. Court of Appeals for the Ninth Circuit
P.O. Box 193939
San Francisco 94119-3939
CALIFORNIA, USA
FROM: Paul Andrew Mitchell, B.A., M.S.
Private Attorney General and Plaintiff/Appellant
Mitchell v. AOL Time Warner, Inc. et al.
DATE: December 27, 2002 A.D.
SUBJECT: violations of the USDC’s Local Rules by Dale A. Drozd
in appeal #02-15269 and 372(c) complaint #02-89005
Dear Chief Judge Schroeder:
I will now prove to you that Dale A. Drozd made very serious errors when he allegedly “denied” my MOTION FOR INTERLOCUTORY JUDGMENT AND CHALLENGE TO THE CONSTITUTIONALITY OF AN ACT OF CONGRESS. These errors caused numerous, adverse substantive consequences in this case.
Please compare the alleged “ORDER” signed by Dale A. Drozd as filed on November 15, 2001, in Mitchell v. AOL Time Warner, Inc. et al. with the clear directions as found in USDC Local Rule (“L.R.”) 78‑230(b), in Sacramento. This alleged “ORDER” is reproduced in Appellant’s EXCERPTS OF THE RECORD (“EOR”), Vol. Two of Four, Tab 21 (Docket #90). See copy attached.
Concerning my “Motion to Strike All Pleadings by Attorneys Lacking Credentials” and my separate “Motion for Interlocutory Judgment and Challenge to the Constitutionality of an Act of Congress”, on Page 1 at lines 21‑23 of his “ORDER” Mr. Drozd wrote:
However, plaintiff has not noticed the above motions for hearing as required by Local Rule 78‑230.
I am now quoting verbatim from L.R. 78‑230(b):
Motions defectively noticed shall be filed, but not set for hearing; the Clerk shall immediately notify the moving party of the defective notice and of the next available dates and times for proper notice, and the moving party shall file and serve a new notice of motion setting forth a proper time and date.
[bold emphasis added]
Instead of following this Local Rule, the alleged “ORDER” as filed on November 15, 2001, reads as follows on Page 2 at lines 4‑10:
Accordingly, the court [USDC] HEREBY ORDERS that [the 2 motions] are denied without prejudice. [Accordingly to what, I must ask?]
Being accustomed to federal appellate practice, where motions are generally not noticed for hearing, I normally do not do so in the district courts because the Clerk should recommend available dates and times as a matter of routine. In my case, the Clerk did not do so, however. So, Mr. Drozd is punishing me for the Clerk’s mistake.
Moreover, if Mr. Drozd had read and rightly understood my MOTION FOR INTERLOCUTORY JUDGMENT, he would have realized immediately the essential point of that MOTION, namely, it timely and properly challenged the proper scope and applicability to the District Court of the United States (“DCUS”) of the entire FRCP and of all Local Rules, as a fundamental and threshold matter in the first instance.
Thus, not only did his conduct violate USDC’s Local Rule 78‑230(b); it also was entirely out of order by presuming and/or jumping to his preconceived conclusions that the Local Rule he cited did apply to the DCUS and did bind parties. As such his conduct denied due process.
The scope of the Local Rules, in particular, was then clarified in my FIRST SUPPLEMENT TO MOTION FOR INTERLOCUTORY JUDGMENT, EOR Vol. Three of Four, Tab 27 (Docket #100). See the USDC’s Local Rules 1‑100(a) and 1‑102(a) in Sacramento, to wit:
Local
Rule 1‑100(a) clearly reads:
(a)
Title. These are the Local Rules of Practice for
the United States District Court, Eastern District of California. They may be cited as “L.R.”
Similarly,
Local Rule 1‑102(a) clearly reads:
(a) Scope. These Rules govern all litigation in the United States District Court for the Eastern District of California, the boundaries of which are set forth in 28 U.S.C. § 84. ... [N]o matter appropriate for inclusion in these Rules shall be treated by General Order. No litigant shall be bound by any General Order.
[bold emphasis added]
Also, just this morning, at the downtown law library in San Diego, California, the excellent reference librarians there succeeded in locating for me a copy of General Order 345 titled “In Re: Consent to Jurisdiction by U.S. Magistrate Judge.” Quoting in pertinent part:
GOOD CAUSE APPEARING, the Judges of the Eastern District of California hereby adopt this General Order concerning the assignment of cases to U.S. Magistrate Judges.
...
If any party chooses not to consent, the case will be randomly assigned to a U.S. District Court Judge. The case will remain with the previously assigned U.S. Magistrate Judge who will manage the progress of the action and rule on all non-dispositive motions pursuant to 28 U.S.C. § 636(b)(1)(A) and all dispositive motions by findings and recommendations pursuant to 28 U.S.C. § 636(b)(1)(B) in accordance with Local Rule 72‑304(c)(15) and (17) [not in Sacto.] IT IS SO ORDERED. Dated: October 17, 1997.
[bold emphasis added]
BUT, I was never served with General Order 345 by the Clerk of Court, nor by Mr. Drozd, nor by Mr. Shubb. I first heard about it today. Also, General Order 345 appears on its face to violate L.R. 1‑102(a), because the duties of magistrates in civil cases are matters that are appropriate for inclusion in the Local Rules. Just read L.R. 72‑302! It’s also for Fresno. What a quagmire we have unearthed here, yes?
Now, I must ask you this simple question: if any defendants in a civil case fail timely to answer a SUMMONS and COMPLAINT, is it not generally well known that they will probably lose by default? This is certainly one of the clear and unambiguous warnings that are exhibited on AO Form 440: SUMMONS IN A CIVIL CASE. On the SUMMONS form we obtained from the Clerk of Court in Sacramento, it reads: “If you fail to do so [i.e. answer], judgment by default will be taken against you for the relief demanded in the complaint.” Clear enough, yes?
And, is it not also generally well known, at least among the legal community, that a defendant who attempts to appear by means of an unlicensed attorney can and should be treated by the court in the same fashion as a party who fails to answer? This is certainly the clear and correct holding in U.S. v. High Country Broadcasting, 3 F.3d 1244 (9th Cir. 1993) (entry of default judgment was proper when unlicensed corporate president attempted to represent his corporation in court).
Now, it does not take a rocket scientist to understand this: a MOTION TO STRIKE ALL PLEADINGS BY ATTORNEYS LACKING CREDENTIALS could and should result in striking all motions to dismiss previously filed by defendants who attempted to appear by means of unlicensed attorneys. Therefore, such a motion must be dispositive because, if granted after proper adjudication, it will justify entry of default judgment.
Accordingly, I do not think I am being irrational one bit to argue that General Order 345 never authorized Mr. Drozd to rule summarily on my MOTION TO STRIKE ALL PLEADINGS BY ATTORNEYS LACKING CREDENTIALS, in part because it was a dispositive motion. Without seeing a certified copy of that ORDER, I also expect that it issued from the Art. IV USDC ‑‑ for Fresno and not for Sacramento. Sacramento has no L.R. 72‑304(c)(15) or (17). Equally important, L.R. 1‑102(a) says that no litigant shall be bound by any General Order! This is very confusing.
Directly contrary to many well established principles and Laws in force in America, what did Mr. Drozd do with my MOTION TO STRIKE ALL PLEADINGS BY ATTORNEYS LACKING CREDENTIALS? Answer: on Page 5 of his ORDER AND FINDINGS AND RECOMMENDATIONS, filed on December 31, 2001, EOR Vol. Three of Four, Tab 38 (Docket #142) he writes in a footnote (what a guy!):
At the hearing the undersigned granted plaintiff an opportunity to be heard in opposition to the motions to dismiss. At that time plaintiff argued that ... (2) defendants’ attorneys are improperly appearing before this court because they have failed to produce proper credentials upon plaintiff’s demand .... At the hearing the court ... rejected plaintiff’s other arguments as frivolous [referring to (2) supra].
[bold emphasis added]
Well, it also appears entirely logical to conclude that, by writing this footnote, Mr. Drozd has now branded the Ninth Circuit’s holding in High Country as “frivolous.” Wouldn’t you also agree? I think so.
More to the point, if Mr. Drozd had been a California State Bar member in good standing for 5 years, as required by 28 U.S.C. 631(b)(1), he should have known that striking a motion to dismiss ‑‑ because it was filed by an unlicensed attorney ‑‑ is surely a decision likely to result in entry of default judgment. This is a dispositive ruling!
Slyly to escape this very probable result ‑‑ by mis‑labeling my MOTION as a “non-dispositive” one, so that Mr. Drozd might “deny” it ‑‑ is also an act of pure sophistry, in my honest and professional opinion. Summary denial was contrary to fact, particularly when those same attorneys later failed to answer proper and lawful SUBPOENA’s issued by the District Clerk for the very same missing credentials!
Sanctions for obstructing discovery and contempt of court are now in order, not dismissal with prejudice! See 17 U.S.C. 512(h), in chief.
Using General Order 345 for limited guidance, then, this matter of missing licenses must have been “dispositive” per force because it appears in a footnote on Page 5 of the findings and recommendations written by Mr. Drozd, which were then presented to William B. Shubb for his approval (magistrate to rule on ... all dispositive motions by findings and recommendations). Repeating once again, L.R. 1‑102(a) says that no litigant shall be bound by any General Order.
I do hope the above will help you to appreciate much better the utter depth of my frustration with Mr. Drozd, particularly when he continued to berate me with possible sanctions for not obeying the USDC’s Local Rules, not only in his several specious “orders” but also publicly during the preliminary hearing had on December 14, 2001 A.D.
There is an obvious and painful double standard at work
here when Mr. Drozd will not even obey those same Local Rules himself, particularly
when he regards those Local Rules as enforceable upon all parties. For example, see Local Rules 83‑180(a)
(“signing the prescribed oath”) and 83‑180(e) (“complying with Standards
of Professional Conduct”).
I now regard his actions in this case to be grounds for charging him with obstruction of justice, in particular because he never did enjoy civil jurisdiction to rule on such motions absent the consent of all parties. See Pacemaker Diagnostic Clinic, Inc. v. Instromedix, Inc., 725 F.2d 537 (9th Cir. 1984) with emphasis on your fine dissent in that case, e.g. headnote 21: consent of all parties is essential to the constitutionality of the Federal Magistrates Act, and headnotes 4‑6: the constitutional right here may be waived, and waiver must be freely and voluntarily undertaken. I never waived any fundamental Rights.
The Supreme Court has already ruled that waivers of fundamental Rights can never be presumed. See Ohio Bell v. Public Utilities Commission, 301 U.S. 292 (1937). My Right to due process of law is a fundamental Right under the Guarantee Clause and the Seventh and Tenth Amendments.
Having first learned about General Order 345 only this morning, I also reserve my fundamental Right to challenge it also for violating Article III, and to introduce it into appeal #02‑15269 as “newly found evidence” admissible in the context of the APPLICATION FOR WRIT IN THE NATURE OF QUO WARRANTO recently filed by the United States ex rel.
Without the consent of all parties, Mr. Drozd usurped
jurisdiction over matters that mandate an Article III judge presiding
upon an Article III court of competent jurisdiction. 60 Stat
440.
I wanted to give you one last chance to prove me wrong, and/or to indicate any errors or omissions you might find in my discussion above, before executing a criminal complaint against Dale A. Drozd ‑‑ this time for obstruction of justice ‑‑ as required by 18 U.S.C. 4.
Mens rea did exist because Mr. Drozd has also knowingly failed to produce a certificate of oath properly indorsed upon his license to practice law in the State of California, as required by section 6067 of the California Business and Professions Code. Again, see Local Rules 83‑180(a) (“signing the prescribed oath”), Local Rule 83‑180(e) (“comply with the standards of professional conduct”), with section 6067 and 28 U.S.C. 631(b)(1). Who’s breaking the rules here, anyway? The attorneys are, that’s who! See Miranda v. Arizona (no rulemaking or legislation can ever abrogate rights secured by the Constitution).
Lacking a certificate of oath properly indorsed upon his license to practice law in the State of California, Mr. Dale A. Drozd was never qualified to occupy the office of United States magistrate judge, in the first instance. Let us proceed now to an historic Quo Warranto. I continue to proceed on the premise that my 372(c) COMPLAINT OF JUDICIAL MISCONDUCT against Dale A. Drozd remains assigned to you.
Thank you, Judge Schroeder, for your independent and unbiased judicial scrutiny of these matters, which are obviously important to me and to many others who now monitor the progress of this case very closely.
Sincerely yours,
/s/ Paul Andrew Mitchell
Paul Andrew Mitchell, B.A., M.S.
Private Attorney General and Plaintiff/Appellant
U.S. Mail:
c/o MBE PMB #332
501 West Broadway, Suite “A”
San Diego 92101
CALIFORNIA, USA
attachments:
“ORDER” filed by Dale A. Drozd on Nov. 15, 2001 in
Ninth Circuit appeal #02-15269 and 372(c) #02-89005; see:
EXCERPTS OF RECORD, Volume Two of Four, Tab 21 (Docket #90)
I, Paul Andrew Mitchell, Sui Juris, hereby certify,
under penalty of perjury, under the laws of the United States of America,
without the “United States” (federal government), that I am at least 18
years of age, a Citizen of ONE OF the United States of America, and that I personally served the
following document(s):
MEMO TO CHIEF
JUDGE MARY M. SCHROEDER,
U.S. COURT OF
APPEALS FOR THE NINTH CIRCUIT:
December 27, 2002 A.D.
by placing one true and correct copy of said document(s) in
first class United States Mail, with postage prepaid and properly addressed to
the following:
Judge Alex Kozinski (supervising) Clerk of Court (5x)
Ninth Circuit Court of Appeals Attention: Cathy Catterson
P.O. Box 91510 Ninth Circuit Court of Appeals
Pasadena 91109-1510 P.O. Box 193939
CALIFORNIA, USA San Francisco 94119-3939
CALIFORNIA, USA
Ropers, Majeski, Kohn & Bentley DeForest & Koscelnik
(failed to exhibit oaths) (failed to exhibit oath)
1001 Marshall Street 3000 Koppers Building
Redwood City 94063 436 Seventh Avenue
CALIFORNIA, USA Pittsburgh 15219
PENNSYLVANIA, USA
Murphy Austin Adams Schoenfeld LLP Pillsbury Winthrop LLP
(failed to exhibit oaths) (failed to exhibit oaths)
P.O. Box 1319 400 Capitol Mall, Suite 1700
Sacramento 95812-1319 Sacramento 95814-4419
CALIFORNIA, USA CALIFORNIA, USA
Curiale Dellaverson Hirschfeld Quinn
Emanuel Urquhart Oliver
Kraemer & Sloan, LLP & Hedges, LLP
(failed to exhibit oaths) (failed to exhibit oaths)
727 Sansome Street 201 Sansome Street, 6th Floor
San Francisco 94111 San Francisco 94104
CALIFORNIA, USA CALIFORNIA, USA
Office of the General Counsel Paul
Southworth
(failed to exhibit oaths) 2018 N. New Hampshire Ave.
University of California Los Angeles 90027
1111 Franklin Street, 8th Floor CALIFORNIA, USA
Oakland 94607-5200
CALIFORNIA, USA
Karl Kleinpaste
Ram Samudrala
P.O. Box 1551 UW Micro Box 357242
Beaver Falls 15010 Seattle 98195-7242
PENNSYLVANIA, USA WASHINGTON STATE, USA
Laskin & Guenard Rivkin Radler, LLP
(failed to exhibit oath) (failed to exhibit oaths)
1810 South Street 1330 N. Dutton Ave., #200
Sacramento 95814 Santa Rosa 95401-4646
CALIFORNIA, USA CALIFORNIA, USA
Harvey Siskind Jacobs LLP Office of Solicitor General
(failed to exhibit oaths) 950 Pennsylvania Ave., N.W.
3 Embarcadero Center, Ste. 1060 Room 5614
San Francisco 94111 Washington 20530-0001
CALIFORNIA, USA DISTRICT OF COLUMBIA, USA
Register of Copyrights Steinhart & Falconer LLP
Library of Congress (failed to exhibit oaths)
101 Independence Avenue, S.E. 333 Market Street, 32nd Floor
Washington 20559-6000 San Francisco 94105-2150
DISTRICT OF COLUMBIA, USA CALIFORNIA, USA
Matheny Sears Linkert & Long LLP Latham & Watkins
(failed to exhibit oaths) (failed to exhibit oaths)
P.O. Box 13711 633 West Fifth St., Ste. 4000
Sacramento 95853-4711
Los Angeles 90071-2007
CALIFORNIA, USA CALIFORNIA, USA
Courtesy copies:
Clerk of Court Hon. Sandra Day O’Connor (supervising)
Attention: Jack L.
Wagner Supreme Court of the United
States
501 “I” Street, Suite 4-200 One First Street, Northeast
Sacramento 95814-2322 Washington 20543-0001
CALIFORNIA, USA DISTRICT OF COLUMBIA, USA
[Please see USPS Publication #221 for “addressing”
instructions.]
Dated: December
30, 2002 A.D.
Signed: /s/ Paul
Andrew Mitchell
__________________________________________________________
Printed: Paul Andrew Mitchell, Relator/Appellant In
Propria Persona