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



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





  “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):




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



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



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



Karl Kleinpaste                    Ram Samudrala

P.O. Box 1551                      UW Micro Box 357242

Beaver Falls 15010                 Seattle 98195-7242



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



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



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



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




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




[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