Paul Andrew Mitchell, Sui Juris
c/o General Delivery
In Propria Persona
All Rights Reserved
District Court of the United States
Eastern Judicial District of California
Plaintiff, ) NOTICE OF MOTION AND
) MOTION TO STRIKE ORDER AND
v. ) FINDINGS AND RECOMMENDATIONS
) OF MAGISTRATE JUDGE ‑‑ PART III:
AOL Time Warner, Inc. et al., )
) 28 U.S.C. 1746(1)
COMES NOW Paul Andrew Mitchell, Plaintiff in the above entitled case, Citizen of California, Private Attorney General and Federal Witness, further to supplement His previously filed MOTION for an ORDER striking the so-called ORDER AND FINDINGS AND RECOMMENDATIONS by U.S. Magistrate Judge Dale A. Drozd dated December 28, 2001 A.D., and to provide formal Notice to all interested Party(s) of same.
Despite the maxim that substance shall always prevail over form, Mr. Drozd cannot resist the temptation to descend into ridiculously insignificant matters, with the one and only result of wasting everyone’s time. For example, his footnote 1 states:
The complaint consists of the “verified complaint;” the first, second, and third “supplements” attached thereto; and a box of “exhibits” A through K which were separately filed.
Then, his footnote 2 states:
Plaintiff’s verified complaint, sometimes referred to as the “initial complaint,” and the supplements attached to it are not numbered consecutively. To avoid confusion the undersigned has specified which aspect of the complaint is being cited in addition to the page number.
The pages are numbered consecutively within each pleading. Each page of the Initial COMPLAINT has a page footer entitled “Initial COMPLAINT: Mitchell v. AOL Time Warner, Inc. et al.: Page 1 of 43” thru “... Page 43 of 43”.
Each page of the FIRST SUPPLEMENT has a page footer entitled “First Supplement: Mitchell v. AOL Time Warner, Inc. et al.: Page 1 of 52” thru “... Page 52 of 52”.
Each page of the SECOND SUPPLEMENT has a page footer entitled “Second Supplement: Mitchell v. AOL Time Warner, Inc. et al.: Page 1 of 48” thru “... Page 48 of 48”.
Each page of the THIRD SUPPLEMENT has a page footer entitled “Third Supplement: Mitchell v. AOL Time Warner, Inc. et al.: Page 1 of 25” thru “... Page 25 of 25”.
This formatting conforms to the layout recommended by the local rules of the U.S. Supreme Court.
It’s really a shame that Mr. Drozd has chosen to misplace his priorities so badly, when he should being paying much closer attention to the U.S. Constitution, the laws of jurisdiction and other pertinent laws in the instant case.
THIS CASE WAS NEVER PROPERLY REFERRED
TO A UNITED STATES MAGISTRATE JUDGE
Mr. Drozd cites Local Rule 72-302(c)(21) in support of his erroneous claim to having jurisdiction over “... all cases in which all the plaintiffs or defendants are proceeding in propria persona, also referred to as pro se, including dispositive and non-dispositive motions and matters.” That Local Rule was expressly written pursuant to subsections of 28 U.S.C. 636.
Notwithstanding any provision of law (or rule) to the contrary, subsection 636(c)(1) clearly mandates the consent of all the parties: “Upon the consent of the parties ...” (phrase is repeated twice).
Notwithstanding any provision of law (or rule) to the contrary, subsection 636(c)(2) clearly mandates the consent of all the parties: “[P]arties ... are free to withhold consent without adverse substantive consequences.” “Rules of court ... shall include procedures to protect the voluntariness of the parties’ consent.” [emphasis added]
Part I of the instant MOTION discusses this breach by Mr. Drozd in much greater detail. See Miranda v. Arizona, 384 U.S. 436, 491 (1966) (where rights secured by the Constitution are involved, there can be no rule making or legislation which would abrogate them).
Plaintiff never consented to a United States Magistrate Judge. Plaintiff hereby specifically denies that a proper Consent Form was ever signed, filed or served by Plaintiff.
Mr. Drozd is clearly in violation of section 636.
Furthermore, the Local Rules in question emphatically state that “These Rules govern all litigation in the United States District Court for the Eastern District of California ....” Plaintiff’s Initial COMPLAINT did not petition this latter court.
The pivotal distinction between these two courts has already been fully documented in Plaintiff’s other pleadings.
But, of course, Mr. Drozd is “inundated” and has evidently not read every pleading filed by Plaintiff, so Mr. Drozd cannot be expected to understand the pertinent U.S. Supreme Court case law on this pivotal point. Plaintiff was astonished to hear certain unlicensed attorneys characterize this entire body of case law as containing “novel philosophical theories.”
Because Mr. Drozd has no jurisdiction in the instant case, every single attempt by him to conduct hearings, or to “deny” any motions, no matter who filed them, without exception is ultra vires, coram non judice and damaging to Plaintiff’s fundamental Rights.
MR. DROZD ATTEMPTS TO “DENY” MOTIONS
IN NUMEROUS ERRONEOUS FOOTNOTES
Plaintiff also wishes to lodge a standing objection to the penchant of Mr. Drozd for attempting to “deny” motions by means of “orders” [sic] embedded in footnotes. For example, in footnote 6, Mr. Drozd writes, “The undersigned will deny those requests without prejudice as unnecessary.”
Similarly, in footnote 11, Mr. Drozd writes, “... [T]he undersigned will deny as frivolous plaintiff’s request that the court take judicial notice of the ‘Miranda Warnings’ issued by plaintiff to defense counsel ....” Elsewhere in footnote 11, Mr. Drozd does the same thing, again without jurisdiction.
Mr. Drozd does not know what “frivolous” means. In Plaintiff’s experience, it is habitually used as a code word by the federal judiciary, and by the U.S. Department of Justice, to label or “signal” a matter for which neither has any correct answer or intelligent reply. Mr. Drozd cannot claim superior knowledge of the future. Reductio ad absurdum.
Insofar as his “mind set” has predisposed or predetermined the outcome of this case, Mr. Drozd is liable to Plaintiff for obstruction of justice, in addition to practicing law from the bench. Plaintiff has demanded a jury trial.
Moreover, Miranda Warnings are entirely appropriate in civil proceedings, because the record of evidence and testimony created during those proceedings can lead to criminal prosecutions. For example, the record can be conveyed to grand juries and/or prosecutors, by order of this Court. [cites omitted here]
MR. DROZD HAS THREATENED SANCTIONS
Mr. Drozd sinks to a new low by threatening Plaintiff with sanctions, should Plaintiff communicate directly with certain named Defendants. In the CONCLUSIONS by Mr. Drozd, another specious “order” is directed to Plaintiff:
... [P]laintiff shall no longer serve documents regarding this matter directly upon any defendant who is represented by counsel in this action. ... Plaintiff is forewarned that continuing to direct such documents directly to parties, rather than to their counsel, may be grounds for dismissal, or imposition of any other sanction appropriate under the Local Rules of Practice or Federal Rules of Civil Procedure.
Plaintiff has no practical alternatives but to regard this paragraph has a threat. This threat is particularly shocking and egregious in light of the following well documented facets of this case:
(1) Statutes granting original jurisdiction to federal courts must be strictly construed. Confer at “Construction, Strict” in Black’s Law Dictionary, Fourth Edition, citing Warner v. King, 267 Ill. 82, 107 N.E. 837, 839.
(2) Strictly construed, 28 U.S.C. 2072 does not authorize the U.S. Supreme Court to promulgate rules of evidence or civil procedure for the District Court of the United States, but only for the United States District Court.
(3) No sanction can or would be appropriate under the Federal Rules of Civil Procedure, until such time as the Congress of the United States authorizes the U.S. Supreme Court to promulgate such rules for this DCUS. See Article I, Section 1, in the U.S. Constitution.
(3) Mr. Drozd is barred from exercising any civil jurisdiction, due in large part to Plaintiff’s voluntary refusal to consent to civil jurisdiction by any U.S. Magistrate Judge.
(4) All attorneys have failed to exhibit the requisite credentials, as mandated by Section 6067 of the California Business and Professions Code.
(5) Plaintiff has filed a proper VERIFIED CRIMINAL COMPLAINT against Mr. Drozd, for practicing law from the bench, in violation of 28 U.S.C. 454, and against certain attorneys lacking credentials, for practicing law without a valid license and willful misrepresentation, in violation of Sections 6126 and 6127 of the California Business and Professions Code, respectively.
(6) The named Defendants allegedly represented by those attorneys have a right to know if they are being damaged by the unlawful practice of law and/or willful misrepresentation by the attorneys they retained.
(7) Any named Defendants who are damaged by their attorneys’ unlawful practice of law and/or willful misrepresentation, have cause to file a claim against the attorneys’ malpractice insurance policies.
(8) Plaintiff never waived, nor consented to any competent waiver of, His fundamental Rights to freedom of speech and to petition the Government for a redress of grievances, as guaranteed by the First Amendment. Waivers of fundamental Rights will never be presumed.
(9) It appears that the threat by Mr. Drozd supra was uttered specifically to infringe Plaintiff’s fundamental Rights to freedom of speech and to petition the Government for a redress of grievances, as guaranteed by the First Amendment.
(10) Plaintiff therefore believes that this threat constitutes probable cause to charge Mr. Drozd also with threatening a qualified federal witness, in violation of 18 U.S.C. 1512 (one count), and deprivation of Plaintiff’s fundamental Rights to freedom of speech and to petition the Government for a redress of grievances, in violation of 18 U.S.C. 242 (one count).
The federal statute at 28 U.S.C. 636(c)(3) authorizes appeals directly to the Ninth Circuit, in the event that all parties have consented to the exercise of civil jurisdiction by a U.S. Magistrate.
On page 16 of his FINDINGS AND RECOMMENDATIONS, Mr. Drozd writes, “These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. 636(b)(1).” [emphasis added]
No United States District Judge has been assigned to this case. The honorable William B. Shubb was commissioned to preside on the legislative USDC, and not on the constitutional DCUS. Therefore, Mr. Shubb cannot lawfully be assigned to this case.
Lacking jurisdiction, Mr. Drozd effectively admits that his FINDINGS AND RECOMMENDATIONS are not a lawful judgment that can be appealed directly to the Ninth Circuit. This is true primarily because all parties have failed to give their consent to the exercise of civil jurisdiction by a Magistrate Judge.
Moreover, section 636(b)(1) clearly states that “... a judge may designate a magistrate to hear and determine any pretrial matter pending before the court, except a motion ... to dismiss for failure to state a claim upon which relief can be granted ....”
Obviously, Mr. Drozd believes that attorneys for certain named Defendants have properly filed just such a motion. But, this belief of his assumes facts not in evidence, because the attorneys in question have failed to exhibit the requisite credentials, and Plaintiff’s MOTION TO STRIKE ALL PLEADINGS BY ATTORNEYS LACKING CREDENTIALS is still pending before this Court. See Section 6067 of the California Business and Professions Code.
Mr. Drozd is recommending that defendants’ motion to dismiss [sic] be granted for failure to state a claim (his page 16). Subsection 636(b)(1) supra clearly bars Mr. Drozd from hearing any motions to dismiss for failure to state a claim upon which relief can be granted.
Even if such a qualified judge had designated Mr. Drozd to hear and determine any pretrial matters pending before this Court, the pertinent statute makes a clear exception for all motions to dismiss for failure to state a claim.
Mr. Drozd simply cannot hear and determine any motion to dismiss for failure to state a claim, nor can he hear and determine any other motions without the consent of all parties, and without certified facts in evidence proving that their attorneys do have valid licenses to practice law in California.
In conclusion, the FINDINGS AND RECOMMENDATIONS by Mr. Drozd are clearly erroneous and contrary to law.
Those FINDINGS AND RECOMMENDATIONS are so riddled with errors, they should be stricken permanently and without further delay from the official record of the instant case, in the interests of justice and to prevent further consequential damages to Plaintiff, due to the criminal practice of law, threatening a Federal Witness, deprivation of Plaintiff’s fundamental Rights, and obstruction of justice by Mr. Drozd.
I, Paul Andrew Mitchell, Sui Juris, Plaintiff in the above entitled action, hereby verify under penalty of perjury, under the laws of the United States of America, without the “United States” (federal government), that the above statement of facts and laws is true and correct, according to the best of My current information, knowledge, and belief, so help me God, pursuant to 28 U.S.C. 1746(1).
Dated: January 31, 2002 A.D.
Signed: /s/ Paul Andrew Mitchell
Printed: Paul Andrew Mitchell, B.A., M.S., Sui Juris
Plaintiff In Propria Persona (not “Pro Se”)
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):
NOTICE OF MOTION AND
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:
Clerk of Court (2 copies)
District Court of the United States
501 “I” Street, Suite 4-200
Courtesy copies to:
Judge Alex Kozinski
Ninth Circuit Court of Appeals
P.O. Box 91510
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
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
(oaths requested) (oaths requested)
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
University of California 2018 N. New Hampshire Ave.
1111 Franklin Street, 8th Floor Los Angeles 90027
Oakland 94607-5200 CALIFORNIA, USA
P.O. Box 1551
Beaver Falls 15010
Dated: January 31, 2002 A.D.
Signed: /s/ Paul Andrew Mitchell
Printed: Paul Andrew Mitchell, Plaintiff In Propria Persona
(not “Pro Se” [sic])