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 FOR RECONSIDERATION
v. ) OF USDC’S ORDER FILED IN ERROR
) ON JANUARY 25, 2002 A.D.
AOL Time Warner, Inc. et al., )
COMES NOW Paul Andrew Mitchell, Plaintiff in the above entitled case, Citizen of California, Private Attorney General and Federal Witness, to petition this honorable Court for review and reconsideration of the ORDER filed on January 25, 2002 A.D. by the Honorable William B. Shubb, United States District Judge, and to provide formal Notice to all interested Party(s) of same. See REMEDY REQUESTED infra.
INCORPORATION OF PLEADINGS AND OF
FREEDOM OF INFORMATION ACT REQUEST
Plaintiff hereby incorporates by reference, as if set forth fully herein, the following pleadings already filed in the instant case, to wit:
Plaintiff’s COMPLAINT OF JUDICIAL MISCONDUCT AGAINST UNITED STATES MAGISTRATE DALE A. DROZD (January 11, 2002 A.D.); and,
Likewise, Plaintiff also incorporates His Freedom of Information Act (“FOIA”) request, dated January 15, 2002 A.D., for a certified copy of the Presidential Commission appointing the Honorable William B. Shubb to the office of federal judge. DOJ have failed to reply within ten (10) working days. Plaintiff fully intends to submit a proper, timely and lawful FOIA appeal.
See Attachment “A” which is hereby incorporated by reference, as if set forth fully herein.
Plaintiff also respectfully requests that Judge Shubb delay any further review and ruling(s) on this MOTION FOR RECONSIDERATION, pending filing and service of the following pleadings, which are presently completed and waiting to be printed and served, to wit:
Plaintiff’s MOTION TO STRIKE ORDER AND FINDINGS AND RECOMMENDATIONS OF MAGISTRATE JUDGE ‑‑ PART II (covering COUNTS THREE THRU FIVE); and,
Plaintiff’s MOTION TO STRIKE ORDER AND FINDINGS AND RECOMMENDATIONS OF MAGISTRATE JUDGE ‑‑ PART III (covering supplemental matters)
Given the large number of copies to be printed and mailed, Plaintiff needs a few additional days to complete all the required clerical work.
JUDGE SHUBB’S ORDER ISSUES
FROM THE WRONG COURT
Plaintiff believes that the record before this honorable Court more than adequately documents Plaintiff’s proof that the United States District Court (“USDC”) is a legislative court, first authorized to exist inside California State by the Act of June 25, 1948. See 28 U.S.C. 132.
The Lanham Act was first enacted in the year 1946 A.D. It expressly grants original jurisdiction of Lanham Act claims to the constitutional District Court of the United States (“DCUS”). See 60 Stat. 440, in chief.
At the preliminary “hearing” on December 14, 2001 A.D., U.S. Magistrate Dale A. Drozd acknowledged that this citation is exactly correct in Plaintiff’s Initial COMPLAINT.
Therefore, Judge Shubb’s ORDER commits a plain error by issuing from the United States District Court (“USDC”), which is a legislative court lacking all jurisdiction over the subject matter of Plaintiff’s Initial COMPLAINT.
Judge Shubb’s ORDER alleges that “Plaintiff [is] proceeding pro se” [sic]. Plaintiff is not proceeding Pro Se.
“Se” is a neuter Latin pronoun. In legal terminology, that term is appropriate for referring to a fictitious or juristic entity. Plaintiff is not a fictitious or juristic entity.
Plaintiff is a Citizen of California proceeding In Propria Persona (in His Proper Person).
PLAINTIFF NEVER CONSENTED TO THE EXERCISE
The record before this honorable Court is clear in showing that Plaintiff never consented to the exercise of civil jurisdiction by any United States Magistrate Judge.
Plaintiff’s consent is a necessary legal prerequisite before any Magistrate Judge can exercise any civil jurisdiction. See 28 U.S.C. 636.
THIS CASE WAS NEVER PROPERLY REFERRED
TO A UNITED STATES MAGISTRATE JUDGE
Judge Shubb’s ORDER cites Local Rule 72-302(c)(21) in support of an erroneous claim by U.S. Magistrate Judge Dale A. Drozd.
Mr. Drozd erroneously claimed 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.
But, 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).
And, 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 Plaintiff’s MOTION TO STRIKE ORDER AND FINDINGS AND RECOMMENDATIONS OF MAGISTRATE JUDGE 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 has clearly violated 28 U.S.C. 636. This violation caused adverse substantive consequences for Plaintiff.
Furthermore, the Local Rules in question emphatically state, “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.
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 wrote, “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 lawfully 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, because this case was originally filed in the constitutional District Court of the United States (“DCUS”), which is the only federal court with original jurisdiction of Lanham Act claims.
Lacking jurisdiction, Mr. Drozd effectively admits that his FINDINGS AND RECOMMENDATIONS were 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.
NO MOTIONS TO DISMISS WERE
PROPERLY BEFORE THIS DCUS
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.
Moreover, 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 recommended that defendants’ motion to dismiss [sic] be granted for failure to state a claim (his page 16). But, 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 could not hear and determine any motion to dismiss for failure to state a claim, nor could 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.
Judge’s Shubb’s ORDER thus assumes facts not in evidence.
PLAINTIFF WAS UNDER NO LEGAL OBLIGATION
Since Magistrate Drozd lacked all jurisdiction to hear and determine pretrial matters in the instant case, Plaintiff was under no specific legal obligation strictly to obey the Magistrate’s notice to parties that any objections to his findings and recommendations were to be filed within ten days.
See, in particular, U.S. v. Hough, 157 F.Supp. 771, 774 (USDC, S.D. Calif. 1957); Traguth v. Zuck, 710 F.2d 90, 95 (2nd Cir. 1983); Hoffman v. U.S., 244 F.2d 378, 379; Mookini v. U.S., 303 U.S. 201, 205 (1938); and Darr v. Burford, 339 U.S. 200 (1950).
Plaintiff was also ill with a bacterial infection, and under a doctor’s medicated supervision, during the New Year’s holidays.
Plaintiff also experienced unexplained delays in receiving shipments of His U.S. Mail from the forwarding agent in Oakland.
Nevertheless, Plaintiff did show abundant good faith by responding to the Magistrate’s FINDINGS AND RECOMMENDATIONS within five (5) calendar days after Plaintiff received same.
PRELIMINARY OBJECTIONS WERE TIMELY FILED IN
PLAINTIFF’S 372(c) COMPLAINT OF JUDICIAL MISCONDUCT
In point of fact, Plaintiff did timely file His COMPLAINT OF JUDICIAL MISCONDUCT, pursuant to 28 U.S.C. 372(c). Said COMPLAINT more than adequately addressed the rigid requirement that Magistrate Drozd needed Plaintiff’s consent before exercising any civil jurisdiction in the instant case.
The actions by U.S. Magistrate Dale A. Drozd in the instant case have already caused serious and adverse substantive consequences for Plaintiff, for which specific relief is warranted.
Plaintiff’s COMPLAINT OF JUDICIAL MISCONDUCT was served on January 15, 2002 A.D., exactly ten (10) working days after the CERTIFICATE OF SERVICE that accompanied the Magistrate’s FINDINGS AND RECOMMENDATIONS (excluding weekends and federal holidays).
January 1, 2002 A.D. (New Year’s Day) was a federal holiday.
In a letter dated January 22, 2002 A.D. and emailed to the Clerk of Court and to Judge Shubb, Plaintiff explained that the Magistrate’s FINDINGS AND RECOMMENDATIONS were not delivered to Plaintiff until Friday, January 18, 2001 A.D.
The Subject line of Plaintiff’s email reads “letter for Clerk and Judge Shubb (please forward)”.
A true and correct copy of said letter is attached hereto and incorporated by reference to Attachment “B”, as if set forth fully here.
Also on January 22, 2002 A.D., Mr. Tim Hinkle, Judge Karlton’s Secretary, acknowledged receipt of Attachment “B” via email and, also via email replied, “I have forwarded on your letter as requested.”
A copy of that letter was also sent to Judge Shubb via first class U.S. Mail.
Thus, on January 22, 2002 A.D., Judge Shubb either knew, or should have known, that Plaintiff did not receive the Magistrate’s FINDINGS AND RECOMMENDATIONS until Friday, January 18, 2002 A.D.
Also in that same letter, Plaintiff explained that He re‑scheduled everything over the long weekend of January 19-21, 2002 A.D., in order to prepare, file and serve Part I of Plaintiff’s MOTION TO STRIKE THE ORDER AND FINDINGS AND RECOMMENDATIONS OF MAGISTRATE JUDGE (hereinafter “MOTION TO STRIKE”).
Plaintiff served that MOTION TO STRIKE on January 23, 2002 A.D., within five (5) calendar days and well within ten (10) calendar days of receiving those FINDINGS AND RECOMMENDATIONS.
Judge Shubb signed his ORDER on January 23, 2002 A.D. (the same day).
Thus, it is entirely incorrect for Judge Shubb’s ORDER to state that no objections to those FINDINGS AND RECOMMENDATIONS have been filed. This statement misrepresents the record before this Court. As such, it is clearly prejudicial to Plaintiff.
Plaintiff timely filed His COMPLAINT OF JUDICIAL MISCONDUCT with numerous objections to the usurpation of jurisdiction by Magistrate Dale A. Drozd, and to other plain errors by Mr. Drozd.
Judge Shubb’s ORDER states, “The court has reviewed the file ....” Therefore, Judge Shubb either knew, or should have known, about Plaintiff’s COMPLAINT OF JUDICIAL MISCONDUCT, because the Clerk of Court was timely served with same on January 15, 2002 A.D.
Then, Plaintiff timely filed Part I of His detailed objections in a MOTION TO STIKE ORDER AND FINDINGS AND RECOMMENDATIONS OF MAGISTRATE JUDGE. Parts II and III are planned to be served within a matter of days.
The Magistrate’s FINDINGS AND RECOMMENDATIONS filed December 31, 2001 A.D. are erroneous and should not be adopted in full, or in part, by this honorable Court or by any other court.
Defendants’ so-called “motions to dismiss for lack of subject matter jurisdiction and failure to state a claim” cannot and should not be granted by Judge Shubb, for all of the following reasons:
(3) The United States District Court (“USDC”) has no original jurisdiction whatsoever over the subject matter. See 60 Stat. 440 (never codified). Statutes granting original jurisdiction must be strictly construed. For example, compare 5 U.S.C. 552(a)(4)(B) and 17 U.S.C. 512(h).
(4) United States District Judge William B. Shubb was never commissioned to preside on this District Court of the United States (“DCUS”). See Plaintiff’s proper and lawful request under the Freedom of Information Act for a certified copy of Mr. Shubb’s Presidential commission (Attachment “A” infra).
(5) Motions to dismiss were never filed in this District Court of the United States (“DCUS”), because the attorneys in question failed to exhibit the credentials required by Section 6067 of the California Business and Professions Code. Such motions assumed facts not in evidence, i.e. certificates of oath endorsed upon licenses to practice law in California (read “physical documents”), and those motions attempted to move the wrong court with rules that do not apply to the DCUS. As such, they failed to state any claim upon which relief could be granted.
(6) This honorable DCUS never ruled, and therefore committed plain error by failing to hear and rule, on Plaintiff’s proper and timely MOTION TO STRIKE ALL PLEADINGS FILED BY ATTORNEYS LACKING CREDENTIALS. This obvious omission was prejudicial to Plaintiff. A proper hearing on this MOTION is required finally to establish whether or not the attorneys in question did have the requisite credentials, in fact.
(7) On December 14, 2001 A.D., the Clerk of Court issued SUBPOENAS to certain attorneys for exhibition of their licenses to practice law with certificates of oath endorsed on those licenses. Those SUBPOENAS are still pending before this honorable Court, and they must be answered. Plaintiff will shortly file PROOFS OF SERVICE of said SUBPOENAS.
(8) No motion to quash said SUBPOENAS has been heard by this honorable DCUS, and no ORDER to quash any of said SUBPOENAS has been issued by this DCUS. Again, to grant any attorney’s motion to dismiss, absent the requisite credentials, assumes facts not in evidence. On the contrary, a summary judgment would logically be in order against each named Defendant whose attorney(s) failed to exhibit the said credentials.
(9) Similarly, this honorable DCUS also never ruled, and therefore committed plain error by failing to hear and rule, on all of Plaintiff’s other proper and timely MOTIONS, e.g. MOTION FOR INTERLOCUTORY JUDGMENT AND CHALLENGE TO THE CONSTITUTIONALITY OF AN ACT OF CONGRESS. This latter MOTION by Plaintiff is pivotal to the instant case, because it will finally establish the exact scope of rule-making authority granted to the U.S. Supreme Court under 28 U.S.C. 2072. Without that judgment, the legal relations of all parties will remain unsettled, resulting in prejudice to Plaintiff.
(10) It is evident from the record that this DCUS was legally vacant when Plaintiff filed the instant case on August 1, 2001 A.D., and has remained vacant right up to the present time. As such, no motions by any party can be ruled on, and no motions by any party have been ruled on, strictly speaking. Both Judge Shubb and Magistrate Drozd are paying taxes on their compensation, in violation of Article III, Section 1. This diminution of their compensation bars them from exercising the judicial Power of the United States, pursuant to the Arising Under Clause in the U.S. Constitution.
(11) Plaintiff has petitioned Ninth Circuit Judge Alex Kozinski for a Certificate of Necessity to certify that vacancy, and this petition is presently pending before the Ninth Circuit. Plaintiff awaits a proper ruling by Judge Kozinski, or other qualified judge(s), on this essential step.
Accordingly, for all of the reasons stated above, the Honorable William B. Shubb has committed plain errors by alleging to dismiss the instant action with prejudice as to all named defendants.
All premises having been duly considered, Plaintiff respectfully requests that Mr. Shubb reconsider and then vacate his ORDER filed on January 25, 2002 A.D. and also vacate the corresponding JUDGMENT IN A CIVIL CASE entered on the same day, pending issuance of a Certificate of Necessity from the United States Court of Appeals for the Ninth Circuit, and pending subsequent assignment of a competent, qualified and unbiased Article III judge from the Court of International Trade to this constitutional Article III District Court of the United States.
Plaintiff also respectfully demands that Mr. Shubb recuse himself for having been commissioned by the President of the United States of America to preside on the legislative United States District Court, and not on this constitutional District Court of the United States, and also for having his compensation diminished by federal income taxes, thereby allowing undue influence and a conflict of interest to bias his judgments, in violation of Article III, Section 1, in the U.S. Constitution.
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 30, 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):
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
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
1810 South Street 1330 N. Dutton Ave., #200
Sacramento 95814 Santa Rosa 95401-4646
CALIFORNIA, USA CALIFORNIA, USA
Dated: January 31, 2002 A.D.
Signed: /s/ Paul Andrew Mitchell
Printed: Paul Andrew Mitchell, Plaintiff In Propria Persona
(not “Pro Se” [sic])
Copy of Plaintiff’s FOIA Request
for the Presidential Commission
of U.S. District Judge William B. Shubb
January 15, 2002 A.D.
Office of the Attorney General
U.S. Department of Justice
501 “I” Street
Subject: Freedom of Information Act (“FOIA”) Request
Dear Disclosure Officer:
This is a request under the Freedom of Information Act. I request that a certified copy of the following document be provided to Me, without delay:
1. commission signed by the President of the United States of America and countersigned by the Attorney General, appointing the Hon. William B. Shubb to the office of federal judge, as required by 5 U.S.C. sections 2104 and 2902. (Mr. Shubb currently claims to have been duly commissioned to preside on the United States District Court for the Eastern District of California, at Sacramento, California.)
I request a waiver of all fees for this request.
Disclosure of the requested information to Me is in the public interest, because it is likely to contribute significantly to public understanding of the operations and activities of the federal government, and is not primarily in My commercial interest.
See also 5 U.S.C. 552(a)(4)(B).
If you are not the correct person to whom this FOIA request should be directed, please forward it without delay to the correct person(s).
Thank you for your consideration of this FOIA request.
/s/ Paul Andrew Mitchell
Paul Andrew Mitchell, B.A., M.S.
Private Attorney General and Plaintiff,
U.S. Mail care of:
350 – 30th Street, Suite 444
courtesy copy: Hon. William B. Shubb, USDC, Sacramento
Copy of Plaintiff’s Letter
to Clerk of Court
Dated: January 22, 2002 A.D.
Copy to U.S. District Judge William B. Shubb
TO: Jack L. Wagner, Clerk of Court
501 “I” Street, Suite 4-200
FROM: Paul Andrew Mitchell, Plaintiff
DATE: January 22, 2002 A.D.
SUBJECT: Magistrate Drozd’s FINDINGS AND RECOMMENDATIONS
(filed December 31, 2001 A.D.)
Dear Mr. Wagner:
Happy New Year to you and your entire staff!
I continue to experience unexplained problems receiving UPS shipments of mail from our Forwarding Agent in Oakland, California. One entire shipment with December’s documents remains unaccounted for.
Most urgently, the FINDINGS AND RECOMMENDATIONS authored by Mr. Drozd on December 28, 2001 A.D. were not delivered to me until noon of last Friday, January 18, 2002 A.D.
Because of its importance, I re-scheduled everything else and worked overtime during the past three days writing, editing, signing, collating and printing my reply.
We had planned to file and serve that reply via Priority U.S. Mail tomorrow, but I woke up this morning to several inches of snow on the ground (dead of winter here!)
I am living in the country outside of a small town in Northern California, and the dirt roads become impassible in the hill country, whenever it snows.
So, I am snowed in for a few days, and want you and others to know that we will be posting my finished reply to Mr. Drozd just as soon as humanly possible. If funds are available, we will try to post your 2 copies via Express U.S. Mail.
Also, please be advised of the new destination for my U.S. Mail:
c/o General Delivery
Mr. Wagner, I also want to take this opportunity to express my sincere appreciation for all the help I have received to date from your professional staff.
They have been kind, courteous, and most efficient, particularly with the unusually large amount of paperwork that my case has generated.
Thank you very much.
/s/ Paul Andrew Mitchell
c/o General Delivery
copy: Hon. William B. Shubb
U.S. District Judge
c/o Tim Hinkle (via email)