FHARMACY RECORDS v. SALAAM NASSAR, ET. AL

Gregory J. Reed Counsel of Record GREGORY J. REED & ASSOCIATES, P.C. 1201 Bagley Detroit, MI 48226 (313) 961-3580 Counsel for Petitioners gjrassoc@aol.com

In the Supreme Court of the United States

FHARMACY RECORDS a/k/a FHARMACY

RECORDS PRODUCTION CO., FHARM I

PUBLISHING COMPANY and SHELTON RIVERS,

Petitioners.

v.

SALAAM NASSAR, ET.AL,

Respondents.

On Petition for Writ of Certiorari to the United States

Court of Appeals for the Sixth Circuit

June 25, 2012

 

(contact for attorney for full petition)

 

PETITION FOR WRIT OF CERTIORARI

 

QUESTIONS PRESENTED

 

 I. Whether the District Court violated Article III, Fifth Amendment and Fourteenth Amendment of the Constitution when it “rubber stamped”, the Magistrate’s Report and Recommendation, that relied on an “unsigned” expert report, to award $549,199 in sanction fees against Petitioners and Petitioners’ Counsel without due process (notice and hearing). II. Whether the District Court violated Petitioners’ and Counsel’s Constitutional Rights, and Rule 26(g)(2) when it did not enforce Rule 26(g)(2) and summarily dismissed fourteen Rule 60(d) Motions without a hearing related to the unsigned report. III. Whether the trial court violated Petitioner’s and Counsel’s Constitutional Rights by adopting the Magistrate’s Report without a de novo review. IV. Whether the District Court violated the Petitioners’ Counsel’s due process and Constitutional Rights in sanctioning Petitioners or Petitioners’ Counsel when notice and hearing were not afforded to Petitioners, nor Petitioners’ Counsel.

 

LIST OF PARTIES

 

Petitioners, Fharmacy Records a/k/a, Fharmacy Records Production, Farm I Publishing Company, and Shelton Rivers, were the appellants in the court below. Respondents, Salaam Nassar, Curtis Jackson, Darrin Dean, Def Jam Recording, Ruff Ryders, Janice Combs Publishing, Universal Music Publishing, Universal Music & Video Distribution Corporation, EMI April, Inc., Soo Soos Sweet Swisher Music, John Doe, et al., was the appellees in the court below.

 

I. This case involves constitutional questions of exceptional and pressing importance because the Sixth Circuit Court of Appeals iv has issued a finite decision that conflicts with the Circuits’ opinions that has unlimited and overreaching effects beyond the case at bar. At the Court of Appeals, more than 35 persons had filed amicus curiae briefs for the Petitioners including Motown Alumni organization, with 10,000 members, includes artists such as Stevie Wonder, Diana Ross, Temptations, Four Tops, and many more legendary artists, and businesses had felt the adverse effect of the Court’s ruling, which impacts the entire judicial system and commerce

 

II. Respondents’ Counsel admitted that an unsigned document never existed that was used to dismiss Petitioners’ case, and sanctioned Petitioners and Counsel violated Fed. R. Civ. P. 26(g)(2) and Petitioners’ and Counsel’s Constitutional Rights

 

III. The trial court and the Court of Appeals also utilized the unsigned report in awarding and affirming fees of $546,199 when the trial court adopted the report without de novo review, violating Petitioners’ and Counsel’s Constitutional Rights.

 

ARGUMENT

 

I. The District Court trial court of Michigan rubber stamped the Magistrate’s decision  utilizing an unsigned report to sanction Petitioners and yielded its independent decision duties; which violated Article III and the Fifth Amendment Of The Constitution

 

II. Petitioners’ and Counsel’s Rights under Article III and the Fifth Amendment of the Constitution were clearly violated when the trial court failed to grant de novo review and adopted Magistrate’s R&R

 

III. Petitioners and Counsel’s Constitutional Rights were violated when the court did not provide notice or afforded Petitioners’ Counsel a hearing after rubber stamping the Magistrate’s Report for $546,199 sanction and denying preservation of evidence

 

CONCLUSION

 

1 PETITION FOR WRIT OF CERTIORARI Petitioners, Fharmacy, Shelton Rivers and their Counsel, respectfully Petition this Honorable Court for a writ of certiorari to review the judgment of the United States Sixth Circuit Court of Appeals. OPINIONS BELOW The opinion for the Sixth Circuit Court of Appeals is reported at 379 Fed. Appx. at 527, first appeal and the second appeal is at 2012 U.S. App. Lexis 3801 (6th Cir.) at 1a-24a and is reproduced in the Appendix hereto (“App.”) at 1a.

 

STATEMENT BACKGROUND

 

Petitioners’ case is a simple copyright case. Rivers created the music entitled ESS beats and it was sampled, used, and stolen by Respondent, Salaam Nassar, who sold ESS beats to artist DMX. Petitioner Rivers has a valid copyright and valid 2001 creation date. However, the Sixth Circuit Court of Appeals inadvertently overlooked 17 U.S.C. §410 supported by irrefutable evidence.1 Respondent 1(a.)For disclosure purposes Petitioners’ Counsel was represented by the Court’s former law firm in 1986, prior to the Court’s appointment to the bench in 2000; and the Court’s law firm while the Judge was a member of the firm, had been involved with a property transaction issue with the Petitioners’ Counsel from 1987 through 2004. Rivers properly filed his copyright claim in 2005 before the Court with this copyright and the creation date of 2001 of which neither the Court of Appeals nor the lower court address it in their decisions. (a1)Respondents filed an unsigned report stating the disk with copyrighted music was unreadable and wiped clean. (b.)Zip disk verified by Adam Kelly, Jeff Rudzki, and Hector Delgado with readable files was not wiped clean with readable files. (c.)Adam Kelly, certified forensic examiner, and Jeff Rudzki, technician engineer, examined the Petitioners’ zip disk and found identical TEK/Hip Hop, which is known as ESS Beats. Both noted TEK/Hip Hop is AKA DMX track on the original print out provided. DMX notation noted in affidavits for the Court’s understanding. The Court of Appeals erroneously cited that the ESS Beats files were not located. The located files that the Court grossly erred in adopting the unsigned report with abusive and defamatory language, written in “third person” report falsely stating the disk was intentionally erased and wiped clean. Forensic Examiner, Potrafka, lacked the experience in preparing a music report and detecting files on a disk, so he paid Petitioners’ witness RJ Rice II, violating the 4 Nassar does not have any copyright for his alleged created work transferred Rivers’ created work to DMX. Respondent Nassar did not have any independent witness to validate his creation date. The trial court and Court of Appeals relied on the Magistrate’s Report and Recommendation (R&R) to court rules 702 and the Daubert rule, RJ Rice II, who located the ESS Beats with the 2001 creation date as noted in the unsigned report. (d.)The Court of Appeals inadvertently misapprehended that Potrafka also represented Petitioners and Respondents. Potrafka advised Petitioners that the disk was not readable and the unsigned report conflicted with his report to Petitioners. The Respondents’ report provided to the Petitioners and trial court that the disk was wiped clean is totally conflicting from being unreadable and contradicts Daubert v. Merrell, supra. The trial court summarily denied fourteen Rule 60(d) Motions without a hearing on the issue. Respondents did not file one response. (e.)RJ Rice II also submitted an affidavit verifying he was on the premises in 2001 when Rivers created ESS Beats. RE 211, 213. (f.) RJ Rice Senior, also paid Rivers to create ESS Beats. He produced the original checks to the Respondents’ counsel but Respondents’ Counsel, Daniel Quick, refused to return RJ Rice Senior’s original check for the production and creation of ESS Beats in 2001. (g.)RJ Rice Senior issued a check in 2001 for Rivers to create ESS Beats. Respondents’ Counsel has the original check. RJ Rice II verified the creation date corroborated by eight declarations provided by Rivers and his deposition including depositions by Fharmacy officer, William Allen and Jeff Seaton. The Court used the unsigned and uncertified report as factually true to nullify, eviscerate, and destroy the credible evidence contrary to: Constitution, Fifth Amendment, Fed. R. Civ. P. 11, 26(a)(2), 26(g)(2), 702, Daubert Rule, Conflict of Interest, Due Process, Equal Protection, etc., all under the concept that the report was reliable, true, and certified, and admissible contrary to the law. 5 sanction Petitioners and Petitioners’ Counsel without a hearing and used Nassar’s unsigned expert report to rebut Rivers’ copyright creation date contrary to Wrench LLC v. Taco Bell, Inc., 256 F. 3d. 446 (6th Cir. 2001) and Supreme Court Cases at Bolen v. Dengel, 340 F.3d. 300, 313 (5th Cir. 2003), Ward v. Int’l Paper Co., 509 F.3d. 457, 462 (8th Cir. 2007), Gell v. Town of Aulander, 252 F.R.D. 297, Wiley v. U.S., 20 F.2d. 22, 226 (6th Cir. 1994), Macuba v. Deboer, 193 F.3d. 1316 (11th Cir. 1999).

 

UNSIGNED REPORT

 

Nassar’s Counsel also employed “Rivers’ previously hired technician”, Ives Potrafka, to examine Rivers’ computer disk that was “unreadable”. The unsigned expert report provided by Nassar, stated that Rivers’ disk “was erased and wiped clean.”2The lower court relied on “the conflicting unsigned report” extensively and eliminated all of Petitioners’ evidence using the unreliable and unsigned report contrary to Fed. R. Civ. P. 26(g)(2) and Fed. R. Evid. 702 and did not strike the unsigned report as repeatedly demanded by Petitioners.[App. pg.6a&App.C] Respondents’ Counsel, Daniel Quick, an officer of the court, finally confessed that the report was never 2 The expert report filed by the Respondents was written in the first and third persons with wording referring the expert “did this” instead of saying “I, expert, checked this”. The Court of Appeals misunderstood the facts and law per the record. The unsigned report was circulated as a valid and verified expert report violating Petitioners’ Constitutional Rights. The report also was flawed with deficiencies in breach of Fed. R. Civ. P. 26(a)(2) the Court ignored Fed. R. Civ. P 26(g)(2) and 26(g)(3). 6 signed electronically nor by a handwritten ink signature and one never existed at the Court of Appeals Oral Argument, January 20, 2012. The trial court stated Petitioners’ unsigned report request demand “to strike” was immaterial and technically waived. Rule 26(g) does not provide a waiver. Also, Quick resisted to produce a signed report for four years and finally admitted one does not exist after fourteen filed Rule 60(d) motions. [App. pg. 6a and App.C] The Court of Appeals also refused to strike the report as mandated by Fed. R. Civ. P 26(g)(2), which violated Petitioners’ and Counsel’s Constitutional Rights. Prior to Respondents’ Counsels’ admission, the lower court summarily denied all Petitioners’ Rule 60(d) motions. Fourteen of them were filed without any hearing or due process ever being3 afforded to Petitioners’ or Petitioners’ Counsel. [App. pg.30a]

 

CASE DISMISSED BASED ON UNSIGNED REPORT

 

The trial court incorporated the unsigned report that contained abusive, defamatory, and slanderous language, in a Summary Judgment Opinion citing bad faith litigation from the unsigned report.4[App. pg.7a, 44a-46a] The Court of Appeals in its decision along with the lower court relied on Respondent Nassar’s unsigned expert report [App. pg.8a,10a,44a- 46a] and the Magistrate’s Report and Recommendation to award $546,199 in sanctions 3Supra at 7, RE 211, 214, 218, 277, 278, 291, 306, 347. 4 Court of Appeals Case 08-1607, 10-1354, 10-2073. 7 against Petitioners. In addition, the Court of Appeals affirmed the lower court’s decision and made significant exceptions to Article III, Fifth Amendment, and Fourteenth Amendment of the Constitution, and Fed. R. Civ. P. 11, 26(g)(2), 37(c), and Fed. R. Evid. 702 to adopt the unsigned report in its decision on February 23, 2012.5 [App. pg.14a] The trial court assigned its duties to the Magistrate. [App. pg.14a] Uniformity is needed when conflict is created by a “precedent exception” to overcome the Court Rules and the Constitution.

 

SANCTION BASED ON UNSIGNED REPORT

 

The lower court eviscerated more than 12 independent, all irrefutable evidence, using the third person’s words in the “ghostwritten”, unsigned, and unverifiable expert report.[App pg.6a] The Court of Appeals adopted the unsigned, abusive and slanderous worded document, affirming the lower court’s dismissal and sanctioned Petitioners and Counsel based on the Magistrate’s post-judgment Report for attorney fees of $546,199 in favor of the Respondents, contrary to case law. [App. pg.16a] Stauble v. Warrob, Inc., 977 F.2d 690 (1st Cir. 1992). 5Meanwhile, Defense Counsel Quick and Michael Socha in earlier proceedings falsely stated the report to be signed electronically, committing perjury and co-signed by Co-counsel Deborah Swedlow, Michael Huget, and Leslie Schefman for five years and before the Court of Appeals hearing admission incident. Supra at 1. Michael Socha had to depart from the firm, Deborah Swedlow and Michael Huget, both were partners, left their firm, after being on the file to be employed elsewhere. 8 The Court of Appeals affirmed the trial court’s wholesale adoption by rubber stamping the Magistrate’s Report is contradictory to the Constitution, Article III, Fifth and Fourteenth Amendments, and Fed. R. Civ. P. 11, 26(g)(2), and binding precedents.6 [App. pg.16a]

 

CONFESSION THAT A SIGNED DOCUMENT DOES NOT EXIST

 

The conflict among the circuits was further created based on Respondents’ Counsel Quick’s confession “that neither an electronically nor ink signed document existed anywhere” after the Court of Appeals’ Panel Judge McKeague warned Quick about being cagey and evasive to “Stop Playing Games!” during oral argument. [App.pg. 6a] (Court of Appeals Oral Argument Audio CD)

 

WRIT IS NECESSARY

 

The Supreme Court’s review is necessary for uniformity consideration among the courts to enforce its Court Rules, to protect the Constitutional Rights of all citizens, and to secure uniformity of the Court’s decisions and not be in conflict with the intercircuits’ and Supreme Court’s decisions. The Sixth Circuit Court of Appeals’ decision with the lower court exceeded the Constitutional Provision of Article III. The decision at hand, has established precedent error of exceptional judicial and public importance with ramifications that adversely impacts commerce and any citizen that 6Supra at 1, 9, and 10. 9 files claims in the Federal Circuit Courts, and Court of Appeals. II The trial court’s case was summarily dismissed and primarily contributed from the “unsigned” expert report, unequivocally, stated by the Court of Appeals’ Judge McKeague, from the alleged work of Ives Potrafka. [App. pg.8a,10a] Respondents’ Counsel refused to have Potrafka sign the report; Potrafka’s office is only 10 minutes away from Respondents’ Counsel. Michael Socha, filed two (2) injunctions in Federal Court against Petitioners to enjoin Petitioners from discovering that a signed report did not exist, and shielded the expert from producing a signed report or appearing in Court. [See footnotes 5 and 7] The Court of Appeals’ Panel admitted the unsigned report contributes to the District Court’s dismissing the case and faulty decision that alleged Petitioners acted in bad faith. [App. pg.8a,10a] However, there was no Remand issued by the Court of Appeals. The Sixth Circuit Court of Appeals affirmed that the lower court’s decision was based on the “unsigned” report violating Petitioners’ and Counsel’s Constitutional Rights. [App.A] The Court of Appeals alluded to the fact that one may discount the report. [App. pg.7a] Fed. R. Civ. P. 26(g)(2) required the Court to strike the “unsigned” report. There is no discounting of any unsigned document in Fed. R. Civ. P. 26(g)(2). The “unsigned” report cited numerous bad faith, acts ghostwritten in first and third person, using the expert’s name. Respondents did not offer any justification in filing 10 the unsigned report. The Court failed to impose an appropriate sanction, which violated the judicial process, Fed. R. Civ. P. 26(g)(3), Fed. R. Evid. 702, Daubert, supra, and the Constitutional Rights of Petitioners and Counsel. The Court of Appeals did not address the fourteen Rule 60(d)(3) motions filed by the Petitioners that were summarily dismissed by the Honorable David Lawson related to the unsigned report and motions were not contested by Respondents. Based on Respondents’ Counsel’s admission the case should have been remanded. [App. pg.6a-7a,30a-40a] All Rule 60(d) motions were dismissed without a hearing and Respondents had months to respond to Petitioners’ motions but refused to do so. The motions with merit filed confirmed by Quick’s confession, no signed report existed.

 

III MAGISTRATE’S REFERRAL INCORRECTLY ASSIGNED

 

The trial court’s referral under 28 U.S.C. § 636 (b)(1)(A), to Magistrate for the post-judgment decision was to determine whether the Respondents’ motion for attorneys’ fees was reasonable and whether Petitioner and/or Petitioners’ Counsel should be liable for attorney fees. [App. pg.48a,49a] The Magistrate was to use any method the Magistrate so choose to make his determination, which violated Article III of the Constitution.[App. pg.14a,48a,49a] The Magistrate utilized the expert fabricated report, “unsigned” and “uncertified”, written in third person restating the 11 bad faith acts against Petitioners in noncompliance with Fed. R. Civ. P. 26(g)(2), 26(g)(3), 11, 37(c). This also violated the Petitioners’ Fifth and Fourteenth Amendment Rights of the United States Constitution.

 

MAGISTRATE’S ASSESSMENT RUBBER STAMPED

 

The Magistrate issued a report beyond the court’s instruction and assessed Petitioners’ $546,199; principally using the Respondents’ unsigned report ghostwritten by Respondents’ Counsel noted in their bill statements and the trial court rubber stamped, so to speak, the Recommendation [App. pg.14a] and abandoned the court’s duties and responsibilities. Petitioners made more than forty specific objections to the Magistrate’s Report preserving all rights including the dollar amount. The trial court did not review the objections, but provided explanation of views on some past objections as to motions filed. [App. pg.18a,63a- 67a]Cowherd v. Million, 380 F.3d 909 (2004). The Court of Appeals adopted the trial court’s wholesale endorsement of the report violated Petitioners’ Constitutional Rights, Article III, and Fifth Amendment.[App. pg. 14a,16a] Stauble v. Warrob, Inc., 977 F.2d 690 (1st Cir. 1992).Burlington N.R. Co., v. Dept. of Revenue of Wash, 934 F.2d 1064 (9th Cir. 1991). The trial court and the Court of Appeals neglected, inadvertently, and yielded their responsibilities under Article III by yielding to a Magistrate’s Report for a final disposition of a post-judgment decision by relying on an “unsigned”, “unsupported”, 12 “unverifiable”, and “uncertified” report without exercising any independent judgment. [App. pg.14a,15a,16a] The court had not taken a fresh look at Petitioners’ case. This is apparent in the court’s “thorough explanation” of its view on Petitioners’ past filed motions. [App. pg.18a] In addition, had the court taken a “fresh look” at Petitioners’ case, it would have addresses the unsigned and fabricated report two years earlier, as objected to by Petitioners in 2007 thru 2010, before, Respondents’ Counsel, Quick’s confession before the Sixth Circuit Court of Appeals in January 2012 prompted by the Honorable McKeague.

 

REASONS FOR GRANTING THE WRIT

 

This case requires a writ of certiorari for the following reasons: 1. This case involves an unsigned document “used” to deprive intellectual property and to sanction Petitioners and Counsel $546,199, to resolve Constitutional questions of exceptional and pressing importance because the Sixth Circuit Court of Appeals has issued a finite Opinion that has unlimited and overreaching effects beyond the case at bar. At the Court of Appeals, more than 35 persons had filed amicus curiae briefs including Motown Alumni organization, with 10,000 members, includes artists such as Stevie Wonder, Diana Ross, Temptations, Four Tops, and many more legendary artists, and businesses had felt the adverse effect of the Court’s ruling, which impacts the entire judicial system and commerce. 13 The lower court and the Court of Appeals’ decision conflicts with the majority circuits, Article III, Fifth and Fourteenth Amendments of the Constitution, Fed. R. Civ. P. 11, 26(2)(B), 26(g)(2), 26(g)(3), 37(c), and Fed. R. Evid. 702, Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) and In re Jackson Watl Insurance Co. Premium, 46 Fed. R.Serv .3d 201 (2000) not limited hereto. Petitioners’ case deserves review for the Supreme Court’s consideration. The trial court and/or the Court of Appeals in their decisions, inadvertently without citing any authority, has effectively set a precedent error and the decisions conflict with Stauble v. Warrob, Inc., supra and other Supreme Court cases.7 The Court of Appeals’ affirming decision, as it stands, contradicts intercircuits binding precedents that will allow a party in any civil or criminal action as here, to use an “unsigned” document that is not stricken to fabricate an “expert report” to shield themselves from liability. The plain language of Fed. R. Civ. P. 26(g)(2) clearly relieves other parties from “having any duty to act on an unsigned document until it is signed” and the Court must strike it if it is not signed. Therefore, the guidance and review of the Supreme Court is requested for guidance in this exceptionally important matter. 7Bolen v. Dengel, 340 F.3d. 300, 313 (5th Cir. 2003) Ward v. Int’l Paper Co., 509 F.3d. 457, 462 (8th Cir. 2007) Gell v. Town of Aulander, 252 F.R.D. 297 Wiley v. U.S. 20 F.2d. 222,226 (6th Cir. 1994) Macuba v. Deboer, 193 F.3d. 1316 (11th Cir. 1999) Bolen v. Dengel, 340 F.3d. 300, 313 (5th Cir. 2003) 14 Petitioners’ counsel repeatedly requested and pleaded to the Respondents’ attorneys, Daniel Quick and Michael Socha primarily and Deborah Swedlow, Michael Huget, and Leslie Schefman, who filed the unsigned report to cure the defect. Respondents’ counsel willfully refused to do so.8 Petitioners filed nine motions and objections and cited Fed. R. Civ. P. 26(g)(2). The trial court refused to hear one motion out of fourteen violated Petitioners’ Constitutional Rights. All were summarily dismissed without a hearing. [App. pg.30a-38a] The trial court failed to address clear and convincing evidence of Respondents’ bad faith in filing the unsigned report that was not signed electronically nor did it have any ink signature.9 Uniformity is needed to enforce Fed. R. Civ. P. 26(g)(2), 26(g)(3), 11, 37(c), Fed. R. Evid. 702, and to protect Constitutional Rights of citizens, to minimize conflicting Circuits’ decisions, costs, resources, and time to the Court system.10 2. Despite Respondents’ Counsel explicitly admitting under oath that an unsigned expert report filed was never signed and nor one ever existed violated the Petitioners’ and Counsel’s Fifth Amendment Rights of the Constitution and Fed. R. Civ. P. 26(g)(2). [App. pg.6a] The trial court’s Magistrate and the Court of Appeals adopted 8 RE. 211,214, 218, 277, 306,347. Defense filed (2) injunctive motions in Federal Court to enjoin Plaintiffs from getting Potrafka to produce a signed report in a State Court proceeding that the report was a fraudulent document, Wayne County Circuit Court Case No. 10- 015173. Defense Counsel avoided process of service for two weeks as well as officer of the court. 9Supra at 2 10Supra at 1 15 the unsigned document and ignored inadmissible, unreliable evidence, and uncertified report in their decisions to dismiss and sanction Petitioners, ignored the errors in the Magistrate’s Report and Recommendation. [App. pg.14a-18a] The Courts Of Appeals per curiam decision essentially stated in its Opinion and conclusion that the court and the Court of Appeals’ decision would not change; using the abusive worded report as a double standard for the Respondents versus the Petitioners. The trial court stated it was “immaterial” that the report was not signed. [App. pg.7a] The lower court and Court of Appeals failed to address Fed. R. Civ. P. 11, 26(g) (2), and Fed. R. Evid. 702, and Petitioners’ Constitutional Rights. Contrary to case precedents, the unsigned report was used with its inaccurate and slanderous wording that contradicts facts and legal authorities.11 The Court of Appeals’ decision has created a conflict among authoritative decisions and Supreme Court precedents. Stauble v. Warrob, Inc., 977 F.2d 690 (1st Cir. 1992).Burlington N.R. Co., v. Dept. of Revenue of Wash, 934 F.2d 1064 (9th Cir. 1991). 3. The trial court and the Court of Appeals also utilized the unsigned report in awarding and affirming fees of $546,199. The trial court referred the case to the Magistrate and the Magistrate was not assigned to do so based on the Court’s referral to the Magistrate Rules, 28 U.S.C. §636(b)(1)(A). The trial court thereafter rubber stamped the 11Supra at 1 16 Magistrate’s Report that exceeded the Magistrates jurisdiction §636(b)(1)(A) without exercising any independent review using various “explanations” and without granting notice or hearing to Petitioners’ counsel. Stauble v. Warrob, Inc., 977 F.2d 690 (1st Cir. 1992).Burlington N.R. Co., v. Dept. of Revenue of Wash, 934 F.2d 1064 (9th Cir. 1991). Polin v. Dun & Bradstreet, Inc., 634 F.2d 1319, 1321 (10th Cir. 1980). Again, the Court of Appeals’ decision affirms the lower court’s decision in using the Magistrate’s R & R [App. pg.10a], which yielded to the Magistrate’s decision and contrary to Article III of the Constitution and the Fifth Amendment and established case law. Stauble v. Warrob, Inc., 977 F.2d 690, 697 (1st Cir. 1992). For these reasons, Petitioners’ Constitutional Rights were violated and need to be resolved in order to eliminate conflicts among the Circuits and the United States Supreme Court.9,10 Presently before the Supreme Court’s consideration is a Petition for a Writ of Certiorari by Petitioners’ and Counsel’s consideration of exceptional case decision that conflicted with the Constitution, Article III, Fifth and Fourteenth Amendments, and Fed. R. Civ. P. 11, 26(g)(2), Fed. R. Evid. 702, etc., and uniformity of the intercircuit’s decisions is needed.12 All litigants must be afforded 12 Supra at 1: In re Jackson Nat. Life Ins. Co. Premium Litigation, 46 Fed.R.Ser.3d 201; Kerlinsky v. Sandoz, Inc., 783 F.Supp.2d 236 (2011); Macuba v. Deboer, 193 F.3d. 1316 (11th Cir. 1999); Miller ex rel S.M. v. Board of Educ.of Albuquerque Public Schools, 455. F.Supp.2d 1286 (2006); Morgan v. Gandalf, Ltd., 165 Fed.Appx. 425 (2006); Occulto v. Adamar of New Jersey, Inc. 125 F.R.D. 611 (1989);Roadway Exp., Inc. v. Piper, 447 U.S. 752, 767 (1980); Salkil v. Mt. Sterling Twp. 17 due process and equal protections under the Federal Rules and Constitution of the United States.13 Petitioners and Petitioners’ Counsel were not afforded protection, notice, nor a hearing. [App. pg.10a,15a,16a,17a,30a-39a] Petitioners’ intellectual property was taken and Petitioners were sanctioned for $546,199, without a hearing arbitrarily using an unsigned and ghostwritten report. [App. pg.1a-41a]

 

ARGUMENT I. THE DISTRICT COURT TRIAL COURT OF MICHIGAN RUBBER STAMPED THE MAGISTRATE’S DECISION UTILIZING AN UNSIGNED REPORT TO SANCTION PETITIONERS AND COUNSEL AND YIELDED ITS INDEPENDENT DECISION DUTIES; WHICH VIOLATED ARTICLE III AND THE FIFTH AMENDMENT OF THE CONSTITUTION §636(b)(1)(A) VERSUS §636(b)(3) MAGISTRATE REFERRAL

 

The Eastern District Court of Michigan erred in its August 15, 2008, Opinion and Order when it referred the Respondents’ attorney’s fees motion to Police Dept., 458 F.3d. 520, 536 ( 6th Cir. 2006); Tuft v. Chaney, 2009 WL 416302; Ward v. Int’l Paper Co., 529 F.3d. 457, 462 (8th Cir. 2007); Wiley v. U.S., 20 F.2d. 222, 226 (6th Cir. 1994); Wrench LLC v. Taco Bell Corp., 256 F. 3d. 446 (6th Cir. 2001) 13 14th Amendment of the U.S. Constitution (Due Process and Equal Protection) 18 Magistrate under 28 U.S.C. §636 (b)(1)(A), to ascertain the “reasonableness of fees requested if any” by Respondents and if Petitioners and Petitioners’ Counsel should be liable. In Callier v. Gray, 167 F.3d 977 (6th Cir. Ky. 1999), a “postjudgment” referral to a Magistrate for a recommendation on the proper award of attorney’s fees or sanctions would be proper only under §636 (b)(3) because §636 (b)(1)(A) only addresses “pretrial” matters. The court used an erroneous standard §636(b)(1)(A) [App. pg.15a] for the Magistrate versus the application of §636(b)(3) in its July 23, 2012, Opinion and Order. The trial court and Court of Appeals rubber stamped the Magistrate’s Report and Recommendation (R&R), affirming the Magistrate’s R & R without a review and stated the referral error does not negate the trial court’s Order or “due process” notice even though trial court’s notice was not specific and the lower court incorrectly stated the basis for the referral in the first instance. [App. pg.13a-15a] The court’s referral was under the authority of 28 U.S.C. §636 (b)(1)(A) to the Magistrate. The Magistrate conducted a dispositive disposition for attorney fees of $546,199 without the court or the Court of Appeals making an independent review, violated Petitioners’ and/or Petitioners’ Counsel’s Constitutional Rights, was improper, harmful, and prejudicial. The court erred in its application and abdicating its responsibilities and reasoning process violated Article III of the Constitution was not a harmless error. The adoption of the Magistrate Report was unconstitutional. 19 Stauble v. Warrob, 977 F.2d 690 (1st Cir. 1992). Polin v. Dun & Bradstreet, Inc., 634 F.2d 1319 (10th Cir. 1980) Brown v. Wesley’s Quaker Maid, Inc., 771 F.2d 952 (6th Cir. 1985). Burlington N.R. Co. v. Dept. Of Revenue State of Wash, 934 F.2d. 1064 (9th Cir. 1991). The trial court’s referral notice was erroneous, inadequate, insufficient, and vague which violated Petitioners’ Constitutional rights of due process, Article III. Stauble v. Warrob, supra. Furthermore, the trial court’s adoption of the Report without review compounded the violation of Petitioners’ Constitutional Rights. [App pg.45a,63a-68a] Petitioners’ first Constitutional Right violation was the unsigned report used against Petitioners and Counsel filed by the Respondents and the second Constitutional Right violation was the Magistrate continuing to proceed in using the same “unsigned” report. Stiger v. U.S., 100 Fed. Appx. 370 (6th Cir. 2001), Massey v. City of Ferndale, 7 F.3d 506, 510- 511 (6th Cir. 1993), Oil, Chem.& Atomic Workers Int’l Union v. N.L.R.B., 547 F.2d 575 (D.C. Cir. 1976), United States v. U.S. Gypsum Co., U.S. 364 (U.S. 1948). The trial court’s referral Order was a harmful error and prejudiced Petitioners’ right for a fair hearing. The Court of Appeals in adopting the lower court’s decision was the third violation and not addressing the trial court’s significant error of using the unsigned report after Quick’s perjured admission violated Petitioners’ Constitutional Rights, Article III, and the Fifth and Fourteenth Amendments. Stauble v. Warrob, Inc., 977 F.2d 690, 697 (1st Cir. 1992). 20 The lower court’s referral notice was issued erroneously and improperly to Magistrate Scheer with dispositive and broad instructions that the Magistrate may, “conduct a hearing in “whatever manner he deems appropriate for the purpose” of determining the amount of attorney’s fees, costs, and expenses…” [App. pg.14a-15a, 49a] The broad Order provided the Magistrate with “carte blanche or open ended” dispositive instructions, without any legal standard and that he may make up in his findings and recommendation with unfettered discretion in which the Magistrate is to abide by the court’s instruction violated the jurisdiction of 28 U.S.C. §636(b)(1)(A) and the Constitutional Rights of the Petitioners’ and Counsel under Article III, and Fifth Amendment. Massey v. City of Ferndale, 7 F.3d 506, 510-511 (6th Cir. 1993), Stiger v. U.S., 100 Fed. Appx. Supra., and Flournoy v. Marshall, 842 F.2d 875, Supra, Brown v. Wesley’s Quaker Maid, Inc., 771 F.2d 952 (6th Cir. 1985). The Court cannot delegate its responsibilities and rubber stamp matters in absence of its duties. Stauble v. Warrob, Inc., 977 F.2d 690, 697 (1st Cir. 1992).).Burlington N.R. Co., v. Dept. of Revenue of Wash, 934 F.2d 1064 (9th Cir. 1991). Polin v. Dun & Bradstreet, Inc., 634 F.2d 1319, 1321 (10th Cir. 1980). The lower court’s due process was without a review of its dispositive instructions in awarding $546,199 was unconstitutional and in so doing violated Article IIII of the Constitution. [App. pg.64a-67a]The Court in Burlington stated: The Court is not to “abdicate judicial responsibilities in doing so violates Article III of the Constitution and it is an inexcusable act without the Court’s review.” Burlington N.R. Co. v. Dept. of Revenue of State of 21 Wash., 934 F.2d 1064, 1071 (9th Cir. 1991). Furthermore, the District Court’s “rubber stamp” the Magistrate’s Report is not acceptable. Burlington N.R. Co. v. Dept. of Revenue of State of Wash., 934 F.2d 1064, 1071 (9th Cir. 1991). For the above stated reasons, Petitioners’ Constitutional due process rights were disregarded and/or inadvertently violated. Furthermore, the legal procedures and Court Rules were not observed by the lower court. As a result of the lower court’s instruction to the Magistrate, Petitioners were denied a de novo review of the “report by the lower court. The trial court did not have to review the Magistrate’s Report in total it merely adopted its own instruction sent to the Magistrate that included the use of the unsigned report. [App. pg.43a-49a] The unsigned report was fabricated with hearsay that violated Petitioners’ Constitutional Rights. The Court of Appeals definitely was aware the report was never signed and did not remand the case for proper disposition based on the Respondents’ Counsel’s perjured admission. [App. pg.6a]

 

UNSIGNED REPORT RUBBER STAMPED

 

The Court of Appeals affirmed the trial court’s wholesale decision that violated Petitioners’ rights in which the lower court assigned its duties to the Magistrate that exceeded its authority. [App. pg.1a,10a] The adoption of the Report as noted by the lower court as a rubber stamp was reaffirmed by the Court of Appeals violated Article III and the Fifth Amendment and contrary to Stauble v. Warrob, Inc., 977 Ph.D. 690, 697 (1st 22 Cir. 1992). Burlington N.R. Co., v. Dept. of Revenue of Wash, 934 Ph.D. 1064 (ninth Cir. 1991). Polin v. Dun & Bradstreet, Inc., 634 F.2d 1319, 1321 (10th Cir. 1980). [App. pg.45a,63a-68a] Furthermore, Magistrate Scheer did not conduct any fact-finding, evidentiary hearings, nor allowed any of the Petitioners’ witnesses in attendance to make factual statements regarding unsigned report, witness tampering and the fraud related to the unsigned expert report. This was confirmed by Respondents’ Counsel “one does not exist”. [App. pg.6a]. It is clear that Magistrate Scheer did not make an objective assessment of the evidence with a mixed review of legal standards without reliable facts and unreliable unsigned report used by the trial court provided by Respondents. [App. pg.47a-49a] This harmful and prejudicial error adversely effected Petitioners’ Constitutional and Due Process Rights and the Court of Appeals’ decision was an injustice that violated Article III. In view of Quick’s perjured admission. The lower court technically abused its discretion by the open-ended referral [App. pg.15a] sent to the Magistrate and without any independent review using the pretrial provision 28 U.S.C. §636(b)(1)(A). [App. pg.44a-64a] The lack of de novo review violated Petitioners’ due process rights; thorough “explanation” of what did occur in the past is not a substitute for a present review. Stauble v. Warrob, Inc., 977 F.2d 690, 697 (1st Cir. 1992). [App. pg.18a, 43-48a, 64a] Stiger v. United States, 100 Fed. Appx. (6th Cir. 2004). [RE 271] Brown v. Wesley’s Quaker Maid, Inc., 771 F.2d 952 23 (6th Cir. 1985) The Court of Appeals erred in addressing the Magistrate’s decision and its jurisdiction during the de novo review process.

 

THE COURT’S EXPLANATION IS NO REVIEW

 

The lower court’s “explanation” was not an independent review. The lower court explained there is no need to review and “rehash matters” or to consider Petitioners’ objections. [App. pg.18a,63a- 67a] The Court’s lack of substantive explanations did not address questions of laws and facts in the Magistrate’s process in violating Petitioners’ rights guaranteed by the Constitution, Article III, Fifth Amendment, and Fourteenth Amendment. Polin v. Dun & Bradstreet, Inc., (634 F.2d 1319 (10th Cir. 1980), Stauble v. Warrob, Inc., 977 F.2d 690, 697 (1st Cir. 1992). Furthermore, the court in Stauble v. Warrob, Inc., supra, stated: “We have regularly held that mere “laying on hands” by a District Judge who “adopts” a Magistrate Report Recommendation or liability cannot inoculate a proceeding against pathology that invariably follows from noncompliance with Article III, Constitution.” Here, what occurred and caused a travesty and spiral adverse effect: (1) adopting and using the unsigned report, (2) filing fourteen (14) Rule 60(d) fraud motions (3) that were never heard,(4) summarily dismissed, (5)unanswered by Respondents, and (6) having the lower court and the Court of Appeals not enforcing Fed. R. Civ. P. 26(g) and rubber-stamping the Magistrate’s Report, etc. For these reasons, 24 there were several compounded violations of the Petitioners’ Constitutional Rights. Therefore, certiorari is requested and required to address the Constitutional violations. [App. pg.6a,30a-39a;45a-49a;63a-68a]

 

II. PETITIONERS’ AND COUNSEL’S RIGHTS UNDER ARTICLE III AND THE FIFTH AMENDMENT OF THE CONSTITUTION WERE CLEARLY VIOLATED WHEN THE TRIAL COURT FAILED TO GRANT DE NOVO REVIEW AND ADOPTED MAGISTRATE’S R&R

 

The requirements of a de novo review were not met as to Petitioners’ objections in excess of forty-five objections made as to the Magistrate’s R & R. [App. pg. 63a-68a] The trial court on July 23, 2010, Opinion and Order issued, merely “adopted” and “agreed” with the Magistrate, the trial court stated “no need to rehash prior rulings” with the openended pretrial instructions provided to the Magistrate. The Magistrate merely followed the trial court’s instruction using the unsigned report abusive language. This resulted in a violation of Petitioners’ constitutional and due process rights. A de novo review requires that the Court reviews the matter at hand, “a new; a fresh; again; a second time; once more; in the same manner, or with the same effect.” Heindlwmeyer v. Ottawa County Concealed Weapons Licensing Bd., 268 Mich. App. 202, 219 (Mich. Ct. App. 2005). Furthermore, compliance with the proper standard of review is constitutionally and jurisdictionally mandated under Article III of the 25 constitution. Stiger v. United States, 100 Fed. App. 370 (6th Cir. 2004) See Massey v. City of Ferndale, F.3d 506, 510-11 (6th Cir. 1993); Flournoy v. Marshall, 842 F.2d 875, 878-79 (6th Cir. 1998).Stauble v. Warrob, Inc., 977 F.2d 690, 697 (1st Cir. 1992). The trial court failed and erred in not providing an independent standard of review of the Magistrate Report and Recommendation as mandated by Article III of the Constitution, Stauble v. Warrob, Inc., 977 F.2d 690, 697 (1st Cir. 1992). Burlington N.R. Co., v. Dept. of Revenue of Wash, 934 F.2d 1064 (9th Cir. 1991). Polin v. Dun & Bradstreet, Inc., 634 F.2d 1319, 1321 (10th Cir. 1980). Stiger v. United States, Supra. The trial court stated it “need not address specifically any of these items they all have been considered and decided.” The lower court’s statements clearly indicated a pre-decision without a de novo review. (1)The Court did not view the facts that its decisions were based on an unsigned report. [App. pg.46a,63a-68a] (2) The unsigned report was to be stricken, Fed. R. Civ. P. 26(g)(2). (3) The lower court merely “adopted or rubber stamped” the Magistrate’s Report. (4) Thereafter “explanations” of what had occurred during the past yearly proceedings [App. pg.46a-51a] and not the present Magistrate Report before the Court related to the $546,199 sanctions. The Court of Appeals specifically stated that the Magistrate’s Report was adopted. [App. pg.12a,45a,62a-67a] The trial court Order confirmed the adoption violating Petitioners’ Constitutional 26 Rights, Article III, and the Fifth Amendment. [App. pg.63a-68a] There were no independent review by the Court and trial court, which clearly means that a de novo review was not conducted after Respondents’ Counsels re-filed the same billing statements. The Respondents did not supplement their billing statements as demanded by the lower court. [App. pg.48a] The lower court and Court of Appeals adopted the Magistrate’s Report and rubber stamped its decision. Stauble v. Warrob, Inc., 977 F.2d 690, 697 (1st Cir. 1992).Burlington N.R. Co., v. Dept. of Revenue of Wash, 934 F.2d 1064 (9th Cir. 1991). Polin v. Dun & Bradstreet, Inc., 634 F.2d 1319, 1321 (10th Cir. 1980). Writ of Certiorari is required to address the Constitutional violations and due process errors of the lower court and the conflicts among the circuits as to the Court of Appeals’ decision. [App. pg.1a-20a] It is the Court’s duty to conduct “a fresh look” and not to resist in administering justice in this regard and is satisfied only “by considering the “actual record” (or other relevant evidence on the record), and not by merely adopting the Magistrate’s report and recommendation.” Gee v. Estes, 829 F.2d 1005, 1009 (10th Cir. 1987). Here, the trial court abused its discretion in not reviewing one of the bill statements that demonstrated fraud by Respondents’ Counsel as “clear and convincing evidence. Also that the report filed was not prepared by Potrafka directed at the Court’s judicial machinery. Jordan v. Pacar, Inc., 97 F.3d 1452 (1956). The Court of Appeals’ decision affirming the lower court in light of Quick’s perjury that 27 opened Pandora box of Constitutional violations of Petitioners’ rights that impact citizens of future generations.

III. PETITIONERS AND COUNSEL’S CONSTITUTIONAL RIGHTS WERE VIOLATED WHEN THE COURT DID NOT PROVIDE NOTICE OR AFFORD PETITIONERS’ COUNSEL A HEARING AFTER RUBBER STAMPING THE MAGISTRATE’S REPORT FOR $546,199 SANCTION AND DENYING PRESERVATION OF EVIDENCE

 

Petitioners’ filed a motion for attorneys’ fees based on 28 U.S.C. §1927, vextatious multiplication of proceedings against Respondents using a fraudulent unsigned report. Petitioners’ motion was denied, though Respondents’ Counsel’s Quick's perjured confessions on January 20, 2012, indicated the Petitioners were correct in filing fourteen Rule 60(d) motions and all were denied without a hearing. [App. pg.30a-39a] The Court of Appeals ignored the perjured admission. [App. pg.6a] Certiorari should be granted in order to protect the Constitutional Rights of the Petitioners. When Respondents’ Counsel’s requested attorneys’ fees, the Honorable Judge Lawson stated the record was inadequate and insufficient to support any specific findings 28 regarding costs and/or fees.14 [App. pg. 48a] At the same hearing, Respondent attorneys Quick and Huget confirmed that more details were required. The lower court also acknowledged the need for details as it pertained to the large sum, stating, “You’re asking for over a half a million dollars, and that is not a paltry sum, so that amount really does need to be examined.” [App pg.48a]. Further, the trial court acknowledged that Petitioners’ Counsel would want a hearing and an “opportunity to be heard.” The trial court then referred the matter to Magistrate Scheer to examine reasonableness of the attorney fees requested by Respondents. The Magistrate addressed only reasonableness of items in the Bill of Costs Handbook and abruptly ended the hearing in 30 minutes. The Magistrate did not address any matters as to Petitioners’ or their attorneys being held jointly and severally liable. [App. pg. 56a]. Thereafter, the Magistrate Judge prepared a R & R that exceeded the scope of reasonableness and the court-ordered instruction. In this report, the Magistrate Judge determined Mr. Reed be held jointly and severally liable for all fees awarded based on the unsigned Report. [App. pg.46a,51a]. Curiously, Judge Scheer made a finding that Ms. Hammonds signed most of the pleadings and documents, contradicting himself only 14 The Honorable Judge Lawson said to Respondents’ Counsel, “if I get to the point where I believe attorneys’ fees are appropriate you will have to make that case, as to reasonableness of rate and reasonableness of time.” (RE 273). 29 restated Mr. Reed be held liable.15 Petitioners’ Counsel objected to the Report and Recommendation with specific details with more than 45 objections, Judge Lawson rubberstamped the Report wholesale, without a hearing and over Petitioners’ objections. [App. pg.45a,64a]The court’s action in adopting the report was inexcusable violating its judicial responsibilities and rubber stamped the Recommendation. Stauble v. Warrob, Inc., 977 F.2d 690, 697 (1st Cir. 1992).Polin v. Dun & Bradstreet, Inc., 634 F.2d 1319, 1321 (10th Cir. 1980). As previously explained, the Honorable Judge Lawson acknowledged that Petitioners’ Counsel would want an opportunity to challenge itemizations of any fees. The trial court totally yielded to the Magistrate’s Report hearing contrary to the Rules and Article III. The trial court adopted the Magistrate’s determination fees even though the fees determined were not assigned to the Magistrate. However, particularly, Petitioners’ attorneys were never afforded an opportunity to address any misconduct related in the fabricated, unsigned Report before Judge Lawson after the court adopted the findings of the Report.[App. pg.67a] The United States Supreme Court wrote, “[l]ike other sanctions, attorneys’ fees certainly should not be assessed lightly or without fair notice and an opportunity for a hearing on the record. 15 Magistrate Judge Scheer wrote, “The specific acts of misconduct and obfuscation…are attributable directly to Mr. Reed based on the unsigned report.”: (RE 320). 30 Roadway Exp., Inc. v. Piper, 447 U.S. 752, 767(1980)(emphasis added). It was inexcusable for the trial court to deny an opportunity for a hearing as to the wholesale adoption of the Magistrate’s Report by rubber-stamping the Report and Recommendation. Neither Petitioners nor Counsel was afforded an opportunity violating the Fifth Amendment and Article III of the Constitution. The lower court adopted the report. Clearly violated Petitioners’ and Counsel’s Constitutional Rights. Stauble v. Warrob, Inc., 977 F.2d 690, 697 (1st Cir. 1992). Burlington N.R. Co., v. Dept. of Revenue of Wash, 934 F.2d 1064 (9th Cir. 1991). Polin v. Dun & Bradstreet, Inc., 634 F.2d 1319, 1321 (10th Cir. 1980). The Court of Appeals’ decision to adopt the Magistrate’s R & R by rubber-stamping the report as the trial court created opportunity for broad misuse in various industries and has negative ramifications for intercircuit’s decisions and created exceptional costs for litigants and the court system. Petitioners’ motion that the court preserved all existing evidence on record in regards to the unsigned report.[App. B] The trial court denied Petitioners’ request, contrary to law, which does not afford Petitioners with equal protection under the U.S. Constitution. Cinn. Ins. Co. v. Beazer Homes, Invs., F.3d 2010 WL 374725 at *12 (6th Cir. 2010). Petitioners did not request to expand the record but preserved the existing record. The trial court’s ruling violated Petitioners’’ rights.

 

CONCLUSION

 

For the foregoing reasoning and Constitutional rights afforded to every citizen, the Petitioners request that the Writ of Certiorari be granted.

 

Respectfully submitted, Gregory J. Reed Counsel of Record for Petitioners

 

GREGORY J. REED & ASSOCIATES, P.C. 1201 Bagley Detroit, MI 48226 (313) 961-3580 gjrassoc@aol.com   

 

(shortened for posting, contact attorney for full petition)