HERE is my response to the US National Security who has told me they have been on my Facebook page (same as Trevor Rhodes admitted in writing he has been on my same Facebook page, in Petranos v. Old Republic et al., N.D.Fla. No. 1:12-cv-00086-SPM/GRJ, Dkt. 196-3), where I have received death threats, where I have been told my Magistrate Jones case (removal case) outcome was "fixed" to go against me (similar to how Trevor Rhodes attempted to manipulate my bankruptcy case in disobedience of a Senior District Court Judge's Order as I posted in two posts of earlier today), where I have been mocked over my daughter being threatened under FISA Orders, and where I have been blasted with known epilepsy seizure triggers -- I have been a Sprint, Verizon, and AT&T customer under the FISA Orders mentioned over the 7 year period and I have the same standing to file a new lawsuit for injunctive relief just like the one below:
"UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
AMERICAN CIVIL LIBERTIES UNION; AMERICAN CIVIL LIBERTIES UNION FOUNDATION; NEW YORK CIVIL LIBERTIES UNION; and NEW YORK CIVIL LIBERTIES UNION FOUNDATION,
Plaintiffs,
v.
JAMES R. CLAPPER, in his official capacity as Director of National Intelligence; KEITH B. ALEXANDER, in his official capacity as Director of the National Security Agency and Chief of the Central Security Service; CHARLES T. HAGEL, in his official capacity as Secretary of Defense; ERIC
H. HOLDER, in his official capacity as Attorney General of the United States; and ROBERT S. MUELLER III, in his official capacity as Director of the Federal Bureau of Investigation,
Defendants.
ECF CASE COMPLAINT FOR
DECLARATORY AND INJUNCTIVE RELIEF
Case No. Hon.
Arthur N. Eisenberg (AE-2012) Christopher T. Dunn (CD-3991) New York Civil Liberties Union
Foundation
125 Broad Street, 19th Floor New York, NY 10004 Phone: (212) 607-3300
Fax: (212) 607-3318
aeisenberg@nyclu.org
Jameel Jaffer (JJ-4653) Alex Abdo (AA-0527)
Brett Max Kaufman (BK-2827) Patrick Toomey (PT-1452) Catherine Crump (CC-4067) American Civil Liberties Union
Foundation
125 Broad Street, 18th Floor New York, NY 10004 Phone: (212) 549-2500
Fax: (212) 549-2654
jjaffer@aclu.org
June 11, 2013
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
1. This lawsuit challenges the government’s dragnet acquisition of Plaintiffs’ telephone records under Section 215 of the Patriot Act, 50 U.S.C. § 1861.1 In response to information published by the media, the government has acknowledged that it is relying on Section 215 to collect “metadata” about every phone call made or received by residents of the United States. The practice is akin to snatching every American’s address book—with annotations detailing whom we spoke to, when we talked, for how long, and from where. It gives the government a comprehensive record of our associations and public movements, revealing a wealth of detail about our familial, political, professional, religious, and intimate associations.
2. The government has confirmed the authenticity of an order issued six weeks ago by the Foreign Intelligence Surveillance Court (“FISC”) requiring Verizon Business Network Services Inc. (“VBNS”) to turn over, every day, metadata about the calls made by each of its subscribers over the three-month period ending on July 19, 2013. Government officials have indicated that the VBNS order is part of a program that has been in place for seven years and that collects records of all telephone communications of every customer of a major phone company, including Verizon, AT&T, and Sprint.
3. Plaintiffs the American Civil Liberties Union and the American Civil Liberties Union Foundation are current VBNS subscribers whose communications have already been monitored by the government under the VBNS order and whose communications continue to be monitored under that order now. Plaintiffs the New York Civil Liberties Union and the New York Civil Liberties Union Foundation are former customers of VBNS whose contract of service recently expired but whose telephony metadata likely remains in government databases. The
1 “The Patriot Act” is the common name for the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Pub. L. No. 107-56, 115 Stat. 272.
1
government’s surveillance of their communications (hereinafter “Mass Call Tracking”) allows the government to learn sensitive and privileged information about their work and clients, and it is likely to have a chilling effect on whistleblowers and others who would otherwise contact Plaintiffs for legal assistance. This surveillance is not authorized by Section 215 and violates the First and Fourth Amendments. Plaintiffs bring this suit to obtain a declaration that the Mass Call Tracking is unlawful; to enjoin the government from continuing the Mass Call Tracking under the VBNS order or any successor thereto; and to require the government to purge from its databases all of the call records related to Plaintiffs’ communications collected pursuant to the Mass Call Tracking.
JURISDICTION AND VENUE
4. This case arises under the Constitution and the laws of the United States and presents a federal question within this Court’s jurisdiction under Article III of the Constitution and 28 U.S.C. § 1331. The Court also has jurisdiction under the Administrative Procedure Act, 5
U.S.C. § 702. The Court has authority to grant declaratory relief pursuant to the Declaratory Judgment Act, 28 U.S.C. §§ 2201–2202. The Court has authority to award costs and attorneys’ fees under 28 U.S.C. § 2412.
5. Venue is proper in this district under 28 U.S.C. § 1391(b)(2), (c)(2).
PLAINTIFFS
6. The American Civil Liberties Union (“ACLU”) is a 501(c)(4) non-profit, non- partisan organization that engages in public education and lobbying about the constitutional principles of liberty and equality. The ACLU has more than 500,000 members, including members in every state. The ACLU is incorporated in Washington, D.C. and has its principal place of business in New York City.
7. The American Civil Liberties Union Foundation (“ACLUF”) is a 501(c)(3) organization that educates the public about civil-liberties issues and employs lawyers who provide legal representation free of charge in cases involving civil liberties. It is incorporated in New York State and has its principal place of business in New York City.
8. The New York Civil Liberties Union (“NYCLU”) is a 501(c)(4) non-profit, non- partisan organization that functions as the ACLU affiliate in New York and that has as its mission the advancement and protection of civil liberties and civil rights. The NYCLU is incorporated in New York and has its principal place of business in New York City.
9. The New York Civil Liberties Union Foundation (“NYCLUF”) is a 501(c)(3) non-profit, non-partisan organization whose mission is to defend civil rights and civil liberties and to preserve and extend constitutionally guaranteed rights to people whose rights have historically been denied. The NYCLUF provides counsel in lawsuits seeking to advance civil liberties and civil rights. It is incorporated in Delaware and has its principal place of business in New York City.
DEFENDANTS
10. Defendant James R. Clapper is the Director of National Intelligence (“DNI”). DNI Clapper has ultimate authority over the activities of the intelligence community.
11. Defendant Lt. Gen. Keith B. Alexander is the Director of the National Security Agency (“NSA”) and the Chief of the Central Security Service. Lt. Gen. Alexander has ultimate authority for supervising and implementing all operations and functions of the NSA, the agency responsible for conducting surveillance authorized by the challenged law.
12. Defendant Charles T. Hagel is the Secretary of Defense. Secretary Hagel has ultimate authority over the Department of Defense, of which the NSA is a component.
13. Defendant Eric H. Holder is the Attorney General of the United States. Attorney General Holder has ultimate authority over the Department of Justice and the Federal Bureau of Investigation (“FBI”) and is responsible for overseeing aspects of the challenged statute.
14. Defendant Robert S. Mueller III is the Director of the FBI and is responsible for applications made to the FISC under Section 215 of the Patriot Act.
BACKGROUND
The Foreign Intelligence Surveillance Act
15. In 1978, Congress enacted the Foreign Intelligence Surveillance Act (“FISA”) to govern surveillance conducted for foreign-intelligence purposes. The statute created the Foreign Intelligence Surveillance Court (“FISC”), a court composed of seven (now eleven) federal district court judges, and empowered the court to grant or deny government applications for surveillance orders in foreign-intelligence investigations.
16. Congress enacted FISA after years of in-depth congressional investigation by the committees chaired by Senator Frank Church and Representative Otis Pike, which revealed that the Executive Branch had engaged in widespread warrantless surveillance of United States citizens—including journalists, activists, and members of Congress—“who engaged in no criminal activity and who posed no genuine threat to the national security.”
Section 215 of the Patriot Act
17. Section 215 of the Patriot Act is often referred to as FISA’s “business records” provision. When originally enacted in 1998, this provision permitted the FBI to apply to the FISC for an order to obtain business records of hotels, motels, car and truck rental agencies, and storage rental facilities.
18. Section 215 broadened this authority by eliminating any limitation on the types of businesses or entities whose records may be seized. In addition, Section 215 expanded the scope of the items that the FBI may obtain using this authority from “records” to “any tangible things (including books, records, papers, documents, and other items).”
19. Section 215 also relaxed the standard that the FBI is required to meet to obtain an order to seize these records. Previously, FISA required the FBI to present to the FISC “specific and articulable facts giving reason to believe that the person to whom the records pertain [was] a foreign power or an agent of a foreign power.” In its current form, Section 215 requires only that the records or things sought be “relevant” to an authorized investigation “to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities.”
20. Production orders issued under Section 215 are accompanied by gag orders generally forbidding recipients from revealing “that the Federal Bureau of Investigation has sought or obtained tangible things.” Recipients may challenge gag orders “[n]ot less than 1 year after the date of the issuance of the production order.” If a recipient challenges a gag order, the FISC must treat the government’s claim “that disclosure may endanger the national security of the United States or interfere with diplomatic relations . . . as conclusive.”
21. For the past several years, members of Congress have been warning the public that the Executive Branch was exceeding the limits of the Patriot Act. In 2009, Senator Russ Feingold stated during a hearing that “there . . . is information about the use of Section 215 orders that I believe Congress and the American people deserve to know,” adding later that “Section 215 has been misused.” In 2011, Senator Ron Wyden declared, “When the American people find out how their government has secretly interpreted the Patriot Act, they will be
stunned and they will be angry.” Similarly, Senator Mark Udall protested that “Americans would be alarmed if they knew how this law is being carried out.”
22. On June 5, 2013, The Guardian disclosed that, under Section 215, the NSA has been acquiring the metadata for every phone call made or received by customers of VBNS “on an ongoing daily basis.”
23. Since the disclosure of the VBNS order last week and the government’s official acknowledgement of it, the outcry in Congress has increased sharply. Representative Jim Sensenbrenner, an author of the Patriot Act and chairman of the House Judiciary Committee at the time of Section 215’s passage, called the Section 215 surveillance program “an abuse of that law.” He wrote that, “based on the scope of the released order, both the administration and the FISA court are relying on an unbounded interpretation of the act that Congress never intended.”
PLAINTIFFS’ ALLEGATIONS
24. Plaintiffs are non-profit organizations that engage in public education, lobbying, and pro bono litigation upholding the civil rights and liberties guaranteed by the Constitution. Collectively, Plaintiffs have more than 500,000 members, including members in every state. Plaintiffs’ employees routinely communicate by phone with each other as well as with journalists, current and potential clients, legislators and legislative staff, and members of the public. These communications relate to Plaintiffs’ advocacy, representation of clients, and efforts to lobby Congress. Plaintiffs’ communications are sensitive and often privileged.
25. For example, Plaintiffs frequently place or receive phone calls from individuals relating to potential legal representation in suits against the federal government or state governments. Often, the mere fact that Plaintiffs have communicated with these individuals is sensitive or privileged.
26. In ongoing litigation, Plaintiffs often communicate with potential witnesses, informants, or sources who regard the fact of their association or affiliation with Plaintiffs as confidential. Particularly in their work relating to national security, access to reproductive services, racial discrimination, the rights of immigrants, and discrimination based on sexual orientation and gender identity, Plaintiffs’ work often depends on their ability to keep even the fact of their discussions with certain individuals confidential.
27. Similarly, Plaintiffs often communicate with government and industry whistleblowers, lobbyists, journalists, and possible advocacy partners who consider the confidentiality of their associations with Plaintiffs essential to their work.
28. Plaintiffs ACLU and ACLUF are current customers of Verizon Business Network Services Inc. (“VBNS”) and Verizon Wireless. VBNS provides the ACLU’s and ACLUF’s wired communications, including their landlines and internet connection. Verizon Wireless provides their wireless communications, including their mobile phones.
29. Plaintiff NYCLU was a customer of VBNS until early April 2013. Until that time, VBNS provided the NYCLU’s wired communications, including their landlines.
30. On June 5, 2013, The Guardian published a FISC order directing VBNS to produce to the National Security Agency “on an ongoing daily basis . . . all call detail records or ‘telephony metadata’” of its customers’ calls, including those “wholly within the United States.” Secondary Order at 2, In re Application of the FBI for an Order Requiring the Prod. of Tangible Things from Verizon Bus. Network Servs., Inc. on Behalf of MCI Commc’n Servs., Inc. d/b/a Verizon Bus. Servs., No. BR 13-80 (FISC Apr. 25, 2013), available at http://bit.ly/11FY393. The VBNS order was issued on April 25, 2013 and expires on July 19, 2013. The order was issued ex parte, and there is no procedure for Plaintiffs to challenge it in the FISC.
31. In the few days since The Guardian disclosed the VBNS order, government officials have revealed more about the government’s surveillance under Section 215. On June 6, Defendant Clapper officially acknowledged the authenticity of the VBNS order and disclosed details about the broader program supported by the FISC’s orders issued under Section 215. Among other things, he stated that: “[t]he judicial order that was disclosed in the press is used to support a sensitive intelligence collection operation”; “[t]he only type of information acquired under the Court’s order is telephony metadata, such as telephone numbers dialed and length of calls”; and “[t]he [FISC] reviews the program approximately every 90 days.”
32. The following day, President Barack Obama also commented publicly on the Section 215 order. Like Defendant Clapper, the President acknowledged that the intelligence community is tracking phone numbers and the durations of calls.
33. Members of the congressional intelligence committees have confirmed that the order issued to VBNS was but a single, three-month order in a much broader, seven-year program that the government has relied upon to collect the telephone records of all Americans. Senator Dianne Feinstein has stated that “this is the exact three-month renewal of what has been the case for the past seven years. This renewal is carried out by the [FISC] under the business records section of the Patriot Act.” Senator Saxby Chambliss has likewise stated that “[t]his has been going on for seven years.”
34. News reports since the disclosure of the VBNS order indicate that the mass acquisition of Americans’ call details extends beyond customers of VBNS, encompassing all wireless and landline subscribers of the country’s three largest phone companies. See Siobhan Gorman et al., U.S. Collects Vast Data Trove, Wall St. J., June 7, 2013, http://on.wsj.com/11uD0ue (“The arrangement with Verizon, AT&T and Sprint, the country’s
three largest phone companies means, that every time the majority of Americans makes a call, NSA gets a record of the location, the number called, the time of the call and the length of the conversation, according to people familiar with the matter. . . . AT&T has 107.3 million wireless customers and 31.2 million landline customers. Verizon has 98.9 million wireless customers and
22.2 million landline customers while Sprint has 55 million customers in total.”); Siobhan Gorman & Jennifer Valentino-DeVries, Government Is Tracking Verizon Customers’ Records, Wall St. J., June 6, 2013, http://on.wsj.com/13mLm7c (“The National Security Agency is obtaining a complete set of phone records from all Verizon U.S. customers under a secret court order, according to a published account and former officials.”).
35. As customers of VBNS, Plaintiffs ACLU and ACLUF are covered by the now- public order of the FISC requiring VBNS to turn over all of its customers’ call records— including all of Plaintiffs’ call records—on an ongoing basis. Upon information and belief, Plaintiff NYCLU was covered by a similar order prior to the expiration of their contract with VBNS. Also upon information and belief, Plaintiffs ACLU and ACLUF are covered by a similar order directed to Verizon Wireless. The information collected includes Plaintiffs’ numbers, the numbers of their contacts, the time and duration of every single call they placed or received, and the location of Plaintiffs and their contacts when talking on mobile phones. This information could readily be used to identify those who contact Plaintiffs for legal assistance or to report human-rights or civil-liberties violations, as well as those whom Plaintiffs contact in connection with their work. The fact that the government is collecting this information is likely to have a chilling effect on people who would otherwise contact Plaintiffs.
CAUSES OF ACTION
36. The Mass Call Tracking exceeds the authority granted by 50 U.S.C. § 1861, and thereby violates 5 U.S.C. § 706.
37. The Mass Call Tracking violates the First Amendment to the Constitution.
38. The Mass Call Tracking violates the Fourth Amendment to the Constitution.
PRAYER FOR RELIEF
WHEREFORE the plaintiffs respectfully request that the Court:
1. Exercise jurisdiction over Plaintiffs’ Complaint;
2. Declare that the Mass Call Tracking violates 50 U.S.C. § 1861 and 5 U.S.C.
§ 706;
3. Declare that the Mass Call Tracking violates the First and Fourth Amendments to the Constitution;
4. Permanently enjoin Defendants from continuing the Mass Call Tracking under the VBNS order or any successor thereto;
5. Order Defendants to purge from their possession all of the call records of Plaintiffs’ communications in their possession collected pursuant to the Mass Call Tracking;
6. Award Plaintiff fees and costs pursuant to 28 U.S.C. § 2412;
7. Grant such other and further relief as the Court deems just and proper.
Respectfully submitted,
Arthur N. Eisenberg (AE-2012) Christopher T. Dunn (CD-3991) New York Civil Liberties Union
Foundation
125 Broad Street, 19th Floor New York, NY 10004 Phone: (212) 607-3300
/s/ Jameel Jaffer Jameel Jaffer (JJ-4653) Alex Abdo (AA-0527)
Brett Max Kaufman (BK-2827)
Patrick Toomey (PT-1452) Catherine Crump (CC-4067) American Civil Liberties Union
Foundation
Fax: (212) 607-3318
aeisenberg@nyclu.org
125 Broad Street, 18th Floor New York, NY 10004 Phone: (212) 549-2500
Fax: (212) 549-2654
jjaffer@aclu.org
June 11, 2013"
Thursday, June 13, 2013
MORE BIG INSURANCE COMPANY & LAWYER BEATS UP ON SEVERE AUTISM -- Trevor Rhodes, Esq. & Banker Lopez Gassler, P.A. Tampa Law Firm UNTIMELY Response W/O Leave of Court In Disobedience Of Hon. Judge Paul's April 30, 2013 Order Saying It Is an Appeal and My Objections Filed In Compliance With Judge Paul's Order Should Be Stricken As "Untimely"
Here is Trevor Rhodes, Esq.'s Response untimely filed today under Fed. R. Civ. P. 11 and Fed. R. Bankr. P. 11 certifying that his pleading is not frivolous or filed for any improper purpose when he represents IN DIRECT DISOBEDIENCE OF HON. SENIOR UNITED STATES DISTRICT COURT JUDGE MAURICE PAUL'S APRIL 30, 2013 ORDER, that it is 'an appeal' and that my Objections to the Chief Bankruptcy Judge's Report and Recommendation filed by May 28, 2013 IN COMPLIANCE WITH THE ORDER, should be stricken as unauthorized and untimely -- THIS SHOWS THE OPENLY FRAUD ON THE COURT BY WHICH TREVOR RHODES, ESQ. AND BANKER LOPEZ GASSLER Tampa law firm obtained the sanctions "to deter" my Autistic language and behaviors without my being able to see to read any of the pleadings he filed against me to do so, and by which it appears this lawyer and law firm litigate cases against other Florida parties and law firms:
"UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF FLORIDA GAINESVILLE DIVISION
DAVID F. PETRANO and
MARY KATHERINE DAY-PETRANO,
Plaintiffs, v.
1:13-cv-00079-MP-GRJ
TREVOR RHODES, et al,
Defendants.
/
DEFENDANTS, TREVOR RHODES, BANKER LOPEZ GASSLER PA, CARL
SCHWAIT AND NATIONWIDE MUTUAL FIRE INSURANCE COMPANY’S RESPONSE AND OBJECTION TO PLAINTIFF-DEBTOR’S RESPONSE T O
HON. CHIEF BANKRUPTCY JUDGE ’S RECOMMENDATION MOTION FOR WITHDRAWAL OF REFERENCE
COME NOW, the Defendants, TREVOR RHODES (“Rhodes”), BANKER LOPEZ GASSLER PA (“BLG”), CARL SCHWAIT (“Schwait”) and NATIONWIDE MUTUAL FIRE
INSURANCE COMPNAY (“Nationwide”), pursuant to the Federal Rules of Civil Procedure, file this Response and Objection to Plaintiff-Debtor’s Response to Hon. Chief Bankruptcy Judge’s Recommendation Motion for Withdrawal. (Doc. 12). Although the Plaintiffs’ concurrent Chapter 12 bankruptcy is presently stayed, Defendants feel a response is required because the allegations and issues raised in Plaintiffs’ response directly relate to the bankruptcy. In support of their response and objection, Defendants state the following:
1. As this Court is aware, this is a federal court case with a long and convoluted
procedural history but a brief background, highlighting the main points leading up to this response, is necessary.
2. On January 24, 2013, after the Plaintiffs’ filed a complaint and amended complaint against the named Defendants, the Court adopted a report and recommendation, ordered the dismissal of Plaintiffs’ case with prejudice and entered final judgment. (Doc. 225, 179 1:12-cv- 00086-SPM-GRJ)
3. On February 4, 2013, it was further recommended that sanctions be awarded due to the frivolous nature of the Complaint. (Doc. 182, 1:12-cv-00086-SPM-GRJ).
4. Following the entry of the Magistrate’s Report and Recommendation recommending sanctions, the Plaintiffs’ filed for Chapter 12 Bankruptcy (Doc. 1, 13-10052-KKS). Subsequently, the Plaintiffs filed a Suggestion of Bankruptcy on February 12, 2013 and asserted in their filing that this underlying action was subject to the automatic stay provided in 11 U.S.C.
§ 362. (Doc. 191, 1:12-cv-00086-SPM-GRJ).
5. Defendants immediately filed a motion seeking to strike the Petranos’ Suggestion of Bankruptcy, correctly pointing out that the automatic stay typically associated with the filing of bankruptcy would not apply in a case where, as here, the debtors were plaintiffs rather than defendants, nor to the pending award of sanctions. (Doc. 192, 1:12-cv-00086-SPM-GRJ).
6. The Suggestion of Bankruptcy was ultimately stricken. (Doc. 206, 1:12-cv-00086-SPM- GRJ).
7. At a hearing held on April 4, 2013, the Bankruptcy Court ruled that no such stay was in Place. (Doc. 73, 13-10052-KKS).
8. On April 16, 2013, Judge Specie entered the Order on Order to Show Cause as to Appointment of Guardian Ad Litem in Plaintiffs’ Chapter 12 Bankruptcy, case number 13- 10052. Judge Specie specifically ordered that “[t]his Chapter 12 case, and all applicable deadlines shall be stayed until further order of the Court to permit the Debtors time to seek a determination in state court as to whether Day-Petrano is incompetent and as to whether, and to what extent, a guardian ad litem should be appointed for Day-Petrano.” Whether from oversight or clerical error, the Plaintiffs did not mention the judge’s Order in their response. (Doc. 80, 13- 10052-KKS).
9. On April 22, 2013, the District Court withdrew the reference with report and recommendation. (Doc. 1).
10. The Plaintiffs’ filed a response, effectively requesting the District Court to take judicial notice of their allegations and deny Judge Specie’s Report and Recommendation Motion to Withdraw Reference, which is itself an appeal and procedurally inappropriate. (Doc. 9).
Memorandum of Law
I. Defendants did not Waive Proof of Claim or Make Judicial Admission
One portion of the Plaintiffs’ allegations in their response filing is that the Defendants have somehow waived their proof of claim by not filing the same before the originally set deadline in the Plaintiffs’ Chapter 12 Bankruptcy. Defendants maintain that they did not waive their proof of claim or make a judicial admission by not filing a proof of claim prior to the bar date because Judge Specie specifically ordered that all deadlines be stayed in the bankruptcy until further order. (Doc. 80, 13-10052-KKS). As such, the Defendants were stayed from filing a proof of claim. Clearly, no judicial admission was made in this case and the only reason Defendants are compelled to respond is because the Plaintiffs are employing tactics to elicit judicial notice from this District on a bankruptcy matter.
Defendants would also submit that the Plaintiffs are attempting to usurp the ruling of the bankruptcy court by essentially requesting judicial notice from the district court and appealing the report and recommendation without any procedural support. On April 16, 2013, the bankruptcy court entered its Order and stated that the Plaintiffs’ Chapter 12 bankruptcy “and all applicable deadlines shall be stayed until further order of the Court…” (Doc. 80, 13-10052- KKS). Directly relating to the proof of claim bar date, Defendants contend that they are not only stayed from filing a proof of claim because of the order, but that the Plaintiffs are ignoring the appropriate appeals process if they so elect to object to the withdrawal of reference.
Finally, even if the Court determines that Defendants proof of claim was not filed timely and it declares judicial notice on a bankruptcy matter, 11 U.S.C.A. § 501(c) states in part that “[i]f a creditor does not timely file a proof of such creditor's claim, the debtor or the trustee may file a proof of such claim.” Therefore, the proof of claim is not waived.
II. Defendants did not Fail to File Adversary Complaint
Similarly, the Plaintiffs also contend that the Defendants failed to timely file an adversary complaint to determine the dischargeability of their claim. The Defendants maintain that they did not fail to file the adversary complaint to determine the dischargeability of its debt within the sixty (60) days outlined in 11 U.S.C. 523(c) because the entire bankruptcy, including deadlines, was stayed by Judge Specie on April 16, 2013. The sixty (60) days to file the adversary complaint lapsed on May 14, 2013, approximately one month after Judge Specie’s Order. Additionally, the dischargeability of Defendants’ claim, the subject of such an adversary complaint, is the purpose of the withdrawal of reference.
At the risk of being duplicative, the Defendants reiterate that the bankruptcy court, having jurisdiction over this matter, stayed the Plaintiffs’ bankruptcy until further order. (Doc. 80, 13-10052-KKS). The Plaintiffs are simply attempting to usurp the bankruptcy court’s ruling by judicial noticing these matters and ignoring the appropriate procedural and appellate process. The bankruptcy is stayed, therefore the defendants have not failed to file an adversary proceeding to determine dischargeability of claim.
III. Issue at Bar is not a Core Proceeding and Therefore a Withdrawal of Reference is Appropriate
Finally, Plaintiffs delved into discourse regarding mandatory and permissive withdrawal of reference. First, this matter has already been withdrawn to this Court and the Plaintiffs’ response to Judge Specie’s recommendation is untimely. Second, case law establishes that a “core proceeding” is one that could arise only in the context of a bankruptcy case. See, McCord
v. Papantoniou, 316 B.R. 113 (E.D.N.Y.2004); In re Burger Boys, Inc., 183 B.R. 682 (S.D.N.Y.1994); In re Cossett, 75 B.R. 766 (Bkrtcy.S.D.Ohio 1987). By extension, matters that are merely related to bankruptcy case are not core proceedings, and thus, although they are within bankruptcy jurisdiction of district court, bankruptcy judge to whom such matter is referred may only propose findings of fact and conclusions of law to assist district court in rendering judgment. See, In re Markos Gurnee Partnership, 182 B.R. 211 (Bkrtcy.N.D.Ill.1995).
Conversely, “non-core proceedings” in bankruptcy are those “otherwise related” to case under title 11 which have significant connection to debtor's bankruptcy but do not satisfy the standard for core proceedings in that the proceeding does not arise under title 11 or in a case under title 11. Plaza at Latham Associates v. Citicorp North America, Inc., 150 B.R. 507 (N.D.N.Y.1993).
Additionally, the Defendants object to the absurd allegation that they are forum shopping this matter. The proceeding at bar arose out of the Plaintiffs’ civil suit against the named Defendants and not from their subsequent bankruptcy or other proceedings. As permitted by statute, the bankruptcy court correctly filed a motion to withdraw the reference and this Honorable Court correctly withdrew the reference to render judgment for the sake of judicial economy.
WHEREFORE, the Defendants, RHODES, BLG, SCHWAIT and NATIONWAIDE,
request that Plaintiffs’ Response be stricken or denied, as well as any and all other relief deemed just and appropriate, in light of the bankruptcy court’s Order Staying Chapter 12 case, and the numerous delineated reasons.
CERTIFICATE OF LOCAL RULE 7.1(B) GOOD FAITH CONFERENCE
The undersigned counsel hereby certifies that counsel for Nationwide Mutual Fire Insurance Company and Carl Schwait, has attempted to confer with pro se Plaintiffs, David F. Petrano and Mary Katherine Day-Petrano, in regards to this matter via email on June 13, 2013, in a good faith effort to resolve the issues presented by Defendants’ response and the relief sought. However, the parties were unable to reach an agreement on same.
Dated this 13th day of June, 2013.
Respectfully submitted,
BANKER LOPEZ GASSLER P.A.
501 E. Kennedy Blvd., Suite 1500
Tampa, FL 33602-5246
(813) 221-1500
Fax No: (813) 222-3066
Attorneys for Defendants Schwait and Nationwide
/s/ Trevor T. Rhodes
Trevor T. Rhodes Florida Bar No: 0020573
BANKER LOPEZ GASSLER P.A.
501 E. Kennedy Blvd., Suite 1500
Tampa, FL 33602-5246
(813) 221-1500
Fax No: (813) 222-3066
Email: trhodes@bankerlopez.com
Attorneys for Rhodes, BLG, Schwait and Nationwide
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 13th day of June, 2013, I electronically filed the foregoing with the Clerk of the Court by using the CM/ECF system, and will send notice via email or U.S. Mail to the following:
David F. Petrano
11502 SE U.S. Hwy 301
Hawthorne, FL 32640
Mary Katherine Day-Petrano 11502 SE U.S. Hwy 301
Hawthorne, FL 32640
Gina G. Smith
Butler Pppas Weihmuller 3600 Maclay Blvd., Suite 101
Tallahassee, FL 32312
/s/ Trevor T. Rhodes
Trevor T. Rhodes Florida Bar No: 0020573
BANKER LOPEZ GASSLER P.A.
501 E. Kennedy Blvd., Suite 1500
Tampa, FL 33602-5246
(813) 221-1500
Fax No: (813) 222-3066
Email: trhodes@bankerlopez.com Attorneys for Carl Schwait and Nationwide"
"UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF FLORIDA GAINESVILLE DIVISION
DAVID F. PETRANO and
MARY KATHERINE DAY-PETRANO,
Plaintiffs, v.
1:13-cv-00079-MP-GRJ
TREVOR RHODES, et al,
Defendants.
/
DEFENDANTS, TREVOR RHODES, BANKER LOPEZ GASSLER PA, CARL
SCHWAIT AND NATIONWIDE MUTUAL FIRE INSURANCE COMPANY’S RESPONSE AND OBJECTION TO PLAINTIFF-DEBTOR’S RESPONSE T O
HON. CHIEF BANKRUPTCY JUDGE ’S RECOMMENDATION MOTION FOR WITHDRAWAL OF REFERENCE
COME NOW, the Defendants, TREVOR RHODES (“Rhodes”), BANKER LOPEZ GASSLER PA (“BLG”), CARL SCHWAIT (“Schwait”) and NATIONWIDE MUTUAL FIRE
INSURANCE COMPNAY (“Nationwide”), pursuant to the Federal Rules of Civil Procedure, file this Response and Objection to Plaintiff-Debtor’s Response to Hon. Chief Bankruptcy Judge’s Recommendation Motion for Withdrawal. (Doc. 12). Although the Plaintiffs’ concurrent Chapter 12 bankruptcy is presently stayed, Defendants feel a response is required because the allegations and issues raised in Plaintiffs’ response directly relate to the bankruptcy. In support of their response and objection, Defendants state the following:
1. As this Court is aware, this is a federal court case with a long and convoluted
procedural history but a brief background, highlighting the main points leading up to this response, is necessary.
2. On January 24, 2013, after the Plaintiffs’ filed a complaint and amended complaint against the named Defendants, the Court adopted a report and recommendation, ordered the dismissal of Plaintiffs’ case with prejudice and entered final judgment. (Doc. 225, 179 1:12-cv- 00086-SPM-GRJ)
3. On February 4, 2013, it was further recommended that sanctions be awarded due to the frivolous nature of the Complaint. (Doc. 182, 1:12-cv-00086-SPM-GRJ).
4. Following the entry of the Magistrate’s Report and Recommendation recommending sanctions, the Plaintiffs’ filed for Chapter 12 Bankruptcy (Doc. 1, 13-10052-KKS). Subsequently, the Plaintiffs filed a Suggestion of Bankruptcy on February 12, 2013 and asserted in their filing that this underlying action was subject to the automatic stay provided in 11 U.S.C.
§ 362. (Doc. 191, 1:12-cv-00086-SPM-GRJ).
5. Defendants immediately filed a motion seeking to strike the Petranos’ Suggestion of Bankruptcy, correctly pointing out that the automatic stay typically associated with the filing of bankruptcy would not apply in a case where, as here, the debtors were plaintiffs rather than defendants, nor to the pending award of sanctions. (Doc. 192, 1:12-cv-00086-SPM-GRJ).
6. The Suggestion of Bankruptcy was ultimately stricken. (Doc. 206, 1:12-cv-00086-SPM- GRJ).
7. At a hearing held on April 4, 2013, the Bankruptcy Court ruled that no such stay was in Place. (Doc. 73, 13-10052-KKS).
8. On April 16, 2013, Judge Specie entered the Order on Order to Show Cause as to Appointment of Guardian Ad Litem in Plaintiffs’ Chapter 12 Bankruptcy, case number 13- 10052. Judge Specie specifically ordered that “[t]his Chapter 12 case, and all applicable deadlines shall be stayed until further order of the Court to permit the Debtors time to seek a determination in state court as to whether Day-Petrano is incompetent and as to whether, and to what extent, a guardian ad litem should be appointed for Day-Petrano.” Whether from oversight or clerical error, the Plaintiffs did not mention the judge’s Order in their response. (Doc. 80, 13- 10052-KKS).
9. On April 22, 2013, the District Court withdrew the reference with report and recommendation. (Doc. 1).
10. The Plaintiffs’ filed a response, effectively requesting the District Court to take judicial notice of their allegations and deny Judge Specie’s Report and Recommendation Motion to Withdraw Reference, which is itself an appeal and procedurally inappropriate. (Doc. 9).
Memorandum of Law
I. Defendants did not Waive Proof of Claim or Make Judicial Admission
One portion of the Plaintiffs’ allegations in their response filing is that the Defendants have somehow waived their proof of claim by not filing the same before the originally set deadline in the Plaintiffs’ Chapter 12 Bankruptcy. Defendants maintain that they did not waive their proof of claim or make a judicial admission by not filing a proof of claim prior to the bar date because Judge Specie specifically ordered that all deadlines be stayed in the bankruptcy until further order. (Doc. 80, 13-10052-KKS). As such, the Defendants were stayed from filing a proof of claim. Clearly, no judicial admission was made in this case and the only reason Defendants are compelled to respond is because the Plaintiffs are employing tactics to elicit judicial notice from this District on a bankruptcy matter.
Defendants would also submit that the Plaintiffs are attempting to usurp the ruling of the bankruptcy court by essentially requesting judicial notice from the district court and appealing the report and recommendation without any procedural support. On April 16, 2013, the bankruptcy court entered its Order and stated that the Plaintiffs’ Chapter 12 bankruptcy “and all applicable deadlines shall be stayed until further order of the Court…” (Doc. 80, 13-10052- KKS). Directly relating to the proof of claim bar date, Defendants contend that they are not only stayed from filing a proof of claim because of the order, but that the Plaintiffs are ignoring the appropriate appeals process if they so elect to object to the withdrawal of reference.
Finally, even if the Court determines that Defendants proof of claim was not filed timely and it declares judicial notice on a bankruptcy matter, 11 U.S.C.A. § 501(c) states in part that “[i]f a creditor does not timely file a proof of such creditor's claim, the debtor or the trustee may file a proof of such claim.” Therefore, the proof of claim is not waived.
II. Defendants did not Fail to File Adversary Complaint
Similarly, the Plaintiffs also contend that the Defendants failed to timely file an adversary complaint to determine the dischargeability of their claim. The Defendants maintain that they did not fail to file the adversary complaint to determine the dischargeability of its debt within the sixty (60) days outlined in 11 U.S.C. 523(c) because the entire bankruptcy, including deadlines, was stayed by Judge Specie on April 16, 2013. The sixty (60) days to file the adversary complaint lapsed on May 14, 2013, approximately one month after Judge Specie’s Order. Additionally, the dischargeability of Defendants’ claim, the subject of such an adversary complaint, is the purpose of the withdrawal of reference.
At the risk of being duplicative, the Defendants reiterate that the bankruptcy court, having jurisdiction over this matter, stayed the Plaintiffs’ bankruptcy until further order. (Doc. 80, 13-10052-KKS). The Plaintiffs are simply attempting to usurp the bankruptcy court’s ruling by judicial noticing these matters and ignoring the appropriate procedural and appellate process. The bankruptcy is stayed, therefore the defendants have not failed to file an adversary proceeding to determine dischargeability of claim.
III. Issue at Bar is not a Core Proceeding and Therefore a Withdrawal of Reference is Appropriate
Finally, Plaintiffs delved into discourse regarding mandatory and permissive withdrawal of reference. First, this matter has already been withdrawn to this Court and the Plaintiffs’ response to Judge Specie’s recommendation is untimely. Second, case law establishes that a “core proceeding” is one that could arise only in the context of a bankruptcy case. See, McCord
v. Papantoniou, 316 B.R. 113 (E.D.N.Y.2004); In re Burger Boys, Inc., 183 B.R. 682 (S.D.N.Y.1994); In re Cossett, 75 B.R. 766 (Bkrtcy.S.D.Ohio 1987). By extension, matters that are merely related to bankruptcy case are not core proceedings, and thus, although they are within bankruptcy jurisdiction of district court, bankruptcy judge to whom such matter is referred may only propose findings of fact and conclusions of law to assist district court in rendering judgment. See, In re Markos Gurnee Partnership, 182 B.R. 211 (Bkrtcy.N.D.Ill.1995).
Conversely, “non-core proceedings” in bankruptcy are those “otherwise related” to case under title 11 which have significant connection to debtor's bankruptcy but do not satisfy the standard for core proceedings in that the proceeding does not arise under title 11 or in a case under title 11. Plaza at Latham Associates v. Citicorp North America, Inc., 150 B.R. 507 (N.D.N.Y.1993).
Additionally, the Defendants object to the absurd allegation that they are forum shopping this matter. The proceeding at bar arose out of the Plaintiffs’ civil suit against the named Defendants and not from their subsequent bankruptcy or other proceedings. As permitted by statute, the bankruptcy court correctly filed a motion to withdraw the reference and this Honorable Court correctly withdrew the reference to render judgment for the sake of judicial economy.
WHEREFORE, the Defendants, RHODES, BLG, SCHWAIT and NATIONWAIDE,
request that Plaintiffs’ Response be stricken or denied, as well as any and all other relief deemed just and appropriate, in light of the bankruptcy court’s Order Staying Chapter 12 case, and the numerous delineated reasons.
CERTIFICATE OF LOCAL RULE 7.1(B) GOOD FAITH CONFERENCE
The undersigned counsel hereby certifies that counsel for Nationwide Mutual Fire Insurance Company and Carl Schwait, has attempted to confer with pro se Plaintiffs, David F. Petrano and Mary Katherine Day-Petrano, in regards to this matter via email on June 13, 2013, in a good faith effort to resolve the issues presented by Defendants’ response and the relief sought. However, the parties were unable to reach an agreement on same.
Dated this 13th day of June, 2013.
Respectfully submitted,
BANKER LOPEZ GASSLER P.A.
501 E. Kennedy Blvd., Suite 1500
Tampa, FL 33602-5246
(813) 221-1500
Fax No: (813) 222-3066
Attorneys for Defendants Schwait and Nationwide
/s/ Trevor T. Rhodes
Trevor T. Rhodes Florida Bar No: 0020573
BANKER LOPEZ GASSLER P.A.
501 E. Kennedy Blvd., Suite 1500
Tampa, FL 33602-5246
(813) 221-1500
Fax No: (813) 222-3066
Email: trhodes@bankerlopez.com
Attorneys for Rhodes, BLG, Schwait and Nationwide
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 13th day of June, 2013, I electronically filed the foregoing with the Clerk of the Court by using the CM/ECF system, and will send notice via email or U.S. Mail to the following:
David F. Petrano
11502 SE U.S. Hwy 301
Hawthorne, FL 32640
Mary Katherine Day-Petrano 11502 SE U.S. Hwy 301
Hawthorne, FL 32640
Gina G. Smith
Butler Pppas Weihmuller 3600 Maclay Blvd., Suite 101
Tallahassee, FL 32312
/s/ Trevor T. Rhodes
Trevor T. Rhodes Florida Bar No: 0020573
BANKER LOPEZ GASSLER P.A.
501 E. Kennedy Blvd., Suite 1500
Tampa, FL 33602-5246
(813) 221-1500
Fax No: (813) 222-3066
Email: trhodes@bankerlopez.com Attorneys for Carl Schwait and Nationwide"
Hon. Senior United States District Court Judge Maurice Paul Entered An April 30, 2013 Order Ruling Chief Bankruptcy Judge's Report & Recommendation Was NOT AN APPEAL and Ordering I Had Until May 28, 2013 To File Objections, Which I Did
Here is Hon. Senior United States District Court Judge Maurice Paul's April 30, 2013 Order ruling the Chief Bankruptcy Judge's Report and Recommendation to Withdraw Reference is NOT AN APPEAL and ordering / authorizing me to file Objections to the Chief Bankruptcy Judge's Report and Recommendation by May 28, 2013, which I did:
"IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA
GAINESVILLE DIVISION
DAYID F. PETRANO ,
MARY KATHERINE DAY-PETRANO ,
Plaintiffs ,
v. CASE NO. 1:13-cv-00079-MP-GRJ
TREVOR RHODES , et al.,
Defendants.
ORDER
This cause comes on for consideration upon the Bankruptcy Judge's Report and Recommendation to withdraw the reference as to this adversary proceeding and transfer to the Federal District Court for the Northern District of Florida, Gainesville Division. (Doc. 23). The Clerk incorrectly construed this matter as an appeal from a final order of the Bankruptcy Court and filed a briefing scheduling order. In fact, this matter is before the Court on the Bankruptcy Judge's Report and Recommendation to withdraw the reference as to this adversary proceeding pursuant to 28 U.S .C. § 157(d).
Once the parties have been furnished a copy of the Report and Recommendation and
have been afforded an opportunity to file objections , the Court will consider the matter.
Accordingly , it is hereby
ORDERED AND ADJUDGED:
1. The bankruptcy scheduling order (doc. 5) is VACATED.
2. The parties may file objections to the Bankruptcy Judge's Report and Recommendation on or before May 28, 2013.
DONE AND ORDERED this 30th day of April , 2013
s/ Maurice M Paul
Maurice M. Paul, Senior District Judge
Case No: 1: 12-cv-00009-MP-GRJ"
"IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA
GAINESVILLE DIVISION
DAYID F. PETRANO ,
MARY KATHERINE DAY-PETRANO ,
Plaintiffs ,
v. CASE NO. 1:13-cv-00079-MP-GRJ
TREVOR RHODES , et al.,
Defendants.
ORDER
This cause comes on for consideration upon the Bankruptcy Judge's Report and Recommendation to withdraw the reference as to this adversary proceeding and transfer to the Federal District Court for the Northern District of Florida, Gainesville Division. (Doc. 23). The Clerk incorrectly construed this matter as an appeal from a final order of the Bankruptcy Court and filed a briefing scheduling order. In fact, this matter is before the Court on the Bankruptcy Judge's Report and Recommendation to withdraw the reference as to this adversary proceeding pursuant to 28 U.S .C. § 157(d).
Once the parties have been furnished a copy of the Report and Recommendation and
have been afforded an opportunity to file objections , the Court will consider the matter.
Accordingly , it is hereby
ORDERED AND ADJUDGED:
1. The bankruptcy scheduling order (doc. 5) is VACATED.
2. The parties may file objections to the Bankruptcy Judge's Report and Recommendation on or before May 28, 2013.
DONE AND ORDERED this 30th day of April , 2013
s/ Maurice M Paul
Maurice M. Paul, Senior District Judge
Case No: 1: 12-cv-00009-MP-GRJ"
Thursday, June 6, 2013
Trevor Rhodes and Carl Schwait, Florida lawyers, FAILED TO GIVE THIS E-MAIL TO MAGISTRATE JONES AND THEREBY FURTHERED THE FRAUD AND FAILED TO INFORM MAGISTRATE JONES OUR LAWYER TOLD US "payment had been made" that procured the OUTCOME OF VESSEL MISTRESS CASE WITH DISTRICT JUDGE JAMES WHITTEMORE
When The Florida Bar let Trevor Rhodes and Carl Schwait LIE to Magistrate Jones by saying our Vessel Mistress case was "frivolous" and "vexatious" without disclosing to Magistrate Jones that David and I were the VICTIMS OF THE OPPOSING SIDE'S WITNESS PERJURY, Rhodes and Schwait FAILED TO GIVE THIS E-MAIL TO MAGISTRATE JONES AND THEREBY FURTHERED THE FRAUD AND FAILED TO INFORM MAGISTRATE JONES OUR LAWYER TOLD US "a payment had been made" that procured the OUTCOME OF VESSEL MISTRESS CASE WITH DISTRICT JUDGE JAMES WHITTEMORE:
"Thanks for the email letter today.
Ihave not heard anything from Jake Munch, and Ido not know whether he is in his office today . We are very slow today with phone contact from attorneys and we have not heard from one insurance adjuster the entire day . Even few clients have called today. It appears everyone is winding down for
Thi:!nksgiving . Ialso know that Mr. Munch routinely closes his office on
Fridays, so it would not be that much of a stretch to close early for the week.
I like the demand letter for insurance . You may be correct about the custodia legis expenses. I see and perform work on quite a lot of maritime insurance claims. If Schryver has not notified whatever insurance he may have had about this claim, they likely will deny it. Iam fighting a couple of these types of insurance-denial claims right now on different facts. But also, marine insurers usually tell me they are under no legal obligation to provide insurance information to me. They may be correct. Iam uncertain an insured has such an obligation, but most times Iconvince them to do so in order that they not prejudice their own coverage, and i n order to avoid me suing them to obtain just the coverage information.
You guys are probably better qualified to do the appeal of the denial of the Motion To Amend. By Judge Whittemore's latest ruling it appears he is saying "I already denied this Motion way back, and I am not going to revisit it". If tha is the case I do not know how the 11th Circuit doesn't remand it to allow leave to amend. This would have to constitute denial of access to the Court. Ido not know what the trial court would have you do at the point you were denied leave to amend (except to state the amount of your claim). Are they suggesting you should have filed another separate lawsuit against the in personam defendants? (which quite obviously would be a waste of money and
resources because we know the situation arose out of the same facts and
transactions, and the cases would have been consolidated anyway.}
I understand the court was a bit frustrated with the number of pleadings in the file and docket, but Ibelieve the court would be hardpressed to say the Plaintiffs had abused their rights to amend their complaint. There may be some confusion about limiting the number of pleadings overall versus limiting the Plaintiffs' right to amend their complaint {especially to name defendants which may or may not be in the case)
I would say you guys go forward with the appeal but I definltely want to stay involved and apprised in the premises of the salvage case. You guys have
more experience doing the appeals than I, especially as it relates to the 11th
Circuit . (Although we did just win reversal of a summary judgment in state
court on a minor case)(And, Ihave won some and lost some in appeals in
general)
It is ridiculous that you guys should have to suffer the prejudice of this witness' perjury (and realistically don't we know why he perjured himself?) (answer : payment had been made). It is unfair that the judge(s) limited your ability to amend the complaint .
Ihad told Jake that if the Court denied the Motion For leave To Amend that the same would be appealed, and at some point, Schryver is going to have to begin paying someone to do his appeal work. Ialso say again that getting tha fraud case going against Hutto in the trial court will put pressure on Schryver (you know he had to have paid Hutto)
fdb
http://us.f525.rnail.yahoo/ .com/ym/ShowLetter?Msgld=4059 __21089727_.1352416_2095_7... 3/26/2007"
"Thanks for the email letter today.
Ihave not heard anything from Jake Munch, and Ido not know whether he is in his office today . We are very slow today with phone contact from attorneys and we have not heard from one insurance adjuster the entire day . Even few clients have called today. It appears everyone is winding down for
Thi:!nksgiving . Ialso know that Mr. Munch routinely closes his office on
Fridays, so it would not be that much of a stretch to close early for the week.
I like the demand letter for insurance . You may be correct about the custodia legis expenses. I see and perform work on quite a lot of maritime insurance claims. If Schryver has not notified whatever insurance he may have had about this claim, they likely will deny it. Iam fighting a couple of these types of insurance-denial claims right now on different facts. But also, marine insurers usually tell me they are under no legal obligation to provide insurance information to me. They may be correct. Iam uncertain an insured has such an obligation, but most times Iconvince them to do so in order that they not prejudice their own coverage, and i n order to avoid me suing them to obtain just the coverage information.
You guys are probably better qualified to do the appeal of the denial of the Motion To Amend. By Judge Whittemore's latest ruling it appears he is saying "I already denied this Motion way back, and I am not going to revisit it". If tha is the case I do not know how the 11th Circuit doesn't remand it to allow leave to amend. This would have to constitute denial of access to the Court. Ido not know what the trial court would have you do at the point you were denied leave to amend (except to state the amount of your claim). Are they suggesting you should have filed another separate lawsuit against the in personam defendants? (which quite obviously would be a waste of money and
resources because we know the situation arose out of the same facts and
transactions, and the cases would have been consolidated anyway.}
I understand the court was a bit frustrated with the number of pleadings in the file and docket, but Ibelieve the court would be hardpressed to say the Plaintiffs had abused their rights to amend their complaint. There may be some confusion about limiting the number of pleadings overall versus limiting the Plaintiffs' right to amend their complaint {especially to name defendants which may or may not be in the case)
I would say you guys go forward with the appeal but I definltely want to stay involved and apprised in the premises of the salvage case. You guys have
more experience doing the appeals than I, especially as it relates to the 11th
Circuit . (Although we did just win reversal of a summary judgment in state
court on a minor case)(And, Ihave won some and lost some in appeals in
general)
It is ridiculous that you guys should have to suffer the prejudice of this witness' perjury (and realistically don't we know why he perjured himself?) (answer : payment had been made). It is unfair that the judge(s) limited your ability to amend the complaint .
Ihad told Jake that if the Court denied the Motion For leave To Amend that the same would be appealed, and at some point, Schryver is going to have to begin paying someone to do his appeal work. Ialso say again that getting tha fraud case going against Hutto in the trial court will put pressure on Schryver (you know he had to have paid Hutto)
fdb
http://us.f525.rnail.yahoo/ .com/ym/ShowLetter?Msgld=4059 __21089727_.1352416_2095_7... 3/26/2007"
Trevor Rhodes and Carl Schwait, Florida lawyers, FAILED TO GIVE THIS E-MAIL TO MAGISTRATE JONES AND THEREBY FURTHERED THE FRAUD AND FAILED TO INFORM MAGISTRATE JONES OUR LAWYER TOLD US DISTRICT JUDGE JAMES WHITTEMORE HAD VIOLATED OUR CONSTITUTIONAL RIGHTS
When The Florida Bar let Trevor Rhodes and Carl Schwait LIE to Magistrate Jones by saying our Vessel Mistress case was "frivolous" and "vexatious" without disclosing to Magistrate Jones that David and I were the VICTIMS OF THE OPPOSING SIDE'S WITNESS PERJURY, Rhodes and Schwait FAILED TO GIVE THIS E-MAIL TO MAGISTRATE JONES AND THEREBY FURTHERED THE FRAUD AND FAILED TO INFORM MAGISTRATE JONES OUR LAWYER TOLD US DISTRICT JUDGE JAMES WHITTEMORE HAD VIOLATED OUR CONSTITUTIONAL RIGHTS:
"we received the Order on the Motion For Reconsideration on the Order Denying Leave to Amend Complaint.
am forwarding this to you separately.
This is completely confounding . The Court denied the Motion, not on the basis of any statute of limitations but on the fact that Motion For Leave to Amend had already been argued and denied . I remember looking back in the file and seeing that the Court had prohibited you filing anything without permission from the Court (which appears to have lead to some of the multiplication of this case), and granted leave to amend the Complaint but only as to the amount of the claim . I do not understand the basis for that limitation .
I do not understand constitutionally how leave to amend could be denied at that time , nor in keeping with the general civil procedure rules and caselaw in favor of liberally granting amendment to complaints . I certainly see the Court was not happy, apparently. with the number of filings in the case, but this should not have meant that you could not file an amended pleading.
Be this as it may, we can not lament over the reasonings and unfairness. doing so will not bring any relief. We are where we are today, the point is what to do about it from this time forward. (i.e., what is the plan of action from this point onward)
It certainly seems to me that the salvage action needs to be appealed . I am unclear, a bit, on where the in rem appeal stands today. If I understand correctly the USCA dismissed some or all(??) of the Hutto case . As I mentioned , one way to proceed on Hutto is to go after him for fraud and try to frame it in the maritime context so that the court has jurisdiction (Art II. sec 3 of the Constitution). You certainly have damages there because of his fraud .
I would have to do some preliminary research on whether the Court's ruling today is appealable right now .
would believe that it is. but the 11th Circuit does dismiss what they deem to be interlocutory appeals .
we also have the settlement demand out to Schryver right now and he may want to settle the case. (See my email to you discussing settlement paramenters and issues) . As I said however . there is no way he settles the case without all of the case being resolved.
Please let me know what your thoughts are on proceeding forward with this case.
fdb
Frank D. Butler, Esq.
10550 U.S 19 North
Pinellas Park, FL 33782
PINELLAS
727-399-2222
727-399-2202 Fax
HILLSBOROUGH
813-899-2222
813-899-2202 Fax
888-BOATLAW"
"we received the Order on the Motion For Reconsideration on the Order Denying Leave to Amend Complaint.
am forwarding this to you separately.
This is completely confounding . The Court denied the Motion, not on the basis of any statute of limitations but on the fact that Motion For Leave to Amend had already been argued and denied . I remember looking back in the file and seeing that the Court had prohibited you filing anything without permission from the Court (which appears to have lead to some of the multiplication of this case), and granted leave to amend the Complaint but only as to the amount of the claim . I do not understand the basis for that limitation .
I do not understand constitutionally how leave to amend could be denied at that time , nor in keeping with the general civil procedure rules and caselaw in favor of liberally granting amendment to complaints . I certainly see the Court was not happy, apparently. with the number of filings in the case, but this should not have meant that you could not file an amended pleading.
Be this as it may, we can not lament over the reasonings and unfairness. doing so will not bring any relief. We are where we are today, the point is what to do about it from this time forward. (i.e., what is the plan of action from this point onward)
It certainly seems to me that the salvage action needs to be appealed . I am unclear, a bit, on where the in rem appeal stands today. If I understand correctly the USCA dismissed some or all(??) of the Hutto case . As I mentioned , one way to proceed on Hutto is to go after him for fraud and try to frame it in the maritime context so that the court has jurisdiction (Art II. sec 3 of the Constitution). You certainly have damages there because of his fraud .
I would have to do some preliminary research on whether the Court's ruling today is appealable right now .
would believe that it is. but the 11th Circuit does dismiss what they deem to be interlocutory appeals .
we also have the settlement demand out to Schryver right now and he may want to settle the case. (See my email to you discussing settlement paramenters and issues) . As I said however . there is no way he settles the case without all of the case being resolved.
Please let me know what your thoughts are on proceeding forward with this case.
fdb
Frank D. Butler, Esq.
10550 U.S 19 North
Pinellas Park, FL 33782
PINELLAS
727-399-2222
727-399-2202 Fax
HILLSBOROUGH
813-899-2222
813-899-2202 Fax
888-BOATLAW"
Trevor Rhodes and Carl Schwait, Florida lawyers, FAILED TO GIVE THIS E-MAIL TO MAGISTRATE JONES AND THEREBY FURTHERED THE FRAUD
When The Florida Bar let Trevor Rhodes and Carl Schwait LIE to Magistrate Jones by saying our Vessel Mistress case was "frivolous" and "vexatious" without disclosing to Magistrate Jones that David and I were the VICTIMS OF THE OPPOSING SIDE'S WITNESS PERJURY, Rhodes and Schwait FAILED TO GIVE THIS E-MAIL TO MAGISTRATE JONES AND THEREBY FURTHERED THE FRAUD:
"From: "fdblawfirm@aol.com"
To: dpetrano@yahoo.com
Sent: Monday, December 18, 2006 9:52 AMSubject: Re: this is not mary, it's David Petrano, RE: Pickles
What do you want to do in this case with regard to Mr. Pickles? I can send a subpoena D/T, maybe. I am uncertain as to what the trial court view is the status of the case. I thought we viewed the status as you guys have had the in rem part of the case up on appeal for some time now, and the in personam denial of the leave to amend is on appeal. Can we even do anything in the trial court level at this point without running the risk of Rule 11?
Also, Mary had replied that pleading a case against Hutto for the fraudulent testimony would be protected--and I do not know conclusively the answer to that question without researching it--but my next question is OK then, why not plead the case against Schryver for suborning the perjury? There certainly must be a cause of action for that. (You have actual damages in the custodial fees assessed against you) Also, this would have been another possibility--would it not--had the trial court allowed you the chance to amend your complaint. And clearly there would be no time-based or abuse-of-amendment arguments to prohibit such an amendment.
I hope Mary understands that I am for you as clients. ...
I should be hearing back from attorney Munch here in the next bit on whether Schryver wants to settle the case. Presently, there is no offer on the table, nor has there been from the Defendants.
fdb
Frank D. Butler, Esq.
10550 U.S. 19 North
Pinellas Park, FL 33782
PINELLAS
727-399-2222
727-399-2202 Fax
HILLSBOROUGH
813-899-2222
813-899-2202 Fax
STATEWIDE
888-BOATLAW"
(emphasis added).
"From: "fdblawfirm@aol.com"
To: dpetrano@yahoo.com
Sent: Monday, December 18, 2006 9:52 AMSubject: Re: this is not mary, it's David Petrano, RE: Pickles
What do you want to do in this case with regard to Mr. Pickles? I can send a subpoena D/T, maybe. I am uncertain as to what the trial court view is the status of the case. I thought we viewed the status as you guys have had the in rem part of the case up on appeal for some time now, and the in personam denial of the leave to amend is on appeal. Can we even do anything in the trial court level at this point without running the risk of Rule 11?
Also, Mary had replied that pleading a case against Hutto for the fraudulent testimony would be protected--and I do not know conclusively the answer to that question without researching it--but my next question is OK then, why not plead the case against Schryver for suborning the perjury? There certainly must be a cause of action for that. (You have actual damages in the custodial fees assessed against you) Also, this would have been another possibility--would it not--had the trial court allowed you the chance to amend your complaint. And clearly there would be no time-based or abuse-of-amendment arguments to prohibit such an amendment.
I hope Mary understands that I am for you as clients. ...
I should be hearing back from attorney Munch here in the next bit on whether Schryver wants to settle the case. Presently, there is no offer on the table, nor has there been from the Defendants.
fdb
Frank D. Butler, Esq.
10550 U.S. 19 North
Pinellas Park, FL 33782
PINELLAS
727-399-2222
727-399-2202 Fax
HILLSBOROUGH
813-899-2222
813-899-2202 Fax
STATEWIDE
888-BOATLAW"
(emphasis added).
THE FLORIDA BAR LIKES TO BEAT UP ON FRAGILE X RETARDS WITH SEVERE AUTISM - JEFFREY BROWN, A RETARD - AUTISM BIGOT
The TRUTH about The Florida Bar -- communication I just sent, and I am going to being posting on my blog and disseminating to the Autism community what PIGS and a BASTION of Autism discrimination and ABUSERS The Florida Bar is AND I AM NOT GOING TO SHUT UP !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!:
"Immediately After I Requested To Make A 28 CFR Sec. 35.107 ADA Grievance Over Jeffrey Brown Not Accommodating MY Disabilities, Jeffrey Brown Referred David Petrano To Grievance Committee in Violation Of 42 USC Sec. 12203 - This serves as my Notice Of My Intent To File New Lawsuit Against TFB, Jeffrey Brown, and Grievance Committee, As Well As Initiators of The Bar Complaint Based On Failure To Accommodate My Disabilities By Magistrate Jones, for Money Damages For Intentional Retaliation Intended to Derail My Bankruptcy, Deprive me of my Caregiver, and Inflict Disability Injury On Me When TFB, Schwait, and Gonzalez Are Creditors in my Bankruptcy."
Trevor Rhodes and Carl Schwait, two Florida Bar members, OUTRIGHT INTENTIONALLY LIED to Magistrate Gary R. Jones (COMMITTED A FRAUD ON THE COURT), by stating:
1.) All Petrano lawsuits all over Florida are "frivolous" and "vexatious" and pro se, citing to The Vessel Mistress and Altenbernd lawsuits; and
2.) Trevor Rhodes and Carl Schwait failed to Inform Magistrate Jones of Magistrate Jenkins report and recommendation ruling Vessel Mistress lawsuit was meritorious;
3.) Trevor Rhodes and Carl Schwait failed to Inform Magistrate Jones that Jacob J. Munch filed a notice of false testimony of Theron Hutto and Hutto admitted to knowingly and willfully committing perjury in open court against David and I, and he knew a person with severe Autism cannot tell when someone is lying when he did it;
4.) Trevor Rhodes and Carl Schwait failed to Inform Magistrate Jones that David and I were not pro se but had a lawyer, Frank Butler, Esq. in Vessel Mistress case who wrote in his e-mail that it was "ridiculous" the District Judge James D. Whittemore was saddling us with the costs of the witness perjury against us, that Whittemore was unconstitutionally denying us relief on our meritorious complaint and leave to amend, and that the case went against us because "a payment had been made" (YES, WE HAVE THAT IN WRITING FROM FRANK BUTLER, ESQ.);
5.)Trevor Rhodes and Carl Schwait failed to Inform Magistrate Jones that we asked Whittemore to appoint me a Guardian Ad Litem in Vessel Mistress case (3 pleadings) because of my severe Autism and Fragile X learning disabilities and he refused to even consider the issue; and
6.) Trevor Rhodes and Carl Schwait failed to Inform Magistrate Jones that 11th Circuit Judge Charles Wilson entered an Order making the finding my Altenbernd case was "not frivolous."
In the face of this evidence, The Florida Bar REFUSES TO PROSECUTE JACOB MUNCH, TREVOR RHODES, OR CARL SCHWAIT.
Instead, The Florida Bar attacked David by referring him to have HIS license taken away AS THE VICTIM OF THE PERJURY AND THE PAYMENT THAT "WAS MADE" TO PROCURE THE OUTCOME OF THE VESSEL MISTRESS CASE.
While attacking David, The Florida Bar's Jeffrey Brown knowingly refused to give David (and I) Title II ADA extra time accommodations so David could meet his caregiving duties to me, and Jeffrey Brown knew this meant I would not be fed my meals on time, and it would trigger seizures, and that people with Autism and epilepsy have an 800 % risk of sudden death in situations such as this where Jeffrey Brown with The Florida Bar's backing, INTENTIONALLY REFUSED THE ADA ACCOMMODATIONS KNOWING IT WOULD INFLICT A HIGH RISK OF DEATH-FROM-SEIZURE ON ME.
The Florida Bar's public records response shows Jeffrey Brown has NO Title II ADA training at all.
My letter to The Florida Bar, against these background facts, continued:
"Pls. immediately provide me the public records of whether or not Thomas M. Gonzalez and/or Carl Schwait and/or Trevor Rhodes initiated the Bar Complaint against David or have been involved with it in any way that is being referred to a Grievance Committee in 42 USC Sec. 12203 retaliation violation of MY request for accommodations made the same day as the referral.
I am prepared to immediately file my lawsuit and seek the information compelled through discovery in the event TFB records custodian continues to obstruct the public records request.
It is clear there was not enough time for Jeffrey Brown to investigate the response to the inquiry letter David responded to that injured my caregiving before referral to the Grievance committee. It is a clear retaliation against ME whom David cares for from his lawyer income, in retaliation for my asking for ADA accommodations in the Bar complaints I filed as well as to provide witness testimony to Davids and to accommodate my caregiving needs.
I am also going to start posting on my blog about how Jeffrey Brown did this to injure my Autism and he can sue me if he would like, but I am NOT going to take down my posts and I am going to tweet them several times per day to the Autism community.
This is Autism discrimination and abuse.You are a Horrid organization that is a BASTION of Autism discrimination who refuses to protect adults with severe Autism, and selectively prosecutes Autism family members and furthers and encourages your Bar members to discriminate, retaliate, commit fraud, and abuse severely Autistic adults.
The Autism community and the entire United States has a First Amendment right to know what your organization stands for - Autism abuse and discrimination.
Respectfully,
Mary Katherine Day-Petrano"
I personally requested a Title II ADA extra time accommodation from Jeffrey Brown so David could tend my caregiving needs, and Jeffrey Brown responded by WHINING ABOUT THE ADA and referring David to a Florida Bar grievance committee ON THE SAME DAY -- A CLEAR 42 U.S.C. Sec. 12203 ADA retaliation.
There were over 100 evidence documents Jeffrey Brown NEVER INVESTIGATED that supported David's response, before ANGRILY REACTING TO THE ADA ACCOMMODATIONS REQUEST BY REFERRING HIM TO GRIEVANCE COMMITTEE - how does a Bar investigator read and investigate a 130 pg response and over 100 evidence documents in only 1-2 days ?
He CAN'T.
Hello Florida Bar, I will SUE YOU AGAIN. I DON'T HAVE TO TAKE YOUR AUTISM ABUSE, AND I HAVE ASSOCIATIONAL STANDING, 28 C.F.R. SEC. 35.130(g).
COME BEAT UP ON A RETARD AGAIN - THE FLORIDA BAR LIKES TO BEAT UP ON FRAGILE X RETARDS WITH SEVERE AUTISM - JEFFREY BROWN, A RETARD - AUTISM BIGOT.
"Immediately After I Requested To Make A 28 CFR Sec. 35.107 ADA Grievance Over Jeffrey Brown Not Accommodating MY Disabilities, Jeffrey Brown Referred David Petrano To Grievance Committee in Violation Of 42 USC Sec. 12203 - This serves as my Notice Of My Intent To File New Lawsuit Against TFB, Jeffrey Brown, and Grievance Committee, As Well As Initiators of The Bar Complaint Based On Failure To Accommodate My Disabilities By Magistrate Jones, for Money Damages For Intentional Retaliation Intended to Derail My Bankruptcy, Deprive me of my Caregiver, and Inflict Disability Injury On Me When TFB, Schwait, and Gonzalez Are Creditors in my Bankruptcy."
Trevor Rhodes and Carl Schwait, two Florida Bar members, OUTRIGHT INTENTIONALLY LIED to Magistrate Gary R. Jones (COMMITTED A FRAUD ON THE COURT), by stating:
1.) All Petrano lawsuits all over Florida are "frivolous" and "vexatious" and pro se, citing to The Vessel Mistress and Altenbernd lawsuits; and
2.) Trevor Rhodes and Carl Schwait failed to Inform Magistrate Jones of Magistrate Jenkins report and recommendation ruling Vessel Mistress lawsuit was meritorious;
3.) Trevor Rhodes and Carl Schwait failed to Inform Magistrate Jones that Jacob J. Munch filed a notice of false testimony of Theron Hutto and Hutto admitted to knowingly and willfully committing perjury in open court against David and I, and he knew a person with severe Autism cannot tell when someone is lying when he did it;
4.) Trevor Rhodes and Carl Schwait failed to Inform Magistrate Jones that David and I were not pro se but had a lawyer, Frank Butler, Esq. in Vessel Mistress case who wrote in his e-mail that it was "ridiculous" the District Judge James D. Whittemore was saddling us with the costs of the witness perjury against us, that Whittemore was unconstitutionally denying us relief on our meritorious complaint and leave to amend, and that the case went against us because "a payment had been made" (YES, WE HAVE THAT IN WRITING FROM FRANK BUTLER, ESQ.);
5.)Trevor Rhodes and Carl Schwait failed to Inform Magistrate Jones that we asked Whittemore to appoint me a Guardian Ad Litem in Vessel Mistress case (3 pleadings) because of my severe Autism and Fragile X learning disabilities and he refused to even consider the issue; and
6.) Trevor Rhodes and Carl Schwait failed to Inform Magistrate Jones that 11th Circuit Judge Charles Wilson entered an Order making the finding my Altenbernd case was "not frivolous."
In the face of this evidence, The Florida Bar REFUSES TO PROSECUTE JACOB MUNCH, TREVOR RHODES, OR CARL SCHWAIT.
Instead, The Florida Bar attacked David by referring him to have HIS license taken away AS THE VICTIM OF THE PERJURY AND THE PAYMENT THAT "WAS MADE" TO PROCURE THE OUTCOME OF THE VESSEL MISTRESS CASE.
While attacking David, The Florida Bar's Jeffrey Brown knowingly refused to give David (and I) Title II ADA extra time accommodations so David could meet his caregiving duties to me, and Jeffrey Brown knew this meant I would not be fed my meals on time, and it would trigger seizures, and that people with Autism and epilepsy have an 800 % risk of sudden death in situations such as this where Jeffrey Brown with The Florida Bar's backing, INTENTIONALLY REFUSED THE ADA ACCOMMODATIONS KNOWING IT WOULD INFLICT A HIGH RISK OF DEATH-FROM-SEIZURE ON ME.
The Florida Bar's public records response shows Jeffrey Brown has NO Title II ADA training at all.
My letter to The Florida Bar, against these background facts, continued:
"Pls. immediately provide me the public records of whether or not Thomas M. Gonzalez and/or Carl Schwait and/or Trevor Rhodes initiated the Bar Complaint against David or have been involved with it in any way that is being referred to a Grievance Committee in 42 USC Sec. 12203 retaliation violation of MY request for accommodations made the same day as the referral.
I am prepared to immediately file my lawsuit and seek the information compelled through discovery in the event TFB records custodian continues to obstruct the public records request.
It is clear there was not enough time for Jeffrey Brown to investigate the response to the inquiry letter David responded to that injured my caregiving before referral to the Grievance committee. It is a clear retaliation against ME whom David cares for from his lawyer income, in retaliation for my asking for ADA accommodations in the Bar complaints I filed as well as to provide witness testimony to Davids and to accommodate my caregiving needs.
I am also going to start posting on my blog about how Jeffrey Brown did this to injure my Autism and he can sue me if he would like, but I am NOT going to take down my posts and I am going to tweet them several times per day to the Autism community.
This is Autism discrimination and abuse.You are a Horrid organization that is a BASTION of Autism discrimination who refuses to protect adults with severe Autism, and selectively prosecutes Autism family members and furthers and encourages your Bar members to discriminate, retaliate, commit fraud, and abuse severely Autistic adults.
The Autism community and the entire United States has a First Amendment right to know what your organization stands for - Autism abuse and discrimination.
Respectfully,
Mary Katherine Day-Petrano"
I personally requested a Title II ADA extra time accommodation from Jeffrey Brown so David could tend my caregiving needs, and Jeffrey Brown responded by WHINING ABOUT THE ADA and referring David to a Florida Bar grievance committee ON THE SAME DAY -- A CLEAR 42 U.S.C. Sec. 12203 ADA retaliation.
There were over 100 evidence documents Jeffrey Brown NEVER INVESTIGATED that supported David's response, before ANGRILY REACTING TO THE ADA ACCOMMODATIONS REQUEST BY REFERRING HIM TO GRIEVANCE COMMITTEE - how does a Bar investigator read and investigate a 130 pg response and over 100 evidence documents in only 1-2 days ?
He CAN'T.
Hello Florida Bar, I will SUE YOU AGAIN. I DON'T HAVE TO TAKE YOUR AUTISM ABUSE, AND I HAVE ASSOCIATIONAL STANDING, 28 C.F.R. SEC. 35.130(g).
COME BEAT UP ON A RETARD AGAIN - THE FLORIDA BAR LIKES TO BEAT UP ON FRAGILE X RETARDS WITH SEVERE AUTISM - JEFFREY BROWN, A RETARD - AUTISM BIGOT.
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