Tagged: Federal Rules of Civil Procedure

“Even the intelligent and educated layman has small and sometimes no skill in the science of law…He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceeding against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence. If that be true of men of intelligence, how much more true is it of the ignorant and illiterate, or those of feeble intellect.”

Source: Powell v. Alabama, 287 U.S. 45, 69 (1932).

“Competence is an ethical requirement in every legal representation. As ABA Model Rule 1.1 states, competence entails ‘legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.’ As in other areas of practice, competence must be developed or obtained in the field of discovery.”

Source: Brian D. Martin and David L. Stanton. “How The Ethics Rules Influence The Role of Discovery Counsel.” Corporate Counsel. November 17, 2015. http://www.corpcounsel.com/id=1202742706795/How-the-Ethics-Rules-Influence-the-Role-of-Discovery-Counsel.

“A well known legal maxim is that public policy demands finality of judgment — that there be an end to litigation at some point. Another important policy which must be weighed against the interest in finality is the policy favoring fair and correct results in litigation. It is these interests which courts must balance when a party dissatisfied with a judgment seeks to have it vacated or amended. Rule 60(b) of the Federal Rules of Civil Procedure enumerates the various grounds upon which relief from judgments may be granted at the district court level, and also limits the time period in which the motions must be made. No statute, however, has been enacted to aid courts of appeals in balancing these interests when they are requested to recall their mandates, which are their binding instructions to the trial court as the law of the case.”

On the 30th, I received a letter from the Second Circuit. It was a copy of the mandate that was sent to the Southern District of New York, dated May 21, 2015. The problem is that I asked the Second Circuit in my March 25, 2015 Motion for Reconsideration, to stay the mandate pending the filing of my petition for a writ of certiorari to the Supreme Court. It was written on the title page and was mentioned twice throughout the 15 page Motion.

This Motion showed [once again] that all of P. Kevin Castel’s legal conclusions were erroneous as both a matter of law and public policy and that the appellate court panel judges [Jacobs, Swain and Lohier] intentionally erred by upholding Castel’s September 5, 2014 Order and concluding that my appeal “lack[ed] an arguable basis in law or in fact” without providing an ethical judicial opinion. [I obtained a favorable decision on the merits by the only lawfully appointed arbitrator, David L. Gregory of the American Arbitration Association, on December 17, 2013.] They never addressed the issue of “fraud upon the Court” and the highly unethical and criminal conduct engaged in by Michael P. Zweig, Christian Carbone, Loeb & Loeb LLP and other “officers of the court.” [Based on Loeb & Loeb LLP’s involvement in a conspiracy to conceal smoking gun evidence during their representation of William Morris in an earlier civil rights case Rowe Entertainment v. William Morris Agency et al., they should not be allowed to represent William Morris in my case and attorney Michael P. Zweig should be disbarred, thus all decisions in their favor should be vitiated due to fraud. A considerable conflict of interest also exist due to the fact that Loeb & Loeb LLP attorney Christian Carbone never disclosed to myself or the federal court that he is married to an executive for the American Arbitration Association who worked closely with the unlawfully appointed arbitrator to vacate Gregory’s Award and dismissed my case with prejudice after he and his law firm received more than $80,000 in under six months.]

The appellate court en banc denied my Motion for Reconsideration without reason on April 30, 2015. Now, the appellate court has prematurely issued the mandate to the Southern District of New York and is once again trying to deprive me of due process and equal protection under the law. I guess I now have to take time away from working on my petition to the Supreme Court and address this issue with the Second Circuit…Le sigh…

Source: Steve D. McLamb. Federal Appellate Procedure – Recall of Mandate – Review of Judgments after Rehearing and Appeal Periods Expire. 24 Vill. L. Rev. 157 (1978).

Pursuant to Fed. R. Civ. P. 60(b)(3), one of the grounds warranting “relief from a final judgment, order, or proceeding” is “fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party,” or pursuant to 60(b)(6), “any other reason that justifies relief.”

In both my March 17, 2014 Fraud Upon the Court Motion and April 11, 2014 Motion for Reconsideration, I argued that Christian Carbone did not disclose to the SDNY or myself at any time since I filed the complaint with the SDNY on December 21, 2010, that he was married to an executive — Sasha Angelique Carbone — at the American Arbitration Association [the same forum William Morris and Loeb & Loeb LLP wanted to have the case moved to so that the merits of my claims of institutionalized racism could never be decided by an impartial jury]. I argued that his failure to disclose was unethical, further demonstration of Loeb & Loeb LLP’s “pattern” of “fraud upon the Court,” their intentional violations of many Rules under the New York Rules of Professional Conduct, as well as violations of the New York Judiciary Law section 487. Based on the fraud that Michael Zweig and Loeb & Loeb LLP engaged in (e.g. “Exhibit 31”) and got away with to obtain a favorable verdict in Rowe, it is clear that they should have never been allowed to represent William Morris in my case. I also argued the Carbone’s marriage further demonstrated that the AAA was NEVER the “neutral” forum that it proclaimed to be [Arbitrator David L. Gregory and the AAA were aware before I found out] and that this gave additional support to my initial arguments that were raised before the SDNY and Second Circuit: based on William Morris’ 110 year history of intentional systemic disparate treatment against African Americans in employment which pre-dated my employment and I alleged occurred during my employment, arbitration was an inappropriate forum for this particular case to be resolved, as both a matter of law and public policy.

The “honorable,” Republican appointed federal judge P. Kevin Castel’s make no real discussion of arguments in his September 5, 2014 Final Order, which confirmed the fraudulently procured Award of the second “arbitrator” [Timothy K. Lewis] who vacated Arbitrator Gregory’s Partial Final Award [which concluded that William Morris discriminated against me because of my race and awarded me back pay, front pay, compensatory & punitive damages, and other fees and costs] after he was improperly disqualified by the AAA and ultimately dismissed my case “with prejudice and on the merits” because I continued to raise objections to the fraud that was occurring throughout my case. Instead, Castel issued a final decision which supported Lewis’ statements that I was engaging in considerable  “bad faith ” and it’s not William Morris, but it is me who is “racist”…and more specifically, I’m actually “anti-Semitic” and then stripped me of my informa pauperis status and prejudiced my appeal by stating that it would not be made in “good faith.”  #global white/”Jewish” supremacy #manifestinjustice #fraudupontheCourt #judicialcorruption

i began learning the Federal Rules of Civil Procedure while living in the Netherlands. i also got the opportunity to broaden my understanding of racism by volunteering at a non-profit organization dealing with racism and discrimination called Art.1.

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Show me the MONEY!!! It’s time for me to move on with my life and see the rest of the world…

 

“Why are the federal courts so hostile to discrimination claims?”

Each year, the United States District Court for the District of Massachusetts holds an extraordinary panel. All active judges are present to answer questions from the bar. A lawyer’s question one year was particularly provocative: “Why are the federal courts so hostile to discrimination claims?” One judge after another insisted that there was no hostility. All they were doing when they dismissed employment discrimination cases was following the law—nothing more, nothing less.

I disagreed. Federal courts, I believed, were hostile to discrimination cases. Although the judges may have thought they were entirely unbiased, the outcomes of those cases told a different story. The law judges felt “compelled” to apply had become increasingly problematic. Changes in substantive discrimination law since the passage of the Civil Rights Act of 1964 were tantamount to a virtual repeal. This was so not because of Congress; it was because of judges.

Decades ago, law-and-society scholars offered an explanation for that phenomenon, evaluating the structural forces at work in law-reform litigation that lead to one-sided judicial outcomes. Focusing on employment discrimination claims, Marc Galanter argued that, because employers are “repeat players” whereas individual plaintiffs are not, the repeat players have every incentive to settle the strong cases and litigate the weak ones. Over time, strategic settlement practices produce judicial interpretations of rights that favor the repeat players’ interests. More recently, Catherine Albiston went further, identifying the specific opportunities for substantive rulemaking in this litigation—as in summary judgment and motions to dismiss—and how the “repeat players,” to use Galanter’s term, take advantage of them.

In this Essay, drawing on my seventeen years on the federal bench, I attempt to provide a firsthand and more detailed account of employment discrimination law’s skewed evolution—the phenomenon I call “Losers’ Rules.” I begin with a discussion of the wholly one-sided legal doctrines that characterize discrimination law. In effect, today’s plaintiff stands to lose unless he or she can prove that the defendant had explicitly discriminatory policies in place or that the relevant actors were overtly biased. It is hard to imagine a higher bar or one less consistent with the legal standards developed after the passage of the Civil Rights Act, let alone with the way discrimination manifests itself in the twenty-first century. Although ideology may have something to do with these changes, and indeed the bench may be far less supportive of antidiscrimination laws than it was during the years following the laws’ passage, I explore another explanation. Asymmetric decisionmaking—where judges are encouraged to write detailed decisions when granting summary judgment and not to write  it—fundamentally changes the lens through which employment cases are viewed, in two respects. First, it encourages judges to see employment discrimination cases as trivial or frivolous, as decision after decision details why the plaintiff loses. And second, it leads to the development of decision heuristics—the Losers’ Rules—that serve to justify prodefendant outcomes and thereby exacerbate the one-sided development of the law.

Great article by Nancy Gertner [not a woman of color]. This is what happens when the federal courts have intentionally been filled with ideologically conservative, white male, Republican appointed federal judges, particularly since Ronald Reagan became president 34 years ago. Below is Gertner discussing this topic at the New York Law School’s Symposium titled “A View From the Bench — The Judges’ Perspective on Summary Judgment In Employment Discrimination Cases.” [go to the 38:38 mark]

Major reform is needed — not only to strengthen the Civil Rights Act of 1964, but to develop structural mechanisms that will eliminate racist and corrupt judges who intentionally ignore the law and deprive plaintiffs in employment discrimination cases of their right to a jury trial under the color of law.

Source: Nancy Gertner. “Loser’s Rules.” The Yale Law Journal Online. October 16, 2012.  http://yalelawjournal.org/the-yale-law-journal-pocket-part/procedure/losers%E2%80%99-rules/

“The only instance in which Rule 60(b) allows for the reopening of lawsuits regardless of the passage of time is when there is an allegation of fraud upon the court, for the law favors discovery and correction of corruption of the judicial process even more than it requires an end to lawsuits.”

Source: Lockwood v. Bowles, 46 F.R.D. 625, 634 (D. D.C. 1969).