ARTHUR R. MORALES AND
WILLIAM H. PAYNE,

Plaintiffs

v Civil No. 01-1198 Dee Vance Benson

JOHN J ZAVITZ, WILLIAM F. DOWNES, and
FRENCH & ASSOCIATES, P.C.

Defendants

REPLY TO RESPONSE TO PLAINTIFFS' MOTION FOR RULE 11 SANCTIONS

1 Special attorney Richard Patrick writes

Undersigned counsel for defendant William F. Downes, Chief Judge of the United States District Court for the District of Wyoming, hereby responds in opposition to plaintiffs’ motion for Rule 11 sanctions. Because plaintiffs’ motion is procedurally and substantively flawed, it should be summarily denied.

Contrary to Patrick's statement

plaintiffs’ motion is procedurally and substantively flawed

As Tenth Circuit judge Paul Kelly, Jr points out

Issues regarding sanctions under Rule 11 are collateral and the court has jurisdiction to consider them despite the entry of judgment and dismissal of an action, whatever the reason. Fed.Rules Civ.Proc.Rule 11, 28 U.S.C.A.

2 Special attorney Richard Patrick writes

Under Fed. R. Civ. P. 1 l(c)(l)(A), the “safe harbor” provision, plaintiffs were obligated to serve their motion for sanctions on undersigned counsel in advance of filing. Only if the challenged motion to dismiss was not withdrawn or corrected within 21 days after service is the motion for sanctions to be filed. Compliance with the “safe harbor” provisions is mandatory within the Tenth Circuit. For that procedural default above, plaintiffs’ Rule 11 motion should be denied. Pendleton v. Central New Mexico Correctional Facility, 184 F.R.D. 637, 640 (D. N.M. 1999).

The rule provides that requests for sanctions must be made as a separate motion, i.e., not simply included as an additional prayer for relief contained in another motion.

The motion for sanctions is not, however, to be filed until at least 21 days (or such other period as the court may set) after being served. If, during this period, the alleged violation is corrected, as by withdrawing (whether formally or informal)) some allegation or contention, the motion should not be filed with the court. These provisions are intended to provide a type of “safe harbor” against motions under Rule 11 in that a party will not be subject to sanctions on the basis of another party’s motion unless, after receiving the motion, it refuses to withdraw that position or to acknowledge candidly that it does not currently have evidence to support a specified allegation. Under the former rule, parties were some times reluctant to abandon a questionable contention lest that be viewed as evidence of a violation of Rule 11; under the revision, the timely withdrawal of a contention will protect a party against a motion for sanctions.

To stress the seriousness of a motion for sanctions and to define precisely the conduct claimed to violate the rule, the revision provides that the “safe harbor” period begins to run only upon service of the motion. In most cases, however, counsel should be expected to give informal notice to the other party, whether in person or by a telephone call or letter, of a potential violation before proceeding to prepare a Rule 11 motion.

We see this in docket entry 29, Exhibit A.

02/01/02 02/04/02 29 MOTION by pltfs for order to correct failure to mail copy of notice of request for John Ashcroft and Richard Patrick to withdraw mtns to dismiss (bap) (118k)

Patrick was notified by phone on January 28, 2002 [Exhibit A, docket entry 28] and corresponded by mail in which intention of the motion for sanctions were discussed.

The safe harbor concept is to prevent blind-siding or instant motion. This was not the case here.

Rule 11 c(1)A suggests that notice (formal or informal) must be given.

Patrick corresponded by mail to plaintiffs and was fully aware of the issues and position that appeared in the Rule 11 motion filed. So he was fully notified. Secondly, plaintiffs reputation for pursuing the issues are well-established. Therefore fair and legal notice was timely.

Patrick didn't only fail to withdraw motion within "safe harbor" time but Patrick flaunts ignoring safe harbor IN WRITING in his February 11, 2002 letter to plaintiffs [Exhibit B] where he writes

Thus, while I do appreciate your approaching me on an informal basis on the settlement issues, I believe we should await the Court’s ruling on my motions to dismiss.

Accordingly, at this point, I do not believe that settlement discussion is my client's best interests.

Federal court and judge Benson has no jurisdiction over state case of harassment, replevin, and defamation [libel].

3 Special attorney Richard Patrick writes

Substantively, plaintiffs’ motion is premised upon the argument that the motion to dismiss filed on behalf of Chief Judge Downes is “frivolous and is being presented for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.” (Plaintiffs’ motion, p.1.) The merits of Chief Judge Downes’ motion to dismiss remain for resolution by this Court. Here it is sufficient to say that that motion is both legally and factually well-supported. As to plaintiffs’ assertion that the motion to dismiss was filed for an improper purpose, that argument is specious. The doctrine of absolute judicial immunity is so settled in American jurisprudence that any litigant who sues a judge for judicial acts within his jurisdiction must expect a responsive motion to dismiss as a threshold hurdle to overcome.

Patrick was given opportunity to withdraw motion.

Patrick continues to hope that this court would act improperly, as defendant judge William F Downes did, and rule on substantive issues, plaintiff rightly filed motion for sanctions under Rule 11.

4 Special attorney Richard Patrick writes

Accordingly, undersigned counsel hereby requests that the Rule 11 motion be summarily denied.

5 Lastly we should also learn from Pendleton v. Central New Mexico Correctional Facility that settlement would be the most expeditious solution to this whole morass of litigation. Plaintiffs have offered to file motion allowed under New Mexico state law to dismiss charges against judge William F Downes as part of settlement.

Plaintiffs continue to seek settlement but will continue to pursue justice in the courts if settlement is out of the question.

Respectfully submitted,

Arthur R. Morales
1024 Los Arboles NW
Albuquerque, NM 87107

William H. Payne
13015 Calle de Sandias NE
Albuquerque, NM 87111

I HEREBY CERTIFY that a true copy of the foregoing pleading was mailed on March 28, 2002 to

Richard G Patrick
Department of Justice
District of Arizona
Two Renaissance Square, Suite 1200
Phoenix, AZ 85004-4408

French and Associates, P.C.
500 Marquette Ave N.W., Suite 600
Albuquerque, New Mexico 87102
505 843 7075

Michael H Hoses
Assistant US Attorney
P0 Box 607
Albuquerque, New Mexico 87103

W. John Brennan
Chief District Judge, Division XIV
P.O. Box 488
Albuquerque, New Mexico 87103
841-7499

Patricio Serna
Chief judge
Supreme Court of New Mexico
POB 848
Santa Fe, New Mexico 87504-0848

James A Parker
Chief judge
United States District Court
333 Lomas NW.
Albuquerque, New Mexico 87103

William F. Downes
Chief Judge; Wyoming
111 South Wolcott
Room 210
Casper, WY 82601
(307) 261-5441
care of
Webmanager@wyd.uscourts.gov

Judge Dee Vance Benson
care of
Louise_York@utd.uscourts.gov
http://www.geocities.com/CapitolHill/Congress/8327/

Arthur R. Morales and CIV-0l-1198 DVB
William H. Payne,
RESPONSE TO PLAINTIFFS’
Plaintiffs, MOTION FOR RULE 11
SANCTIONS

V.

John W. Zavitz; William F. Downes; and
French & Associates, P.C.,

Defendants.

Undersigned counsel for defendant William F. Downes, Chief Judge of the United States District Court for the District of Wyoming, hereby responds in opposition to plaintiffs’ motion for Rule 11 sanctions. Because plaintiffs’ motion is procedurally and substantively flawed, it should be summarily denied. Under Fed. R. Civ. P. 1 l(c)(l)(A), the “safe harbor” provision, plaintiffs were obligated to serve their motion for sanctions on undersigned counsel in advance of filing. Only if the challenged motion to dismiss was not withdrawn or corrected within 21 days after service is the motion for sanctions to be filed. Compliance with the “safe harbor” provisions is mandatory within the Tenth Circuit. For that procedural default above, plaintiffs’ Rule 11 motion should be denied. Pendleton v. Central New Mexico Correctional Facility, 184 F.R.D. 637, 640 (D. N.M. 1999). Substantively, plaintiffs’ motion is premised upon the argument that the motion to dismiss filed on behalf of Chief Judge Downes is “frivolous and is being presented for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.” (Plaintiffs’ motion, p.1.) The merits of Chief Judge Downes’ motion to dismiss remain for resolution by this Court. Here it is sufficient to say that that motion is both legally and factually well-supported. As to plaintiffs’ assertion that the motion to dismiss was filed for an improper purpose, that argument is specious. The doctrine of absolute judicial immunity is so settled in American jurisprudence that any litigant who sues a judge for judicial acts within his jurisdiction must expect a responsive motion to dismiss as a threshold hurdle to overcome.

Accordingly, undersigned counsel hereby requests that the Rule 11 motion be summarily denied.

Respectfully submitted this 21st2002.

JOHN ASHCROFT

United States Attorney General

Richard G Patrick
Special Attorney
Original filed and copy of the foregoing
mailed this 21 day of March, 2002, to:
Arthur R. Morales
1024 Los Arboles, NW
Albuquerque, New Mexico 87107

William H. Payne
13015 Calle de Sandias, NE
Albuquerque, New Mexico 87111

Christina E. Anaya
French & Associates, P.C.
500 Marquette, NW, Suite 600
Albuquerque, New Mexico 87102

Michael Hoses, AUSA
U.S. Attorney’s Office
201 Third Street, NW, Suite 900
Albuquerque, New Mexico 87102

ARTHUR R. MORALES AND
WILLIAM H. PAYNE,

Plaintiffs,

v Civil No. 01-1198 Dee Vance Benson

JOHN J ZAVITZ, WILLIAM F. DOWNES, and
FRENCH & ASSOCIATES, P.C.

Defendants.

DISCOVERY PLAN

1 As this court may know

Rule 26. - General Provisions Governing Discovery

(a) Discovery Methods.

Parties may obtain discovery by one or more of the following methods: depositions upon oral examination or written questions; written interrogatories; production of documents or things or permission to enter upon land or other property, for inspection and other purposes; physical and mental examinations; requests for admission; and calls.

(b) Discovery Scope and Limits.

Unless otherwise limited by order of the court in accordance with these rules, the scope of discovery is as follows:

(1) In General.

Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.

and

(d) Sequence and Timing of Discovery.

Unless the court upon motion, for the convenience of parties and witnesses and in the interests of justice, orders otherwise, methods of discovery may be used in any sequence and the fact that a party is conducting discovery, whether by deposition or otherwise, shall not operate to delay any other party's discovery.

However, Local Rule 26.4 Timing of Discovery and Initial Disclosures states

(a) Discovery. A party may not seek discovery under these rules or the Fed.R.Civ.P. before the initial scheduling conference except by agreement of all parties or by Court order.

(b) Party Entering Case After Initial Scheduling Conference. A party must meet all established case management deadlines. Initial disclosures in accordance with Fed.R.Civ.P. 26(a)(1) are due within thirty (30) calendar days after the party enters an appearance.

3 Nothing appears to be getting done in this lawsuit. It appears the Court is stalling. Plaintiffs must request discovery to find out what is causing the delay.

Plaintiffs demands their right to conduct discovery under Rule 26.

This court has not scheduled required by local rule Initial Scehduling Conference, therefore plaintiffs submits their plan to court.

4 DISCOVERY SCHEDULE

START DATE: Monday March 25, 2002
TIME: 90 days
METHODS: admissions, interrogatories, production of audio, video, electronic documents, documents, notes.
INITIAL PARTIES FROM WHOM DISCOVERY IS SOUGHT

Judge James A Parker
Judge William F Downes
Judge Martha Vazquez
Judge W. John Brennan
Judge W. Daniel Schneider
Judge Patricio Serna
Court clerk Benina Armijo Sisneros
New Mexico state employee William Haas
Defendant John W Zavitz
Defendant French and Associates

Respectfully submitted,

Arthur R. Morales
1024 Los Arboles NW
Albuquerque, NM 87107

William H. Payne
13015 Calle de Sandias NE
Albuquerque, NM 87111

I HEREBY CERTIFY that a true copy of the foregoing pleading was mailed on March 18, 2002 to

Richard G Patrick
Department of Justice
District of Arizona
Two Renaissance Square, Suite 1200
Phoenix, AZ 85004-4408

French and Associates, P.C.
500 Marquette Ave N.W., Suite 600
Albuquerque, New Mexico
505 843 7075

Michael H Hoses
Assistant US Attorney
P0 Box 607
Albuquerque, New Mexico 87103

W. John Brennan
Chief District Judge, Division XIV
P.O. Box 488
Albuquerque, New Mexico 87103
841-7499

Patricio Serna
Chief judge
Supreme Court of New Mexico
POB 848
Santa Fe, New Mexico 87504-0848

James A Parker
Chief judge
United States District Court
333 Lomas NW.
Albuquerque, New Mexico 87103

William F. Downes
Chief Judge; Wyoming
111 South Wolcott
Room 210
Casper, WY 82601
(307) 261-5441
care of
Webmanager@wyd.uscourts.gov

Judge Dee Vance Benson
care of
Louise_York@utd.uscourts.gov

http://www.geocities.com/CapitolHill/Congress/8327/

civ - 2000 10289

Arthur R Morales
William H Payne

Plaintiffs

v

Robert J Gorence
John J Kelly
Manuel Lucero
Jan Elizabeth Mitchell
Don F Svet

Defendants

DISCOVERY PLAN

1 As the court may realize from RULES OF CIVIL PROCEDURE FOR THE DISTRICT COURTS

1-026. General provisions governing discovery.

A. Discovery methods. Parties may obtain discovery by one or more of the following methods: depositions upon oral examination or written questions; written interrogatories; production of documents or things or permission to enter upon land or other property, under Rule 1-034 or Rule 1-045(A) (1) (c), for inspection and other purposes; physical and mental examinations and requests for admission.

B. Scope of discovery. Unless otherwise limited by order of the court in accordance with these rules, the scope of discovery is as follows:

(1) Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents or other tangible things and the identity and location of persons having knowledge of any discoverable matter. The information sought need not be admissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence. ...

LR2-602. Settlement facilitation program.

H. Settlement conference information. At least five (5) days prior to the conference, all parties shall provide the facilitator(s) with the information listed below. This information shall not be filed with the court nor in any way be made part of the court record, and at the providing party's discretion, need not be produced to other parties. Upon motion of any party or its own motion, the court may impose sanctions for failure to provide the information to the facilitator(s). (1) Case number and caption;
(2) Brief description of the case; in domestic relations cases include date of marriage, separation and divorce, names, ages, occupations and current annual incomes of parties, and names and ages of children;
(3) Description of the relief sought;
(4) List of pending factual issues;
(5) List of pending legal issues;
(6) List of all remaining discovery; .....

2 Case civ - 2000 10289 is an open jury trial lawsuit.

3 Nothing appears to be getting done in this lawsuit. It appears the Court is stalling. Plaintiffs must request discovery to find out what is causing the delay.

Plaintiffs demands their right to conduct discovery under Rule 1-026.

This court has not scheduled required by local rule Initial Scehduling Conference, therefore plaintiffs submits their plan to court.

4 DISCOVERY SCHEDULE

START DATE: Monday March 25, 2002 TIME: 90 days METHODS: admissions, interrogatories, production of audio, video, electronic documents, documents, notes. INITIAL PARTIES FROM WHOM DISCOVERY IS SOUGHT

Judge James A Parker
Judge William F Downes
Judge Martha Vazquez
Judge W. John Brennan
Judge W. Daniel Schneider
Judge Patricio Serna
Court clerk Benina Armijo Sisneros
New Mexico state employee William Haas
Robert J Gorence
John J Kelly
Manuel Lucero
Jan Elizabeth Mitchell
Don F Svet

Respectfully submitted

Arthur R Morales
1024 Los Arboles NW
Albuquerque, NM 87107
505 3451381

William H Payne
13015 Calle de Sandias NE
Albuquerque, NM 98111
505 292 7037

ALL PARTIES ENTITLED TO NOTICE

Lawyer for defendants:

Raymond Hamilton
Assistant US Attorney
201 Third Sweet, NW Suite 900
Albuquerque, NM 87102

ARTHUR R. MORALES AND
WILLIAM H. PAYNE,

Plaintiffs,

v Civil No. 01-1198 Dee Vance Benson

JOHN J ZAVITZ, WILLIAM F. DOWNES, and
FRENCH & ASSOCIATES, P.C.

Defendants.

Note: Relevant material from exhibits are reproduced for sake of continuity

1 Sanction Assistant US Attorney Richard G Patrick for failure to withdraw MOTION AS TO DISMISS DEFENDANT CHIEF JUDGE WILLIAM F. DOWNES [Exhibit A, docket entry 26] and MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION AS TO DISMISS DEFENDANT CHIEF JUDGE WILLIAM F. DOWNES [Exhibit A, docket entry 27] which is frivolous and is being presented for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.

2 Assistant US Attorney Patrick and attorney general John Ashcroft were asked

1/29/02 01/30/02 24 NOTICE by pltfs of request for John Ashcroft and Richard Patrick to withdraw mtns to dismiss as to deft Downes (bap) (259k)

Docket sheet, Exhibit A shows that requested MOTION and associated MEMORANDUM not withdrawn.

3 New Mexico chief judge James A Parker

10/25/01 10/26/01 6 ORDER OF RECUSAL by Chief Judge James A. Parker reassigning case to Chief Judge Dee V. Benson for the District of Utah (cc: all counsel*) (bap) (8k)

28 USC Sec. 2283

Anti-Injunction Act is a complete prohibition against a federal court injunction of state court proceeding unless the injunction fall within one of the exceptions specifically set forth in the statute.

11/08/01 11/08/01 9 NOTICE by pltfs of request for Anti-Injunction Act justification for removal of NM case CV-2001-6293 to federal court (bap) (109k)

11/29/01 11/30/01 16 NOTICE by pltfs of non-response of Judges Dee Vance Benson and James A. Parker for notice of request for anti-injunction act justification for removal of state case CV-2001-6293 to federal (bap) (86k)

Therefore the conclusion is that judge Benson has no jurisdiction over state case of harassment, replevin, and defamation [libel].

4 Rule 11(b). Signing of Pleadings, Motions, and Other Papers; Representations to Court; Sanctions state in Federal Rules of Civil Procedure,

(b) Representations to Court.

By presenting to the court (whether by signing, filing, submitting, or later advocating) a pleading, written motion, or other paper, an attorney or unrepresented party is certifying that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances,--

(1) it is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation;

(2) the claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law;

(3) the allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery; and

(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief.

Lawyers Patrick and Ashcroft have presented their MOTION and associated MEMORANDUM in hope that federal chief judge Benson will dismiss claim against fellow judge William F Downes.

Patrick and Ashcroft's actions are therefore premeditated and malicious.

5 Assistant US Attorney writes plaintiffs, Exhibit B,

February 11,2002

Arthur R. Morales
1024 Los Arboles, NW
Albuquerque, New Mexico 87107

William H. Payne
13015 Calle de Sandias, NE
Albuquerque, New Mexico 87111

Re: Morales & Payne v. Zavitz, et al.
CIV-0l-l 198-DVB

Payne v. Dow, et al.
CIV-01-1 132-DVB

Dear Mr. Morales and Mr. Payne:

Thank you for your letter of February 2, 2002 regarding the above-entitled cases. Your comment that these cases are about “lawyers and judges breaking New Mexico state laws trying to escape justice” is somewhat puzzling. As I understand the situation, you filed initial lawsuits in state court which some or all of the defendants believed were removable to federal court. The removal laws were enacted by Congress. After removal, you requested that some or all of the cases be remanded to state court. If you disagree with the judge’s rulings on your remand request, such disagreement can be an issue on subsequent appeals to theTenth Circuit. Rather than pursue such remedies, you have chosen to sue some of the lawyers and judges involved in the cases. Representing one of those judges, I have filed motions to dismiss based upon my belief, well supported, that Chief Judge Downes is judicially immune from suit for the claims you assert.

With respect to your suggestion of settlement, I once again only represent one defendant in two lawsuits. The concept of settlement requires that a party evaluate his or her hazards of litigation. What are the claims against the defendant and what do the law and facts suggest about the merits of those claims. As to Chief Judge Downes, and with all due respect, I see no hazard of litigation with regard to your claims against Chief Judge Downes. Accordingly, at this point, I do not believe that settlement discussion is in my client’s best interests.

Thus, while I do appreciate your approaching me on an informal basis on the settlement issues, I believe we should await the Court’s ruling on my motions to dismiss.

Thank you.

Sincerely yours,

PAUL K. CHARLTON
United States Attorney
District of Arizona

signed

Richard G. Partrick

Friday 2/15/02 12:53 PM

Richard G Patrick
Special Attorney
Department of Justice
District of Arizona
Two Renaissance Square, Suite 1200
Phoenix, AZ 85004-4408
602-514-7500

Dear Mr Patrick:

The purpose of this letter is to respond to your thoughtful letter dated February 11, 2002 and further apprise you of facts which your client, Wyoming chief judge William F Downes, and you might wish to consider.

We continue to believe that settlement of these unfortunate matters is best.

You wrote

Your comment that these cases are about “lawyers and judges breaking New Mexico state laws trying to escape justice” is somewhat puzzling. As I understand the situation, you filed initial lawsuits in state court which some or all of the defendants believed were removable to federal court. The removal laws were enacted by Congress. After removal, you requested that some or all of the cases be remanded to state court. If you disagree with the judge’s rulings on your remand request, such disagreement can be an issue on subsequent appeals to the Tenth Circuit.

Your statements appear to make it clear you and you client, judge Downes, misunderstand the situation.

We sued to recover [replevin] $625 garnished by Sandia National Laboratories from Mr. Morales wages.

Morales requested an offered hearing. No hearing was conducted. $625 was taken from Morales wages without due process.

In addition federal magistrate judge Don J Svet signed a order of garnishment against Morales for $1,793.56 when there was no cause of action against Morales. This is still and open matter and must be resolved in court or settled.

We requested a stay of federal proceedings on our removed lawsuit based on

Rule 62. - Stay of Proceedings To Enforce a Judgment (a) Automatic Stay - Exceptions - Injunctions.

(f) Stay According to State Law.

In any state in which a judgment is a lien upon the property of the judgment debtor and in which the judgment debtor is entitled to a stay of execution, a judgment debtor is entitled to such stay as would be accorded the judgment debtor had the action been maintained in the courts of that state.

This stay was granted by federal judge Martha Vazquez.

12/21/00 12/21/00 19 ORDER by District Judge Martha Vazquez granting motion for stay [10- 1], Case stayed until the outcome of the New Mexico hearing is determined re [19-2] (cc: all counsel) (msm) (29k) Re: MOTION for stay [10]

Yet US Attorneys and judge James Parker ignored this stay and transferred the case to your client, judge William Downes, who also ignored the stay.

Your client is guilty of denial of our due legal process.

Your statement

If you disagree with the judge’s rulings on your remand request, such disagreement can be an issue on subsequent appeals to the Tenth Circuit.

must be challenged on the ground that federal court does not have jurisdiction in any of our state lawsuits.

We asked, in writing, for jurisdiction justification from judges Parker, Downes, and Benson as required by law.

28 USC Sec. 2283 states

Anti-Injunction Act is a complete prohibition against a federal court injunction of state court proceeding unless the injunction fall within one of the exceptions specifically set forth in the statute.

No justification from any judge was received by us as stated in our affidavits. Whereby using the Federal Rules of Civil Procedure when no response is received means affirmation. Since we received no responses to our requests, judges confirm that they do not have jurisdiction as mandated by the anti-injunction act.

Therefore your suggestion to wait for an appeal to the Tenth Circuit would only be a waste of court's time and money. This must be considered be additional harassment in violation of New Mexico state laws.

You wrote

Rather than pursue such remedies, you have chosen to sue some of the lawyers and judges involved in the cases. Representing one of those judges, I have filed motions to dismiss based upon my belief, well supported, that Chief Judge Downes is judicially immune from suit for the claims you assert.

We have selected to sue in New Mexico state court because we have been harassed in violation of New Mexico state laws by judge Downes.

From the information above we believe your motion to dismiss submitted to judge Benson is should be reconsidered.. Reason, of course, is that Benson and federal court do have jurisdiction. If your motion to dismiss is pursued, we must consider these actions frivolous and harassing. We'll pursue this.

You wrote

As to Chief Judge Downes, and with all due respect, I see no hazard of litigation with regard to your claims against Chief Judge Downes. Accordingly, at this point, I do not believe that settlement discussion is in my client’s best interests.

We believe that you subjected judge Downes to a grave hazard. You are trying to get judge Benson, who has no jurisdiction, to dismiss a New Mexico state lawsuit.

You wrote

With respect to your suggestion of settlement, I once again only represent one defendant in two lawsuits. The concept of settlement requires that a party evaluate his or her hazards of litigation. What are the claims against the defendant and what do the law and facts suggest about the merits of those claims.

We feel that it is in your client judge William F Downes best interest to promptly settle these unfortunate lawsuits.

You conclude

Thus, while I do appreciate your approaching me on an informal basis on the settlement issues, I believe we should await the Court’s ruling on my motions to dismiss.

Thank you.

We don't believe waiting is wise. Reason is that it places judge Benson in jeopardy of ruling when Benson has no jurisdiction.

It was Downes ruling when he didn't have jurisdiction and ignored judge Vazquez' ruling that compelled us to sue Downes, twice, in New Mexico state court.

Downes is guilty, in writing too, of denial of due process.

We can believe that judge James Parker may not have adequately apprised judge Downes of the true statement of facts in our original New Mexico state lawsuits.

For this reason, we are prepared to file, in New Mexico state court, motions to dismiss claims against judge Downes provided we can settle these unfortunate matters.

Sincerely

Arthur R Morales
1024 Los Arboles NW
Albuquerque, NM 87107
505 3451381

William H Payne
13015 Calle de Sandias NE
Albuquerque, NM 87111
505 292 7037

Distribution

John Ashcroft
U.S. Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530-0001

Paul K Charlton
Department of Justice
District of Arizona
Two Renaissance Square, Suite 1200
Phoenix, AZ 85004-4408

Judge Dee Vance Benson
care of
Louise_York@utd.uscourts.gov

Judge William F Downes
care of
Webmanager@wyd.uscourts.gov

6 While plaintiffs believe their February 15, 2002 letter to Patrick adequately explained why these unfortunate matters should be settled and what plaintiffs were prepared to do with Downes, Patrick responds

February 22, 2002

Arthur R. Morales
1024 Los Arboles, N.W.
Albuquerque, New Mexico 87107

William H. Payne
13015 Calle de Sandias, NE
Albuquerque, New Mexico 87111

Re: Morales & Payne v. Zavitz, et al.
CJV-0l1198-DVB
Payne v. Dow, et al.
CIV-0l-1 132-DVB

Dear Mr. Morales and Mr. Payne:

Thank you for your letter of February 15, 2002. The crux of our informal disagreement in our exchange of letters is best illustrated by your comment that I, on behalf of Chief Judge Downes, am "trying to get Judge Benson, who has no jurisdiction, to dismiss a New Mexico state lawsuit”. Letter of February 15,2002 at page 3. As I understand the law, and the effect of the federal removal statutes, 28 U.S.C. §§1441et seq., a state case, upon removal and unless remanded, becomes a federal case. As the United States Supreme Court has explained “once a case has been removed to federal court, it is settled that federal rather than state law governs the future course of proceedings”. Granny Goose Foods. Inc. v. Brotherhood of Teamsters, 415 U.S. 423, 437 (1974). The Supreme Court, also long ago, held that removal of state cases to federal court is not an “invasion of the sovereignty of a State.” Tennessee v. Davis, 100 U.S. 257,266-67 (1879). You apparently contend that these New Mexico state cases were improperly removed. Unless, however, you are successful in getting them remanded, they are federal cases to be decided under federal law, unless, again, you are successful in appeals in federal court. Once the federal decisions become final, New Mexico state courts are bound by the federal decisions under the Supremacy Clause of the United States Constitution.

I again thank you for your letter. Unfortunately, we still seem to be at odds as to what the governing law is.

Sincerely yours,

PAUL K. CHARLTON
Assisitant States Attorney
District of Arizona

RICHARD G. PATRICK

7 Patrick's statement

As I understand the law, and the effect of the federal removal statutes, 28 U.S.C. §§1441 et seq., a state case, upon removal and unless remanded, becomes a federal case.

Sec. 1441. - Actions removable generally states

(a) Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending. For purposes of removal under this chapter, the citizenship of defendants sued under fictitious names shall be disregarded.

(b) Any civil action of which the district courts have original jurisdiction founded on a claim or right arising under the Constitution, treaties or laws of the United States shall be removable without regard to the citizenship or residence of the parties. Any other such action shall be removable only if none of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.

(c) Whenever a separate and independent claim or cause of action within the jurisdiction conferred by section 1331 of this title is joined with one or more otherwise non-removable claims or causes of action, the entire case may be removed and the district court may determine all issues therein, or, in its discretion, may remand all matters in which State law predominates.

(d) Any civil action brought in a State court against a foreign state as defined in section 1603(a) of this title may be removed by the foreign state to the district court of the United States for the district and division embracing the place where such action is pending. Upon removal the action shall be tried by the court without jury. Where removal is based upon this subsection, the time limitations of section 1446(b) of this chapter may be enlarged at any time for cause shown.

(e) The court to which such civil action is removed is not precluded from hearing and determining any claim in such civil action because the State court from which such civil action is removed did not have jurisdiction over that claim

Second, judge Martha Vazquez ordered a stay of proceeding until results of the New Mexico court hearing were final. But this never occurred making removal improper.

Third, the court's credibility is at question

A The court does not follow its own rule by NOT allowing plaintiffs their due process.

B When the court ignore a vital request of interpretation of law. [Anti-injunction Act justification]

C The court cannot admit it is human and need to be corrected.

These have a chilling effect to the meaning of justice in our courts.

Harassment, replevin, defamation [libel] make the cases not removable from state to federal court.

And, of course, Sec. 1331. - Federal question states

The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States

New Mexico state laws against harassment IN WRITING.

8 Patrick's statement

As the United States Supreme Court has explained “once a case has been removed to federal court, it is settled that federal rather than state law governs the future course of proceedings”. Granny Goose Foods. Inc. v. Brotherhood of Teamsters, 415 U.S. 423, 437 (1974). The Supreme Court, also long ago, held that removal of state cases to federal court is not an “invasion of the sovereignty of a State.” Tennessee v. Davis, 100 U.S. 257,266-67 (1879).

Summary of Granny Goose Foods is

Petitioner employers brought suit in California state court alleging that respondent Union was engaging in a strike in breach of collective bargaining agreements. The court issued a temporary restraining order on May 18, 1970. Two days later, the case was removed to federal court, and on June 4, the District Court denied the Union's motion to dissolve the restraining order. Strike activity then stopped, and the labor dispute remained dormant until the Union, after the petitioners had refused to bargain, resumed its strike on November 30, 1970. Two days later, the District Court, on petitioners' motion, held the Union in criminal contempt for violating the restraining order. The Court of Appeals reversed on the ground that the order had expired long before November 30, 1970, reasoning that, under both state law and Fed.Rule Civ.Proc. 65(b), the order expired no later than June 7, 1970, 20 days after its issuance, and rejecting petitioners' contention that the life of the order was indefinitely prolonged by 28 U.S.C. § 1450 "until dissolved or modified by the district court."

Tennessee v. Davis (1879)

Issue: Constitutionality of federal officer removal provisions, the antecedents to 28 USC § 1442(a)(1) Federal officer (a federal revenue agent seeking to seize an illegal still) indicted for murder in state courts and case removed to federal court

Federal government must have the power to protect itself in the exercise of its lawful powers. Martin v. Hunter’s Lessee

Patrick then writes

Unless, however, you are successful in getting them remanded, they are federal cases to be decided under federal law, unless, again, you are successful in appeals in federal court. Once the federal decisions become final, New Mexico state courts are bound by the federal decisions under the Supremacy Clause of the United States Constitution.

So, since Patrick's letters are not part of a judicial proceeding but an ex parte communication with plaintiffs , it therefore appears that Patrick's statements may violate Title 18 Chapter 47 FRAUD AND FALSE STATEMENTS

Sec. 1001. - Statements or entries generally

(a) Except as otherwise provided in this section, whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully -

(1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact;

(2) makes any materially false, fictitious, or fraudulent statement or representation; or

(3) makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry;

shall be fined under this title or imprisoned not more than 5 years, or both.

(b) Subsection (a) does not apply to a party to a judicial proceeding, or that party's counsel, for statements, representations, writings or documents submitted by such party or counsel to a judge or magistrate in that proceeding.

I again thank you for your letter. Unfortunately, we still seem to be at odds as to what the governing law is.

Patrick may be violating Title 18 criminal laws.

But plaintiffs continue to be conciliatory and pray these unfortunate matters are settled soon.

For the court to continue on this path without some attempt to negotiate or resolve these issue gives the appearance of stalling.

Stalling means delay justice. Delayed justice is just another term for injustice.

9 However, Rule 11(c) goes on to state

(c) Sanctions.

If, after notice and a reasonable opportunity to respond, the court determines that subdivision (b) has been violated, the court may, subject to the conditions stated below, impose an appropriate sanction upon the attorneys, law firms, or parties that have violated subdivision (b) or are responsible for the violation.

(1) How Initiated.

(A) By Motion. A motion for sanctions under this rule shall be made separately from other motions or requests and shall describe the specific conduct alleged to violate subdivision (b). It shall be served as provided in Rule 5 , but shall not be filed with or presented to the court unless, within 21 days after service of the motion (or such other period as the court may prescribe), the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected. If warranted, the court may award to the party prevailing on the motion the reasonable expenses and attorney's fees incurred in presenting or opposing the motion. Absent exceptional circumstances, a law firm shall be held jointly responsible for violations committed by its partners, associates, and employees.

(B) On Court's Initiative. On its own initiative, the court may enter an order describing the specific conduct that appears to violate subdivision (b) and directing an attorney, law firm, or party to show cause why it has not violated subdivision (b) with respect thereto.

(2) Nature of Sanction; Limitations. A sanction imposed for violation of this rule shall be limited to what is sufficient to deter repetition of such conduct or comparable conduct by others similarly situated. Subject to the limitations in subparagraphs (A) and (B), the sanction may consist of, or include, directives of a nonmonetary nature, an order to pay a penalty into court, or, if imposed on motion and warranted for effective deterrence, an order directing payment to the movant of some or all of the reasonable attorneys' fees and other expenses incurred as a direct result of the violation.

(A) Monetary sanctions may not be awarded against a represented party for a violation of subdivision (b)(2).

(B) Monetary sanctions may not be awarded on the court's initiative unless the court issues its order to show cause before a voluntary dismissal or settlement of the claims made by or against the party which is, or whose attorneys are, to be sanctioned.

(3) Order. When imposing sanctions, the court shall describe the conduct determined to constitute a violation of this rule and explain the basis for the sanction imposed.

More than 21 days have elapsed since request was made.

Patrick must PUNISHED WITH THE HARSHEST OF FINANCIAL SANCTIONS to prevent the chilling effect of misuse of federal courts.

10 WHEREFORE sanction Assistant US Attorney Richard G Patrick for $300,000 for filing frivolous MOTION and associated MEMORANDUM.

Plaintiffs ask for $2,000 labor to prepare this filing.

Respectfully submitted,

Arthur R. Morales
1024 Los Arboles NW
Albuquerque, NM 87107

William H. Payne
13015 Calle de Sandias NE
Albuquerque, NM 87111

I HEREBY CERTIFY that a true copy of the foregoing pleading was mailed on March 8, 2002 to

Richard G Patrick
Department of Justice
District of Arizona
Two Renaissance Square, Suite 1200
Phoenix, AZ 85004-4408

French and Associates, P.C.
500 Marquette Ave N.W., Suite 600
Albuquerque, New Mexico
505 843 7075

Michael H Hoses
Assistant US Attorney
P0 Box 607
Albuquerque, New Mexico 87103

W. John Brennan Chief District Judge, Division XIV
P.O. Box 488
Albuquerque, New Mexico 87103
841-7499

Patricio Serna
Chief judge
Supreme Court of New Mexico
POB 848
Santa Fe, New Mexico 87504-0848

James A Parker
Chief judge
United States District Court
333 Lomas NW.
Albuquerque, New Mexico 87103

William F. Downes
Chief Judge; Wyoming
111 South Wolcott
Room 210
Casper, WY 82601
(307) 261-5441
care of
Webmanager@wyd.uscourts.gov

Judge Dee Vance Benson
care of
Louise_York@utd.uscourts.gov

http://www.geocities.com/CapitolHill/Congress/8327/

THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO

ARTHUR R. MORALES AND
WILLIAM H. PAYNE,

Plaintiffs,

v Civil No. 01-1198 Dee Vance Benson

JOHN J ZAVITZ, WILLIAM F. DOWNES, and
FRENCH & ASSOCIATES, P.C.

Defendants.

RESPONSE TO MOTION AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS DEFENDANT CHIEF JUDGE WILLIAM F. DOWNES

1 US Special Attorney Richard G Patrick writes

Chief Judge William F. Downes, by undersigned counsel, hereby moves pursuant to Fed. R. Civ. P. 12(b)(6), that this action, as to him, be dismissed for failure to state a claim upon which relief can be granted. 1 A Memorandum of Points and Authorities in support of this motion is filed herewith.

WHEREFORE, it is prayed that this motion be granted.

1 Movant specifically preserves his defense of insufficiency of service of process.

Fed. R. Civ. P. 12(b)(6) states

Rule 12. Defenses and Objections When and How Presented By Pleading or Motion - Motion for Judgment on the Pleadings

b) How Presented.

very defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion:

(6) failure to state a claim upon which relief can be granted,

(6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.

Since Patrick writes

1 Movant specifically preserves his defense of insufficiency of service of process. Rule 12(b)(5) states

(5) insufficiency of service of process,

Patrick's claim of insufficiency of service of process must be summarily rejected.

Judge Downes was properly served by a sheriff in New Mexico state lawsuit 01 cv 6293. 01cv 6293 was improperly removed to federal court and labeled federal Civil No. 01-1198.

This court does not have jurisdiction over New Mexico state lawsuit 01cv 6293.

Judges Benson and Parker were given opportunity to give justification for jurisdiction.

11/08/01 11/08/01 9 NOTICE by pltfs of request for Anti-Injunction Act justification for removal of NM case CV-2001-6293 to federal court (bap) (109k)

But Benson and Parker failed to give justification for jurisdication.

11/29/01 11/30/01 16 NOTICE by pltfs of non-response of Judges Dee Vance Benson and James A. Parker for notice of request for anti-injunction act justification for removal of state case CV-2001-6293 to federal (bap) (86k)

Exhibit A. See arrows. New Mexico state lawsuit 01cv 6293 was for Complaint for Relief from CONSPIRACY OF HARASSMENT AND PERJURY.

Harassment and perjury in New Mexico state court are not federal issues.

Patrick's argument motion to dismiss (6) failure to state a claim upon which relief can be granted, does not apply since complaint against Downes is in New Mexico state court.

Plaintiffs have made NO STATEMENT OF CLAIMS against Downes in federal court.

US special attorney Patrick harasses us using the federal court as instrument of harassment. This court does not have jurisdiction over New Mexico state issues of Relief from CONSPIRACY OF HARASSMENT AND PERJURY.

2 This improperly removed lawsuit has its roots in New Mexico state lawsuit 00:CV:10289.

This lawsuit remains to this day as an active jury trial lawsuit in New Mexico.

New Mexico state lawsuit 00:CV:1028900 was improperly removed to federal court and labeled 01cv 1574.

Plaintiffs use word IMPROPERLY with authority.

Federal judge Martha Vazquez ORDERED 01cv 1574 stayed until outcome of New Mexico hearing was final!

12/21/00 12/21/00 19 ORDER by District Judge Martha Vazquez granting motion for stay [10- 1], Case stayed until the outcome of the New Mexico hearing is determined re [19-2] (cc: all counsel) (msm) (29k) Re: MOTION for stay [10]

Exhibit A.

Plaintiffs have continually been denied right to be heard in New Mexico state court. Money was taken from plaintiffs without due process.

US Attorney John J Kelly and US Assistant Attorney Manuel Lucero file ORDER OF GARNISHMENT for $1,793.56 signed by magistrate judge Don F Svet on April 20, 1999 against plaintiff Morales with no cause of action again him.

Judge Downes, presiding over improperly removed federal 1574, is instrumental in continuing the denial of due process before jury.

Downes has joined plaintiffs list of unacceptable acts of harassment.

3 WHEREFORE Patrick's MOTION must be rejected. Patrick's repeated appeal for judicial immunity for judge Downes is clearly frivolous for the reason that judge who commit state crimes are not doing so in their official capacities and must be REJECTED. Downes did and does not have jurisdiction in federal 1574. Downes and Parker were given opportunity to claim jurisdiction in 1574 but did not

8/30/01 08/30/01 47 NOTICE by plaintiff Arthur R Morales of non-compliance of Judge William Downes to provide anti injunction affidavit (sl) (302k)

Exhibit A.

Respectfully submitted,

Arthur R. Morales
1024 Los Arboles NW
Albuquerque, NM 87107

William H. Payne
13015 Calle de Sandias NE
Albuquerque, NM 87111

I HEREBY CERTIFY that a true copy of the foregoing pleading was mailed on February 12, 2002 to

French and Associates, P.C.
500 Marquette Ave N.W., Suite 600
Albuquerque, New Mexico 87102
505 843 7075

Michael H Hoses
Assistant US Attorney
P0 Box 607
Albuquerque, New Mexico 87103

W. John Brennan
Chief District Judge, Division XIV
P.O. Box 488
Albuquerque, New Mexico 87103
841-7499

Patricio Serna
Chief judge
Supreme Court of New Mexico
POB 848
Santa Fe, New Mexico 87504-0848

James A Parker
Chief judge
United States District Court
333 Lomas NW.
Albuquerque, New Mexico 87103

William F. Downes
Chief Judge; Wyoming
111 South Wolcott
Room 210
Casper, WY 82601
(307) 261-5441

http://www.geocities.com/CapitolHill/Congress/8327/

THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO

ARTHUR R. MORALES AND WILLIAM H. PAYNE,

Plaintiffs,

v Civil No. 01-1198 Dee Vance Benson

JOHN J ZAVITZ, WILLIAM F. DOWNES, and
FRENCH & ASSOCIATES, P.C.

Defendants.

REPLY TO RESPONSE OF MICHAEL HOSES TO PLAINTIFFS’ MOTION FOR SANCTIONS AGAINST ASSISTANT US ATTORNEY MICHAEL HOSES FOR FILING DEFENDANT JOHN W. ZAVITZ’ MOTION TO DISMISS BASED ON ABSOLUTE IMMUNITY AND DEFENDANT JOHN W. ZAVITZ’ MEMORANDUM IN SUPPORT OF MOTION TO DISMISS BASED ON ABSOLUTE IMMUNITY

1 Assistant US Attorney Michael H. Hoses writes

In their motion for sanctions against Assistant U.S. Attorney Michael Hoses Plaintiffs complain that Assistant U.S. Attorney Michael Hoses violated D.N.M.LR-Civ. 83.4 when he filed a motion and memorandum to dismiss Defendant John W. Zavitz based on absolute immunity (Docs. Nos. 11 & 12). Plaintiffs’ motion for sanctions at 3.1 Undersigned counsel complied with D.N.M.LR-Civ. 83.4 when he filed the motion and memorandum to dismiss based on absolute immunity D.NM.LR-Civ. 83.4 provides:

(a) Individual Attorney. An attorney must enter an appearance or obtain leave of the Court to sign and file any pleading, motion or other paper. To enter an appearance, an attorney must:

• be eligible to appear under D.N.M.LR-Civ. 83.2 or 83.3; and

• sign the initial pleading filed on behalf of a party and file a written entry of appearance which includes the attorney’s name, address, and telephone number.

Hoses' statement

• sign the initial pleading filed on behalf of a party and file a written entry of appearance which includes the attorney’s name, address, and telephone number.

is not a federal rule but a state of New Mexico rule for entry of appearance.

LR2-117. Counsel of record; appearance; withdrawal.

A. Entry of appearance required. All counsel for a party, including state prosecutors and public defenders and counsel in appeals from metropolitan court, shall enter an appearance and shall do so either (1) by filing the party's initial pleading, criminal information or indictment, or delinquency petition, or (2) by filing an entry of appearance. Counsel shall promptly file notice of any change of address or telephone number and serve such notice on all other parties.

Hoses tries to deceive this court and plaintiffs by lying in writing.

The clause "and file a written entry of appearance" clearly requires a separate entry of appearance to be filed.

Therefore, Hoses convicts himself with his own writing.

Here's the local federal rules on entry of appearance.

Federal local rules of civil procedure 83.4, Entry of Appearance, states

(a) Individual Attorney. An attorney must enter an appearance or obtain leave of the Court to sign and file any pleading, motion or other paper. To enter an appearance, an attorney must: be eligible to appear under D.N.M.LR-Civ. 83.2 or 83.3; and sign the initial pleading filed on behalf of a party and file a written entry of appearance which includes the attorney's name, address, and telephone number.

(b) Appearance by Member of a Law Firm. Entry of appearance by one member of a law firm in an action allows any member of that firm to participate in the action; however, each attorney in the firm wishing to receive papers from the Clerk must make a written entry of appearance in the action.

The word MUST in "An attorney must enter an appearance or obtain leave of the Court to sign and file any pleading, motion or other paper." is quite clear.

2 Hoses writes

Mr. Hoses complied with Local Rule 83.4 because he is eligible to appear in the United States District Court for the district of New Mexico since he is a member of the Federal Bar.2 and he signed the initial pleading filed on behalf o Defendant John W. Zavitz (the Notice of Removal, Doc. No. 1). Furthermore, Mr. Hoses included his name, address and telephone number in that initial pleading and every pleading filed subsequent to that pleading. No separate entry of appearance was necessary and the fact that a separate entry of appearance was not filed is immaterial. Further, Mr. Hoses was already the attorney of record for Defendant Zavitz at the time he filed the motion to dismiss.

Hoses statement

No separate entry of appearance was necessary and the fact that a separate entry of appearance was not filed is immaterial.

is false.

Hoses failed to comply with Federal local rules of civil procedure 83.4 when he failed to file entry of appearance.

2 Hoses writes

--------------------------------------------------------------------------------
1 It is interesting to note that Assistant U.S. Attorney Michael H. Hoses previously signed and filed a Noticeof Removal, Notice and Answer on behalf of Defendant Zavitz with no objections from Plaintiffs that D.N.M.LR-civ. 83.4 had been violated because no entry of appearance was filed.
--------------------------------------------------------------------------------

Plaintiffs most certainly objected to removal on the basis that this court done not have jurisdiction in state lawsuit.

Plaintiffs directed their concerns to judge Dee Vance Benson and James A Parker for improper removal by filing

11/08/01 11/08/01 9 NOTICE by pltfs of request for Anti-Injunction Act justification for removal of NM case CV-2001-6293 to federal court (bap) (109k)

and

11/29/01 11/30/01 16 NOTICE by pltfs of non-response of Judges Dee Vance Benson and James A. Parker for notice of request for anti-injunction act justification for removal of state case CV-2001-6293 to federal (bap) (86k)

Exhibit A.  See arrows.

Plaintiffs are under no obligation to objections to Hoses, who has no standing in this improperly removed lawsuit

3 Hoses writes

Wherefore, Michael Hoses respectfully requests that this Court issue an Order denying Plaintiffs Motion for Sanctions, for costs incurred herein, and for such other and further relief as the Court may deem just and proper.

must be rejected as an improper conclusion based on Hoses' arguments made in his RESPONSE based on false statements.

4 WHEREFORE sanction Assistant US Attorney Michael Hoses an additional $200,000 for filing his RESPONSE.

Award plaintiffs $600 for having to REPLY to Hoses frivolous RESPONSE based on Hoses' false statements made before this court which does not have jurisdiction over original New Mexico state lawsuit.

Respectfully submitted,

Arthur R. Morales
1024 Los Arboles NW
Albuquerque, NM 87107

William H. Payne
13015 Calle de Sandias NE
Albuquerque, NM 87111

I HEREBY CERTIFY that a true copy of the foregoing pleading was mailed on February 12, 2002 to

French and Associates, P.C.
500 Marquette Ave N.W., Suite 600
Albuquerque, New Mexico
505 843 7075

Michael H Hoses
Assistant US Attorney
P0 Box 607
Albuquerque, New Mexico 87103

W. John Brennan
Chief District Judge, Division XIV
P.O. Box 488
Albuquerque, New Mexico 87103
841-7499

Patricio Serna
Chief judge
Supreme Court of New Mexico
POB 848
Santa Fe, New Mexico 87504-0848

James A Parker
Chief judge
United States District Court
333 Lomas NW.
Albuquerque, New Mexico 87103

William F. Downes
Chief Judge; Wyoming
111 South Wolcott
Room 210
Casper, WY 82601
(307) 261-5441

http://www.geocities.com/CapitolHill/Congress/8327/

Federal Judge and trouble-
maker Martha Vázquez

JOHN ASHCROFT
United States Attorney General

RICHARD G. PATRICK
Special Attorney
Arizona State Bar No. 5148
Two Renaissance Square
40 North Central Avenue, Suite 1200
Phoenix, Arizona 85004-4408
Telephone: (602) 514-7500

UNITED STATES DISTRICT COURT
DISTRICT OF NEW MEXICO
Arthur R. Morales and            CIV-O1-1 198 DVB
William H. Payne,
                                              MEMORANDUM OF POINTS
Plaintiffs,                                 AND AUTHORITIES IN
                                               SUPPORT OF MOTION TO
v.                                             DISMISS DEFENDANT CHIEF
                                                JUDGE WILLIAM F. DOWNES
John W. Zavitz; William F. Downes; and
French & Associates, P.C.,

Defendants.

Plaintiffs, in the above-captioned action, have named Chief Judge William F. Downes as a defendant and seek money damages from him in his individual capacity. Their claims for relief against Judge Downes are grounded in Judge Downes’ judicial rulings in two cases removed to federal court fromNew Mexico State courts. In those cases, CIV-00-01574 and CIV-0l-00634, plaintiffs argued to Judge Downes that the cases were improperly removed, should be remanded and that continued federal court retention ofjurisdiction violated the Anti-Injunction Statute (28 U.S.C. § 2283). Because Judge Downes disagreed with plaintiffs’ legal positions, plaintiffs sued him (and others) in New Mexico State Court. That case has been removed to this Court on October 16, 2001 and bears the above-captioned docket number. Because as a matter of undisputed fact and clear law Judge Downes’ judicial immunity bars this action as to him, he should be dismissed from this lawsuit.’

JUDICIAL IMMUNITY BARS PLAINTIFFS’ DAMAGE CLAIM FOR ALLEGED VIOLATION OF CONSTITUTIONAL RIGHTS

Judges are protected by an absolute immunity that was recognized at English common law. The Supreme Court adopted the immunity early in Bradley v. Fisher, 80 U.S. (12 Wall.) 335 (1872), explaining that judges must be protected from inhibiting damages suits because they frequently must determine “[c]ontroversies involving not merely great pecuniary interests, but the liberty and character of the parties, and consequently exciting the deepest feelings *** [where] there is great conflict in the evidence and great doubt as to the law which should govern their situation.” Id. at 348. This immunity is a complete immunity from suit and not simply protection from ultimate assessment of damages. Mireles v. Waco, 502 U.S. 9, 11(1991) (per curiam). Judges are protected by absolute immunity for judicial acts except when they act in the clear absence of jurisdiction. The Supreme Court has consistently adhered to that rule, observing that “‘Few doctrines were more solidly established at common law than the immunity of judges from liability for damages for acts committed within their judicial jurisdiction.”’ Cleavingerv. Saxner, 474 U.S. 193,199(1985), [quotingPierson v. Ray, 386 U.S. 547, 553-54 (1967)]; see also, Dennis v. Sparks, 449 U.S. 24, 27 (1980).

The Court summarized the breadth and nature of the immunity in Cleavinger v. Saxner, 474 U.S. at 199-200 (citations omitted):

Such immunity applies “however erroneous the act may have been, and however injurious in its consequences [the judicial act] may have proved to the plaintiff.” *** “Nor can this exemption of the judges from civil liability be affected by the motives with which theirjudicial acts are performed.” *** And in Stump v. Sparkman, 435 U.S. 349 (1978), the Court once again enunciated this principle, despite any “informality with which [the judge] proceeded,” and despite any exparte feature of the proceeding.

“A judge will not be deprived of immunity because the action he took was in error was done maliciously, or was in excess of his authority; rather, he will be subject to liability only when

There are two requisites inherent in the Supreme Court’s formulation of absolute judicial immunity: (1) that the challenged act be judicial in nature and (2) that it not be done in the absence of all jurisdiction. See Mire/es v. Waco, 502 U.S. at 11-12; Hunt v. Bennett, 17 F.3d 1263, 1266-67 (l0th Cir. 1994).

The factors determining whether a challenged act by a judge is a judicial one for purposes of immunity “relate to the nature of the act itself, i.e., whether it is a function normally performed by a judge, and to the expectations of the parties, i.e., whether they dealt with the judge in his judicial capacity.” Stump v. Sparkman, 435 U.S. at 362. Judicial acts are those in which ajudge is “perform[ing] the function of resolving disputes between parties, or of authoritatively adjudicating private rights.” Antoine v. Byers & Anderson, Inc., 508 U.S. 429,435-36(1993) (citation omitted). The inquiry thus goes to the nature and function of the act and not to the act itself. Mire/es v. Waco, 502 U.S. at 13. The judicial nature of ajudge’s act is not altered by virtue of an allegation of malice or corrupt motive. Forrester v. White, 484 U.S. 219,227(1988). Similarly, ajudge’s immunity is not pierced by allegations that he conspired with others to do an allegedly unlawful act so long as the act is within his judicial powers. Green v. Seymour, 59 F.3d 1073 (loth Cir. 1995); Crabtree v. Muchmore, 904 F2d 1475 (lOth Cir. 1990).

As to plaintiffs’ claims against Judge Downes, the gravamen of their complaint is their assertion that he had no jurisdiction to entertain the case upon removal. Complaint, 8. Furthermore, plaintiffs complain that Judge Downes ruled on matters before him “IId]espite repeated warnings in plaintiffs pleadings that [he] does not havejurisdiction”. Complaint, 9. Because of those alleged facts, “plaintiffs must believe that Downes is engaged in a conspiracy with defendants Zavitz and French & Associates to harass plaintiff (sic) using federal court”. Complaint, 9 2

As is demonstrated by the docket sheet in CIV-00-01574 and CIV-0l-00634, Judge Downes issued orders and ruled upon motions characterized as unfavorable by the plaintiffs.3 These acts were judicial in nature. Indeed, all of the actions of which plaintiffs complain may only be performed by judges. Moreover, Judge Downes’ actions also appeared judicial, supporting the obvious fact that plaintiffs believed they were dealing with the judge in his judicial capacity. The actions occurred by way of written orders andlor while the judge was on the bench. Given these circumstances, there is not doubt that plaintiffs dealt with Judge Downes in a judicial capacity and not, for example, as an employer or administrator.

Because the challenged actions were judicial in nature, the second inquiry for judicial immunity is whether the judge was wholly without jurisdiction to act in the premises. Under

3 The Court can and is requested to take judicial notice of the Clerk’s Docket Sheet in those proceedings. Van Woudenber v. Gibson, 211 F.3d 560, 568 (l0th Cir. 2000). On a motion to dismiss, the Court can judicially notice matters outside the pleadings. Henson v. CSC Credit Services, 29 F.3d 280, 284 (7th Cir. 1994) (citing cases).

the Supreme Court’s formulation, “a judge is not immune for actions, though judicial in nature, taken in the complete absence of all jurisdiction.” Mireles v. Waco, 502 U.S. at 12. The notion of jurisdiction is thus broadly construed where the issue is the immunity of the judge. Stump v. Sparkman, 435 U.S. at 356. “A judge will not be deprived of immunity because the action he took was in error, was done maliciously, or was in excess of his authority; rather, he will be subject to liability only when he has acted in the ‘clear absence of all jurisdiction.”’ Id. at 356-57 (citation omitted). “Jurisdiction is construed broadly where the issue is the immunity ofajudge.” Crooks v. Maynard, 913 F.2d 699, 701 (9th Cir. 1990).

The Court in Stump v. Sparkman, supra, referred to Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 352 (1872), to illustrate the want ofjurisdiction that would bar immunity:

In Bradley, the Court illustrated the distinction between lack of jurisdiction and excess of jurisdiction with the following examples: if a probate,judge, with jurisdiction over only wills and estates, should try a criminal case, he would be acting in the clear absence ofjuris diction and would not be immune from liability for his action; on the other hand, if a judge of a criminal court should convict a defendant of a nonexistent crime, he would merely be acting in excess of his jurisdiction and would be immune.

435 U.S. at 357 n.7. Thus, if ajudge is colorably acting pursuant to the powers with which he is invested, he is not acting in the absence of all jurisdiction. For example, in Rolleston v. Fidridge, 848 F.2d 163, 164-65(1 lthCir. 1988), a state court trial judge who failed to follow procedural rules and who issued an order after the plaintiff had filed a notice of interlocutory appeal did not act in the clear absence of all jurisdiction. Similarly, a judge who issued a civil contempt order after a notice of appeal had been filed acted, at most, in excess of his jurisdiction but not in the clear absence of all jurisdiction. See Schucker v. Rockwood, 846 F.2d 1202, 1204 (9th Cir. 1988). It must be apparent that under no circumstances would the judge have had authority to act in the manner that he did before immunity can be denied. Dellenbach v. Letsinger, 889 F.2d 755, 760 (7th Cir. 1989), cert. denied, 494 U.S. 1085 (1990).

To determine whether a judge has acted in complete absence ofjurisdiction, the Ninth Circuit, in Harvey v. Waidron, 210 F.3d 1008, 1012 (9th Cir. 2001) noted that

The Supreme Court has clearly held that as long as a judge has jurisdiction to perform the “general act” in question, he or she is immune “however erroneous the act may have been, ... however injurious in its consequences it may have proved to the plaintiff’ and irrespective of the judge’s motivation. Cleavinger v. Saxner, 474 U.S. 193, 199-200, 106 S. Ct. 496, 88 L. Ed. 2d 507 (1985); see Stump v. Sparkman ,435 U.S. 349, 356, 98 5. Ct. 1099, 55 L. Ed. 2cf 331 (1978) (holding that because “some of the most difficult and embarrassing questions which a judicial officer is called upon to consider and determine relate to his jurisdiction, the scope of the judge’s jurisdiction must be construed broadly where the issue is the immunity of the judge” (citations, quotations and ellipses omitted)).

The “general act” which Judge Hernandez was performing in this case - the issuance of an ex parte order to destroy contraband at the request of the county — is a function that Judge Hemandez has jurisdiction to perform. Judge Hernandez is there ore immune from liability for the act of issuing the order, however erroneous the act may have been to Harvey and irrespective of Judge Hernandez’ claimed motivation. See Cleavinger, 474 U.S. at 199-200, 106 5. Ct. 496. The district court’s dismissal of the claim against Judge Hernandez based on judicial immunity was thus proper.

Thus, “a clear absence of all jurisdiction means a clear lack of all subject matterjurisdiction”.

Mullis v. U.S. Bankruptcy Court for the District of Nevada, 828 F.2d 1385, 1389 (9th Cir. 1987).

Here, plaintiffs’ claim that the case over which Judge Downes presided was improperly removed, was not subsequently remanded and, because it was not remanded, its continuation in federal court was violative of28 U.S.C. § 2283. Even if these assertions were true (which they are not), such claimed deficiencies would be judicial errors of law. The acts or omissions complained of “were judicial in nature and within the colorable jurisdiction” of the Court; accordingly, judicial immunity applies. Christensen v. Ward, 916 F.2d 1462, 1478 (lOth Cir. 1990); see also, Hunt v Bennett, 17 F.3d 1263, 1266 (lOth Cir. 1994). As the Tenth Circuit said under analogous circumstances in Crabtree v. Muchm ore, 904 F.2d 1475, 1477 (10th Cir. 1990), in response to plaintiffs’ contention that the defendant judge was not entitled to absolute judicial immunity because he lacked personal jurisdiction over their children:

If we accepted the Crabtrees’ theory, no judge could claim judicial immunity for his actions if he incorrectly determined that his court had personal jurisdiction over parties to a suit, or over persons who held an interest in property in which the court was adjudicating ownership at the behest of another. We hold that no attorney, charged with the responsibility of reading the Supreme Court’s decision in Stump v. Sparkman, 435 U.S. 349, 98 5. Ct. 1099, 55 L.Ed. 2d 331 (1978), and our opinion in Van Sickle v. Holloway, 791 F.2d 1431 (lOth Cir. 1986), could believe that absolute judicial immunity would not bar the action against Judge Cook.

Of course, Judge Downes did not err as alleged by plaintiffs. First, constitutional tort claims against federal actors are inherently federal questions claims under 28 U.S.C. § 1331. Switzer v. Coan, 261 F.3d 985, 988 (lOth Cir. 2001) (describing federal question jurisdiction as a “jurisdictional basis necessary for a Bivens claim”); Leavell v. Kieffer, 189 F.3d 492,495 (7th Cir. 1999). Removal of such actions against federal actors filed in state courts is

statutorily provided for in 28 U.S.C. § 1442. Christensen v. Ward, 916 F.2d 1462, 1483 (lOth Cir. 1990); Richards v. Harper, 864 F.2d 85, 86 (9th Cir. 1988). Indeed, the Supreme Court in Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 391 n.4 (1971) recognized that such actions in state court would be removed to federal court under 28 U.S.C. § 1442. As the Supreme Court noted in Arizona v. Manypenny, 451 U.S. 232, 242 (1981), “the right of removal is absolute for conduct performed under color of federal office”. Finally, plaintiffs reliance on the Anti-Injunction Act, 28 U.S.C. § 2283, is wholly misplaced. The federal removal statutes themselves, at 28 U.S.C. § 1446(d), provide that upon compliance therewith the state court “shall proceed no further unless and until the case is remanded”. Accordingly, the Anti-Injunction Act itself permits the injunction since 28 U.S.C. § 1446(d) is an authorization “by Act of Congress”. 28 U.S.C. § 2283; Kansas Public Employees Retirement System v. Reimer & KogerAssociates, Inc., 77 F .3 d 1063, 1069 (8th Cir. 1996). If needed, the Anti-Injunction Act permits a district court to enjoin proceedings in a state case that has been removed to federal court. Peterson v. BMI

Refractories, 124 F.3d 1386, 1395(1 1th Cir. 1997); Quackenbush v. Allstate Ins. Co., 121 F.3d 1372, 1378 (9th Cir. 1997).

Accordingly, because Judge Downes’ acts complained of by plaintiffs were judicial in nature and were done consistent with the Judge’s proper exercise of subject matter jurisdiction over the cases assigned to him, Judge Downes is immune from suit for damages and should be dismissed as a party-defendant. Mireles v. Waco, 502 U.S. 9 (1991); Christensen v. Ward, 916 F.2d 1462 (l0th Cir. 1990); Crabtree v. Muchmore, 904 F.2d 1475 (lOth Cir. 1990); Van Sickle v. Holloway, 791 F.2d 1431 (l0th Cir. 1986);Martinezv. Winner, 771 F.2d 424 (l0th Cir. 1985).

As noted by the Tenth Circuit in Snell v. Tunnell, 920 F.2d 673, 686-87 (lOth Cir. 1990):

The rationale for according absolute immunity in the civil rights context is to incorporate traditional common law immunities and to allow functionaries in the judicial system the latitude to perform their tasks absent the threat of retaliatory§19 83 itigation. Because the judicial system often resolves disputes that the parties cannot, the system portends conflict. Win or lose, a party may seek to litigate the constitutionality of circumstances which re q uired him to endure a lawsuit or suffer defeat. Such suits by dissatisfied parties might target judges, see Valdez v. City & County of Denver, 878 F.2d 1285 (lOth Cir. 1989), prosecutors and witnesses. Cf Mitchell, 472 U.S. at 523, 105 S.Ct. at 2813-14. Though such suits might be satisfying personally for a plaintiff, they could jeopardize the judicial system’s ability to function.

The Court’s wisdom applies with full force as to this action against Judge Downes.

CONCLUSION

Based upon the foregoing analysis, dismissal of Judge Downes should be granted since plaintiffs, as to him, have failed to state claims upon which relief can be granted.

Respectfully submitted this 29th day of January, 2002.

JOHN ASHCROFT

United States Attorney General

Special Attorney
Original filed and copy of the foregoing
mailed this 29th day of January, 2002 ,to:

Arthur R. Morales
1024 Los Arboles, NW
Albuquerque, New Mexico 87107

William H. Payne
13015 Calle de Sandias, NE
Albuquerque, New Mexico 87111

Christina E. Anaya
French & Associates, P.C.
500 Marquette, NW, Suite 600
Albuquerque, New Mexico 87102

Michael Hoses, AUSA
U.S. Attorney’s Office
201 Third Street, NW, Suite 900
Albuquerque, New Mexico 87102

JOHN ASHCROFT
United States Attorney General

RICHARD G. PATRICK
Special Attorney Arizona State Bar No. 5148
Two Renaissance Square
40 North Central Avenue, Suite 1200
Phoenix, Arizona 85004-4408
Telephone: (602) 514-7500

UNITED STATES DISTRICT COURT
DISTRICT OF NEW MEXICO

William H. Payne, CIV-Ol-1132 DVB
Plaintiff,                                                    MEMORANDUM OF POINTS
v.                                                             AND AUTHORITIES IN
                                                               SUPPORT OF MOTION TO
Phyllis A. Dow, William F. Downes; and  DISMISS DEFENDANT CHIEF
Rodey, Dickason, Sloan, Akin & Robb,   JUDGE WILLIAM F. DOWNES
P.A.,

Defendants.

Plaintiff, in the above-captioned action, has named Chief Judge William F. Downes as a defendant and seeks money damages from him in his individual capacity. His claims for relief against Judge Downes are grounded in Judge Downes’ judicial rulings in two cases removed to federal court fromNew Mexico State courts. In those cases, CIV-00-01677 and CIV-0l-00634, plaintiff argued to Judge Downes that the cases were improperly removed, should be remanded and that continued federal court retention ofjurisdiction violated the Anti-Injunction Statute (28 U.S.C. § 2283). Because Judge Downes disagreed with plaintiffs legal positions, plaintiff sued him (and others) in New Mexico State Court. That case has been removed to this Court on September 28, 2001 and bears the above-captioned docket number. Because as a matter of undisputed fact and clear law Judge Downes’ judicial immunity bars this action as to him, he should be dismissed from this lawsuit. 1

1 To the extent plaintiff s claims against Judge Downes are characterized as common law tort claims, rather than constitutional tort claims, the result will be the same. For such claims the United States will substitute itself for Judge Downes pursuant to 28 U.S.C. § 2679(d), which immunizes Judge Downes from liability under 28 U.S.C. § 2679(b)(l). Salmon v. Schwarz, 948 F.2d1131, ll41-42(10thCir. 1991);Christensen v. Ward, 916F.2d 1462, 1472 (l0thCir. 1990); Sanders v. Williams, 160 F. Supp. 2d 1191 (D.Col. 2001.)

JUDICIAL IMMUNITY BARS PLAINTIFF’S DAMAGE CLAIM FOR
ALLEGED VIOLATION OF CONSTITUTIONAL RIGHTS

Judges are protected by an absolute immunity that was recognized at English common law. The Supreme Court adopted the immunity early in Bradley v. Fisher, 80 U.S. (12 Wall.) 335 (1872), explaining that judges must be protected from inhibiting damages suits because they frequently must determine “[c]ontroversies involving not merely great pecuniary interests, but the liberty and character of the parties, and consequently exciting the deepest feelings *** [where] there is great conflict in the evidence and great doubt as to the law which should govern their situation.” Id. at 348. This immunity is a complete immunity from suit and not simply protection from ultimate assessment of damages. Mireles v. Waco, 502 U.S. 9, 11(1991) (per curiam). Judges are protected by absolute immunity for judicial acts except when they act in the clear absence of jurisdiction. The Supreme Court has consistently adhered to that rule, observing that “‘Few doctrines were more solidly established at common law than the immunity of judges from liability for damages for acts committed within their judicial jurisdiction.”’ Cleavingerv. Saxner, 474 U.S. 193, 199 (1985), [quoting Pierson v. Ray, 386 U.S. 547,553-54 (1967)]; see also, Dennis v. Sparks, 449 U.S. 24, 27 (1980).

The Court summarized the breadth and nature of the immunity in Cleavinger v. Saxner, 474 U.S. at 199-200 (citations omitted):

Such immunity applies “however erroneous the act may have been, and however injunous in its consequences [the judicial act] may have proved to the plaintiff.” *** “Nor can this exemption of the judges from civil liability be affected by the motives with which theirjudicial acts are performed.” *** And in Stump v. Sparkman, 435 U.S. 349 (1978)’ the Court once again enunciated this principle, despite any “informality with which [the judge] proceeded,” and despite any exparte feature of the proceeding.

“A judge will not be deprived of immunity because the action he took was in error, was done maliciously, or was in excess of his authority; rather, he will be subject to liability only when he has acted in the ‘clear absence of all jurisdiction.”’ Stump v. Sparkman, 435 U.S. 349, 3 56-57 (1978) (citation omitted). Unfairness or injustice to a litigant resulting from application of the immunity cannot preclude it. Mireles v. Waco, 502 U.S. at 10. Similarly, judicial immunity will not be defeated by allegations that a judge acted in conspiracy with private individuals who are not immune and who sought to bribe him, so long as the judge did not act in the absence of all jurisdiction with respect to the challenged conduct. See Holloway v. Walker, 765 F. 2d 517, 522-23 (5th Cir.), cert. denied, 474 U.S. 1037 (1985). As these authorities demonstrate, “The absolute immunity from suit for alleged deprivation of rights enjoyed by judges is matchless in its protection ofjudicial power.” McCray v. State of Maryland, 456 F.2d 1, 3 (4th Cir. 1972).

There are two requisites inherent in the Supreme Court’s formulation of absolute judicial immunity: (1) that the challenged act be judicial in nature and (2) that it not be done in the absence of all jurisdiction. See Mire/es v. Waco, 502 U.S. at 11-12; Hunt v. Bennett, 17 F.3d 1263, 1266-67 (lOth Cir. 1994).

The factors determining whether a challenged act by a judge is a judicial one for purposes of immunity “relate to the nature of the act itseW i.e., whether it is a function normally performed by a judge, and to the expectations of the parties, i.e., whether they dealt with the judge in his judicial capacity.” Stump v. Sparkman, 435 U.S. at 362. Judicial acts are those in which ajudge is “perform[ing] the function of resolving disputes between parties, or of authoritatively adjudicating private rights.” Antoine v. Byers & Anderson, Inc., 508 U.S. 429,435-36(1993) (citation omiffed). The inquiry thus goes to the nature and function of the act and not to the act itself. Mire/es v. Waco, 502 U.S. at 13. Thejudicial nature of ajudge’s act is not altered by virtue of an allegation of malice or corrupt motive. Forrester v. White, 484 U.S. 219, 227 (1988). Similarly, a judge’s immunity is not pierced by allegations that he conspired with others to do an allegedly unlawful act so long as the act is within his judicial powers. Green v. Seymour, 59 F.3d 1073 (loth Cir. 1995); Crabtree v. Muchmore, 904 F2d 1475 (lOth Cir. 1990).

As to plaintiffs claims against Judge Downes, the gravamen of his complaint is his assertion that Judge Downes had no jurisdiction to entertain the case upon removal. Complaint, 8, 9. Furthermore, plaintiff complains that Judge Downes ruled on matters before him despite “numerous requests to remand”. Complaint, 9. Because of those alleged facts, “Downes continues to conspire with Dow and Rodey, Dickason, Sloan, Akin & Robb to harass plaintiff’. Complaint, 9•2

As is demonstrated by the docket sheet in CIV-OO-01677 and CIV-Ol-00634, Judge Downes issued orders and ruled upon motions characterized as unfavorable by the plaintiff.3 These acts werejudicial in nature. Indeed, all of the actions of which plaintiff complains may only be performed by judges. Moreover, Judge Downes’ actions also appeared judicial, supporting the obvious fact that plaintiff believed he was dealing with the judge in his judicial capacity. The actions occurred by way of written orders and/or while the judge was on the bench. Given these circumstances, there is not doubt that plaintiff dealt with Judge Downes in a judicial capacity and not, for example, as an employer or administrator.

Because the challenged actions were judicial in nature, the second inquiry forjudicial immunity is whether the judge was wholly without jurisdiction to act in the premises. Under the Supreme Court’s formulation, “a judge is not immune for actions, though judicial in nature, taken in the complete absence of all jurisdiction.” Mireles v. Waco, 502 U.S. at 12. The notion of jurisdiction is thus broadly construed where the issue is the immunity of the judge. Stump v. Sparkman, 435 U.S. at 356. “A judge will not be deprived of immunity

2 Plaintiff also complains that Judge Downes tried to “intimidate” him regarding communication with the Court via the internet. Complaint, 8. Plaintiff apparently refers to Judge Downes’ July 23,2001 Order on Ex Parte Communication in CIV-OO-00634. That order was wholly consistent with Canon 3.A(4), Code of Conduct For United States Judges (“A judge should ... neither initiate nor consider ex parte communications on the merits or procedures affecting the merits, of a pending or impending proceeding”). Byrequiring that communication with the Court comply with the Court’s Local Rules and Federal Rules of Civil Procedure, Judge Downes protected, rather than violating, plaintiffs constitutional rights. See, LB. v. Washington County, 127 F.3d 919,926 (lOth Cir. 1997). The exercise of control over that which reaches the Court is, of course, a judicial act. Martinez v. Winner, 771 F.2d 424, 434 (lOth Cir. 1985).

3 The Court can and is requested to take judicial notice of the Clerk’s Docket Sheet in those proceedings. Van Wouden berg v. Gibson, 211 F.3d 560, 568 (lOth Cir. 2000). On a motion to dismiss, the Court can judicially notice matters outside the pleadings. Henson v. CSC r~a;t .S’ort’irp(’ 9Q P 3d 9RO~ 2R4 (7th Cir. 1994) (citing cases).

because the action he took was in error, was done maliciously, or was in excess of his authority; rather, he will be subject to liability only when he has acted in the ‘clear absence of all jurisdiction.”’ Id. at 356-57 (citation omitted). “Jurisdiction is construedbroadlywhere the issue is the immunity of ajudge.” Crooks v. Maynard, 913 F.2d 699, 701 (9th Cir. 1990).

The Court in Stump v. Sparkman, supra, referred to Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 352 (1872), to illustrate the want ofjurisdiction that would bar immunity:

In Bradley, the Court illustrated the distinction between lack of jurisdiction and excess of jurisdiction with the following examples: if a probatejudge, with jurisdiction over only wills and estates, should try a criminal case, he would be acting in the clear absence ofjuris diction and would not be immune from liability for his action; on the other hand, if a judge of a criminal court should convict a defendant of a nonexistent crime, he would merely be acting in excess of his jurisdiction and would be immune.

435 U.s. at 357 n.7. Thus, if a judge is colorably acting pursuant to the powers with which he is invested, he is not acting in the absence of all jurisdiction. For example, in Rolleston v. Eldridge, 848 F.2d 163, 164-65(1 lthCir. 1988), a state court trial judge who failed to follow procedural rules and who issued an order after the plaintiff had filed a notice of interlocutory appeal did not act in the clear absence of all jurisdiction. Similarly, ajudge who issued a civil contempt order after a notice of appeal had been filed acted, at most, in excess of his jurisdiction but not in the clear absence of all jurisdiction. See Schucker v. Rockwood, 846 F.2d 1202, 1204 (9th Cir. 1988). It must be apparent that under no circumstances would the judge have had authority to act in the manner that he did before immunity can be denied. Dellenbach v. Letsinger, 889 F.2d 755, 760 (7th Cir. 1989), cert. denied, 494 U.S. 1085 (1990).

To determine whether a judge has acted in complete absence ofjurisdiction, the Ninth Circuit, in Harvey v. Waidron, 210 F.3d 1008, 1012 (9th Cir. 2001) noted that

The Supreme Court has clearly held that as long as a judge has jurisdiction to perform the “general act” in question, he or she is immune “however erroneous the act may have been, ... however injurious in its consequences it may have proved to the plaintiff’ and irrespective of the judge’s motivation. Cleavingerv. Saxner, 474 U.S. 193, 199-200, 106 S. Ct. 496, 88 L. Ed. 2d 507 (1985); see Stump v. Sparkman, 435 U.S. 349, 356, 98 S. Ct. 1099, 55 L. Ed. 2cf 331 (1978) (holding that because “some of the most difficult and embarrassing questions which a judicial officer is called upon to consider and determine relate to his jurisdiction, the scope of the judge’s jurisdiction must be construed broadly where the issue is the immunity of the judge” (citations, quotations and ellipses omitted)).

The “general act” which Judge Hernandez was performing in this case - the issuance of an ex parte order to destroy con~aband at the request of the county — is a function that Judge Hernandez has jurisdiction to perform. Judge Hemandez is therefore immune from liability for the act of issuing the order, however erroneous the act may have been to Harvey and irrespective of Judge Hemandez’ claimed motivation. See Cleavinger, 474 U.S. at 199-200, 106 S. Ct. 496. The district court’s dismissal of the claim against Judge Hemandez based on judicial immunity was thus proper.

Thus, “a clear absence of all jurisdiction means a clear lack of all subject matterjurisdiction”.

Mullis v. U.S. Bankruptcy Court for the District of Nevada, 828 F.2d 1385, 1389 (9th Cir. 1987).

Here, plaintiff claims that the case over which Judge Downes presided was improperly removed, was not subsequently remanded and, because it was not remanded, its continuation in federal court was violative of 28 U.S.C. § 2283. Even if these assertions were true (which they are not), such claimed deficiencies would be judicial errors of law. The acts or omissions complained of “were judicial in nature and within the colorablejurisdiction” of the Court; accordingly, judicial immunity applies. Christensen v. Ward, 916 F.2d 1462, 1478 (iOth Cir. 1990); see also, HuntvBennett, 17 F.3d 1263, 1266 (lOth Cir. 1994). As the Tenth Circuit said under analogous circumstances in Crabtree v. Muchmore, 904 F.2d 1475, 1477 (1 0th Cir. 1990), in response to plaintiffs’ contention that the defendant judge was not entitled to absolute judicial immunity because he lacked personal jurisdiction over their children:

If we accepted the Crabtrees’ theory, no judge could claim judicial immunity for his actions if he incorrectly determined that his court had personal jurisdiction over parties to a suit, or over persons who held an interest in property in which the court was adjudicating ownership at the behest of another. We hold that no attorney, charged with the responsibility of reading the Supreme Court’s decision in Stump v. Sparkman, 435 U.S. 349, 98 S. Ct. 1099, 55 L.Ed. 2d 331 and our opinion in Van Sicklev. Holloway, 791 F.2d 1431 (lOt Cir. 1986), couldbelieve that absolute judicial immunity would not bar the action against Judge Cook.

Of course, Judge Downes did not err as alleged by plaintiff. First, constitutional tort claims against federal actors are inherently federal questions claims under 28 U.S.C. § 1331. Switzer v. Coan, 261 F.3d 985, 988 (iOth Cir. 2001) (describing federal question jurisdiction as a ‘jurisdictional basis necessary for a Bivens claim”); Leavell v. Kieffer, 189 F.3d 492,495 (7th Cir. 1999). Removal of such actions against federal actors filed in state courts is statutorily provided for in 28 U.S.C. § l442.~ Christensen v. Ward, 916 F.2d 1462, 1483 (lOth Cir. 1990); Richards v. Harper, 864 F.2d 85, 86 (9th Cir. 1988). Indeed, the Supreme Court in Bivens v. Six Unknown NamedAgents of the Federal Bureau of Narcotics, 403 U.S. 388, 391 n.4 (1971) recognized that such actions in state court would be removed to federal court under 28 U.S.C. § 1442. As the Supreme Court noted in Arizona v. Manypenny, 451 U.S. 232, 242 (1981), “the right of removal is absolute for conduct performed under color of federal office”. Finally, plaintiffs reliance on the Anti-Injunction Act, 28 U.S.C. § 2283, is wholly misplaced. The federal removal statutes themselves, at 28 U.S.C. § 1446(d), provide that upon compliance therewith the state court “shall proceed no further unless and until the case is remanded”. Accordingly, the Anti-Injunction Act itself permits the injunction since 28 U.S.C. § 1446(d) is an authorization “by Act of Congress”. 28 U.S.C. § 2283; Kansas Public Employees Retirement System v. Reimer & Koger Associates, Inc., 77 F.3d 1063, 1069 (8th Cir. 1996). If needed, the Anti-Injunction Act permits a district court to enjoin proceedings in a state case that has been removed to federal court. Peterson v. BMI

4 To the extent plaintiff asserts that Judge Downes erred by maintaining jurisdiction over the New Mexico state case (CV 2001-03118) removed to federal court by Judge Theodore C. Baca, he is also incorrect. Plaintiff in that case colorably asserts claims cogmzable under 42 U.S.C. § 1983. Such cases are properly removed to federal court under 28 U.S.C. § 1441. Wil/iamsv. Ragnone, 147 F.3d 700 (8hClr. 1998) (citing cases); Cheny v. Studstrup, 32 F. Supp. 2d 1278 (D. Utah 1998); Oylerv. City and County ofDenver, 1990 WL 134485 (D. Col. 1990). Refractories, 124 F.3d 1386, 1395(1 1th Cir. 1997); Quackenbush v. Allstate Ins. Co., 121 F.3d 1372, 1378 (9th Cir. 1997).

Accordingly, because Judge Downes’ acts complained of by plaintiff were judicial in nature and were done consistent with the Judge’s proper exercise of subject matterjurisdiction over the cases assigned to him, Judge Downes is immune from suit for damages and should be dismissed as a party-defendant. Mireles v. Waco, 502 U.S. 9(1991); Christensen v. Ward, 916 F.2d 1462 (lOth Cir. 1990); Crabtree v. Muchmore, 904 F.2d 1475 (lOth Cir. 1990); Van Sickle v. Holloway, 791 F.2d 1431 (lOth Cir. 1986); Martinez v. Winner, 771 F.2d 424 (lOth Cir. 1985).

As noted by the Tenth Circuit in Snell v. Tunnell, 920 F.2d 673, 686-87 (loth Cir. 1990):

The rationale for according absolute immunity in the civil rights context is to incorporate traditional common law immunities and to allow functionaries in the judicial system the latitude to perform their tasks absent the threat of retaliatory § 1983 litigation. Because the judicial system often resolves is utes that the parties cannot, the system portends conflict. Win or lose, a party may seek to litigate the constitutionality of circumstances which required him to endure a lawsuit or suffer defeat. Such suits by dissatisfied parties might target judges, see Valdez v. City & County of Denver, 878 F.2d 1285 (l0th Cir. 1989), prosecutors and witnesses. Cf Mitchell, 472 U.S. at 523, 105 2813-14. Though such suits might be satisfying personally for a plaintiff, they could jeopardize the judicial system’s ability to function.

The Court’s wisdom applies with full force as to this action against Judge Downes.

CONCLUSION

Based upon the foregoing analysis, dismissal of Judge Downes should be granted since plaintiff, as to him, has failed to state claims upon which relief can be granted. Respectfully submitted this 29 day of January, 2002. JOHN ASHCROFT

United States Attorney General

Special Attorney
Original filed copy of the foregoing
mailed this 29th day of January, 2002, to:

William H. Payne
13015 Galle de Sandias, NE
Albuquerque, New Mexico 87111

Rodey, Dickason, Sloan, Akin & Robb, P.A.
P.O. Box 1888
Albuquerque, New Mexico 87103

Michael Hoses, AUSA
U.S. Attorney’s Office
201 Third Street, NW, Suite 900
Albuquerque, New Mexico 87102

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO

ARTHUR R. MORALES and
WILLIAM H. PAYNE,

Plaintiffs, CIV NO. 01-1198 DVB/LFG vs.

JOHN W. ZAVITZ
WILLIAM F. DOWNES
FRENCH & ASSOCIATES PC,

Defendants.

RESPONSE OF MICHAEL HOSES TO PLAINTIFFS’ MOTION FOR SANCTIONS AGAINST ASSISTANT US ATTORNEY MICHAEL HOSES FOR FILING DEFENDANT JOHN W. ZAVITZ’ MOTION TO DISMISS BASED ON ABSOLUTE IMMUNITY AND DEFENDANT JOHN W. ZAVITZ’ MEMORANDUM IN SUPPORT OF MOTION TO DISMISS BASED ON ABSOLUTE IMMUNITY

COMES NOW Michael H. Hoses, undersigned counsel, and in response to Plaintiffs’ motion for sanctions against him states as follows:

In their motion for sanctions against Assistant U.S. Attorney Michael Hoses Plaintiffs complain that Assistant U.S. Attorney Michael Hoses violated D.N.M.LR-Civ. 83.4 when he filed a motion and memorandum to dismiss Defendant John W. Zavitz based on absolute immunity (Docs. Nos. 11 & 12). Plaintiffs’ motion for sanctions at 3.1

Undersigned counsel complied with D.N.M.LR-Civ. 83.4 when he filed the motion and memorandum to dismiss based on absolute immunity D.NM.LR-Civ. 83.4 provides:

(a) Individual Attorney. An attorney must enter an appearance or obtain leave of the Court to sign and file any pleading, motion or other paper. To enter an appearance, an attorney must:

• be eligible to appear under D.N.M.LR-Civ. 83.2 or 83.3; and

• sign the initial pleading filed on behalf of a party and file a written entry of appearance which includes the attorney’s name, address, and telephone number.

Mr. Hoses complied with Local Rule 83.4 because he is eligible to appear in the United States District Court for the district of New Mexico since he is a member of the Federal Bar.2 and he signed the initial pleading filed on behalf o Defendant John W. Zavitz (the Notice of Removal, Doc. No. 1). Furthermore, Mr. Hoses included his name, address and telephone number in that initial pleading and every pleading filed subsequent to that pleading. No separate entry of appearance was necessary and the fact that a separate entry of appearance was not filed is immaterial. Further, Mr. Hoses was already the attorney of record for Defendant Zavitz at the time he filed the motion to dismiss.

Wherefore, Michael Hoses respectfully requests that this Court issue an Order denying Plaintiffs Motion for Sanctions, for costs incurred herein, and for such other and further relief as the Court may deem just and proper.

Respectfully submitted,
DAVID C. IGLESIAS

United States Attorney

MICHAEL H. HOSES
Assistant U.S. Attorney
P.O. Box 607
Albuquerque, NM 87103
(505) 346-7274

2 Arguably, Mr. Hoses has “leave of the court to sign and file any pleading, motion or other paper” based on the fact that he is a member of the Federal Bar. That being the case, he would not be required to enter an appearance. D.N.M.LR-civ. 83.4(a).

THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO

ARTHUR R. MORALES AND
WILLIAM H. PAYNE,

Plaintiffs,

v Civil No. 01-1198 Dee Vance Benson

JOHN J ZAVITZ, WILLIAM F. DOWNES, and
FRENCH & ASSOCIATES, P.C.

Defendants.

MOTION TO CORRECT FAILURE TO MAIL COPY OF NOTICE OF REQUEST FOR JOHN
ASHCROFT AND RICHARD G PATRICK TO WITHDRAW MOTIONS TO DISMISS AS TO
DEFENDANT CHIEF JUDGE WILLIAM f. DOWNES, CIV-01-1132 AND CIV-01-1198 TO RICHARD G PATRICK

1 This motion is brought under Rule 60

Rule 60. - Relief From Judgment or Order <> (a) Clerical Mistakes.

Clerical mistakes in judgments, orders or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time on its own initiative or on motion of a party and after such notice, if any, as the court directs. After an appeal is filed, such mistakes may be corrected with leave of the appellate court.

2 Plaintiffs inadvertently failed to mail Special Attorney Richard G Patrick copy of

NOTICE OF REQUEST FOR JOHN ASHCROFT AND RICHARD G PATRICK TO WITHDRAW MOTIONS TO DISMISS AS TO DEFENDANT CHIEF JUDGE WILLIAM f. DOWNES, CIV-01-1132 AND CIV-01-1198

on January 29, 2002.

Letter to Patrick, Exhibit A, shows that he has been mailed copy.

Respectfully submitted,

Arthur R. Morales
1024 Los Arboles NW
Albuquerque, NM 87107

William H. Payne
13015 Calle de Sandias NE
Albuquerque, NM 87111

I HEREBY CERTIFY that a true copy of the foregoing pleading was mailed on February 1, 2002 to

Richard G Patrick
Special Attorney
Department of Justice
District of Arizona
Two Renaissance Square, Suite 1200
Phoenix, AZ 85004-4408
602-514-7500

French and Associates, P.C.
500 Marquette Ave N.W., Suite 600
Albuquerque, New Mexico 87102
505 843 7075

Michael H Hoses
Assistant US Attorney
P0 Box 607
Albuquerque, New Mexico 87103

W. John Brennan
Chief District Judge, Division XIV
P.O. Box 488
Albuquerque, New Mexico 87103
841-7499

Patricio Serna
Chief judge
Supreme Court of New Mexico
POB 848
Santa Fe, New Mexico 87504-0848

James A Parker
Chief judge
United States District Court
333 Lomas NW.
Albuquerque, New Mexico 87103

William F. Downes
Chief Judge; Wyoming
111 South Wolcott
Room 210
Casper, WY 82601
(307) 261-5441

http://www.geocities.com/CapitolHill/Congress/8327/

Richard G Patrick
Special Attorney
US Assistant Attorney
Department of Justice
District of Arizona
Two Renaissance Square, Suite 1200
Phoenix, AZ 85004-4408
602-514-7500

Dear Mr Patrick:

Purpose of this letter and enclosed NOTICE OF REQUEST FOR JOHN ASHCROFT AND RICHARD G PATRICK TO WITHDRAW MOTIONS TO DISMISS AS TO DEFENDANT CHIEF JUDGE WILLIAM f. DOWNES, CIV-01-1132 AND CIV-01-1198 is to correct an error.

We failed to send you a copy and list you on the mailing list.

After our Monday January 29, 2002 phone conversation, we feel that would be a good idea to gain a greater knowledge of the unfortunate New Mexico lawsuits. The reason for this is that we feel these unfortunate matters should be settled.

We filed two New Mexico state lawsuits.

Plaintiffs Morales and Payne sued for replevin and harassment in cv - 2000 10289.

Plaintiff Payne sued for defamation and harassment in cv 2000-10278.

As a result of both lawyer and judicial misconduct, these two original lawsuits have escalated into 11 lawsuits. This is not our doing but lawyers and judges breaking New Mexico state laws trying to escape justice.

All of our evidence of wrongdoing on the part of defendants is in writing. We have posted this evidence at http://www.geocities.com/CapitolHill/Congress/8327/.

In particular, the false and libelous documents distributed by the federal government posted at http://www.nmol.com/users/billp/ and http://members.home.net/bpayne37/nmol/nmolindex.htm break the criminal provisions of the Privacy Act, http://www.usdoj.gov/04foia/privstat.htm § 552a. Records maintained on individuals

i)(1) Criminal penalties

Any officer or employee of an agency, who by virtue of his employment or official position, has possession of, or access to, agency records which contain individually identifiable information the disclosure of which is prohibited by this section or by rules or regulations established thereunder, and who knowing that disclosure of the specific material is so prohibited, willfully discloses the material in any manner to any person or agency not entitled to receive it, shall be guilty of a misdemeanor and fined not more than $5,000.

(2) Any officer or employee of any agency who willfully maintains a system of records without meeting the notice requirements of subsection (e)(4) of this section shall be guilty of a misdemeanor and fined not more than $5,000.

(3) Any person who knowingly and willfully requests or obtains any record concerning an individual from an agency under false pretenses shall be guilty of a misdemeanor and fined not more than $5,000.

as well as New Mexico state laws against libel.

30-11-1. Libel.

Libel consists of making, writing, publishing, selling or circulating without good motives and justifiable ends, any false and malicious statement affecting the reputation, business or occupation of another, or which exposes another to hatred, contempt, ridicule, degradation or disgrace.

Whoever commits libel is guilty of a misdemeanor.

The word "malicious," as used in this article, signifies an act done with evil or mischievous design and it is not necessary to prove any special facts showing ill-feeling on the part of the person who is concerned in making, printing, publishing or circulating a libelous statement against the person injured thereby.

A. A person is the maker of a libel who originally contrived and either executed it himself by writing, printing, engraving or painting, or dictated, caused or procured it to be done by others.

B. A person is the publisher of a libel who either of his own will or by the persuasion or dictation, or at the solicitation or employment for hire of another, executes the same in any of the modes pointed out as constituting a libel; but if anyone by force or threats is compelled to execute such libel he is guilty of no crime.

C. A person is guilty of circulating a libel who, knowing its contents, either sells, distributes or gives, or who, with malicious design, reads or exhibits it to others.

D. The written, printed or published statement to come within the definition of libel must falsely convey the idea either:

(1) that the person to whom it refers has been guilty of some penal offenses;

(2) that he has been guilty of some act or omission which, though not a penal offense, is disgraceful to him as a member of society, and the natural consequence of which is to bring him into contempt among honorable persons;

(3) that he has some moral vice or physical defect or disease which renders him unfit for intercourse with respectable society, and as such should cause him to be generally avoided;

(4) that he is notoriously of bad or infamous character; or

(5) that any person in office or a candidate therefor is dishonest and therefore unworthy of such office, or that while in office he has been guilty of some malfeasance rendering him unworthy of the place.

E. It shall be sufficient to constitute the crime of libel if the natural consequence of the publication of the same is to injure the person defamed although no actual injury to his reputation need be proven.

F. No statement made in the course of a legislative or judicial proceeding, whether true or false, although made with intent to injure and for malicious purposes, comes within the definition of libel.

History: 1953 Comp., § 40A-11-1, enacted by Laws 1963, ch. 303, § 11-1.

While you and other defendants appear to wish to continue to fight disobeying both state and federal laws and abusing federal courts, we continue to believe that settlement is the best way to resolve these about ten year conflicts.

We ask that you and Mr Ashcroft help to get these unfortunate matters settled.

Sincerely

Arthur R Morales
1024 Los Arboles NW
Albuquerque, NM 87107
505 3451381

William H Payne
13015 Calle de Sandias NE
Albuquerque, NM 87111
505 292 7037

Distribution

John Ashcroft
U.S. Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530-0001

Paul K Charlton
Department of Justice
District of Arizona
Two Renaissance Square, Suite 1200
Phoenix, AZ 85004-4408

THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO

ARTHUR R. MORALES AND
WILLIAM H. PAYNE,

Plaintiffs,

v Civil No. 01-1198 Dee Vance Benson

JOHN J ZAVITZ, WILLIAM F. DOWNES, and
FRENCH & ASSOCIATES, P.C.

Defendants.

REPLY TO RESPONSE TO PLAINTIFFS’ MOTION FOR SANCTIONS AGAINST CHRISTINA E. ANAYA AND FRENCH AND ASSOCIATES FOR FILING MOTION AND MEMORANDUM TO DISMISS

1 French and Associates file

ENTRY OF APPEARANCE

COMES NOW Stephen G. French, Esq. and Christina E. Anaya, Esq. and hereby enter an appearance in the above-entitled and numbered cause of action on behalf of French & Associates, P.C.

Respectfully submitted,

FRENCH & ASSOCIATES, P.C.

By: 500 Marquette Ave. N.W., Suite 600 Albuquerque, New Mexico 87102 (505) 843-7075

Exhibit A on January 17, 2002. This is shown as docket entry 18 in 01cv01198. 01/17/02 01/18/02 18 ENTRY OF APPEARANCE for deft French & Associates by Stephen G. French and Christina E. Anaya (bap) (22k) Apparently French and Associates feel compelled at last to follow Federal local rules of civil procedure 83.4, Entry of Appearance, to attempt to defend themselves against well-deserved sanctions. Federal local rules of civil procedure 83.4, Entry of Appearance, states

(a) Individual Attorney. An attorney must enter an appearance or obtain leave of the Court to sign and file any pleading, motion or other paper. To enter an appearance, an attorney must: be eligible to appear under D.N.M.LR-Civ. 83.2 or 83.3; and sign the initial pleading filed on behalf of a party and file a written entry of appearance which includes the attorney's name, address, and telephone number.

(b) Appearance by Member of a Law Firm. Entry of appearance by one member of a law firm in an action allows any member of that firm to participate in the action; however, each attorney in the firm wishing to receive papers from the Clerk must make a written entry of appearance in the action.

The word MUST in " An attorney must enter an appearance or obtain leave of the Court to sign and file any pleading, motion or other paper." is quite clear.

Yet French and Associates file MOTION and MEMORANDUM show on the docket as

10/22/01 10/23/01 5 MEMORANDUM by defendant French & Associates in support of motion to dismiss [4-1] (vv) (318k) Re: MOTION to dismiss [4]

10/22/01 10/23/01 4 MOTION by deft French & Associates to dismiss (vv) (35k) Re: RESPONSE [15] MEMORANDUM [5]

These docket references are seen in Exhibit B.

Belated entry of appearance must be regarded as some sort of an attempt to undo damage already done. As well as attempt to argue before this court why well-justified rule 11 sanctions should be levied. This attempt must be viewed as an affront to this Court and plaintiffs.

2 French & Associates, P.C. write

I. BACKGROUND On October 16, 2001, Defendant John Zavitz removed this case from the Second Judicial District Court for the County of Bernalillo to the United States District Court for the District of New Mexico. See Notice of Removal (filed October 16, 2001) [Docket No. 1].

Defendant Zavits improperly removed

10/16/01 10/16/01 1 NOTICE OF REMOVAL from 2nd Judicial District Court Case Number: 1:01:CV:6293 w/state court complaint (referred to Magistrate Judge Lorenzo F. Garcia) (eg) (72k) Re: ANSWER [22] ANSWER [3]

to federal court, Exhibit B.

This court has no jurisdiction is state lawsuits. And, most important, judges James A Parker and Dee Vance Benson failed to give any justification for removal

1/29/01 11/30/01 16 NOTICE by pltfs of non-response of Judges Dee Vance Benson and James A. Parker for notice of request for anti-injunction act justification for removal of state case CV-2001-6293 to federal (bap) (86k)

Plaintiffs are being harassed in Federal court by defendants and judges.

3 French & Associates, P.C. write

On October 22, 2001, Defendant French & Associates, P.C., through undersigned counsel, filed a Motion to Dismiss and a memorandum in support of the Motion in lieu of filing an answer. See Docket Nos. 4 and 5. Plaintiffs response to the Motion to Dismiss was due November 5, 2001. To date, Plaintiffs have not filed a response to the Motion to Dismiss.

Plaintiffs are under no legal obligation to respond to improper Motion to Dismiss. Plaintiffs purposely did not respond to improper motion. French and Associate must be harshly sanctioned for the preposterous paragraph above.

4 French & Associates, P.C. write Instead, Plaintiffs filed a Motion for Sanctions [Docket No. 17] on January 11, 2002. In their Motion for Sanctions, Plaintiffs argue that the undersigned counsel could not file the Motion to Dismiss on behalf of French & Associates without first having filed a formal entry of appearance. Plaintiffs also request that the Court impose monetary sanctions against the undersigned counsel in the amount of $2,400,000.00 in addition to “labor and filing costs” of $1,000.00 for having filed the Motion to Dismiss without first having filed an entry of appearance. is correct.

French & Associates, P.C. have justifiably earned extraordinarily harsh sanctions, not only for violating Federal local rules of civil procedure 83.4 but, of course, deserve addition even harsher sanction for belated filing of Entry of Appearance and creating the appearance that judge Dee Vance Benson is going to be an accomplice to covering-up French & Associates, P.C. rule violation by not awarding harsh sanctions.

4 French & Associates, P.C. write

H. LEGAL ARGUMENT

Plaintiffs allegations that the actions of the undersigned counsel and her firm warrant the imposition of sanctions pursuant to Fed. R. Civ. P. 11 wholly lack merit. In addition, Plaintiffs failed to comply with Fed.R.Civ.P. ifs procedural requirements prior to filing the instant Motion for Sanctions.

Rule 11 of the Federal Rules of Civil Procedure provides, in pertinent part, the following:

(b) Representation to Court. By presenting to the Court (whether by signing, filing, submitting, or later advocating) a pleading, written motion, or other paper, an attorney or unrepresented party is certifying that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, --

(1) it is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation;

(2) the claims, defenses, and other legal contentions, therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law;

(3) the allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery; and

(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief.

(c) Sanctions. If, after notice and a reasonable opportunity to respond, the court determines that subdivision (b) has been violated, the court may, subject to the conditions stated below, impose an appropriate sanction upon the attorneys, law firms or parties that have violated subdivision (b) or are responsible for the violation.

(1) How Initiated.

(A) By Motion. A motion for sanctions under this rule shall be made separately from other motions or requests and shall describe the specific conduct alleged to violate subdivision (b). It shall be served as provided by Rule 5, but shall not be filed with or presented to the court unless, within 21 days after service of the motion (or such other period as the court may prescribe), the challenged paper, claim, defense, contention, allegation or denial is not withdrawn or appropriately corrected. If warranted the court may award to the party prevailing on the motion the reasonable expenses and attorney’s fees incurred in presenting or opposing the motion. ***

Fed.R.Civ.P. 11(2001).

Then somehow conclude

A. FED. R. CIV. P. 11 DOES NOT CONTEMPLATE THE IMPOSITION OF SANCTIONS FOR FAILURE TO FILE AN ENTRY OF APPEARANCE AS SPECIFICALLY REQUIRED BY LOCAL COURT RULES AND THEREFORE THERE IS NO BASIS FOR PLAINTIFFS’ REQUEST FOR SANCTIONS.

from the paragraph

In their Motion for Sanctions, Plaintiffs contend that the Court should sanction the undersigned defense counsel and her firm for not filing an entry of appearance as required by local court rules. Undersigned counsel concedes she has not filed a formal entry of appearance. Nonetheless, counsel’s representation of Defendant French & Associates is obvious as she signed the initial pleading filed by French & Associates which was the Motion to Dismiss Plaintiffs’ Complaint.

which apparently attempt to justify not following rules. This attempt to justify a lawyer and law firm not following rules cannot be accepted. French and Associates apparently feel that this Court will cover-up for them and this is the argument to help that cover-up.

Thereafter, the undersigned counsel has also signed each pleading filed on behalf of French & Associates. Plaintiffs are well aware that the undersigned counsel represents French & Associates in this case. They cannot demonstrate any prejudice as a result of the undersigned counsel’s inadvertent failure to file a formal entry of appearance. Nonetheless, the undersigned counsel files an entry of appearance concurrently with this Response in order to comply with Local Court Rule 83. Plaintiffs are being harassed by having to respond of ALL of these bogus filings. This court has no jurisdiction other than to fine crooked lawyers to bring state matter before this federal court.

Plaintiffs have not cited this Court any authority to support their argument that French & Associates’ Motion to Dismiss should be disregarded because the undersigned counsel did not file a formal entry of appearance. Plaintiffs are under no obligation to respond to any improper filing. Onus is not on plaintiffs to defend actions. It upon French and Associates who violate Court rules in this sham federal action. In the interest of justice, this Court should waive the entry of appearance requirement in order to resolve French & Associates’ Motion to dismiss expeditiously. See D.N.M.LR-Civ. 1.7 (stating that local rules may be waived by a judge to avoid injustice); Glendora v. Sellers, Civ. No. 00-1695 JP/LCS, slip op., pp.2-3 (D.N.M. filed January 7, 2002) [Docket No. 841 (unpublished Memorandum Opinion and Order wherein the Honorable James A. Parker waived local rule requiring entry of appearance in order to resolve defendants’ dispositive motion expeditiously). Therefore, this Court should deny Plaintiffs’ request that it disregard French & Associates’ Motion to Dismiss or sanction the undersigned counsel for not having filed a formal entry of appearance.

In the interest of justice French and Associates must suffer some of the hashed sanction in their attempt to get defendants case dismissed in the sham federal court action by not even following rules. French and Associates along with other defendants create the appearance that they have instigated sham federal court case to have bought judge dismiss complaint. Judge James A Parker allowed this and other of plaintiffs' lawsuits to be improperly removed to federal court.

Judge James A Parker assigned defendant judge William F Downes to harass plaintiffs using federal court. And as a result caused Downes to be sued twice in New Mexico state Court. Federal courts have no jurisdiction in these state issues.

Federal judge Martha Vazquez early-on recognized this when she issued 12/21/00 12/21/00 19 ORDER by District Judge Martha Vazquez granting motion for stay [10-1], Case stayed until the outcome of the New Mexico hearing is determined re [19-2] (cc: all counsel) (msm) (29k) Re: MOTION for stay [10] in 00cv1574. Improper removal of New Mexico 1:00:CV:10289

11/08/00 11/09/00 1 NOTICE OF REMOVAL from 2nd Judicial Dist with complaint for writ of replevin and relief from harassment with jury demand Case Number: 1:00:CV:10289 (vv) (207k)

to federal court as 00cv1574 and assignment of judge Downes by judge James A Parker precipitated this lawsuits.

This and other lawsuits are not plaintiffs' wishes but necessary actions as a result of alleged criminal acts by the federal government trying to avoid state justice.

5 French & Associates, P.C. write

B. PLAINTIFFS FARED TO FOLLOW RULE 11(C)(1)(AYS PROCEDURAL REQUIREMENTS AND ARE THEREFORE BARRED FROM OBTAINING SANCTIONS AGAINST DEFENSE COUNSEL UNDER FED.R.C1V.P. 11.

Plaintiffs failed to comply with Rule l1’s procedural requirements. A motion for sanctions under Rule 11 must be served on the opposing party in advance of filing it with the Court. Fed.R.Civ.P. 1l(C)(l)(A) (emphasis added). Only if the challenged item is not withdrawn or corrected within 21 days after service should the movant file the motion or present it to the court. Id. Rule 1 l’s “safe harbor” provision is mandatory and Plaintiffs’ failure to comply with Rule il’s procedural requirements requires the denial of their Motion. See Aerotech. Inc. v. Estes, 110 F.3d 1523, 1528-29 (10th Cir. 1997) (citing Elliott v. Tilton, 64 F.3d 213, 216 (5th Cir. 1995)).

Plaintiffs failed to serve defense counsel with this Motion for Sanctions in advance of filing it. Instead, Plaintiffs bypassed this requirement and filed their Motion for sanctions directly with the Court on January 11, 2002. Plaintiffs are therefore procedurally barred from obtaining sanctions against defense counsel under Rule 11 and the Court should deny Plaintiffs’ Motion. See id.

is A FALSE STATEMENT. In

11/29/01 11/30/01 15 RESPONSE by pltfs to notice of completion of briefing package for deft French's motion to dismiss [4-1] (bap) (65k) Re: MOTION to dismiss [4]

plaintiffs stated

Stephen G French has been given until 13:30 November 29, 2001 to respond by telephone telling plaintiffs that French and Anaya will withdraw filing or face Rule 11 sanctions motion.

French and Associates did not respond. Therefore motion for sanctions was filed.

7 French & Associates, P.C. write

WHEREFORE, French & Associates respectfully request that this Court deny Plaintiffs’ Motion for Sanctions Against Christina E. Anaya and French and Associations for Filing Motion and Memorandum to Dismiss, award defense counsel fees and costs for responding to the instant Motion, and order all other relief this Court deems just and proper.

must be rejected in view of the evidence that French and Associates submit its RESPONSE in hopes a federal judge with no jurisdiction will rule favorably, in violation of the law, for them. 7 WHEREFORE, increase sanction against French and Associates to $3,600,000 and award plaintiffs $2,000 for having to prepare this reply.

Remand 01cv01198 to New Mexico state court.

Discontinue harassing plaintiffs.

8 CONCLUSION

Pro se Plaintiffs have learned that one cannot assume but must follow the laws and the rules to the best of one's ability. Plaintiffs, not being experts in the law have made procedural mistakes and have paid the consequences. As an advocate of the court, Ms Anaya is an expert in the law and needs to follow the rules, not assuming that it is obvious to the court. It is heartbreaking to see the advocates of the courts make light of obeying the rules and procedures of the court. Ms Anaya states:

In their Motion for Sanctions, Plaintiffs contend that the Court should sanction the undersigned defense counsel and her firm for not filing an entry of appearance as required by local court rules. Undersigned counsel concedes she has not filed a formal entry of appearance. Nonetheless, counsel's representation of Defendant French & Associates is obvious as she signed the initial pleading filed by French & Associates which was the Motion to Dismiss Plaintiffs' Complaint.

What is becoming obvious is that the officials of the court are also making light of obeying the rules. This whole series of lawsuits began with a very serious issue of the court not following its own rules. There were open legal issues that could seriously jeopardized the Plaintiffs' lives, therefore, the Plaintiffs were forced to file the initial lawsuit. The court is the interpreter of the law. The court should not be expected to be perfect, and should be allowed to make some mistakes but when discovered admit them. However, when the interpreters (the court) deliberately ignore or misuse the law, then God help us all for that is not just heartbreaking, but devastating and chilling to the very survival of our Great American Society. No matter the out come of the case, there is a higher court and the Judge is powerful and merciful but is just and firm. The Advocate needs no discovery for He knows the truth. That case is eminent.

Respectfully submitted,

Arthur R. Morales 1024 Los Arboles NW Albuquerque, NM 87107

William H. Payne 13015 Calle de Sandias NE Albuquerque, NM 87111

I HEREBY CERTIFY that a true copy of the foregoing pleading was mailed on January 29, 2002 to

French and Associates, P.C.
500 Marquette Ave N.W., Suite 600
Albuquerque, New Mexico
505 843 7075

Michael H Hoses
Assistant US Attorney
P0 Box 607
Albuquerque, New Mexico 87103

W. John Brennan
Chief District Judge, Division XIV
P.O. Box 488
Albuquerque, New Mexico 87103
841-7499

Patricio Serna
Chief judge
Supreme Court of New Mexico
POB 848
Santa Fe, New Mexico 87504-0848

James A Parker
Chief judge
United States District Court
333 Lomas NW.
Albuquerque, New Mexico 87103

William F. Downes
Chief Judge; Wyoming
111 South Wolcott
Room 210
Casper, WY 82601
(307) 261-5441

http://www.geocities.com/CapitolHill/Congress/8327/

THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO

ARTHUR R. MORALES AND
WILLIAM H. PAYNE,

Plaintiffs,

v Civil No. 01-1198 Dee Vance Benson

JOHN J ZAVITZ, WILLIAM F. DOWNES, and
FRENCH & ASSOCIATES, P.C.

Defendants.

NOTICE OF REQUEST FOR JOHN ASHCROFT AND RICHARD G PATRICK TO WITHDRAW MOTIONS TO DISMISS AS TO DEFENDANT CHIEF JUDGE WILLIAM f. DOWNES, CIV-01-1132 AND CIV-01-1198

1 Plaintiffs phone US Special Attorney Richard G Patrick at 602-514-7733 as request seen in Exhibit A on Monday January 29, 2002 in the afternoon.

Patrick asks if we concur in his motions to dismiss. Exhibits B and C. Plaintiffs decline to concur.

2 Plaintiff explain to Patrick that both 1132 and 1198 were improperly removed to federal court. Morales explains to Patrick that lawsuit which resulted in 1198 being filed, 00cv1574 was stayed pending New Mexico state outcome

12/21/00 12/21/00 19 ORDER by District Judge Martha Vazquez granting motion for stay [10- 1], Case stayed until the outcome of the New Mexico hearing is determined re [19-2] (cc: all counsel) (msm) (29k) Re: MOTION for stay [10]

Exhibit D.

Morales points out to Patrick that New Mexico state lawsuit 00:CV:10289 is still active jury trial lawsuit.

11/08/00 11/09/00 1 NOTICE OF REMOVAL from 2nd Judicial Dist with complaint for writ of replevin and relief from harassment with jury demand Case Number: 1:00:CV:10289 (vv) (207k

00:CV:10289 is improperly removed 00cv1574.

3 Patrick was informed that this Court does not have jurisdiction or have judges Benson or Parker ever claimed that federal court does have jurisdiction.

Patrick is informed that if he files MOTIONS and MEMORANDA in support of motions seen in Exhibit B and C, then plaintiffs will file Rule 11 violation sanction.

Otherwise Ashcroft and Patrick must be added to plaintiffs list of harassers because of these bogus federal proceedings.

Jurisdiction for harassment, replevin, and defamation [libel] lie in state, not federal, court.

Respectfully submitted,

Arthur R. Morales
1024 Los Arboles NW
Albuquerque, NM 87107

William H. Payne
13015 Calle de Sandias NE
Albuquerque, NM 87111

I HEREBY CERTIFY that a true copy of the foregoing pleading was mailed on January 29, 2002 to

French and Associates, P.C.
500 Marquette Ave N.W., Suite 600
Albuquerque, New Mexico
505 843 7075

Michael H Hoses
Assistant US Attorney
P0 Box 607
Albuquerque, New Mexico 87103

W. John Brennan
Chief District Judge, Division XIV
P.O. Box 488
Albuquerque, New Mexico 87103
841-7499

Patricio Serna
Chief judge
Supreme Court of New Mexico
POB 848
Santa Fe, New Mexico 87504-0848

James A Parker
Chief judge
United States District Court
333 Lomas NW.
Albuquerque, New Mexico 87103

William F. Downes
Chief Judge; Wyoming
111 South Wolcott
Room 210
Casper, WY 82601
(307) 261-5441

http://www.geocities.com/CapitolHill/Congress/8327/

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO

ARTHUR MORALES and
WILLIAM PAYNE,

Plaintiffs, v. NO. CV 01-01198 Dee V. Benson

JOHN J. ZAVITS,
WILLIAM F. DOWNS, and
FRENCH & ASSOCIATES, P.C.,

Defendants.

RESPONSE TO PLAINTIFFS’ MOTION FOR SANCTIONS
AGAINST CHRISTINA E. ANAYA AND FRENCH AND
ASSOCIATES FOR FILING MOTION AND MEMORANDUM TO DISMISS

Defendant French & Associates, P.C., through Stephen G. French, Esq. and Christina E. Anaya, Esq., state the following for their Response to Plaintiffs’ Motion for Sanctions Against Christina E. Anaya and French and Associates for Filing Motion and Memorandum to Dismiss (“Motion for Sanctions”):

I. BACKGROUND

On October 16, 2001, Defendant John Zavitz removed this case from the Second Judicial District Court for the County of Bernalillo to the United States District Court for the District of New Mexico. See Notice of Removal (filed October 16, 2001) [Docket No. 1]. On October 22, 2001, Defendant French & Associates, P.C., through undersigned counsel, filed a Motion to Dismiss and a memorandum in support of the Motion in lieu of filing an answer. See Docket Nos. 4 and 5. Plaintiffs response to the Motion to Dismiss was due November 5, 2001. To date, Plaintiffs have not filed a response to the Motion to Dismiss.

Instead, Plaintiffs filed a Motion for Sanctions [Docket No. 17] on January 11, 2002. In their Motion for Sanctions, Plaintiffs argue that the undersigned counsel could not file the Motion to Dismiss on behalf of French & Associates without first having filed a formal entry of appearance. Plaintiffs also request that the Court impose monetary sanctions against the undersigned counsel in the amount of $2,400,000.00 in addition to “labor and filing costs” of $1,000.00 for having filed the Motion to Dismiss without first having filed an entry of appearance.

H. LEGAL ARGUMENT

Plaintiffs allegations that the actions of the undersigned counsel and her firm warrant the imposition of sanctions pursuant to Fed. R. Civ. P. 11 wholly lack merit. In addition, Plaintiffs failed to comply with Fed.R.Civ.P. ifs procedural requirements prior to filing the instant Motion for Sanctions.

Rule 11 of the Federal Rules of Civil Procedure provides, in pertinent part, the following:

(b) Representation to Court. By presenting to the Court (whether by signing, filing, submitting, or later advocating) a pleading, written motion, or other paper, an attorney or unrepresented party is certifying that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasOnable under the circumstances, --

(1) it is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation;

(2) the claims, defenses, and other legal contentions, therein are warranted by existing law or by a non frivolous argument for the extension, modification, or reversal of existing law or the establishment of new law;

(3) the allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery; and

(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief.

(c) Sanctions. If, after notice and a reasonable opportunity to respond, the court determines that subdivision (b) has been violated, the court may, subject to the conditions stated below, impose an appropriate sanction upon the attorneys, law firms or parties that have violated subdivision (b) or are responsible for the violation. (1) How Initiated.

(A) By Motion. A motion for sanctions under this rule shall be made separately from other motions or requests and shall describe the specific conduct alleged to violate subdivision (b). It shall be served as provided by Rule 5, but shall not be filed with or presented to the court unless, within 21 days after service of the motion (or such other period as the court may prescribe), the challenged paper, claim, defense, contention, allegation or denial is not withdrawn or appropriately corrected. If warranted the court may award to the party prevailing on the motion the reasonable expenses and attorney’s fees incurred in presenting or opposing the motion. ***

Fed.R.Civ.P. 11(2001).

A. FED. R. CIV. P. 11 DOES NOT CONTEMPLATE THE IMPOSITION OF SANCTIONS FOR FAILURE TO FILE AN ENTRY OF APPEARANCE AS SPECIFICALLY REQUIRED BY LOCAL COURT RULES AND THEREFORE THERE IS NO BASIS FOR PLAINTIFFS’ REQUEST FOR SANCTIONS.

In their Motion for Sanctions, Plaintiffs contend that the Court should’ sanction the undersigned defense counsel and her firm for not filing an entry of appearance as required by local court rules. Undersigned counsel concedes she has not filed a formal entry of appearance. Nonetheless, counsel’s representation of Defendant French & Associates is obvious as she signed the initial pleading filed by French & Associates which was the Motion to Dismiss Plaintiffs’ Complaint. Thereafter, the undersigned counsel has also signed each pleading filed on behalf of French & Associates. Plaintiffs are well aware that the undersigned counsel represents French & Associates in this case. They cannot demonstrate any prejudice as a result of the undersigned counsel’s inadvertent failure to file a formal entry of appearance. Nonetheless, the undersigned counsel ifies an entry of appearance concurrently with this Response in order to comply with Local Court Rule 83.

Plaintiffs have not cited this Court any authority to support their argument that French & Associates’ Motion to Dismiss should be disregarded because the undersigned counsel did not file a formal entry of appearance. In the interest of justice, this Court should waive the entry of appearance requirement in order to resolve French & Associates’ Motion to dismiss expeditiously. See D.N.M.LR-Civ. 1.7 (stating that local rules may be waived by a judge to avoid injustice); Glendora v. Sellers, Civ. No. 00-1695 JP/LCS, slip op., pp.2-3 (D.N.M. filed January 7, 2002) [Docket No. 841 (unpublished Memorandum Opinion and Order wherein the Honorable James A. Parker waived local rule requiring entry of appearance in order to resolve defendants’ dispositive motion expeditiously). Therefore, this Court should deny Plaintiffs’ request that it disregard French & Associates’ Motion to Dismiss or sanction the undersigned counsel for not having filed a formal entry of appearance.

B. PLAINTIFFS FARED TO FOLLOW RULE 11(C)(1)(AYS PROCEDURAL REQUIREMENTS AND ARE THEREFORE BARRED FROM OBTAINING SANCTIONS AGAINST DEFENSE COUNSEL UNDER FED.R.C1V.P. 11.

Plaintiffs failed to comply with Rule li’s procedural requirements. A motion for sanctions under Rule 11 must be served on the opposing party in advance of filing it with the Court. Fed.R.Civ.P. 1 l(C)(l)(A) (emphasis added). Only if the challenged item is not withdrawn or corrected within 21 days after service should the movant file the motion or present it to the court. Id. Rule 1 l’s “safe harbor” provision is mandatory and Plaintiffs’ failure to comply with Rule il’s procedural requirements requires the denial of their Motion. See Aerotech. Inc. v. Estes, 110 F.3d 1523, 1528-29 (10”’ Cir. 1997) (citing Elliott v. Tilton, 64 F.3d 213, 216 (5”’ Cir. 1995)).

Plaintiffs failed to serve defense counsel with this Motion for Sanctions in advance of filing it. Instead, Plaintiffs bypassed this requirement and filed their Motion for sanctions directly with the Court on January 11, 2002. Plaintiffs are therefore procedurally barred from obtaining sanctions against defense counsel under Rule 11 and the Court should deny Plaintiffs’ Motion. See id.

WhEREFORE, French & Associates respectfully request that this Court deny Plaintiffs’ Motion for Sanctions Against Christina E. Anaya and French and Associations for Filing Motion and Memorandum to Dismiss, award defense counsel fees and costs for responding to the instant Motion, and order all other relief this Court deems just and proper.

Respectfully submitted,

FRENCH & ASSOCIATES, P.C.

By: Stephen G. French

500 Marquette Ave. N.W., Suite 600
Albuquerque, New Mexico 87102
(505) 843-7075

I hereby certify that a true and correct copy of the foregoing was sent via U.S. Mail this 17th day of January, 2002 to:

Arthur R. Morales, Pro Se Plaintiff
1024 Los Arboles NW
Albuquerque, New Mexico 87107
(505) 345-1381

William H. Payne, Pro Se Plaintiff
13015 Calle de Sandias N.E.
Albuquerque, New Mexico 87111
(505) 292-7037

Michael Hoses
Assistant United States Attorney
PG Box 607
Albuquerque, NM 87103-0607

Christina E. Anaya

THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO

ARTHUR R. MORALES AND
WILLIAM H. PAYNE,

Plaintiffs,

v Civil No. 01-1198 Dee Vance Benson

JOHN J ZAVITZ, WILLIAM F. DOWNES, and
FRENCH & ASSOCIATES, P.C.

Defendants.

MOTION FOR SANCTIONS AGAINST ASSISTANT US ATTORNEY MICHAEL HOSES FOR FILING DEFENDANT JOHN W. ZAVITZ' MOTION TO DISMISS BASED ON ABSOLUTE IMMUNITY AND DEFENDANT JOHN W. ZAVITZ' MEMORANDUM IN SUPPORT OF MOTION TO DISMISS BASED ON ABSOLUTE IMMUNITY

1 Sanction Assistant US Attorney Michael Hoses for failing to file Entry of Appearance as required by Federal local rules of civil procedure 83.4. And Albuquerque US Attorney's office for filing DEFENDANT JOHN W. ZAVITZ' MOTION TO DISMISS BASED ON ABSOLUTE IMMUNITY AND DEFENDANT JOHN W. ZAVITZ' MEMORANDUM IN SUPPORT OF MOTION TO DISMISS BASED ON ABSOLUTE IMMUNITY which is frivolous and is being presented for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.

MEMORANDUM IN SUPPORT OF MOTION FOR SANCTIONS AGAINST ASSISTANT US ATTORNEY MICHAEL HOSES FOR FILING DEFENDANT JOHN W. ZAVITZ' MOTION TO DISMISS BASED ON ABSOLUTE IMMUNITY AND DEFENDANT JOHN W. ZAVITZ' MEMORANDUM IN SUPPORT OF MOTION TO DISMISS BASED ON ABSOLUTE IMMUNITY

1 Assistant US Attorney Michael Hoses files below MOTION and MEMORANDUM shown on the docket as

11/19/01 11/21/01 12 MEMORANDUM by deft John W Zavitz in support of motion to dismiss based on absolute immunity [11-1] (bap) (197k) Re: MOTION to dismiss based on absolute immunity [11]

11/19/01 11/21/01 11 MOTION by deft John W Zavitz to dismiss based on absolute immunity (bap) (33k) Re: RESPONSE [14] MEMORANDUM [12]

Exhibit A.

2 Federal local rules of civil procedure 83.4, Entry of Appearance, states

(a) Individual Attorney. An attorney must enter an appearance or obtain leave of the Court to sign and file any pleading, motion or other paper. To enter an appearance, an attorney must: be eligible to appear under D.N.M.LR-Civ. 83.2 or 83.3; and sign the initial pleading filed on behalf of a party and file a written entry of appearance which includes the attorney's name, address, and telephone number.

(b) Appearance by Member of a Law Firm. Entry of appearance by one member of a law firm in an action allows any member of that firm to participate in the action; however, each attorney in the firm wishing to receive papers from the Clerk must make a written entry of appearance in the action.

The word MUST in " An attorney must enter an appearance or obtain leave of the Court to sign and file any pleading, motion or other paper." is quite clear. The docket sheet for the case shows NO ENTRY OF APPEARANCE for Assistant US Attorney Michael Hoses. Exhibit A.

3 Hoses was given until 14:00 November 29, 2002 to withdraw his improperly filed MOTION and MEMORANDUM in

11/29/01 11/30/01 14 RESPONSE by pltfs to deft Zavitz' motion to dismiss based on absolute immunity [11-1] (bap) (67k) Re: MOTION to dismiss based on absolute immunity [11] INTRODUCTION

Exhibit A.

Hoses does not respond.

4 Rule 11(b). Signing of Pleadings, Motions, and Other Papers; Representations to Court; Sanctions state in Federal Rules of Civil Procedure,

(b) Representations to Court.

By presenting to the court (whether by signing, filing, submitting, or later advocating) a pleading, written motion, or other paper, an attorney or unrepresented party is certifying that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances,--

(1) it is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation;

(2) the claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law;

(3) the allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery; and

(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief.

Assistant US Attorney Michael Hoses and Albuquerque US Attorney's office submitted improper DEFENDANT JOHN W. ZAVITZ' MOTION TO DISMISS BASED ON ABSOLUTE IMMUNITY AND DEFENDANT JOHN W. ZAVITZ' MEMORANDUM IN SUPPORT OF MOTION TO DISMISS BASED ON ABSOLUTE IMMUNITY in violation of Federal local rules of civil procedure 83.4.

5 Rule 11(c) goes on to state

(c) Sanctions.

If, after notice and a reasonable opportunity to respond, the court determines that subdivision (b) has been violated, the court may, subject to the conditions stated below, impose an appropriate sanction upon the attorneys, law firms, or parties that have violated subdivision (b) or are responsible for the violation.

(1) How Initiated.

(A) By Motion. A motion for sanctions under this rule shall be made separately from other motions or requests and shall describe the specific conduct alleged to violate subdivision (b). It shall be served as provided in Rule 5 , but shall not be filed with or presented to the court unless, within 21 days after service of the motion (or such other period as the court may prescribe), the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected. If warranted, the court may award to the party prevailing on the motion the reasonable expenses and attorney's fees incurred in presenting or opposing the motion. Absent exceptional circumstances, a law firm shall be held jointly responsible for violations committed by its partners, associates, and employees.

(B) On Court's Initiative. On its own initiative, the court may enter an order describing the specific conduct that appears to violate subdivision (b) and directing an attorney, law firm, or party to show cause why it has not violated subdivision (b) with respect thereto.

(2) Nature of Sanction; Limitations. A sanction imposed for violation of this rule shall be limited to what is sufficient to deter repetition of such conduct or comparable conduct by others similarly situated. Subject to the limitations in subparagraphs (A) and (B), the sanction may consist of, or include, directives of a nonmonetary nature, an order to pay a penalty into court, or, if imposed on motion and warranted for effective deterrence, an order directing payment to the movant of some or all of the reasonable attorneys' fees and other expenses incurred as a direct result of the violation.

(A) Monetary sanctions may not be awarded against a represented party for a violation of subdivision (b)(2).

(B) Monetary sanctions may not be awarded on the court's initiative unless the court issues its order to show cause before a voluntary dismissal or settlement of the claims made by or against the party which is, or whose attorneys are, to be sanctioned.

(3) Order. When imposing sanctions, the court shall describe the conduct determined to constitute a violation of this rule and explain the basis for the sanction imposed.

6 Docket as of January 17, 2002, Exhibit A, show that Assistant US Attorney Michael Hoses failed to make and entry of appearance and withdraw DEFENDANT JOHN W. ZAVITZ' MOTION TO DISMISS BASED ON ABSOLUTE IMMUNITY AND DEFENDANT JOHN W. ZAVITZ' MEMORANDUM IN SUPPORT OF MOTION TO DISMISS BASED ON ABSOLUTE IMMUNITY

More than 21 days, as required in Rule 11 has elpased as required by Rule 11 c(1)(A). Therefore this motion for sanctions is applicable and warranted.

7 Assistant US Attorney Michael Hoses writes

DEFENDANT JOHN W. ZAVITZ' MOTION TO DISMISS BASED ON ABSOLUTE IMMUNITY

COMES NOW Defendant John W. Zavitz, by and through Assistant United States Attorney Michael H. Hoses and moves the Court for an Order dismissing Plaintiffs' Complaint and cause of action with prejudice based on the following: Defendant John W. Zavtiz is entitled to absolute quasi-judicial immunity based on the actions alleged against him.

In support of this Motion, Defendant Zavitz respectfully refers the Court to his Memorandum filed concurrently herewith.

Plaintiffs have been contacted in the past for concurrence on similar motions and concurrence has never been granted. Therefore, it is assumed Plaintiffs oppose this Motion.

WHEREFORE, Defendant John W. Zavitz prays that the Court dismiss Plaintiffs' Complaint and cause of action with prejudice.

must be rejected as an improper filing before this court since Hoses never filed Entry of Appearance as required by Federal local rules of civil procedure 83.4.

Hoses' filing is therefore frivolous and is being presented for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.

8 Assistant US Attorney Michael Hoses writes in MEMORANDUM INTRODUCTION

Plaintiffs brought this suit alleging claims for damages and other relief against, among others, Assistant U.S. Attorney John J (sic) Zavits (sic)1 based on actions taken by him in connection with pending litigation in other matters before this Court, i.e., Arthur J. Morales and William H. Payne v. Theodore C. Baca. Norman C. Bay. Phyllis A. Dow. Raymond Hamilton. Rodey. Dickason. Sloan. Akin & Robb. P.A.. and Martha Vazpuez, CIV No. 01-0634 WFD/WWD. See Complaint, Ex. I

The acts alleged against Mr. Zavitz include failing to file an Entry of Appearance pursuant to D.N.M.LR-Civ 83.4, Complaint 110 and conspiring to subvert both state

-------------------------------------------------------------------------------- 1 AUSA Zavitz’ proper name is John W. Zavitz and the proper spelling of his name will be used in this memorandum. --------------------------------------------------------------------------------

and federal courts using the felony of perjury, Complaint 11142. All of the cited actions were taken in Mr. Zavitz’ official capacity in connection with the defense of Civil No. 01- 0634. Plaintiffs’ claims against Mr. Zavitz are barred by absolute quasi-judicial immunity and should be dismissed.

Hoses tries to make issue over plaintiffs' misseplling of Zavitz name

Assistant U.S. Attorney John J (sic) Zavits (sic)1

1 AUSA Zavitz’ proper name is John W. Zavitz and the proper spelling of his name will be used in this memorandum.

yet Hoses himself mispells Zavitz name in his memorandum title! Exhibit B.

Hoses writes in above

Arthur J. Morales

Correct spelling is Arthur R. Morales.

Hoses above statements are frivolous and clearly being presented for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.

9 Assistant US Attorney Michael Hoses writes in MEMORANDUM

AUSA JOHN W. ZAVITZ IS ENTITLED TO ABSOLUTE QUASI-JUDICIAL IMMUNITY FOR THE ACTION ASSERTED BY PLAINTIFFS The Supreme Court and the lower federal courts have extended the absolute immunity available to judges to other persons whose functions are intimately or closely associated with the judicial process, particularly government attorneys, witnesses, and court personnel, such as clerks, reporters, and probation officers. The touchstone for the immunity is whether the activity in question is intimately associated with the judicial process, for it is that process which the immunity protects. See Burns v. Reed, 500 U.S. 478,492(1991). See also Cleavinger v. Saxner, 474 U.S. 193, 200 (1985); Imbler v. Pachtman, 424 U.S. 409, 430 (1976). “Absolute immunity is designed to free the judicial process from the harassment and intimidation associated with litigation.’’ Burns 500 U.S. at 494. It extends only to matters connected with judicial proceedings; it is “not for every litigation-inducing conduct.” Id.

First, the court has no jurisdiction over this case as evidenced by non-response of judge Dee Vance Benson and James A Parker, Exhibit A, entry 16.

Second, Hoses failed to file Entry of Appearance as required by Federal local rules of civil procedure 83.4. Hoses cannot, according to court rules, file MEMORANDUM. New Mexico state court has jurisdiction.

In New Mexico state court defendant cannot move to dismiss except for reason of improper pursuit of case in court.

10 Assistant US Attorney Michael Hoses writes in MEMORANDUM

The Supreme Court developed the quasi-judicial immunity doctrine principally in the context of prosecutors See Buckley v. Fitzsimmons, 509 U.S. 259 (1993),

-------------------------------------------------------------------------------- 2 Paragraph 14 of Plaintiffs’ complaint relies on two exhibits to the complaint to illustrate that Mr. Zavitz conspired with others to subvert both state and federal courts using the felony of perjury. The exhibits relied on by Plaintiffs include Exhibit G, civil cover Sheet (not signed by Mr. Zavitz) and Exhibit H, receipt from the United States District court in Albuquerque for a filing fee received from French & Associates. A review of these exhibits demonstrates that Mr. Zavitz was not involved in or connected in any to either of these documents. Based on the frivolous, baseless assertion contained in paragraph 14 of Plaintiffs’ complaint, this allegation will not be addressed further in this Memorandum. --------------------------------------------------------------------------------

Burns v. Reed, 500 U.S. 478 (1991); lmbler v. Pachtman, 424 U.S. 409 (1976). However, the core principle in the Supreme Court’s decisions giving shape to absolute quasi-judicial immunity for prosecutors is the perceived need to provide protection for the judicial process from direct and indirect impairments. Therefore, the touchstone for that immunity is a “functional tie to the judicial process.” Buckley, 509 U.S. at 277. Litigation that would have an untoward effect on the independence of the prosecutor is seen as also impeding the judicial process; consequently the prosecutor is given absolute immunity as a means to protect that process. Kalina v. Fletcher, 522 U.S. 118, 125 (1997); Burns, 500 U.S. at 492; Mallev v. Briggs, 475 u.S. 335, 343 (1986). In Buckley, the Supreme Court held that a prosecutor is entitled to absolute immunity when he or she acts as an advocate for the government. 509 U.S. at 276-78. By performing that function, the prosecutor becomes associated with the judicial phase of the criminal process. Imbler, 424 U.S. at 430-31. “[Ajcts undertaken by a prosecutor in preparing for the initiation of judicial proceedings or for trial, and which occur in the course of his role as an advocate for the State, are entitled to the protections of absolute immunity.” Buckley, 509 U.S. at 273. This immunity rests on the same rationale as does prosecutorial and other quasi-judicial immunities: the protection of the judicial process from undue interference through damages actions.

The basis for absolute immunity for government attorneys participating in civil proceedings was signaled by the Supreme Court in Butz v. Economou, 438 U.S. 478 (1978). There, in the context of a case concerning administrative enforcement proceedings in which penalties and sanctions could be imposed, the Court said, “[w]e think that adjudication within a federal administrative agency shares enough of the characteristics of the judicial process that those who participate in such adjudication should also be immune from suit for damages.” 438 u.s. at 512-13. That immunity includes agency officials who are responsible for the decision to initiate or continue an administrative proceeding. Id. at516. As to agency attorneys conducting a trial (or hearing) and presenting evidence, the Court likened their function to that of a prosecutor and held that they were absolutely immune:

We can see no substantial difference between the function of the agency attorney in presenting evidence in an agency hearing and the function of the prosecutor who brings evidence before a court. . .. If agency attorneys were held personally liable in damages as guarantors of the quality of their evidence, they might hesitate to bring forward some witnesses or documents.... We therefore hold that an agency attorney who arranges for the presentation of evidence on the record in the course of an adjudication is absolutely immune from suits based on the introduction of such evidence.

438 U.S. at 516-17.

Although Butz concerned administrative proceedings in which penalties and sanctions could be imposed, giving them a criminal aura, and the Court used the role of the prosecutor for its analogy, nothing in its reasoning precludes its application to government attorneys functioning in proceedings where traditional civil remedies are the outcome. Cf. 438 U.S. at 516 n.40. The judicial process is what is protected by judicial and quasi-judicial immunity, and for immunity purposes there is no principled difference between civil and criminal proceedings.

Several courts of appeals have ruled that the principles outlined in Butz operate to afford absolute immunity to government attorneys who initiate or participate in civil proceedings. The Ninth Circuit explained that protection in Fry v. Melaragno, 939 F.2d 832, 837 (9th Cir. 1991), a case involving Internal Revenue Service attorneys who handled the tax deficiency claim against the plaintiffs in the Tax Court:

We therefore agree with the Second Circuit, as it stated in Barrett v. United States, 798 F.2d 565, 57273 (2d Cir. 1986), that the principles outlined in Butz should a fortiori apply to the government attorney’s initiation and handling of civil litigation in a state or federal court. Whether the government attorney is representing the plaintiff or the defendant, or is conducting a civil trial, criminal prosecution or an agency hearing, absolute immunity is “necessary to assure that. . . advocates. . . can perform their respective functions without harassment or intimidation.” Butz, 438 U.S. at 512, 98 S.Ct. at 2913. Given the similarity of functions of government attorneys in civil, criminal and agency proceedings, and the numerous checks on abuses of authority inherent in the judicial process, we reiterate our statement in Flood v. Harrington, 532 F.2d 1248, 1251 (9th Cir. 1976) that “[the reasons supporting the doctrine of absolute immunity apply with equal force regardless of the nature of the underlying action.”

See also Mendenhall v. Goldsmith, 59 F.3d 685 (7th Cir.) (state attorney absolutely immune with respect to filing of an injunction, forfeiture of plaintiffs property, seizure of property subject to forfeiture, and settlement negotiations with plaintiff), cert. denied, 516 U.S. 1011(1995); Saunders v. Bush, 15 F.3d 64, 67 (5th Cir.), cert. denied, 512 U.S. 1207 (1994); Schrob v. Catterson, 948 F.2d 1402, 1412 (3d Cir. 1991); MurDhvv. Morris, 849 F.2d 1101, 1104-05(8th Cir. 1988); Barrett v. United States, 798 F.2d 565, 572-73 (2d Cir. 1986); Samuel v. Michaud, 980 F.Supp. 1381, 1401-1402 (D. Idaho 1996) (civil AUSAs entitled to immunity for alleged use of false declarations and certifications), aff’d, 129 F.3d 127 (9th Cir. 1997); Brven v. Becker, 785 F.Supp. 484, 486-87 (D.N.J. 1991) (“If every government attorney involved in a civil matter were to be subject to suit, and his actions were scrutinized for any possible constitutional error, then the efficacy of these officials would surely be compromised.”), aff'd 961 F.2d 207 (3d Cir. 1992).

The basis for absolute immunity for a government attorney handling civil proceedings, then, is the close association of the challenged conduct with the judicial process, and the scope of its protection extends accordingly. This protection is consistent with that provided prosecutors, and the rationale for it is the same. Its application is governed essentially by the principles discussed in connection with immunity for prosecutors, suDra. It is the judicial process that is the interest ultimately protected by quasi-judicial immunity in both civil and criminal adjudication. The action of filing motions and supporting memoranda in a lawsuit in U.S. district courts without first filing an entry of appearance was taken by Mr. Zavitz in his capacity as an Assistant United States Attorney and relate to the defense of the action filed by Morales and Payne (Civil No. 01-0634). This act is clearly an integral part of the litigation initiated by Plaintiffs and is entitled to quasi-judicial immunity. As the Second Circuit stated in Barrett v. United States, 798 F.2d at 572:

Although government defense counsel, not having selected the other party as the target of the litigation, is in a more passive position than a prosecutor or plaintiffs representative, he nevertheless functions in an adversarial arena.. .and since he is charged with a public trust he should not be inhibited in the faithful performance of his duties by the theat of harassing lawsuits against him.

The action alleged by Plaintiffs against Mr. Zavitz, failing to file an entry of appearance, should be dismissed based on quasi-judicial immunity.

Again, the court has no jurisdiction over this case as evidenced by non-response of judge Dee Vance Benson and James A Parker, Exhibit A, entry 16.

Second, Hoses failed to file Entry of Appearance as required by Federal local rules of civil procedure 83.4. Hoses cannot, according to court rules, file MEMORANDUM. New Mexico state court has jurisdiction.

In New Mexico state court defendant cannot move to dismiss except for reason of improper pursuit of case in court.

A This court must disregard fillings of Hoses because he is not a party to this lawsuit and this court does not have jurisdiction.

Hoses must PUNISHED WITH THE HARSHEST OF FINANCIAL SANCTIONS to prevent the chilling effect of misuse of federal courts.

B Hoses flaunts ignoring court rules by not filing Entry of Appearance as required by Federal local rules of civil procedure 83.4. Hoses has no standing in this lawsuit to file MEMORANDUM.

C This court does not have jurisdiction. Hoses continues to try to make state legal arguments to a federal court without jurisdiction.

D Hoses writes

Although government defense counsel, not having selected the other party as the target of the litigation, is in a more passive position than a prosecutor or plaintiffs representative, he nevertheless functions in an adversarial arena.. .and since he is charged with a public trust he should not be inhibited in the faithful performance of his duties by the threat of harassing lawsuits against him.

Much like the extraordinary writ, the adversarial arena should only be used in extraordinary conditions.

Plaintiffs would normally say these are extraordinary conditions of judges and lawyers not following the law. But unfortunately this is becoming too common.

When an individual or entity with any source of power is not held accountable, they will eventually go out of control with wrongdoing using their power.

This appears to be the case here.

It is for these reasons that the harshest sanction must be imposed again lawyer Hoses.

11 Hoses writes

CONCLUSION

Based on the arguments set out above, this action against John W. Zavitz hould be dismissed with prejudice based on absolute quasi-judicial immunity.

must be rejected as an improper filing submitted to a federal court without jurisdiction. This is an attempt for defendants found guilty of their crimes IN WRITING to avoid justice.

12 WHEREFORE sanctions Assistant US Attorney Michael Hoses for $600,000 for filing

11/19/01 11/21/01 12 MEMORANDUM by deft John W Zavitz in support of motion to dismiss based on absolute immunity [11-1] (bap) (197k) Re: MOTION to dismiss based on absolute immunity [11]

11/19/01 11/21/01 11 MOTION by deft John W Zavitz to dismiss based on absolute immunity (bap) (33k) Re: RESPONSE [14] MEMORANDUM [12]

Exhibit A.

Lawyer and Assistant US Attorneys must be send a clear message that legal misconduct in federal court must not be tolerated.

Plaintiffs ask for labor and filing costs to respond, Exhibit A, docket entry 14

11/29/01 11/30/01 14 RESPONSE by pltfs to deft Zavitz' motion to dismiss based on absolute immunity [11-1] (bap) (67k) Re: MOTION to dismiss based on absolute immunity [11]

to Hoses' improper filings for $1,000 and another $1,000 for this motion for sanctions.

Respectfully submitted,

Arthur R. Morales
1024 Los Arboles NW
Albuquerque, NM 87107

William H. Payne
13015 Calle de Sandias NE
Albuquerque, NM 87111

I HEREBY CERTIFY that a true copy of the foregoing pleading was mailed on January 18, 2002 to

French and Associates, P.C.
500 Marguette Ave N.W., Suite 600
Albuquerque, New Mexico
505 843 7075

Michael H Hoses
Assistant US Attorney
P0 Box 607
Albuquerque, New Mexico 87103

W. John Brennan
Chief District Judge, Division XIV
P.O. Box 488
Albuquerque, New Mexico 87103
841-7499

Patricio Serna
Chief judge
Supreme Court of New Mexico
POB 848
Santa Fe, New Mexico 87504-0848

James A Parker
Chief judge
United States District Court
333 Lomas NW.
Albuquerque, New Mexico 87103

William F. Downes
Chief Judge; Wyoming
111 South Wolcott
Room 210
Casper, WY 82601
(307) 261-5441

http://www.geocities.com/CapitolHill/Congress/8327/

THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO

ARTHUR R. MORALES AND
WILLIAM H. PAYNE,

Plaintiffs,

v Civil No. 01-1198 Dee Vance Benson

JOHN J ZAVITZ, WILLIAM F. DOWNES, and
FRENCH & ASSOCIATES, P.C.

Defendants.

RESPONSE TO NOTICE OF COMPLETION OF BRIEFING PACKAGE
FOR FRENCH & ASSOCIATES, P.C.’s MOTION TO DISMISS

1 Defendant French and Associates write

Defendant, French & Associates, P.C., through counsel of record, French & Associates, P.C. (Stephen G. French, Esq. and Christina E. Anaya, Esq.), state the following for its Notice of Completion of Briefing Package for French & Associates, P.C. ‘s Motion to Dismiss (filed October 22, 2001) [Docket No. 4].

1. Defendant French & Associates, P.C. has filed the following pleadings:

A. French & Associates, P. C. ‘s Motion to Dismiss (filed October 22, 2001) [Docket No. 4]; and

B. Memorandum in Support of French & Associates, P. C. ‘s Motion to Dismiss (filed October 22, 2001) fDocket No. 5];

2. A responsive pleading was therefore due from Plaintiffs on or before November 5, 2001. To date, Plaintiffs have not filed or served Defendant with a responsive brief. The briefing of French & Associates’ Motion to Dismiss is therefore now complete and ready for decision.

WHEREFORE, Defendant French & Associates, P.C., respectfully requests that this Court grant its Motion to Dismiss, dismiss all of Plaintiffs’ claims against it with prejudice, award Defendant its attorney’s fees and costs, and order all other relief this Court deems just and proper.

Respectfully submitted,

FRENCH & ASSOCIATES, P.C. By: Stephen G. French Christina E. Anaya Attorneys for French & Associates, P.C. 500 Marquette Ave. N.W., Suite 600 Albuquerque, New Mexico 87102 (505) 843-7075

I hereby certify that a true and correct copy of the foregoing was sent via U.S. Mail this 26th day of November, 2001 to:

2 Federal local rules of civil procedure 83.4, Entry of Appearance, states

(a) Individual Attorney. An attorney must enter an appearance or obtain leave of the Court to sign and file any pleading, motion or other paper. To enter an appearance, an attorney must: be eligible to appear under D.N.M.LR-Civ. 83.2 or 83.3; and sign the initial pleading filed on behalf of a party and file a written entry of appearance which includes the attorney's name, address, and telephone number.

(b) Appearance by Member of a Law Firm. Entry of appearance by one member of a law firm in an action allows any member of that firm to participate in the action; however, each attorney in the firm wishing to receive papers from the Clerk must make a written entry of appearance in the action.

The word MUST in " An attorney must enter an appearance or obtain leave of the Court to sign and file any pleading, motion or other paper." is quite clear.

The docket sheet for the case shows NO ENTRY OF APPEARANCE for Christina E Anaya, Stephen G French, or French and Associates, P.C. Exhibit A.

3 Christina E Anaya and Stephen G French have no standing in this lawsuit. Therefore Plaintiffs are not required to respond to illegitimate documents filed by court clerk.

4 Plaintiffs find French and Anaya's words

A responsive pleading was therefore due from Plaintiffs on or before November 5, 2001. To date, Plaintiffs have not filed or served Defendant with a responsive brief.

offensive since French and Anaya attempt to show that pro se Plaintiffs aren't following rules when, in fact, lawyers French and Anaya aren't following rules of the court.

5  WHEREFORE strike docket entries 4, 5, 13 from the docket as unauthorized and illegitimate entries.

Stephen G French has been given until 13:30 November 29, 2001 to respond by telephone telling plaintiff s that French and Anaya will withdraw filing or face Rule 11 sanctions motion.

Respectfully submitted,

Arthur R. Morales
1024 Los Arboles NW
Albuquerque, NM 87107

William H. Payne
13015 Calle de Sandias NE
Albuquerque, NM 87111

I HEREBY CERTIFY that a true copy of the foregoing pleading was mailed on November 29, 2001 to

Michael H Hoses
Assistant US Attorney
P0 Box 607
Albuquerque, New Mexico 87103

W. John Brennan
Chief District Judge, Division XIV
P.O. Box 488
Albuquerque, New Mexico 87103
841-7499

Patricio Serna
Chief judge
Supreme Court of New Mexico
POB 848
Santa Fe, New Mexico 87504-0848

James A Parker
Chief judge
United States District Court
333 Lomas NW.
Albuquerque, New Mexico 87103

THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO

ARTHUR R. MORALES AND
WILLIAM H. PAYNE,

Plaintiffs,

v Civil No. 01-1198 Dee Vance Benson

JOHN J ZAVITZ, WILLIAM F. DOWNES, and
FRENCH & ASSOCIATES, P.C.

Defendants.

RESPONSE TO DEFENDANT JOHN W. ZAVITZ’ MOTION TO DISMISS BASED ON ABSOLUTE IMMUNITY

1 Assistant US Attorney Michael Hoses writes

COMES NOW Defendant John W. Zavitz, by and through Assistant United States Attorney Michael H. Hoses and moves the Court for an Order dismissing Plaintiffs’ Complaint and cause of action with prejudice based on the following:

Defendant John W. Zavtiz is entitled to absolute quasi-judicial immunity based on the actions alleged against him.

In support of this Motion, Defendant Zavitz respectfully refers the Court to his Memorandum filed concurrently herewith.

Plaintiffs have been contacted in the past for concurrence on similar motions and concurrence has never been granted. Therefore, it is assumed Plaintiffs oppose this Motion. WHEREFORE, Defendant John W. Zavitz prays that the Court dismiss Plaintiffs’ Complaint and cause of action with prejudice.

2 Federal local rules of civil procedure 83.4, Entry of Appearance, states

(a) Individual Attorney. An attorney must enter an appearance or obtain leave of the Court to sign and file any pleading, motion or other paper. To enter an appearance, an attorney must: be eligible to appear under D.N.M.LR-Civ. 83.2 or 83.3; and sign the initial pleading filed on behalf of a party and file a written entry of appearance which includes the attorney's name, address, and telephone number.

(b) Appearance by Member of a Law Firm. Entry of appearance by one member of a law firm in an action allows any member of that firm to participate in the action; however, each attorney in the firm wishing to receive papers from the Clerk must make a written entry of appearance in the action.

The word MUST in " An attorney must enter an appearance or obtain leave of the Court to sign and file any pleading, motion or other paper." is quite clear. The docket sheet for the case shows NO ENTRY OF APPEARANCE for Michael H. Hoses. Exhibit A.

3 Michael H. Hoses has no standing in this lawsuit.

4 Hoses' DEFENDANT JOHN W. ZAVITZ’ MOTION TO DISMISS BASED ON ABSOLUTE IMMUNITY creates the appearance that a federal court is merely a tool of the Justice Department to do what it wants irrespective of court rules. It creates an appearance of a conspiracy between the federal court system and the Department of Justice to subvert justice by ignoring rules.

Further, no citizen can be above laws of their state. Zavits and other defendants got caught in writing violating New Mexico state laws. They must be brought to justice.

5 WHEREFORE strike docket entries 11 and 12 from the docket as unauthorized and illegitimate entries.

Michael H. Hoses has been advised by phone that if he does not respond by l 14:00 November 29, 2001 to withdraw DEFENDANT JOHN W. ZAVITZ’ MOTION TO DISMISS BASED ON ABSOLUTE IMMUNITY and accompanying MEMORANDUM he will face Rule 11 sanctions motion.

Respectfully submitted,

Arthur R. Morales
1024 Los Arboles NW
Albuquerque, NM 87107

William H. Payne
13015 Calle de Sandias NE
Albuquerque, NM 87111

I HEREBY CERTIFY that a true copy of the foregoing pleading was mailed on November 29, 2001 to

Michael H Hoses
Assistant US Attorney
P0 Box 607
Albuquerque, New Mexico 87103

W. John Brennan
Chief District Judge, Division XIV
P.O. Box 488
Albuquerque, New Mexico 87103
841-7499

Patricio Serna
Chief judge
Supreme Court of New Mexico
POB 848
Santa Fe, New Mexico 87504-0848

James A Parker
Chief judge
United States District Court
333 Lomas NW.
Albuquerque, New Mexico 87103

THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

ARTHUR R. MORALES AND
WILLIAM H. PAYNE,

Plaintiffs,

v Civil No. 01-1198 Dee Vance Benson

JOHN J ZAVITZ, WILLIAM F. DOWNES, and
FRENCH & ASSOCIATES, P.C.

Defendants.

MOTION FOR SANCTIONS AGAINST CHRISTINA E ANAYA AND FRENCH AND ASSOCIATES FOR FILING MOTION AND MEMORANDUM TO DISMISS

1 Sanction law firm of French and Associates for failing to file Entry of Appearance as required by Federal local rules of civil procedure 83.4. And for French and Associates filing MOTION AND MEMORANDUM TO DISMISS which is frivolous and is being presented for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.

MEMORANDUM SUPPORTING MOTION FOR SANCTIONS AGAINST CHRISTINA E ANAYA AND FRENCH AND ASSOCIATES FOR FILING MOTION AND MEMORANDUM TO DISMISS

1 French and Associates file below MOTION and MEMORANDUM show on the docket as

10/22/01 10/23/01 5 MEMORANDUM by defendant French & Associates in support of motion to dismiss [4-1] (vv) (318k) Re: MOTION to dismiss [4]

10/22/01 10/23/01 4 MOTION by deft French & Associates to dismiss (vv) (35k) Re: RESPONSE [15] MEMORANDUM [5]

These docket references are seen in Exhibit A.

2 Federal local rules of civil procedure 83.4, Entry of Appearance, states

(a) Individual Attorney. An attorney must enter an appearance or obtain leave of the Court to sign and file any pleading, motion or other paper. To enter an appearance, an attorney must: be eligible to appear under D.N.M.LR-Civ. 83.2 or 83.3; and sign the initial pleading filed on behalf of a party and file a written entry of appearance which includes the attorney's name, address, and telephone number.

(b) Appearance by Member of a Law Firm. Entry of appearance by one member of a law firm in an action allows any member of that firm to participate in the action; however, each attorney in the firm wishing to receive papers from the Clerk must make a written entry of appearance in the action.

The word MUST in " An attorney must enter an appearance or obtain leave of the Court to sign and file any pleading, motion or other paper." is quite clear.

The docket sheet for the case shows NO ENTRY OF APPEARANCE for Christina E Anaya, Stephen G French, or French and Associates, P.C. Exhibit A.

3 "Stephen G French has been given until 13:30 November 29, 2001 to respond by telephone telling plaintiffs that French and Anaya will withdraw filing or face Rule 11 sanctions motion."

11/29/01 11/30/01 15 RESPONSE by pltfs to notice of completion of briefing package for deft French's motion to dismiss [4-1] (bap) (65k) Re: MOTION to dismiss [4]

French does not respond.

4 Rule 11(b). Signing of Pleadings, Motions, and Other Papers; Representations to Court; Sanctions state in Federal Rules of Civil Procedure,

(b) Representations to Court.

By presenting to the court (whether by signing, filing, submitting, or later advocating) a pleading, written motion, or other paper, an attorney or unrepresented party is certifying that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances,--

(1) it is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation;

(2) the claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law;

(3) the allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery; and

(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief.

French and Associates, Stephen G French, and Christina E Anaya submitted improper MOTION TO DISMISS and associated MEMORANDUM in violation of Federal local rules of civil procedure 83.4.

5 Rule 11(c) goes on to state

(c) Sanctions.

If, after notice and a reasonable opportunity to respond, the court determines that subdivision (b) has been violated, the court may, subject to the conditions stated below, impose an appropriate sanction upon the attorneys, law firms, or parties that have violated subdivision (b) or are responsible for the violation.

(1) How Initiated.

(A) By Motion. A motion for sanctions under this rule shall be made separately from other motions or requests and shall describe the specific conduct alleged to violate subdivision (b). It shall be served as provided in Rule 5 , but shall not be filed with or presented to the court unless, within 21 days after service of the motion (or such other period as the court may prescribe), the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected. If warranted, the court may award to the party prevailing on the motion the reasonable expenses and attorney's fees incurred in presenting or opposing the motion. Absent exceptional circumstances, a law firm shall be held jointly responsible for violations committed by its partners, associates, and employees.

(B) On Court's Initiative. On its own initiative, the court may enter an order describing the specific conduct that appears to violate subdivision (b) and directing an attorney, law firm, or party to show cause why it has not violated subdivision (b) with respect thereto.

(2) Nature of Sanction; Limitations. A sanction imposed for violation of this rule shall be limited to what is sufficient to deter repetition of such conduct or comparable conduct by others similarly situated. Subject to the limitations in subparagraphs (A) and (B), the sanction may consist of, or include, directives of a nonmonetary nature, an order to pay a penalty into court, or, if imposed on motion and warranted for effective deterrence, an order directing payment to the movant of some or all of the reasonable attorneys' fees and other expenses incurred as a direct result of the violation.

(A) Monetary sanctions may not be awarded against a represented party for a violation of subdivision (b)(2).

(B) Monetary sanctions may not be awarded on the court's initiative unless the court issues its order to show cause before a voluntary dismissal or settlement of the claims made by or against the party which is, or whose attorneys are, to be sanctioned.

(3) Order. When imposing sanctions, the court shall describe the conduct determined to constitute a violation of this rule and explain the basis for the sanction imposed.

6 Docket as of January 9, 2002 show that French and Associates failed to make and entry of appearance and withdraw motion to dismiss.

More than 21 days, as required in Rule 11 has elpased as required by Rule 11 c(1)(A). Therefore this motion for sanctions is applicable and warranted.

7 Lawyers French and Anaya write in their motion, docket entry 4, Exhibit A

Defendant French & Associates, P.C., by and through French & Associates, P.C. (Stephen G. French, Esq. and Christina B. Anaya, Bsq.) and pursuant to Fed.R.Civ.P. 12(b)(6) and D.N.M.LR-Civ. 7, respectfully requests that this Court grant its Motion to Dismiss.

does not apply since French and Anaya never filed Entry of Appearance as required by Federal local rules of civil procedure 83.4.

French and Anaya's filing is therefore frivolous and is being presented for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.

8 Lawyers French and Anaya write in their motion

As required by D.N.M.LR-Civ. 7.4(a), the undersigned counsel wrote a letter to each of the pro se Plaintiffs to determine if they opposed or concurred with the instant Motion. Plaintiffs have not responded and French & Associates, P.C., therefore assumes they oppose the filing of this Motion.

Plaintiffs are not required to respond to individuals who have not standing in this case. And plaintiffs purposely did not respond.

French and Anaya's letter is therefore frivolous and is being presented for an improper purpose, to harass, to cause unnecessary delay and needlessly increase in the cost of litigation. French and Anaya's letter is a legal contention unwarranted by existing law. French and Anaya failed to file Entry of Appearance as required by Federal local rules of civil procedure 83.4.

9 Lawyers French and Anaya write in their motion

WHEREFORE, Defendant French & Associates, P.C., respectfully requests that this Court grant its Motion to Dismiss, dismiss all of Plaintiffs' claims against it with prejudice, award French & Associates, P.C., its attorney's fees and costs, and order all other relief this Court deems just and proper.

French and Anaya failed to file Entry of Appearance as required by Federal local rules of civil procedure 83.4. French and Anaya cannot, according to court rules, move to dismiss. French and Anaya's claim is therefore frivolous and is being presented for an improper purpose, to harass, to cause unnecessary delay and needlessly increase in the cost of litigation. Instead of awarding French and Associates, P. C. attorney's fees and cost, this court must levy heavy sanctions on French and Associates, P. C. as required by Rules 11 c(1)(A).

Absent exceptional circumstances, a law firm shall be held jointly responsible for violations committed by its partners, associates, and employees.

10 Lawyers French and Anaya write in their MEMORANDUM, Exhibit A, entry 5,

Defendant French & Associates, P.C., by and through French & Associates, P.C. (Stephen G. French, Esq. and Christina E. Anaya, Esq.), states as follows for its Memorandum in Support of its Motion to Dismiss:

STANDARD OF REVIEW

In ruling on a motion to dismiss, courts must accept the complaint's factual allegations as true and draw all reasonable inferences in favor of the plaintiff. See Jenkins v. MeKeithen, 395 U.S. 411, 421, reh'g denied, 396 U.S. 869 (1969); Housing Authority of the Kaw Tribe v. City of Ponca City, 952 F.2d 1183, 1187 (10th Cir. 1991), cert. denied, 504 U.S. 912 (1992). The question is not whether the plaintiff will ultimately prevail but whether the allegations entitle plaintiffs to offer evidence to support his claim. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). These deferential rules, however, do not allow this Court to assume that a plaintiff "can prove facts that he has not alleged or that the defendants have violated the . . . laws in ways that have not been alleged." Associated General Contractors of California. Inc. v. California State Council of Carpenters, 459 U.S. 519, 526 (1983). Ultimately, the complaint cannot be dismissed unless it appears beyond doubt that the plaintiff can prove no set of facts which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957).

In evaluating a motion to dismiss, a court is usually restricted to the pleadings. However, a court may consider "matters of public record, orders, items appearing in the record of the case, and exhibits attached to the complaint." 5A Charles Alan Wright & Arthur Miller, Federal Practice and Procedure § 1357 (2d ed. 1990). In fact, exhibits attached to the complaint become a part thereof and must be considered by the court. See Oxendine v. Kaplan, 241 F.3d 1272, 1275 (10th Cir. 2001); Fed. R. Civ. P. 10(c) ("A copy of any written instrument which is an exhibit to a pleading is a part thereof for all purposes."); Fuller's Car Wash. Inc. v. Liberty Mut. Ins. Co., 698 N.E.2d 237, 240 (Ill. App. Ct. 1998). When allegations in a complaint are contradicted by attached exhibits, the plain meaning of the exhibits controls and may be the basis for a motion to dismiss. See Southeast Med. Prods.. Inc. v. Williams, 718 So.2d 306, 307 (Fla. Dist. Ct. App. 1998). Even if a document is not attached to the complaint as long as the plaintiff refers to it in the complaint and it is central to the plaintiff's claim, "a defendant may submit an indisputably authentic copy to the court to be considered on a motion to dismiss." Prager v. LaFaver, 180 F.3d 1185, 1189 (l0~ Cir.) (internal quotation marks and citations omitted), cert. denied, 528 U.S. 967 (1999).

First, the court has no jurisdiction over this case as evidenced by non-response of judge Dee Vance Benson and James A Parker, Exhibit A, entry 16.

Second, French and Anaya failed to file Entry of Appearance as required by Federal local rules of civil procedure 83.4. French and Anaya cannot, according to court rules, file MEMORANDUM. New Mexico state court has jurisdiction.

In New Mexico state court defendant cannot move to dismiss except for reason of improper pursuit of case in court.

11 Lawyers French and Anaya write in their MEMORANDUM

In addition, because the Plaintiffs in this case are appearing pro Se, the Court must keep in mind additional considerations while reviewing a motion to dismiss. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).

A pro se litigant's pleadings are to be construed liberally and held to a less stringent standard than formal pleadings drafted by lawyers. We believe that this rule means that if the court can reasonably read the pleadings to state a valid claim on which the plaintiff could prevail, it should do so despite plaintiffs failure to cite proper legal authority, his confusion of various legal theories, his poor syntax and sentence construction, or his unfamiliarity with pleading requirements. At the same time, we do not believe it is the proper function of the district court to assume the role of advocate for the pro se litigant. The broad reading of the plaintiff's complaint does not relieve the plaintiff of the burden of alleging specific facts on which a recognized legal claim could be based . . . . [Conclusory allegations without supporting factual averments are insufficient to state a claim on which relief can be based. This is so because a pro se plaintiff requires no specialized legal training to recount the facts surrounding his alleged injury, and he must provide such facts if the court is to determine whether he makes out a claim on which relief can be granted. Moreover, in analyzing the sufficiency of the plaintiff's complaint, the court need accept as true only the plaintiff's well-pleaded factual contentions, not his conclusory allegations.

Id. at 1110 (citations and footnote omitted); see Ogden v. San Juan County, 32 F.3d 452, 455 * (10th Cir. 1994) (stating that while courts are obligated to construe pro se pleadings liberally, "an appellant's pro se status does not excuse the obligation of any litigant to comply with the fundamental requirements of the Federal Rules of Civil and Appellate Procedure."), cert. denied, 513 U.S. 1090 (1995); United States v. Pinkey, 548 F.2d 305, 311 (10th Cir. 1977) ("He who proceeds pro se with full knowledge and understanding of the risks does so with no greater rights than a litigant represented by a lawyer, and the trial court is under no obligation to become an 'advocate' for or to assist and guide the pro se layman through the trial thicket.").

Pro se plaintiffs follow court rules to best of their ability. Law firm French and Associates, P. C. flaunt ignoring court rules by not filing Entry of Appearance as required by Federal local rules of civil procedure 83.4. French and Associates, P. C. have established pattern and practice of rule 11 violation. MOTION FOR SANCTION FOR FILING FRAUDULENT CIVIL COVER SHEET, Exhibit B, AND MOTION FOR SANCTIONS AGAINST CHRISTINA E ANYA AND FRENCH AND ASSOCIATES FOR PERJURY, Exhibit C.

Such repeated flagrant violation of court decorum warrants great financial sanctions against French and Associates, P. C.

12 Lawyers French and Anaya write in their MEMORANDUM

As stated in the Complaint, the facts for the purposes of this Motion are as follows:

On September 14, 2001, Plaintiffs filed suit against various defendants, including Second Judicial District Court Judge Ted Baca. See Complaint for Relief from Conspiracy of Harassment and Perjury, p. 2, 6 ("Complaint") and Exhibit C attached thereto. French & Associates, P.C. conspired with others to commit the felony of perjury and to harass Plaintiffs. See Complaint, p. 3, 2, p. 4, 9 and p. 5, 13-14. Plaintiffs also appear to be alleging that French & Associates, P.C. acted maliciously against Plaintiffs in the course of defending Judge Baca Based on the above claims, Plaintiffs seek $53,200 in actual damages and $4,200,000 in punitive damages from French & Associates, P.C.. Complaint, p. 6 (prayer for relief).

Even accepting the well-pleaded factual allegations in Plaintiffs' Complaint as true for purposes of this Motion only, Plaintiffs have failed to state a claim upon which relief can be granted. New Mexico has not recognized a civil cause of action for perjury and harassment. Therefore, Plaintiffs' claims for civil conspiracy fail. Likewise, New Mexico has not recognized the tort of "malicious defense." For the foregoing reasons, the Court should grant French & Associates, P.C.'s Motion to Dismiss.

French and Associates argument is truly absurd to be making before this court for the reason

A This court has no jurisdiction to consider this argument

B The statement

Even accepting the well-pleaded factual allegations in Plaintiffs' Complaint as true for purposes of this Motion only, Plaintiffs have failed to state a claim upon which relief can be granted. New Mexico has not recognized a civil cause of action for perjury and harassment.

and

Likewise, New Mexico has not recognized the tort of "malicious defense." For the foregoing reasons, the Court should grant French & Associates, P.C.'s Motion to Dismiss.

indicates that French and Associates are trying to make an argument about New Mexico state law a federal judge in Utah. This belongs is New Mexico state court. This is frivolous and warrant the gravest monitory sanctions to prevent other law firms from trying similar tactics.

Plaintiff and this court have had enough.

For the reasons given in A and B above, what French and Associates write

In their Complaint, Plaintiffs allege that French & Associates, P.C. conspired with others to commit the felony of perjury and to harass Plaintiffs. To establish French & Associates, P.C. 's liability for a civil conspiracy Plaintiffs need to allege

(1) that a conspiracy between two or more individuals existed; (2) that specific wrongful acts were carried out by the defendants pursuant to the conspiracy; and (3) that the plaintiff was damaged as a result of such acts." Silva v. Town of Springer, 1996 -NMCA-022, 25, 121 N.M. 428, 912 P.2d 304. Unlike a conspiracy in the criminal context, a civil conspiracy by itself is not actionable, nor does it provide an independent basis for liability" 'unless a civil action in damages would lie against one of the conspirators."' Armijo v. National Sur. Corp., 58 N.M. 166, 178, 268 P.2d 339, 347 (1954) (quoting Pullen v. Headberg, 53 Cob. 502, 127 P. 954, 955 (1912)). A civil conspiracy must actually involve some independent, unlawful act that causes harm-- something that would give rise to a civil action on its own. See Las Luminarias of the New Mexico Council of the Blind v. Isengard, 92 N.M. 297, 300, 587 P.2d 444, 447 (Ct. App. 1978). ... The purpose of a civil conspiracy claim is to impute liability to make members of the conspiracy jointly and severally liable for the torts of any of its members. See Beck v. Prupis, 162 F.3d 1090, 1099 n. 18 (11th Cir. 1998) (citing W. Page Keeton et al., Prosser and Keaton on the Law of Torts § 46 (5th ed. 1984)). Without an actionable civil case against one of the conspirators, however, an agreement, no matter how conspiratorial in nature is not a separate, actionable offense. See Armijo, 58 N.M. at 177, 268 P.2d at 346.

Ettenson v. Burke, 2001-NMCA-003, 12, 130 N.M. 67, 17 P.3d 440, 445 (2000) (emphasis added), cert denied, 130 N.M. 153, 20 P.3d 810 (2001). New Mexico law does not recognize civil causes of action for perjury or harassment. Therefore, there is no independent unlawful act in this case upon which Plaintiffs can predicate their civil conspiracy claims. See id.

A. NEW MEXICO LAW DOES NOT RECOGNIZE A CIVIL CAUSE OF ACTION FOR PERJURY

Plaintiffs' claim that French & Associates, P.C. conspired with others to commit the felony of perjury should be summarily dismissed because New Mexico law does not provide for a private civil cause of action for perjury. Under New Mexico's Criminal Code,

[p]erjury consists of making a false statement under oath or affirmation, material to the issue or matter involved in the course of any judicial, administrative, legislative or other official proceeding, knowing such statement to be untrue.

Whoever commits perjury is guilty of a fourth degree felony.

NMSA 1978, § 30-25-1. NMSA, § 30-25-1 is a criminal statute which does not grant Plaintiffs a private right of action. Moreover, French & Associates, P.C. s research did not reveal any reported New Mexico case recognizing perjury as a tort. Because perjury does not give rise to a civil action on its own, Plaintiffs cannot predicate a cause of action for civil conspiracy on allegations of perjury. Ettenson, 2001 NMCA-003, 12, 130 N.M. 67, 17 P.3d at 445.

Therefore, Plaintiffs' claim that French & Associates, P.C. conspired with others to commit perjury should be dismissed with prejudice.

B. NEW MEXICO LAW DOES NOT RECOGNIZE A CIVIL CAUSE OF ACTION FOR HARASSMENT

Plaintiffs' claim that French & Associates, P.C. conspired with others to harass Plaintiffs should also be summarily dismissed because New Mexico law does not provide for a private civil cause of action for harassment. Under New Mexico's Criminal Code,

A. Harassment consists of knowingly pursuing a pattern of conduct that is intended to annoy, seriously alarm or terrorize another person and that serves no lawful purpose. The conduct must be such that it would cause a reasonable person to suffer substantial emotional distress.

B. Whoever commits harassment is guilty of a misdemeanor.

NMSA 1978, § 30-3A-2. NMSA, § 30-3A-2 is a criminal statute which does not grant Plaintiffs a private right of action. Moreover, French & Associates, P.C. 's research did not reveal any reported new case recognizing harassment as a tort. Because harassment does not give rise to a civil action on its own, Plaintiffs cannot predicate a cause of action for civil conspiracy on allegations of harassment. Ettenson, 2001 NMCA-003, 12, 130 N.M. 67, 17 P.3d at 445. Therefore, Plaintiffs' claim that French & Associates, P.C. conspired with others to harass them should be dismissed with prejudice.

Ill. FRENCH & ASSOCIATES, P.C. HAS AN ABSOLUTE PRIVILEGE TO DEFEND ITS CLIENT IN JUDICIAL PROCEEDINGS

Liberally construed, the facts alleged in Plaintiffs' Complaint appear to allege that French & Associates, P.C. committed a tort by defending its client, Judge Ted Baca. The State of New Mexico has not recognized the tort of "malicious defense." New Mexico has not recognized this tort. Moreover, the overwhelming majority of states to consider whether such a tort should exist have concluded that it should not; that Rule 11- type sanctions are the appropriate means of addressing frivolous pleadings and motions. See Wilkinson v. Shoney's. Inc., 4 P.3d 1149, 1159 (Kan. 2000); Potter. Prescott. Jamieson & Nelson. P.A. v. Campbell, 708 Aa.2d 283, 286 (Maine 1998); Hostetter v. Hartford Ins. Co., 1992 WL 179423 (Del. Super. 1992); California Physicians' Service v. Superior Court, 12 Cal.Rptr.2d 95, 96 (Cal. App. 1992); Smith v. Barrett, 788 P.2d 324, 326 (Mont. 1990); see also Craig, Malicious Defense, 13 No. 16 Mealey's Litig. Rep. Bad Faith 25 (Dec. 21, 1999) (stating that Rule 11 sanctions are adequate to prevent improper defensive actions; defenses must be imposed before complete discovery is made; and that to recognize such a tort would foster additional litigation); but see Aranson v. Schroeder, 671 A.2d 1023 (1995).

In California Physicians' Service v. Superior Court, the court gave the following explanation as to whey the tort of malicious defense should not be recognized:

The policy of the rule [that there is no tort of malicious defense] is obvious. If the wrongful conduct of a defendant causing the plaintiff to sue him would give rise to an independent tort and a separate cause of action, there would be no end to the litigation, for immediately upon the entry of judgment the plaintiff would start another action. . . . Under our jurisprudence, the defendant may present any defense . . . that he may have or that he may deem expedient, and in doing so, he will not be subjecting himself to a second suit by the plaintiff based on the wrongful conduct of the defendant in causing the plaintiff to sue him or in defending the action. The rule is the same even though the wrongful conduct of the defendant is willful, intentional, malicious or fraudulent.

12 Cal.Rptr.2d at 97(internal quotations omitted).

The concerns expressed by the court in California Physicians' Service v. Superior Court about recognizing the tort of malicious defense have come to fruition in this case and the cases related to it. French & Associates, P.C. was engaged as counsel for Judge Ted Baca in a case where Plaintiffs alleged that Judge Baca made improper rulings. One of Plaintiffs' claims against Judge Baca was that he violated their constitutional rights under the United States Constitution to a jury trial. Based on this claim, French & Associates, P.C. removed the case to federal court and filed a Motion to Dismiss the Complaint on the basis of absolute immunity. French & Associates, P.C. also filed a Motion for Protective Order Staying Discovery. French & Associates, P.C. also sent a letter to Plaintiffs urging them to withdraw their Complaint against Judge Baca or the firm would prepare a Motion for Rule 11 Sanctions. Plaintiffs are now suing French & Associates, P.C. for providing a defense for Judge Baca. If this Court were to permit Plaintiffs to pursue a malicious defense claim, there is a strong possibility that Plaintiffs would sue French & Associates, P.C. for filing this Motion in defense of itself. Such conduct must be summarily rejected.

Critically, even if this Court were to recognize the tort of malicious defense, it is clear that Plaintiffs' allegations fail to meet the tort's requirements. According to Aranson v. Schroeder, which is the only case that has recognized the tort, the elements of malicious defense are:

One who takes an active part in the initiation, continuation, or procurement of the defense of a civil proceedings is subject to liability for all harm proximately caused, including reasonable attorney's fees, if

(a) he or she acts without probable cause, i.e., without any credible basis in fact and such action is not warranted by existing law or established equitable principles or a good faith argument for the extension, modification, or reversal of existing law,

(b) with knowledge or notice of the lack of merit in such actions,

(c) primarily for a purpose other than that of securing the proper adjudication of the claim and defense thereto, such as to harass, annoy or injure, or to cause unnecessary delay or needless increase in the costs of litigation,

(d) the previous proceedings are terminated in favor of the party bringing the malicious defense action, and

(e) injury or damage is sustained.

671 A.2d at 1028-29 (emphasis added).

Plaintiffs cannot meet the elements of the tort of malicious defense, because the proceedings for which they seek redress — i.e., Plaintiffs' case against Judge Baca — is still pending. Unless, and until, they prevail on the claims set forth in their case against Judge Baca, Plaintiffs cannot bring a lawsuit against French & Associates, P.C. for acts committed in defense of their clients. See Aranson, 671 A.2d at 1029 (requiring that "the previous proceedings are terminated in favor of the party bringing the malicious defense action"). Accordingly, Plaintiffs' lawsuit against French & Associates, P.C. must be dismissed.

IV. CONCLUSION

In their Complaint against French & Associates, P.C.'s client, Judge Ted Baca, Plaintiffs alleged that Judge Baca violated their rights under the United States Constitution to a jury trial.

Because they asserted a federal claim against Judge Baca, French & Associates, P.C. properly removed the case to federal court. French & Associates, P.C. then filed a Motion to Dismiss Plaintiffs' Complaint against Judge Baca on the basis of absolute immunity and a Motion for Protective Order staying discovery. French & Associates, P.C. wrote to Plaintiffs urging them to withdraw their Complaint against Judge Baca and indicating that otherwise French & Associates, P.C. would file a motion for Rule 11 sanctions.

Unhappy with this firm's vigorous defense of Judge Baca, Plaintiffs sued French & Associates, P.C. Plaintiffs, however, asserted claims against this firm which are not recognized under New Mexico law. Plaintiffs' Complaint against French & Associates, P. C. should therefore be dismissed with prejudice.

A This court must disregard fillings of French and Associates because they are not a party to this lawsuit and this court does not have jurisdiction.

French and Associates must PUNISHED WITH THE HARSHEST OF FINANCIAL SANCTIONS to prevent the chilling effect of misuse of federal courts.

B The French and Associates removal of this case to federal court was erroneously based on the claim plaintiffs' request for trial was meant for state court not federal.

Because they asserted a federal claim against Judge Baca, French & Associates, P.C. properly removed the case to federal court.

Law firm French and Associates, P. C. flaunt ignoring court rules by not filing Entry of Appearance as required by Federal local rules of civil procedure 83.4. French and Associates have no standing in this lawsuit to file MEMORANDUM.

C This court does not have jurisdiction. French and Associates continues to try to make state legal arguments to a federal court without jurisdiction.

D French and Associates got caught in demonstration of pattern of crimes committed IN WRITING as evidenced in the documents seen in Exhibit B and C.

E Law firm French and Associations, P.C flaunt ignoring court rules by not filing ENTRY OF APPEARANCE as required by federal local rules of civil procedure 83.4. French and Associates have no standing to file in federal court for this lawsuit.

13 French and Associates are not only violate court rules but are criminals by an attempt to get out of their crime by having this court, which does not have jurisdiction, dismiss a STATE COMPLAINT.

14 French and Associates write

WHEREFORE, Defendant French & Associates, P.C. respectfully requests that the Court grant its Motion to Dismiss; dismiss Plaintiffs' Complaint against it with prejudice, award French & Associates, P.C. its attorney's fees and costs and order all other relief this Court deems just and proper.

must be rejected as an attempt to have a federal court without jurisdiction dismiss and state complaint. Then attempt to have plaintiffs pay for their action.

15 WHEREFORE instead sanctions of $2,400,000 must be levied against French and Associates in an attempt to prevent any lawyers or law firms from trying such a blatant and absurd defense of their criminal acts.

Plaintiffs ask for labor and filing costs to respond to filing of French and Associates. Exhibit A, docket entry 15

11/29/01 11/30/01 15 RESPONSE by pltfs to notice of completion of briefing package for deft French's motion to dismiss [4-1] (bap) (65k) Re: MOTION to dismiss [4]

$400 and this filing, $600.

Respectfully submitted,

Arthur R. Morales
1024 Los Arboles NW
Albuquerque, NM 87107

William H. Payne
13015 Calle de Sandias NE
Albuquerque, NM 87111

I HEREBY CERTIFY that a true copy of the foregoing pleading was mailed on January 9, 2002 to

French and Associates, P.C.
500 Marguette Ave N.W., Suite 600
Albuquerque, New Mexico
505 843 7075

Michael H Hoses
Assistant US Attorney
P0 Box 607
Albuquerque, New Mexico 87103

W. John Brennan
Chief District Judge, Division XIV
P.O. Box 488
Albuquerque, New Mexico 87103
841-7499

Patricio Serna
Chief judge
Supreme Court of New Mexico
POB 848
Santa Fe, New Mexico 87504-0848

James A Parker
Chief judge
United States District Court
333 Lomas NW.
Albuquerque, New Mexico 87103

William F. Downes
Chief Judge; Wyoming
111 South Wolcott
Room 210
Casper, WY 82601
(307) 261-5441

http://www.geocities.com/CapitolHill/Congress/8327/

THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO

ARTHUR R. MORALES AND
WILLIAM H. PAYNE,

Plaintiffs,

v Civil No. 01-1198 Dee Vance Benson

JOHN J ZAVITZ, WILLIAM F. DOWNES, and
FRENCH & ASSOCIATES, P.C.

Defendants.

NOTICE OF NON-RESPONSE OF JUDGES DEE VANCE BENSON AND JAMES A PARKER FOR NOTICE OF REQUEST FOR ANTI-INJUNCTION ACT JUSTIFICATION FOR REMOVAL OF NEW MEXICO CASE CV-200106293 TO FEDERAL COURT

1 Plaintiffs file NOTICE OF REQUEST FOR ANTI-INJUNCTION ACT JUSTIFICATION FOR REMOVAL OF NEW MEXICO CASE CV-200106293 TO FEDERAL COURT on November 8, 2001. Exhibit A, docket entry 9, arrow 1.

2 Plaintiffs state and ask

11 28 USC Sec. 2283 states

Anti-Injunction Act is a complete prohibition against a federal court injunction of state court proceeding unless the injunction fall within one of the exceptions specifically set forth in the statute.

12 WHEREFORE judge Dee Vance Benson and judge James A Parker are both asked to send plaintiffs AFFIDAVITS justifying injunction of New Mexico CV- 200106293 by Friday November 23, 2001.

How do harassment and perjury "fall within one of the exceptions specifically set forth in the statute?"

13 If no justification can be formed and referenced then the This Court should remand case to state court BY NOVEMBER 23, 2001.

3 AFFIDAVIT OF WILLIAM PAYNE

As of November 28 2001 just after mail delivery at about 13:30 I have not received any affidavit from either judges Benson or Parker to comply with the anti-injunction act to show federal exemptions to permit removal of Complaint for relief from Relief from CONSPIRACY OF HARASSMENT AND PERJURY New Mexico state lawsuit CV-200106293 to federal court.

I regard judges Benson's and Parker's inaction as a conspiracy with Assistant US Attorney Michael Hoses, WILLIAM F. DOWNES, and FRENCH & ASSOCIATES, P.C. firm to harass us using federal court. This violates New Mexico state law.

We are unfairly and illegally being denied my right to a jury trial for a prima facie case of from Relief from CONSPIRACY OF HARASSMENT AND PERJURY.

We paid $322 for our right under the New Mexico constitution for this jury trial.

Verification

Under penalty of perjury as provided by law, the undersigned certifies pursuant to 28 USC section 1746 that material factual statements set forth in this pleading are true and correct, except as to any matters therein stated to be information and belief of such matters the undersigned certifies as aforesaid that the undersigned verily believes the same to be true.

SUBSCRIBED, SWORN TO and ACKNOWLEDGED before me this day of _____________

by William H. Payne ________________________________

43 AFFIDAVIT OF ARTHUR R. MORALES

As of November 28 2001 just after mail delivery at about 13:30 I have not received any affidavit from either judges Benson or Parker to comply with the anti-injunction act to show federal exemptions to permit removal of Complaint for relief from Relief from CONSPIRACY OF HARASSMENT AND PERJURY New Mexico state lawsuit CV-200106293 to federal court.

I regard judges Benson's and Parker's inaction as a conspiracy with Assistant US Attorney Michael Hoses, WILLIAM F. DOWNES, and FRENCH & ASSOCIATES, P.C. firm to harass us using federal court. This violates New Mexico state law.

We are unfairly and illegally being denied my right to a jury trial for a prima facie case of from Relief from CONSPIRACY OF HARASSMENT AND PERJURY.

We paid $322 for our right under the New Mexico constitution for this jury trial.

Verification

Under penalty of perjury as provided by law, the undersigned certifies pursuant to 28 USC section 1746 that material factual statements set forth in this pleading are true and correct, except as to any matters therein stated to be information and belief of such matters the undersigned certifies as aforesaid that the undersigned verily believes the same to be true.

SUBSCRIBED, SWORN TO and ACKNOWLEDGED before me this day of _____________

by Arthur R. Morales ________________________________

Notary Public ______________________________________

My Commission Expires:

Respectfully submitted,

Arthur R. Morales 1024 Los Arboles NW Albuquerque, NM 87107

William H. Payne 13015 Calle de Sandias NE Albuquerque, NM 87111

I HEREBY CERTIFY that a true copy of the foregoing pleading was mailed on November 29, 2001 to

Michael H Hoses
Assistant US Attorney
P0 Box 607
Albuquerque, New Mexico 87103

W. John Brennan
Chief District Judge, Division XIV
P.O. Box 488
Albuquerque, New Mexico 87103
841-7499

Patricio Serna
Chief judge
Supreme Court of New Mexico
POB 848
Santa Fe, New Mexico 87504-0848

James A Parker
Chief judge
United States District Court
333 Lomas NW.
Albuquerque, New Mexico 87103

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO

ARTHUR R. MORALES and
WILLIAM H. PAYNE,

Plaintiffs,
                      CIV NO. 01-1198JP/LFG
                      (Judge Benson) vs.

JOHN J. ZAVITS
WILLIAM F. DOWNES
FRENCH & ASSOCIATES PC

Defendants.

DEFENDANT JOHN W. ZAVITZ’ MEMORANDUM IN SUPPORT OF MOTION TO DISMISS BASED ON ABSOLUTE IMMUNITY

INTRODUCTION

Plaintiffs brought this suit alleging claims for damages and other relief against, among others, Assistant U.S. Attorney John J (sic) Zavits (sic)1 based on actions taken by him in connection with pending litigation in other matters before this Court, i.e., Arthur J. Morales and William H. Payne v. Theodore C. Baca. Norman C. Bay. Phyllis A. Dow. Raymond Hamilton. Rodey. Dickason. Sloan. Akin & Robb. P.A.. and Martha Vazpuez, CIV No. 01-0634 WFD/WWD. See Complaint, Ex. I

The acts alleged against Mr. Zavitz include failing to file an Entry of Appearance pursuant to D.N.M.LR-Civ 83.4, Complaint 110 and conspiring to subvert both state

and federal courts using the felony of perjury, Complaint 11142. All of the cited actions were taken in Mr. Zavitz’ official capacity in connection with the defense of Civil No. 01- 0634. Plaintiffs’ claims against Mr. Zavitz are barred by absolute quasi-judicial immunity and should be dismissed.

AUSA JOHN W. ZAVITZ IS ENTITLED TO ABSOLUTE QUASI-JUDICIAL IMMUNITY FOR THE ACTION ASSERTED BY PLAINTIFFS

The Supreme Court and the lower federal courts have extended the absolute immunity available to judges to other persons whose functions are intimately or closely associated with the judicial process, particularly government attorneys, witnesses, and court personnel, such as clerks, reporters, and probation officers. The touchstone for the immunity is whether the activity in question is intimately associated with the judicial process, for it is that process which the immunity protects. See Burns v. Reed, 500 U.S. 478,492(1991). See also Cleavingerv. Saxner, 474 U.S. 193, 200 (1985); Imbler v. Pachtman, 424 U.S. 409, 430 (1976). “Absolute immunity is designed to free the judicial process from the harassment and intimidation associated with litigation.’’ Burns 500 U.S. at 494. It extends only to matters connected with judicial proceedings; it is “not for every litigation-inducing conduct.” Id.

The Supreme Court developed the quasi-judicial immunity doctrine principally in the context of prosecutors See ~ Buckley v. Fitzsimmons, 509 U.S. 259 (1993),

2 Paragraph 14 of Plaintiffs’ complaint relies on two exhibits to the complaint to illustrate that Mr. Zavitz conspired with others to subvert both state and federal courts using the felony of perjury. The exhibits relied on by Plaintiffs include Exhibit G, civil cover Sheet (not signed by Mr. Zavitz) and Exhibit H, receipt from the United States District court in Albuquerque for a filing fee received from French & Associates. A review of these exhibits demonstrates that Mr. Zavitz was not involved in or connected in any to either of these documents. Based on the frivolous, baseless assertion contained in paragraph 14 of Plaintiffs’ complaint, this allegation will not be addressed further in this Memorandum.

Burns v. Reed, 500 U.S. 478 (1991); lmblerv. Pachtman, 424 U.S. 409 (1976). However, the core principle in the Supreme Court’s decisions giving shape to absolute quasi-judicial immunity for prosecutors is the perceived need to provide protection for the judicial process from direct and indirect impairments. Therefore, the touchstone for that immunity is a “functional tie to the judicial process.” Buckley, 509 U.S. at 277. Litigation that would have an untoward effect on the independence of the prosecutor is seen as also impeding the judicial process; consequently the prosecutor is given absolute immunity as a means to protect that process. Kalina v. Fletcher, 522 U.S. 118, 125 (1997); Burns, 500 U.S. at 492; Mallev v. Briags, 475 u.S. 335, 343 (1986). In Buckley, the Supreme Court held that a prosecutor is entitled to absolute immunity when he or she acts as an advocate for the government. 509 U.S. at 276-78. By performing that function, the prosecutor becomes associated with the judicial phase of the criminal process. Imbler, 424 U.S. at 430-31. “[Ajcts undertaken by a prosecutor in preparing for the initiation of judicial proceedings or for trial, and which occur in the course of his role as an advocate for the State, are entitled to the protections of abso- lute immunity.” Buckley, 509 U.S. at 273. This immunity rests on the same rationale as does prosecutorial and other quasi-judicial immunities: the protection of the judicial process from undue interference through damages actions.

The basis for absolute immunity for government attorneys participating in civil proceedings was signaled by the Supreme Court in Butz v. Economou, 438 U.S. 478 (1978). There, in the context of a case concerning administrative enforcement proceedings in which penalties and sanctions could be imposed, the Court said, “[w]e think that adjudication within a federal administrative agency shares enough of the characteristics of the judicial process that those who participate in such adjudication should also be immune from suit for damages.” 438 u.s. at 512-13. That immunity includes agency officials who are responsible for the decision to initiate or continue an administrative proceeding. !~. at 516. As to agency attorneys conducting a trial (or hearing) and presenting evidence, the Court likened their function to that of a prosecutor and held that they were absolutely immune:

We can see no substantial difference between the function of the agency attorney in presenting evidence in an agency hearing and the function of the prosecutor who brings evidence before a court. . .. If agency attorneys were held personally liable in damages as guarantors of the quality of their evidence, they might hesitate to bring forward some witnesses or documents.... We therefore hold that an agency attorney who arranges for the presentation of evidence on the record in the course of an adjudication is absolutely immune from suits based on the introduction of such evidence.

438 U.S. at 516-17.

Although Butz concerned administrative proceedings in which penalties and sanctions could be imposed, giving them a criminal aura, and the Court used the role of the prosecutor for its analogy, nothing in its reasoning precludes its application to government attorneys functioning in proceedings where traditional civil remedies are the outcome. Cf. 438 U.S. at 516 n.40. The judicial process is what is protected by judicial and quasi-judicial immunity, and for immunity purposes there is no principled difference between civil and criminal proceedings.

Several courts of appeals have ruled that the principles outlined in Butz operate to afford absolute immunity to government attorneys who initiate or participate in civil proceedings. The Ninth Circuit explained that protection in Fry v. Melaragno, 939 F.2d 832, 837 (9th Cir. 1991), a case involving Internal Revenue Service attorneys who handled the tax deficiency claim against the plaintiffs in the Tax Court:

We therefore agree with the Second Circuit, as it stated in Barrett v. United States, 798 F.2d 565, 57273 (2d Cir. 1986), that the principles outlined in Butz should a fortiori apply to the government attorney’s initiation and handling of civil litigation in a state or federal court. Whether the government attorney is representing the plaintiff or the defendant, or is conducting a civil trial, criminal prosecution or an agency hearing, absolute immunity is “necessary to assure that. . . advocates. . . can perform their respective functions without harassment or intimidation.” Butz, 438 U.S. at 512, 98 S.Ct. at 2913. Given the similarity of functions of government attorneys in civil, criminal and agency proceedings, and the numerous checks on abuses of authority inherent in the judicial process, we reiterate our statement in Flood v. Harrington, 532 F.2d 1248, 1251 (9th Cir. 1976) that “[tihe reasons supporting the doctrine of absolute immunity apply with equal force regardless of the nature of the underlying action.”

See also Mendenhall v. Goldsmith, 59 F.3d 685 (7th Cir.) (state attorney absolutely immune with respect to filing of an injunction, forfeiture of plaintiffs property, seizure of property subject to forfeiture, and settlement negotiations with plaintiff), cert. denied, 516 U.S. 1011(1995); Saunders v. Bush, 15 F.3d 64, 67 (5th Cir.), cert. denied, 512 U.S. 1207 (1994); Schrob v. Catterson, 948 F.2d 1402, 1412 (3d Cir. 1991); MurDhvv. Morris, 849 F.2d 1101, 1104-05(8th Cir. 1988); Barrett v. United States, 798 F.2d 565, 572-73 (2d Cir. 1986); Samuel v. Michaud, 980 F.Supp. 1381, 1401-1402 (D. Idaho

1996) (civil AUSAs entitled to immunity for alleged use of false declarations and certifications), aff’d, 129 F.3d 127 (9th Cir. 1997); Brven v. Becker, 785 F.Supp. 484, 486-87 (D.N.J. 1991) (“If every government attorney involved in a civil matter were to be subject to suit, and his actions were scrutinized for any possible constitutional error, then the efficacy of these officials would surely be compromised.”), ~ 961 F.2d 207 (3d Cir. 1992).

The basis for absolute immunity for a government attorney handling civil proceedings, then, is the close association of the challenged conduct with the judicial process, and the scope of its protection extends accordingly. This protection is consist- ent with that provided prosecutors, and the rationale for it is the same. Its application is governed essentially by the principles discussed in connection with immunity for prosecutors, suDra. It is the judicial process that is the interest ultimately protected by quasi-judicial immunity in both civil and criminal adjudication. The action of filing motions and supporting memoranda in a lawsuit in U.S. district courts without first filing an entry of appearance was taken by Mr. Zavitz in his capacity as an Assistant United States Attorney and relate to the defense of the action filed by Morales and Payne (Civil No. 01-0634). This act is clearly an integral part of the litigation initiated by Plaintiffs and is entitled to quasi-judicial immunity. As the Second Circuit stated in Barrett v. United States, 798 F.2d at 572:

Although government defense counsel, not having selected the other party as the target of the litigation, is in a more passive position than a prosecutor or plaintiffs representative, he nevertheless functions in an adversarial arena.. .and since he is charged with a public trust he should not be inhibited in the faithful performance of his duties by the theat of harassing lawsuits against him.

The action alleged by Plaintiffs against Mr. Zavitz, failing to file an entry of appearance, should be dismissed based on quasi-judicial immunity.

CONCLUSION

Based on the arguments set out above, this action against John W. Zavitz hould be dismissed with prejudice based on absolute quasi-judicial immunity. Respectfully submitted,

DAVID C. IGLESIAS
United States Attorney

MICHAEL H. HOSES
Assistant U.S. Attorney
P.O. Box 607
Albuquerque, NM 87103
(505) 346-7274

I HEREBY CERTIFY that on November 19th 2001, a true copy of the foregoing pleading was mailed to:

Arthur R. Morales
1024 Los Arboles N.W.
Albuquerque, NM 87107

William H. Payne
13015 Calle de Sandias, N.E.
Albuquerque, NM 87111

Honorable William F. Downes
United States District Judge
111 5. Wolcott, Room 210
Casper, WY 82601

Christina E. Anaya
French & Associates, P.C.
500 Marquette Ave. N.W., Suite 600
Albuquerque, NM 87102

MICHAEL H. HOSES
Assistant U.S. Attorney

THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO

ARTHUR R. MORALES AND WILLIAM H. PAYNE,

Plaintiffs,

v Civil No. 01-1198 Dee Vance Benson

JOHN J ZAVITZ, WILLIAM F. DOWNES, and FRENCH & ASSOCIATES, P.C.

Defendants.

NOTICE OF REQUEST FOR ANTI-INJUNCTION ACT JUSTIFICATION FOR REMOVAL OF NEW MEXICO CASE CV-200106293 TO FEDERAL COURT

1 Plaintiffs files Complaint for relief from Relief from Complaint for Relief from CONSPIRACY OF HARASSMENT AND PERJURY on August 28, 2001. This is NEW MEXICO CASE CV- 200106293.

2 October 16 , 2001 Assistant US Attorney Michael Hoses removes New Mexico CV- 200106293 to federal court

10/16/01 10/16/01 1 NOTICE OF REMOVAL from 2nd Judicial District Court Case Number: 1:01:CV:6293 w/state court complaint (referred to Magistrate Judge Lorenzo F. Garcia) (eg) (72k) Re: ANSWER [3]

Exhibit AA.

3 October 25, 2001 Judge James A Parker orders

10/25/01 10/26/01 6 ORDER OF RECUSAL by Chief Judge James A. Parker reassigning case to Chief Judge Dee V. Benson for the District of Utah (cc: all counsel*) (bap) (8k)

4 History of the now very visible five federal lawsuits seen on internet at

http://www.geocities.com/CapitolHill/Congress/8327/ reveals pattern and practice of judicial and

lawyer misconduct designed to obstruct justice.

Plaintiff Morales and Payne filed suit in New Mexico state court for writ of REPLEVIN and relief from harassment on Oct 20, 2000. This is case cv-200-10289.

One issue was recovery of $625 taken from Morales without due process.

New Mexico federal district court clerk writes Morales,

If you want a hearing, you must notify the court within 20 days after receipt of the notice. Your request must be in writing.

Exhibit D page 2, lines 4 and 5.

Morales requests hearing.

The purpose of this letter is to request a hearing of the sanctions and garnishment against Arthur R. Morales for the following reasons: 1. I do not own money to the Government and 2. I disagree with the reason that the Government gives for taking my property

Exhibit E dated February 12, 1999.

Morales and Payne split the cost of paying the $625. Exhibit B.

Most important is a second issue for an ORDER OF GARNISHMENT for $1,793.56 signed by magistrate judge Don J Svet when there was no cause of action in court. Exhibit J. This ORDER OF GRANISHMENT has never been rescinded and, therefore, is an open issue which has a chilling effect on plaintiffs.

This must be decided by settlement or verdict of jury.

These two, and several others, which are state issues were to be heard in New Mexico state court in a jury trials paid for by plaintiffs.

However, Assistant US Attorney Raymond Hamilton removed cv-200-10289 to federal court. The case was given federal number 00 cv 1574. Replevin and harassment, of course, are not federal questions and no proper justification under 28 USC Sec. 2283, the anti-injunction act has ever been provided by anyone. 5 Judge Parker reassigns case

03/27/01 03/28/01 42 ORDER by Chief Judge James A. Parker that this case has been reassigned to Judge William F. Downes (cc: all counsel by dm) (sl) (22k)

6 William H Payne files Complaint for relief of Defamation and Harssment October 20, 2000. This is New Mexico case New Mexico CV 2000-10278.

One issue is false and defaming documents distributed about Payne without his knowledge. Exhibit A.

A second issue is defendant magistrate judge Lorzeno Garcia ordering sanctions against Payne in Case Number: 99cv00270 Payne v. EEOC et al.

08/05/99 08/05/99 60 ORDER by Magistrate Judge Lorenzo F. Garcia assessing costs in favor of Sandia defts and against pltf in the amount of $912.50 to be paid within twenty (20) days [55-1] (cc: all counsel, electronically) (rd) (8k) Re: NOTICE [55]

after Garcia was remove from case by affidavit.

6/8/99 34 AFFIDAVIT of William H. Payne to remove Magistrate Judge Lorenzo F. Garcia from this action (rd) [Entry date 06/09/99]

on June 8, 1999 about two months before sanctions of $912.50 are awarded. Payne's cannot refinance their home with out paying unwarranted sanctions. Exhibit D.

These are two outstanding issue which must be resolved in New Mexico state court.

7 New Mexico CV 2000-10278 is removed to federal court and given number 00 cv 1677 by Assistant US Attorney Phyllis Dow

11/27/00 11/28/00 1 NOTICE OF REMOVAL from Second Judicial District Court, County of Bernalillo w/copy of Complaint, Jury Demand & exhibits from State Court Case Number: CV-2000-10278 (bap) (80k) Re: ANSWER [14] RESPONSE [11]

Exhibit CC.

Defamation and harassment, of course, are not federal questions and no proper justification under 28 USC Sec. 2283, the anti-injunction act has ever been provided by anyone.

8 Judge James Parker assigns 00 cv 1677 to judge Downes too

03/27/01 03/29/01 69 ORDER by Chief Judge James A. Parker recusing all judicial officers of the District of NM and reassigning case to Chief U.S. District Judge William F. Downes of District of Wyoming (cc: all counsel) (bap) (24k)

9 Judge James A Parker has established pattern and practice of aid in removal of four New Mexico state lawsuit without providing justification of removal under 28 USC Sec. 2283.

10 Judge Downes when he ruled twice on federal 01 cv 0634 which he knew was active New Mexico CV-2001-03118 [see Exhibits DD, EE, FF] was asked to provide affidavit for justification of removal under 28 USC Sec. 2283. When Downes failed to comply, he was sued in New Mexico for harassment and perjury.

11 28 USC Sec. 2283 states

Anti-Injunction Act is a complete prohibition against a federal court injunction of state court proceeding unless the injunction fall within one of the exceptions specifically set forth in the statute.

12 WHEREFORE judge Dee Vance Benson and judge James A Parker are both asked to send

plaintiffs AFFIDAVITS justifying injunction of New Mexico CV- 200106293 by Friday November 23, 2001.

How do harassment and perjury "fall within one of the exceptions specifically set forth in the statute?"

13 If no justification can be formed and referenced then the This Court should remand case to state court BY NOVEMBER 23, 2001.

Respectfully submitted,

Arthur R. Morales
1024 Los Arboles NW
Albuquerque, NM 87107

William H. Payne
13015 Calle de Sandias NE
Albuquerque, NM 87111

I HEREBY CERTIFY that a true copy of the foregoing pleading was mailed on November 8, 2001 to

Michael H Hoses
Assistant US Attorney
P0 Box 607
Albuquerque, New Mexico 87103

W. John Brennan
Chief District Judge, Division XIV
P.O. Box 488
Albuquerque, New Mexico 87103
841-7499

Patricio Serna
Chief judge
Supreme Court of New Mexico
POB 848
Santa Fe, New Mexico 87504-0848

James A Parker
Chief judge
United States District Court
333 Lomas NW.
Albuquerque, New Mexico 87103

Lucius D. Bunton, Senior Judge
P.O. BOX 1774
200 East Wall, Suite 101
Midland, Texas 79702
http://downloads.members.tripod.com/bill_3_2/parker1.html
Exhibit A http://www.nmol.com/users/billp/

THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO

ARTHUR R. MORALES AND
WILLIAM H. PAYNE,

Plaintiffs,

v Civil No. 01-1198 JP/LFG

JOHN J ZAVITZ, WILLIAM F. DOWNES, and
FRENCH & ASSOCIATES, P.C.

Defendants.

NOTICE OF REFUSAL TO PROCEED BEFORE MAGISTRATE JUDGE

1 Local Court rule 73.2 states

Consent to Trial or to Rule on Dispositive Matters. (a) Designation of Magistrate Judge on cases not assigned to the Magistrate Judge Pool. Full-time Magistrate Judges are designated to exercise civil trial jurisdiction and, by consent of all parties, may handle any dispositive matter including trial. (1) Consent to Trial. Consent is to trial by the assigned Magistrate Judge only. (2) Consent to Rule on a Dispositive Matter. Parties may consent to refer any dispositive matter to the assigned Magistrate Judge. (b) Form of Consent. Parties wishing to consent must complete and submit a form, available from the Clerk, entitled "Consent to Proceed Before a United States Magistrate Judge and Order of Reference."

http://www.nmcourt.fed.us/dcdocs/files/lcvrules.html#Consent_to_Trial_or_to_Rule_on_Dispositive_Matt ers

Plaintiffs Morales and Payne DO NOT consent to proceed with magistrate judge.

3 Docket entry 1 in harassing 01 cv 01132 states

09/28/01 10/01/01 1 NOTICE OF REMOVAL from 2nd Judicial Dist with complaint for relief from conspiracy of harassment & perjury Case Number: 1:01:CV:5900 (referred to Magistrate Judge Lorenzo F. Garcia) (vv) (73k) Re: ANSWER [2]

Magistrate Judge Lorenzo F. Garcia is defendant in plaintiffs' related New Mexico state lawsuit civ - 2000 10289.

Garcia's involvement in 01-1198 is improper since Garcia is not an unbiased judge.

4 In an another improperly removed New Mexico state lawsuit renumbered 01cv00634 chief judge James Parker properly recused all judicial officers

06/12/01 06/12/01 16 ORDER by Chief Judge James A. Parker recusing all judicial officers of the District of New Mexico; and reassigning this case to the Hon. William F. Downes, Chief U.S. District Judge District of Wyoming (cc: all counsel*) (sl) (8k)

However, Parker improperly allowed case to be removed from New Mexico to federal court. We continue to hope that Parker realizes that harassmentand perjury are not federal questions. Federal court has no jurisdiction in these matters. Nor has any proper statement that it has been offered. This, of course, is why Wyoming chief judge William F Downes has been sued TWICE in the state of New Mexico for illegally harassing plaintiffs and inteferring the proper New Mexico judicial processing of cases.

5 This Court is notified that it is harassing plaintiff by sending a copy of this NOTICE to chief judge James Parker that it is violating 28 USC Sec. 2283

Anti-Injunction Act is a complete prohibition against a federal court injunction of state court proceeding unless the injunction fall within one of the exceptions specifically set forth in the statute.

6 Discontinue processing 01 cv 01132 as required by 28 USC Sec. 2283.

2 Plaintiffs again objects to the improper removal of New Mexico state lawsuit No. CV- 2001-06239 to federal court.

Harassment and perjury are not federal questions.

Hoses and this court harasses plaintiff using federal court as instrument of harassment.

This Court is notified of this harassment by sending a copy of this DEMAND to chief judge James Parker that it is violating 28 USC Sec. 2283

Anti-Injunction Act is a complete prohibition against a federal court injunction of state court proceeding unless the injunction fall within one of the exceptions specifically set forth in the statute.

3 Discontinue processing 01-1198 as required by 28 USC Sec. 2283.

Respectfully submitted,

Arthur R. Morales
1024 Los Arboles NW
Albuquerque, NM 87107

William H. Payne
13015 Calle de Sandias NE
Albuquerque, NM 87111

I HEREBY CERTIFY that a true copy of the foregoing pleading was mailed on October 25, 2001 to

Michael H Hoses
Assistant US Attorney
P0 Box 607
Albuquerque, New Mexico 87103

W. John Brennan
Chief District Judge, Division XIV
P.O. Box 488
Albuquerque, New Mexico 87103
841-7499

Patricio Serna
Chief judge
Supreme Court of New Mexico
POB 848
Santa Fe, New Mexico 87504-0848

James A Parker
Chief judge
United States District Court
333 Lomas NW.
Albuquerque, New Mexico 87103

THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO

ARTHUR R. MORALES AND
WILLIAM H. PAYNE,

Plaintiffs,

v Civil No. 01-1198 JP/LFG

JOHN J ZAVITZ, WILLIAM F. DOWNES, and
FRENCH & ASSOCIATES, P.C.

Defendants.

DEMAND FOR JURY TRIAL

1 Plaintiff Payne DEMANDS his right guaranteed under Rule 38 of the Rules of Civil Procedure,

Jury Trial of Right

(a) Right Preserved. The right of trial by jury as declared by the Seventh Amendment to the Constitution or as given by a statue of the United States shall be preserved to the parties inviolate.

(b) Demand. Any party may demand a trial by jury of any issue triable of right by jury by serving upon the other parties a demand therefor in writing at any time after the commencement of the action and not later than 10 days after the service of the last pleading directed to such issue. ... 2 Plaintiffs again objects to the improper removal of New Mexico state lawsuit No. CV- 2001-06239 to federal court.

Harassment and perjury are not federal questions.

Hoses and this court harasses plaintiff using federal court as instrument of harassment.

This Court is notified of this harassment by sending a copy of this DEMAND to chief judge James Parker that it is violating 28 USC Sec. 2283 Anti-Injunction Act is a complete prohibition against a federal court injunction of state court proceeding unless the injunction fall within one of the exceptions specifically set forth in the statute. 3 Discontinue processing 01-1198 as required by 28 USC Sec. 2283.

Respectfully submitted,

Arthur R. Morales
1024 Los Arboles NW
Albuquerque, NM 87107

William H. Payne
13015 Calle de Sandias NE
Albuquerque, NM 87111

I HEREBY CERTIFY that a true copy of the foregoing pleading was mailed on October 25, 2001 to

Michael H Hoses
Assistant US Attorney
P0 Box 607
Albuquerque, New Mexico 87103

W. John Brennan
Chief District Judge, Division XIV
P.O. Box 488
Albuquerque, New Mexico 87103 841-7499

Patricio Serna
Chief judge
Supreme Court of New Mexico
POB 848
Santa Fe, New Mexico 87504-0848

James A Parker
Chief judge
United States District Court
333 Lomas NW.
Albuquerque, New Mexico 87103

(b) Representations to Court.

By presenting to the court (whether by signing, filing, submitting, or later advocating) a pleading, written motion, or other paper, an attorney or unrepresented party is certifying that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances,--

(1) it is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation;

(2) the claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law;

(3) the allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery; and

(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief.

(c) Sanctions.

If, after notice and a reasonable opportunity to respond, the court determines that subdivision (b) has been violated, the court may, subject to the conditions stated below, impose an appropriate sanction upon the attorneys, law firms, or parties that have violated subdivision (b) or are responsible for the violation.

(1) How Initiated.

(A) By Motion. A motion for sanctions under this rule shall be made separately from other motions or requests and shall describe the specific conduct alleged to violate subdivision (b). It shall be served as provided in Rule 5 , but shall not be filed with or presented to the court unless, within 21 days after service of the motion (or such other period as the court may prescribe), the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected. If warranted, the court may award to the party prevailing on the motion the reasonable expenses and attorney's fees incurred in presenting or opposing the motion. Absent exceptional circumstances, a law firm shall be held jointly responsible for violations committed by its partners, associates, and employees.

(B) On Court's Initiative. On its own initiative, the court may enter an order describing the specific conduct that appears to violate subdivision (b) and directing an attorney, law firm, or party to show cause why it has not violated subdivision (b) with respect thereto.

(2) Nature of Sanction; Limitations. A sanction imposed for violation of this rule shall be limited to what is sufficient to deter repetition of such conduct or comparable conduct by others similarly situated. Subject to the limitations in subparagraphs (A) and (B), the sanction may consist of, or include, directives of a nonmonetary nature, an order to pay a penalty into court, or, if imposed on motion and warranted for effective deterrence, an order directing payment to the movant of some or all of the reasonable attorneys' fees and other expenses incurred as a direct result of the violation.

(A) Monetary sanctions may not be awarded against a represented party for a violation of subdivision (b)(2).

(B) Monetary sanctions may not be awarded on the court's initiative unless the court issues its order to show cause before a voluntary dismissal or settlement of the claims made by or against the party which is, or whose attorneys are, to be sanctioned.

(3) Order. When imposing sanctions, the court shall describe the conduct determined to constitute a violation of this rule and explain the basis for the sanction imposed.