Petition for Writ of Certiorari — William Kinney, et ux., Petitioners v. Anderson Lumber Company, Inc.

No.

In The

SUPREME COURT OF THE UNITE]) STATES

William Kinney & Margaret Kinney',

Petitioners

vs.

Anderson Lumber Company, Inc.,

Respondent

On Petition For Certiorari To The United States Court

of Appeals for the Sixth Circuit

PETITION FOR A. WRIT OF CERTIORARI

William & Margaret Kinney

2442 Allegheny Loop Road

Maryville, TN 37803

865-7735299

EVED

OCT 162018

OFT-CE OF THE CLERK

SUPREME COURT, U.S.

I

QUESTION PRESENTED FOR REVIEW

Does the post removal statute, Title 28 Section 1447, bar the vacatur of a

remand order obtained by attorney misconduct and fraud? Plaintiffs were

unsuccessful in their attempt aimed at persuading the Sixth Circuit to adopt

the reasoning applied by the Fourth Circuit in the case of Barlow v. Colgate

Palmolive Co. [F. 3d, 2014 WL 66610861, which allowed for vacatur of a remand

order under the same circumstances presented in this appeal.

II

TABLE OF CONTENTS

QUESTIONS PRESENTED ............................................................................i

TABLE OF CONTENTS..................................................................................ii

TABLE OF AUTHORITIES ..........................................................................iii

OPINIONS BELOW ........................................................................... 1

JURISDICTION............................................................................................... I

CONSTITUTIONAL PROVISIONS, AND STATUTES AT ISSUE..........1,2

STATEMENTOF THE CASE ........................................................................2

Facts Giving Rise To This Case ......................................................2

The State Court Proceedings .........................................................3

The District Court Proceedings ...................................................3, 4

The Appellate Court Proceedings ................................................ 6,7

REASONS WHY CERTIORARI SHOULD BE GRANTED

The District Court Exceeded Its Statutory Authority by

Issuing the Remand Sua Sponte ..............................................7, 8

The Remand Order Created Appealable Collateral Issues ......... 8, 9

Review Is Warranted Because Fraud Vitiates Everything ....... 9,10

Review Is Warranted Because Only

This Court Can Decide a Circuit Split.........................................10

CONCLUSION..................................................................................11

APPENDIX.......................................................................................12

Order denying En Banc Review................................................12

Order denying Appeal............................................................13

Remand Order .................................................................. 13, 14

CERTIFICATE OF COMPLIANCE..............................................11

CERTIFICATE OF SERVICE.......................................................11

m

TABLE OF AUTHORITIES

Cases

Barlow v. Colgate Palmolive Co., F.3d, 2014 WL 6661086................6, 8, 10

Kenny v Wal-Mart Stores, Inc., et al., 2018 WL 650998............................7

Thermtron Products, Inc. v. Hermansdorfer, 423 U.S. 336 Id. at 34.........8, 9

Page v. City of Southfield; 45 F.3d 128....................................................8

Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 389-90.............................9

Willy v. Coastal Corp.: 503 U.S. 131, 137................................................9

Schultz v Butcher, 24 F.3d. 626 .............................................................9

Kircher v. Putnam Funds Trust 547 U.S 633, at 634.................................9

Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238.......................6

Demjanjuk v. Petrovsky, 10 F.3d 338, 348................................................4

Serras v. First Tennessee Bank Nat. Assn., 875 F.2d 1212, 1214................3

Statutes

28 U.S. Code § 1254..............................................................................1

28 U.S. Code § 1446.......................................................................2, 6, 7

28 U.S. Code § 1447...................................................................2, 8, 9, 10

42 U.S. Code § 1983..............................................................................2

15 U.S. Code § 1692i.............................................................................4

1

OPINIONS

The order of the United States Court of Appeals for the Sixth Circuit

denying rehearing en banc was filed on July 10, 2018.' The order of the United

States Court of Appeals for the Sixth Circuit denying this appeal was filed on

March 28, 2018.2 The memorandum order of the United States District Court

for the Eastern District of Tennessee, granting Respondent's' Motion to

Remand, was filed on January 9, 2018.3 All of which is reprinted in the

Appendix hereto, pages 12-18.

JURISDICTION

On July 7,2017, Petitioners removed the State case of Anderson Lumber

Co., Inc. v Kinney et al, to the United States District Court for the Eastern

District of Tennessee at Knoxville.4 We alleged, inter alia, that the respondent

and others had violated petitioners First Amendment rights, and the due

process clause and the equal protection clause of the Fourteenth Amendment

to the United States Constitution. On January 9, 2018, the District Court

remanded the case to state court.4 On February 7, 2018, the petitioners timely

filed an appeal with the United States Circuit Court of Appeals for the Sixth

Circuit, which was dismissed on March 28, 2018. Petitioners timely filed a

petition for rehearing en banc with the Sixth Circuit on April 20, 2018, which

was dismissed on July 10, 2018. Petitioners have timely filed this Petition and

the jurisdiction of this Court to review the Judgment of the Sixth Circuit is

invoked under 28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISIONS AND STATUTES AT ISSUE

First Amendment To The United States Constitution.

Fourth Amendment To The United States Constitution.

Fourteenth Amendment To The United States Constitution.

1

Case 185150, DOC 15-1

2

Case 18-5150, DOC 10-2

Case 3:17-cv-00288, DOC 121

Blount County Circuit Court, Equity Division, Maryville, TN, Case No. E-24747.

2

28 U.S. Code § 1254(1)

28 U.S. Code § 1446

28 U.S. Code § 1447

42 U.S. Code § 1983

15 U.S. Code § 1692

Constitutional Provisions and Statutes are re-printed in the appendix pages

14-16.

STATEMENT OF THE CASE

I.

A.

Facts Giving Rise To This Case

On June 12, 2017, Respondent held an expartehearing at state court in

which the Petitioners were denied their rights under the First Amendment,

and under the due process clause and the equal protection clause of the

Fourteenth Amendment to the United States Constitution. At said hearing

Petitioners were prevented from presenting their amended answers and

counterclaims that were previously filed and pending before the state court.

The state court entered an Order dismissing Petitioner Margaret Kinney's

original counterclaim which contained a substantive due process property

interest in the form of compensatory damages, in the approximate amount of

$12,000. On July 7, 2017, pursuant to 28 U.S. Code § 1446(b)(3), Petitioners

removed the state case to Federal Court under 42 U.S. Code § 1983, and the

Fair Debt Collection Practices Act (FDCPA). On August 7, 2017, in violation of

the federal removal statute, respondent held another exparte hearing to set a

trial date at state court. On January 9, 2018, the district court remanded the

case pursuant to 28 U.S. Code § 1447(c), including the FDCPA claim, without

considering the deprivation of our civil and equal rights that occurred at the

exparte hearing held on June 12, 2017, which supported removal of the state

case.

trial date was set by the respondent in state court for October 16, 2018

3

The State Court Proceedings

On November 21, 2012, Respondent sued Petitioners in state court for a

debt allegedly incurred on an Anderson Lumber credit account. No evidence of

an indebtedness was ever introduced into the record by the respondent for the

account sued upon in its complaint. Mr. Landon Coleman, V.P., Anderson

Lumber Company, Inc., perjured himself by attesting to an alleged debt owed

by the Petitioners in his Sworn Account. Petitioners have properly introduced

into the record sworn affidavits disputing every allegation of fact relevant to

the alleged debt specified in respondent's state complaint. The respondent has

failed to establish its prima facie showing needed to procure personal

jurisdiction over the Petitioners in state court that comports with the

Fourteenth Amendment.6 Subsequently, the state court's exercise of personal

jurisdiction over the Kinneys violates the requirements of due process.

At a hearing held in District Court, the respondent asserted to the

Honorable Bruce H. Guyton, Chief Magistrate Judge of the District Court for

the Eastern Division of Tennessee, that it had the documentation needed to

support its state claim, but then failed to produce the documentation when

ordered to do so by the district court. The Respondent deliberately and

wrongfully concealed the factual predicate to Petitioners' claims in order to

unlawfully procure and maintain jurisdiction over the Kinneys in state court.

The state court has shown prejudice to the petitioners, and favor to the

respondent and their counsel, that has risen to a constitutional level.7

The District Court Proceedings

Respondent made two specific false representations to the District Court that

we believe had a direct bearing on its decision to remand the case.

1.

Respondent attested to the existence of an Anderson Lumber credit

application, fully executed by the Petitioners.

Serras v. First Tennessee Bank Nat. Ass'n 875 F.2d 1212, 1214 (6th Cir) See also

Chenault v Walker, et at No. W1998-00769-SC-R11-CV, TN Supreme Court, 2001)

"the exercise of jurisdiction must comport with the United States Constitution."

6

In our Petition for Removal, we requested that the district court rule on whether or

not the state court has subject matter and personal jurisdiction over the Kinneys'.

This request was unanswered at the time of the remand. Case 3:17-cv-00288, DOC 1,

Page ID#:31

4

On October 18, 2017, during a hearing held at the District Court in

Knoxville, TN, Petitioner William Kinney explained to the court that the

Respondent did not possess any documentation for the account sued upon in

state court. Judge Guyton then asked the Respondent's counsel, Kizer & Black,

Attorneys, "Counsel, do you have a completed, filled-out, signed Anderson

Lumber Company credit application from any of these parties?" Atty. Melanie

E. Davis of Kizer & Black, Attorneys, told the court, "There's a copy of it

somewhere around the office." Atty. Morton (also of Kizer & Black) responded:

"To my knowledge, Your Honor, there was, but I don't have it here in front of

me to actually confirm." 8 Both responses were judicial admissions meant to

assert the truth of a matter to the district court. Neither Attorney could

produce the requested documentation at said hearing, so the court issued an

order for the Respondent to produce "the Anderson lumber credit application,"

and "any documents that support an existence of the account." 9 The

respondent failed to comply with the order right up until the time the case was

remanded on January 9, 2018. Both Judicial admissions were made to conceal

the respondent's fraud, to suborn Mr. Landon Coleman's perjured Sworn

Account, and to mislead the district court into believing that the respondent's

state case was valid, and the state court had lawful jurisdiction over the

petitioners. 10 Petitioners contend, by its false representations, the respondent

and its counsel hoodwinked the district court into remanding the case to state

court, which constitutes Fraud Upon the Court. 11

8

Case No. 316-cv-00078, Transcript Page 33, lines 9-16

Case No. 3:16-cw00078, DOC 54, Page ID # 1058.

Petitioners also claimed in the removal, petition that respondent violated the Fair

Debt Collection Practices Act, 15 U.S. Code § 1692i(a)(2(A, which requires a debt

collector to bring an action in the judicial district upon which the consumer signed the

contract sued upon. Respondent produced no such contract.

10

Demjanjuk v. Petrovsky, 10 F.3d 338, 348 6th Cir. 1993). This standard recognizes

that fraud upon the court, unlike perjury, need not be based on affirmative

misstatements, but may be based on nondisclosures, and need not be based on proof

of subjective knowledge of falsity, but may be founded on a showing of willful

blindness or reckless disregard for the truth.

11

ki

2.

Respondent gave a false recitation of the chronological order of

events leading up to removal, in Order to Mislead the District Court.

When asked about the status of the state case, the respondent stated

that after the hearing held in state court to set the trial date, the case was then

"immediately removed." However, the correct sequence of events begins with

the exparte hearing held by the respondent in state court on June 12, 2017,

the removal to district court on July 7, 2017, and (3) the exparte hearing

held by the respondent in state court to set a trial date on August 7, 2017. At

the hearing held by the District Court on October 18, 2017, Judge Guyton

asked the respondent's counsel, [clarifying remarks in brackets] "What's the

status in state court?" 12 Atty. Morton answered,

"The status of the state court is, The Court dismissed Ms. Kinney's

counterclaims,

[this dismissal occurred at the hearing held on June 12, 201 7131

and at that point, while I was in the courtroom, the Judge said,

"Let's go ahead and give notice and set this motion for trial." I did

that, a hearing for setting the trial,

[the hearing for setting the trial date was held on August 7, 20171

and immediately then the case was again removed here to the

federal court.1114

In fact, the removal had already occurred at the time of the August 7, 2017

hearing. Surprisingly, the remand order refers only to the hearing held on

August 7, 2017, as shown below;

'Defendants also missed the windowfor removal under 1446(h)(3),

as the only filings in the underlying state case within thirty days of

the filing of the petition for removal are a motion to set trial and a

notice of hearing neither of which would cause a case not originally

subject to removal to later become subject to removal. Defendants'

petition for removal was thus untimely."

12

Case No. 3:16-cv-00078, Transcript Page 12, lines 8-9

13

Case No 3:17-cv00288, DOC 1, Page ID #: 53

14

Transcript Page 13, line 13-25, and Page 14, lines 1-2.

LIV

The basis for the removal is completely misapprehended by the district

court when it refers to the August 7, 2017 hearing as the only filing that

occurred during the statutory 30-day period for removal. Consequently, the

remand order omits the Petitioner's stated reason for the removal, namely the

June 12, 2017 exparte hearing. Atty. Morton's recitation of the events, which

also omits the June 12, 2017 hearing, appears to have been wrongly adopted

by the district court. The Petitioners "Introduction" to the Complaint and

Memorandum in Support of Removal, states that on June 12, 2017, the state

court held an unlawful heating scheduled by respondents, which supported

removal to federal court. 15

D.

The Appellate Court Proceedings

The Sixth Circuit denied our appeal for "failure to file a timely notice of

removal," pursuant to 28 U.S.C. § 1446(b)(1), which states, "notice must be

filed within 30 days after the receipt by the defendant. of a copy of the initial

pleading." This is the same reason and statutory provision stated by the

district court in its remand order, which is also the same reason and statutory

provision stated in the respondent's motion to remand. However, 28 U.S.C. §

1446(b)(1), is inapplicable to the circumstances that prompted the removal.

Our Petition for Removal specifically invokes 28 U.S.C. § 1446(b)(3), on the

basis that the exparte hearing held on June 12, 2017, and subsequent court

order, violated our federal constitutional rights. Our Petition for Removal

under § 1441(a), vested federal jurisdiction based on the requirement of 28

U.S.C. § 1446(b)(3), and jurisdiction should not have been divested by the

respondent's claim pertaining to an irrelevant process found in § 1446(b)(1).

.

.

In addition to this, and specifically citing to Barlow, we requested that

the Sixth Circuit view our appeal in the same way it would view a Rule 60(b)(3)

motion and vacate the remand order for discovery fraud, attorney misconduct,

and Fraud Upon the Court. 16 In response, the Sixth Circuit stated in its order

16 Case No, 2:17-cv-oo288, DOC 1, Page ID# 11

16 Rule 60(b) is not preserving an action confined by the elements of the crime of

perjury. It is preserving a broader remedy for deceit directed at the court itself. This

Court's leading decision on "fraud upon the court," Hazel-Atlas Glass Co. v. HartfordEmpire Co., 322 U.S. 238 (1944), makes this clear.

7

that the special circumstances allowing for the appeal of a remand order, were

not applicable to our case. We believe the appeals court misapprehended the

nature of our appeal, which was a request to vacate the remand for fraud.

Ourappeal did not reach the merits of the remand order, but rather, only the

means in which the respondent obtained the remand. The reason for the denial

of our appeal is inconsistent with the ruling made by the Fourth Circuit in the

case of Barlow. The Fourth Circuit reasoned that a remand order can be

vacated on the ground of attorney misconduct and fraud which led up to the

remand. In the case of Barlow, the Plaintiff made false representations in

court, to destroy diversity jurisdiction and keep her case in state court. In a

similar manner, in the instant case, the respondent made false representations

to the district court in order to obtain a remand.17

REASONS WHY CERTIORARI SHOULD BE GRANTED

I.

The District Court Exceeded Its Statutory

Authority by Issuing the Remand Sua Sponte

As stated in Section D above, the respondent moved the district court to

remand this case pursuant to 28 U.S. Code § 1446(b)(1), which was irrelevant

to our claim for removal.18 The district court referred to this same provision

and further stated in its remand order that we also "missed the window for

removal under § 1446(b)(3)," which is not a claim made by the respondent.

Subsequently, the district court remanded our case sua sponte under §

1446(b)(3), and not for the reason given by the respondent under § 1446(b)(1).

The Ninth Circuit recently ruled in Kenny v Wal-Mart Stores, Inc., "...a district

court lacks authority to sua sponte remand an action unless there is a defect

in subject matter jurisdiction." 9 Federal subject matter jurisdiction was not

The removal and subsequent remand of this case included the seizure and

disposition of petitioner's property by the state court without due process, in violation

of the Fourth Amendment.

17

18 Respondents Motion to Remand, Case 317-cv-00288, DOC4, Page ID #: 121

19

Kenny v Wal-Mart Stores, Inc., et al., 2018 WL 650998 (9th Cir. Feb. 1, 2018)

LV

an issue in this appeal. This Court concluded in Thermtron that only remand

orders issued under § 14470 and invoking the grounds specified therein.

are immune from review under § 1447(d)."20 The grounds specified under §

14470 and pertaining to "any defect other than lack of subject matter

jurisdiction," are itemized in § 1446(b)(1) and (b)(3). The respondent's motion

to remand did not invoke § 1446(b)(3) and should therefore be reviewable. The

Sixth Circuit ruled in Page, that "such an error is subject to appellate review."2'

II.

The Remand Order Created Appealable Collateral Issues Left Undecided By

The Appeals Court

The district court based its remand entirely on the August 7, 2017

hearing in state court, and did not consider the state court hearing held on

June 12, 2017, which has become a collateral issue involving substantive rights

under the federal constitution.22 The Fourth Circuit ruled in Barlow(regarding

this same issue), that review of a "collateral decision that is [logically and

factually] severable from the remand order" and that had a "conclusive effect

upon the parties' substantive rights," is reviewable. Section 1447(d) does not

prohibit vacating an order as prohibited by Rule 60(b)(3); it merely prohibits

reviewing an order.23 A vacatur of a remand would not be wholly inconsistent

20

Thermtron Products, Inc. v. Hermansdorfer, 423 U.S. 336 Id. at 346.

Page v. City of Southfield; 45 F.3d 128, fiTH Circuit ('remand(ing) a case sua sponte

for a perceived defect in removal procedure... is subject to appellate review.')

21

22 On June 8, 2018, Petitioners filed another case in Federal Court to address the

deprivation of our civil and equal rights, that occurred at the hearing on June 12, 2017

at state court, which was not addressed by the district court in its remand order of

January 9, 2018. (Case No. 3:18cv00227). The filing of this complaint was necessary

in order to preserve our federal rights before our claim was barred by the Statute of

Limitations, which runs for one year in the State of Tennessee.

23 Barlow v. Colgate Palmolive Co. 772 F.3d 1001, at 1009 (4th Cir. 2014) (en

banc)... the types of relief provided by Rule 11 and Rule 60(b)(3) do not involve "review"

as proscribed by § 1447(d).

9

with this court's position that a district court has jurisdiction to impose

sanctions that are "collateral to the merits." once it has remanded an action to

state court.24 It is therefore reasonable to conclude that Rule 60(b)(3) analysis

is not precluded by § 1447(d).25

In addition to this, the false representations made to the District Court

by Atty.'s Davis and Morton were judicial admissions made about factual

contentions and subject to Rule 11 sanctions as a collateral issue. Four days

preceding the remand, the petitioners had moved the district court for

sanctions for contempt, and sanctions pursuant to F.R.C.P., Rule 16(f) and

Rule 11, for non-compliance with a court order which was unanswered at the

time of the remand, and was not reviewed by the Sixth Circuit during appeal.

Ill.

Review Is Warranted Because

Fraud Vitiates Everything.

Gain that is accomplished by fraud goes against the legal principle that

"no man should be allowed to take advantage of his own fraud," and courts do

not reward misbehavior by those appearing before them. A wrongdoer should

be deprived of his ill-gotten gain, and no one who comes to court with unclean

hands should be permitted to make any claim upon his own inequity. Judicial

estoppel protects the judicial process, and fraud upon the court is presumably

the worst offense against that process. When the judicial process is corrupted

by officers of the court, there has been no equitable adjudication made by the

court, and the court must use its remedial power to undo the harm that if left

undone, damages the integrity of the court itself. A remand order procured by

fraud upon the court, is not one that is erroneous 26 or the result of legal error.27

It is based on calculated misrepresentations of the facts of a case. Attorney

Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 389-90, also, Willy v. Coastal Corp.:

503 U.S. 131, 1371

24

25

Schultz v Butcher, 24 F.3d 626 (1994)

Thermtron Prods., Inc., 423 U.S. at 343

27

Kircher v. Putnam Funds Trust 547 U.S 633, at 634

10

misconduct effects the Judges ability to act impartially, in good faith, and in

accordance with the law. For this reason, a remand order based upon a

corrupted decisional process, should be subject to vacatur because it attacks

the way in which the respondent secured the remand order, not the merits or

correctness of the orders themselves.1128

IV.

Review Is Warranted Because Only This Court

Can Decide a Circuit Split.

In the current case, the attorneys deliberately misstated facts and attested to

the existence of evidence that does not in fact exist, in order to defeat

Petitioners removal. If those same attorneys can further rely on the removal

statute's no-review directive to avoid accountability, not only have the

Petitioners suffered the deprivation of federal rights, the integrity of the justice

system has also been diminished. It is not unreasonable to suggest that if this

case were under the jurisdiction of the Fourth Circuit, there is a strong

possibility that the remand order at issue would have been vacated and our

constitutional rights preserved in federal court. It is under these circumstances

the Fourth Circuit reasoned that vacatur of a remand order that has been

deceptively induced is not a "review" forbidden by Congress.

When Congress enacted The Jurisdiction and Removal Act of 1875, it

intended removal to be a means to protect federal constitutional rights against

state court prejudice and local influence, such as those encountered by the

Petitioners. At the same time, Section 1447 (and its predecessor) was meant to

safeguard the process by allowing a district court to distinguish between a

properly removed case, and one that has been removed to delay and frustrate

justice. However, these two concerns should also be considered alongside a

third possibility, namely that a properly removed case might be remanded due

to fraud.

Barlow, 772 F.3d 1012

11

CONCLUSION

Based on the foregoing, Petitioners respectfully submit that this Petition for

Writ of Certiorari should be granted. The Court may wish to consider summary

reversal of the decision of the Sixth Circuit Court of Appeals.

Submitted this 7th day

of September, 2018.

CERTIFICATE OF COMPLIANCE

I certify that this brief is in compliance with the Rules of the Supreme Court of the

United States, and contains 3,528 words, excluding the table of contents, table of

authorities, Constitutional provisions and statutes, rules or regulations, appendix,

and certificate of service.

Certificate of Service:

A copy of this document has been sent to counsel for the respondent, via USPS

Certified Mail;

McDonald, Levy, & Taylor; Attorneys at Law

10805 Kingston Pike Suite #200

Knoxville, TN 37934

CERTIFIED MAIL RECEIPT NO. 7016 1370 0000 3637 0736

Kizer & Black, Attorneys, PLLC

217 East Broadway Avenue

Maryville, TN 37804

CERTIFIED MAIL RECEIPT NO.7016 1370 0000 3637 0743