Petition for Writ of Certiorari — Efrain Areizaga, Petitioner v. ADW Corporation

Supreme Court briefMar 26, 2020

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Supreme Court of tfje Mntteti States!

EfrainAreizaga,

Petitioner,

ADW Corporation.

Respondent.

On a Petition for a Writ of Certiorari to

the United States Court of Appeals

for the Fifth Circuit

PETITION FOR WRIT OF CERTIORARI

Efrain Areizaga, Pro se

4241 Rufe Snow Dr., Apt. 1423

N. Richland Hills, TX 76180

(469) 297-0216

Blessed are those who act justly, who always do what is right. Psalm. 106:3

QUESTIONS PRESENTED

The following un-disputed facts in this case pre

sents the grounds on which the petitioner frames his

question to the court.

On 7/8/16 & 7/11/16 the petitioner met with re

spondent’s attorney JOHN HERRING and he stated

to petitioner that this case will not end on the merits

and that the respondent will only pay cost and nothing

else. In mediation on 8/2/16, the respondent and their

attorney JOHN HERRING made the following unlaw

ful threats, thru a mediator, coercing the petitioner

into signing a mediation agreement for cost only;(l)

that petitioner had taken proprietary information

from the respondent without consent and that they

can sue petitioner’s employer Bartos Industries; (2)

that the petitioner had also used proprietary infor

mation from his employer Bartos Industries in his mo

tion for summary judgment; (3) that petitioner can be

black listed in the industry.

(1) Did the United States court of appeals affirm a

decision that exceeds their authority and lacks

subject matter jurisdiction by suspending sec

tion 31.03 of the Texas penal code, the Hobbs

Act, the FLSA and grants the respondent and

their attorneys immunity against prosecution

by holding that un-lawful threats of retaliation,

an in terrorem tactic as stated in Jacques v. DiMarzio, Inc., 216 F. Supp. 2nd at (144), are pro

tected by mediation confidentiality and

QUESTIONS PRESENTED - continued

attorney client privilege which infringes on pe

titioner’s constitutional right to access to the

courts, due process and the equal protection

clause?

(2) Did the United States court of appeals affirm a

decision that infringed on petitioner’s constitu

tional rights to due process and equal treat

ment of the law, by refusing to render a decision

in a non-final order denying plaintiffs motion

for reconsideration to strike respondent’s an

swer pleading where the lower court deviated

from the established principles of law by: (1) not

following the doctrine of stare decisis and by in

correctly applying the tolling provisions of Rule

12(a)(4)(A) to rule 81; (2) by acting in excess of

its jurisdiction by allowing respondent’s affirm

ative defense claim of be a “non-traditional en

gineering firm,” which is strictly prohibited by

the Texas Engineering Practice Act; (3) and by

applying the “plausibility standard” pursuant

to Bell Altlantic Corp. v Twombly, 550 U.S. 544

(2007) and clarified in Ascroft v. Iqbal, 129 S.Ct.

1937 (2009), to petitioner’s complaint and

amended complaint and failing to apply the

same standard to respondent’s answer plead

ings? (Please note that the review of this ques

tion is based on this court’s finding upon review

of the merits that the mediation agreement and

final judgment was obtained by fraud, see pre

vious question).

iii

PARTIES TO THE PROCEEDINGS

The parties & interested parties to the proceeding

in the United States Court of Appeals for the 5th Cir

cuit are as follows;

(1) Efrain Areizaga, Pro Se

Petitioner

(2) ADW Corp.,

Respondent

(3) David Crittenden, Owner & President of ADW

Corp.

(4) Woody Gunter, Owner & Vice-President of

ADW Corp.

(5) Respondent’s law firm & Attorneys (third party

litigants)

Norton Rose Fulbright US LLP

John Herring

Norlynn B. Price

Danielle Alexis Matthews

Jordan C Campbell

Barrett Robin

(6) State of Texas

(7) All intentionally misclassified employees in the

United States

(8) All manufacturer’s representative intention

ally misclassifying employees to enrich them

selves.

TABLE OF CONTENTS

Page

Questions Presented.............................

Parties to the Proceedings...................

Table of Authorities............................. .

Opinions & Orders................................

Jurisdiction............................................

Notice to the Texas Attorney General

Statutory Provisions Involved.............

Statement of the Case..........................

Reasons to Grant the Petition.............

I. Did the United States court of appeals affirm a

decision that exceeds their authority and lacks

subject matter jurisdiction by suspending section

31.03 of the Texas penal code, the Hobbs Act, the

FLSA and grants the respondent and their attor

neys immunity against prosecution by holding

that un-lawful threats of retaliation, an in terrorem tactic as stated in Jacques v. DiMarzio,

Inc., 216 F. Supp. 2nd at (144), are protected by

mediation confidentiality and attorney client

privilege which infringes on petitioner’s constitu

tional right to access to the courts, due process

protection

equal

and

the

clause?

II. Did the United States court of appeals affirm a

decision that infringed on petitioner’s constitu

tional rights to due process and equal treatment

of the law, by refusing to render a decision in a

non-final order denying plaintiffs motion for

reconsideration to strike respondent’s answer

pleading where the lower court deviated from

the established principles of law by: (1) not fol

lowing the doctrine of stare decisis and by incor

rectly applying the tolling provisions of Rule

12(a)(4)(A) to rule 81; (2) by acting in excess of

its jurisdiction by allowing respondent’s affirm

ative defense claim of be a “non-traditional engi

neering firm,” which is strictly prohibited by the

Texas Engineering Practice Act; (3) and by ap

plying the “plausibility standard” pursuant to

Bell Atlantic Corp. v Twombly, 550 U.S. 544

(2007) and clarified in Ascroft v. Iqbal, 129 S.Ct.

1937 (2009), to petitioner’s complaint and

amended complaint and failing to apply the

same standard to respondent’s answer plead

ings?.

Conclusion

APPENDIX

Fifth Circuit Court Opinion (Jan. 3, 2020)

App. !■

District Court Judge Memorandum Opinion and Or

der denying Plaintiffs motion for motion to set aside

12,

2018)

(Feb.

final

judgment

........... App. 9

District Court Judge Order denying Plaintiffs motion

for reconsideration to strike defendant’s answer

App. 20

pleading (Aug. 17, 2015)

TABLE OF AUTHORITIES

CASE LAW

page

Adair v. Charter Cty. of Wayne,

452 F.3d 482, 489 (6th Cir. 2006).........

Arizonans for Official English v. Arizona,

520 U.S. 43 (1997).................................

3,4

Ascroft v. Iqbal,

129 S.Ct. 1937 (2009)............................

20,30,32

Augustus v. Board of Public Instruction of Escambia

County,

306 F.2d 862 (C.A.5 Fla. 1962).................

Bell Altlantic Corp. v Twombly,

550 U.S. 544 (2007) ................................... 20,30,31

Bender v. Williamsport Area School Dist.,

475 U.S. 534, 546 (1986)............................

Bon Air Hotel, Inc. v. Time, Inc.,

426 F.2d 858, 862 (5th Cir. 1970)..............

Bounds v. Smith,

430 U.S. 817, 828 (1977)............................

Brissette v. Franklin County Sheriff’s Office,

235 F.Supp. 2d 63 (2003)...........................

vii

California Motor Transport Co. v. Trucking Unlim

ited,

404 U.S. 510 (1985)................................................. 5

Chafin v. Chafin,

568 U.S. 165, 172 (2013)......................................... 4

City Cab Co. of Orlando, Inc. v. All City Yellow Cab

Inc.,

581 F. Supp. 2d 1197 (M.D.Fla. 2008)

25,26

Cobell v. Norton,

224 F.R.D. 266 (D.D.C. 2004)...........

Conley v. Gibson,

355 U.S. 41 (1957)................................

Cook v. Gates,

528 F.3d 42 (1st Cir. 2008)..................

30,31

Cox v. Brookshire Grocery Co.,

919 F.2d 354, 356 (5th Cir. 1990)........

County of Los Angeles v. Kling,

474 U.S. 936, 940 n. 6 (1985)..............

Dickerson v. United States,

530 U.S. 428, 429 (2000).....................

Eastern R. Presidents Conference v. Noerr Motor

Freight, Inc.,

365 U.S. 127, 138 (1961).......................................... 5

Gen. Mills, Inc. v. Kraft Foods Global, Inc.,

Vlll

487 F.3d 1376, 1377 (Fed. Cir. 2007) rehearing &

rehearing En Banc Denied

22,23,24

Gen. Mills, Inc. u. Kraft Foods Global, Inc.,

495 F.3d 1378 (Fed. Cir. 2007)...............

22,23,24

Government Fin. Servs. One L.P. v. Peyton Place,

Inc.,

62 F.3d 767, 772-73 (5th Cir. 1995).....

Hanna v. Plumer,

380 U.S. 460, 475 (1965)......................

Harper v. Virginia State Bd. of Elections,

383 U.S. 663, 670 (1966)......................

Hayes v. McIntosh,

604 F.Supp. 10 (N.D. Ind. 1984)..........

Hohn v. United States,

524 U.S. 236 (1998)...............................

Holt v. Cont’l Group, Inc.,

708 F.2d 87, 91 (2nd Cir. 1993).............

In re Avantel, S.A.,

343 F.3d 311, 318 (5th Cir. 2003)........

In re Daley,

29 S.W.3d 915, 918 (Tex. App. Beaumont 2000, no

pet.)

In re D.E.H.,

301 S.W.3d at 828

17,18

Jacques v. DiMarzio, Inc.,

216 F. Supp. 2nd at (144).............................

12,15

John Simmons Co. v. Grier Brothers Co.,

258 U.S. 82, 88 (1922).................................

Johnson v. Berry,

228 F.Supp.2d 1071, 1079 (E.D.Mo. 2002)

Juidice v. Vail,

430 U.S. 327, 331-332 (1977).....................

Kilpatrick v. State Board of Registration for Profes

sional Engineers,

Tex. Civ. App., 610 S.W.2d 867 (1981).

King Bridge Co. v. Otoe County,

120 U.S. 226 (1887)................................

Lewis v. Cont’l Bank Corp.,

494 U.S. 472, 477 (1990).......................

Louejoy-Wilson v. NOCO Motor Fuel, Inc.,

263 F.3d 208, 223...................................

Marbury v. Madison,

5 U.S. 137 (1803)....................................

Maty v. Grasselli Chem. Co.,

303 U.S. 197, 200 (1938)

28,29

McCulloch v. Maryland,

17 U.S. 316(1819)..........

Melancon v. Texas, Inc.,

659 F.2d 551, 553 (5th Cir. 1981).......................... 27

Mitchell v. Maurer,

293 U.S. 237, 244 (1934)........................................ 4

Muwekma Tribe v. Babbitt,

133 F. Supp. 2d 42, 48 (D.D.C. 2001).................. 27

Parents Involved In Cmty. Sch. v. Seattle Sch. Dist.

No. 1,

551 U.S. 701, 720 (2007)......................................... 6

Poe v. Ullman,

367 U.S. 497, 526 (1961)......................................... 5

Preiser v. Newkirk,

422 U.S. 395, 401 (1975)......................................... 4

Renne v. Geary,

501 U.S. 312(1991)................................................. 4

Rescue Army v. Municipal Court of Los Angeles,

331 U.S. at 573-574 (1947)...................

Robinson v. Lorillard Corp.,

444 F.2d 791 (1971)...................................

Robinson v. Shell Oil Co.,

519 U.S. 337(1997)...................................

Roger Edwards, LLC v. Fiddes & Sons Ltd.

427 F.3d 129, 134 (1st Cir. 2005).............

Rosania v. Taco Bell of Am., Inc.,

303 F.Supp. 878, 885 (N.D. Ohio 2004)...

San Antonio Indep. Sch. Dist. v. Rodriguez,

411 U.S. 1, 33 (1973).................................

Singer v. City of Waco, Tex.,

324 F.3d 813, 821 (5th Cir. 2003).........

Snyder v. Massachusetts,

291 U.S. 97, 105 (1934)............................

Solesbee v. Balkcom,

339 U.S. 9, 16(1950)................................

Steffel v. Thompson,

415 U.S. 452, 459, n. 10 (1974)...............

Stoll v. Gottlieb,

305 U.S. 171-172 (1938)...........................

United States v. 729.773 Acres of Land,

531 F.Supp. 967 (DC Hawaii 1982)........

U.S. Bancorp Mortgage Co. v. Bonner Mall Partner

ship,

513 U.S. 21 (1994).....................

United States v. Corrick,

298 U.S. 435, 440 (1936)..............

United States v. Edwards,

303 F.3d 606, 618 (5th Cir. 2002)

xii

United Stated v. McFarland,

311 F.3d 376, 417 (5th Cir. 2002)

U.S. v. Zolin,

491 U.S. 554, 562-63 (1989)........

Willy v. Admin. Review Bd.,

423 F.3d 483, 497 (5th Cir. 2005)

Woodfield v. Bowman,

29,30

193 F.3d 354, 362 (5th Cir. 1999)

Wyshak v. City Nat’l Bank,

607 F.2d 824, 827 (9th Cir. 1979)

Young v. Murphy,

161 F.R.D. 61, (N.D.I11. 1995)....

FEDERAL STATUES

28 U.S.C. § 1254(1)........

Crime-Fraud Exception .

Fair Labor Standard Act

13,14,15,19

Fair Labor Standard Act §15(a)(3)

FEDERAL RULES OF CIVIL PROCEDURE

Rule 12(a)(l)-(3)

22,23,24

xiii

Rule 12(a)(4)

Rule 12(a)(4)(A)

22,23

20,21,23,24

Rule 12(f)

Rule 15

Rule 15(a)

Rule 15(a)(1)

Rule 15(a)(3)

2,21,22

Rule 54(b)

Rule 59(e)

Rule 60(b)(3)

Rule 81

20,21,24

Rule 81(c)

21,22

Rule 81(c)(1)

7,20

Rule 81(c)(2)

Rule 81(c)(2)(c)

US CONSTITUTION

Article III § 2

3,19

Article VI § 2

xiv

lst Amendment..

5th Amendment..

14th Amendment

30,31

US SUPREME COURT RULES

Rule 14.1(e) (v)

Rule 29.4(c)

TEXAS STATE STATUE

Texas Alternate Dispute Resolution Act LR-6-12.... 16

Texas Engineering Practice Act § 1001...........

Texas Engineering Practice Act § 1001.003....

Texas Engineering Practice Act § 1001.004(b).........26

Texas Engineering Practice Act § 1001.004(c)(2).... 25

Texas Engineering Practice Act § 1001.004(c)(3)

Texas Engineering Practice Act § 1001.301(a).........29

Texas Engineering Practice Act § 1001.403

2,25

Texas Engineering Practice Act § 1001.405

2,25

Texas Penal Code § 31.03.........

2,12

Texas Penal Code § 31.03(a).....

Texas Rule of Evidence 503(d)(1)

OPINION AND ORDER

The 5th Circuit court of appeals’ opinion, rendered

on January 3, 2020, addressing the first question pre

sented (App. 1-8) is unreported and reproduced at

App. 1-8, affirming the District court Judge Memoran

dum Opinion and order denying plaintiffs motion to

set aside final judgment on February 12, 2018 repro

duced at App. 9-19.

The district court’s order denying petitioner’s mo

tion for reconsideration of plaintiff s motion to strike

defendant’s answer pleading, rendered on August 17,

2015 is reproduced at App. 20-24 addressing peti

tioner’s second question. The 5th Circuit court of ap

peal as stated above denied jurisdiction, by denying

petitioner’s appeal on petitioner’s first question

herein. This Court’s reversal on merits of petitioner’s

first question, makes the second question immedi

ately reviewable by this court.

JURISDICTION

The Court has jurisdiction over this case under 28

U.S.C. § 1254(1) based on the 5th Circuit Court of ap

peals entry of a final judgment on January 3, 2020

(App. 1-8) & District Court’s Memorandum Opinion

and Order on February 12, 2018 (App. 9-19) address

ing the first question. Question two is dependent on

this Court’s reversal on the merits of petitioner’s first

question, then the order reproduced at App. 20-24, be

comes an immediate reviewable non-final order.

The petitioner initially filed this brief on March 26,

2020 and received by the clerk’s office on April 1, 2020.

The Clerk returned plaintiff s brief to correct deficien

cies pursuant to 14.5 and 29.2 providing the petitioner

with 60 days.

NOTICE TO THE TEXAS ATTORNEY

GENERAL & U.S. SOLICITOR GENERAL

Pursuant to the Supreme Court Rules 29.4(c) &

14.1(e)(v) the petitioner provides notice of certification

of service to the Texas Attorney General, because the

Constitutionality of the State of Texas and US Law

was drawn into question by the 5th Circuit Court of

Appeals which suspends section 31.03 of the Texas pe

nal code, the Hobbs Act, the FLSA and grants the re

spondent and their attorneys immunity against pros

ecution by holding that un-lawful threats of retalia

tion are protected by mediation confidentiality and at

torney client privilege infringing on Texas constitu

tional Article I section 28 which states that “no power

of suspending laws in this state shall be except by the

Legislature,” and other US laws.

Moreover, the district’s court’s failure to strike re

spondent’s affirmative defense that respondent was “a

non-traditional engineering firm,” without providing

any facts that they were a registered engineering firm

pursuant to the Texas Engineering Practice Act §

1001.405 of the Texas state statues - where the of en

gineering is carried out only by licensed professional

engineers. The Texas Engineering Practice Act §

1001.403 protects the public - where the professional

identification and use of the word “engineering” in

documents, pamphlets, advertisement or another sim

ilar written or printed form of identification is limited

to a person or firm licensed under this statue.

STATUTORY PROVISIONS INVOLVED

The U.S. Constitution, Article VI section 2 is com

monly referred to as the supremacy clause. It estab

lishes that the federal constitution, and federal law

generally, take precedence over state laws, and even

state constitutions. It prohibits states from interfering

with federal government’ exercise of its constitutional

powers and from functions that are exclusively en

trusted to the federal government. Not only does the

federal government have express powers under the

U.S. constitution, it also has implied powers, or pow

ers not specifically mentioned in the Constitution, see

McCulloch v. Maryland, 17 U.S. 316 (1819). The goal

of an opinion is to show how like cases are properly to

be decided in the future, County of Los Angeles v.

Kling, 474 U.S. 936, 940 n. 6 (1985). Federal appellate

courts’ twin duties are to decide appeals and to artic

ulate the law, see United Stated v. McFarland, 311

F.3d 376, 417 (5th Cir. 2002). Whether express or im

plied, federal law will almost always prevail when it

interferes or conflicts with state law, except in circum

stances where the federal law is deemed unconstitu

tional or where the supremacy clause does not apply.

The provisions U.S. Constitution, Article III, sec

tion 2 setting out the powers of the Federal Judiciary,

define those powers in using two different but related

words “cases” and “controversies”. In framing judicial

authority these words also represent limits. The Fed

eral courts do not, under Article III, have the power to

resolve legal questions that do not arise out of an ac

tual dispute between real parties, see Arizonans for

Official English v. Arizona, 520 U.S. 43 (1997) and

Renne v. Geary, 501 U.S. 312 (1991).

To qualify as a case fit for federal court adjudica

tion, “an actual controversy must be extant at all

stages of review, not merely at the time the complaint

is filed,” see Chafin v. Chafin, 568 U.S. 165, 172

(2013), Lewis v. Cont’l Bank Corp., 494 U.S. 472, 477

(1990), Preiser v. Newkirk, 422 U.S. 395, 401 (1975),

Steffel v. Thompson, 415 U.S. 452, 459, n. 10 (1974).

Every federal appellate court has a special obliga

tion to satisfy itself not only of its own jurisdiction, but

also that of the lower courts in a cause under review,

even though the parties are prepared to concede it, see

Mitchell v. Maurer, 293 U.S. 237, 244 (1934), Juidice

v. Vail, 430 U.S. 327, 331-332 (1977). And if the record

discloses that the lower court was without jurisdiction

this court will notice the defect, although the parties

make no contention concerning it, we have jurisdic

tion on appeal, not of the merits but merely for the

purpose of correcting the error of the lower court in

entertaining the suit, see United States v. Corrick, 298

U.S. 435, 440 (1936).

In short, we have authority to make such disposi

tion of the whole case as justice may require, see U.S.

Bancorp Mortgage Co. v. Bonner Mall Partnership,

513 U.S. 21 (1994).

In litigation generally and in constitutional litiga

tion most prominently, courts in the U.S. characteris

tically pause to ask: Is this conflict really necessary,

when anticipatory relief is sought in federal court

against a state statue, respect for the place of the

States in our federal system calls for close considera

tion of that core question, see Poe v. Ullman, 367 U.S.

497, 526 (1961). Warnings against premature adjudi

cation of constitutional questions bear heightened at

tention when a Federal court is asked to invalidate a

State’s law, for the federal tribunal risks friction-gen

erating error when it endeavors to construe a novel

state act not yet reviewed by the State’s highest court,

see Rescue Army v. Municipal Court of Los Angeles,

331 U.S. at 573-574 (1947). Concerns of justiciability

go to the power of the courts to entertain disputes and

to the wisdom of their doing so. We presume that fed

eral courts lack jurisdiction “unless the contrary ap

pears from the record, see Bender v. Williamsport

Area School Dist., 475 U.S. 534, 546 (1986), King

Bridge Co. v. Otoe County, 120 U.S. 226 (1887).

The Petition Clause provides appellants with the

right to petition the government for redress, see U.S.

Constitution amendment I. The right to petition is en

shrined in the constitution as a fundamental right and

includes the right to access the courts, see California

Motor Transport Co. v. Trucking Unlimited, 404 U.S.

510 (1985). The right of access to the courts is indeed

but one aspect of the right of petition, see Eastern R.

Presidents Conference v. Noerr Motor Freight, Inc.,

365 U.S. 127, 138 (1961). The right of petition is one

of the freedoms protected by the Bill of Rights, see San

Antonio Indep. Sch. Dist. u. Rodriguez, 411 U.S. 1, 33

(1973). The key to discovering whether a right is fun

damental ... lies in assessing whether the right is ex

plicitly or implicitly guaranteed by the Constitution.

The right of access is a fundamental right, entitled

to heightened protection under the due process and

equal protection clauses, see Marbury v. Madison, 5

U.S. 137 (1803). Once the government allows a plain

tiff to file his claim and thereby assumes control over

its disposition, however, it must do so fairly and rea

sonably, in other words afford due process. Anything

which might invade or restrain a fundamental right

must be closely scrutinized and carefully confined, see

Harper v. Virginia State Bd. of Elections, 383 U.S.

663, 670 (1966).

The 5th Amendment of the U.S. Constitution has

an explicit requirement that the federal government

not deprive individuals of life, liberty or property

without due process of law and an implicit guarantee

that each person receive equal protection of the laws.

The unequal treatment must be closely scrutinized

and carefully confined, see Harper, 383 U.S. at 670.

To survive this scrutiny, the unequal apportionment

of reasoned must be narrowly tailored to achieve a

compelling government interest, see Parents Involved

In Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701,

720 (2007).

Due process is violated if a practice or rule offends

some principle of justice so rooted in the traditions

and conscience of our people as to be ranked as funda

mental, see Snyder v. Massachusetts, 291 U.S. 97, 105

(1934). Due process is that which comports with the

deepest notions of what is fair, right and just, see

Solesbee v. Balkcom, 339 U.S. 9, 16 (1950). Strict scru

tiny is also applied to classifications that impinge on

a fundamental right. The Supreme has recognized

that the right to have access to the courts is a funda

mental right, see Bounds v. Smith, 430 U.S. 817, 828

(1977).

STATEMENT OF THE CASE

The Petitioner is a former employee of the respond

ent, ADW Corp., who is a manufacturer’s representa

tive in the Heating Ventilation & Air conditioning

(HVAC) Industry across the country. The respond

ent’s sole business is to sale products for manufactur

ers in the Dallas-Ft. Worth area. The petitioner did

production work incidental to the sale of a manufac

turer’s product. Petitioner sued the respondent for

over-time wages, unpaid commissions and other tort

violations in state court on 7/9/14. The respondent

filed a notice of removal to federal court on 8/13/14

pursuant to the federal rules of civil Procedures

(FRCP) rule 81(c)(1) which applies to civil actions

when it is removed from state court, and the petitioner

did not object.

The respondent filed a timely motion to dismiss

the original state compliant on 8/20/14 pursuant to

FRCP rule 81(c)(2)(c). Thereafter on 9/9/14 the peti

tioner filed an amended complaint without leave of

court pursuant to Rule 15(a)(1). The respondent then

filed a second motion to dismiss on 9/30/14 and after

the court ruled on that motion, the respondent finally

filed their answer pleading to petitioner’s amended

complaint on 4/2/15, approximately 254 days late.

On 6/13/16 the petitioner filed a motion for sum

mary judgment where the petitioner’s total damages

sought was $215,147.52 and petitioner’s total cost of

litigation expense was $13,590.72. Pursuant to ADW’s

attorney, JOHN HERRING’S own admission during a

hearing seeking discovery, the respondent did not

have any evidence that would contradict petitioner’s

motion for summary judgment.

The following are un-disputed facts pursuant to

petitioner’s testimonial declaration in petitioner’s mo

tion to set aside final judgment.

On 7/8/16 & 7/11/16 petitioner personally met with re

spondent’s attorney JOHN HERRING and he stated

to petitioner that this case will not end on the merits

and that respondent will only pay cost and nothing

else.

The respondent and their attorneys had a duty to

disclose to petitioner their communications with

CHRISTIAN YOUNG with Bartos Industries under

rule 33(b)(3) of the Federal rules of civil procedures.

Where each interrogatory must, to the extent it is not

objected, be answered separately and fully in writing

under oath. Petitioner served on the respondent thru

their attorney JOHN HERRING, petitioner’s first set

of interrogatories to ADW Corp. on July 8, 2016.

INTERROGATORY #3 stated as follows;

Identify every person (other than your attorneys)

with whom you have had contact or communications,

or with whom you in any matter have discussed the

events, allegations, affirmative defenses either before

or after this lawsuit was filed.

On 8/11/16, DAVID CRITTENDEN, President of

ADW Corp., submitted his answer to petitioner’s first

set of interrogatories, where DAVID CRITTENDEN

under oath testified that he did not have any contact

or communications with anyone other than Benny

Stafford, Eric Groh and Leah Upchurch, pursuant to

interrogatory no. 3 in ADW Corp. objections and an

swer to petitioner’s first set of interrogatories.

The fact that DAVID CRITTENDEN listed Benny

Stafford an IT independent contractor with ADW

Corp and not a current or former employee of ADW

Corp. shows that DAVID CRITTENDEN and their at

torneys understood the question was with regards to

contact or communications of this lawsuit to others

which included CHRISTIAN YOUNG president of

Bartos Industries and one of petitioner’s manager.

Please, note that on page 13 of ADW Corp’s answer

to petitioner’s first set of interrogatories, the certifi

cate of service was signed by BARRETT ROBIN one

of respondent’s attorney. It was BARRETT ROBIN

who communicated the retaliatory threats, as stated

above to petitioner’s current employer Bartos Indus

tries via CHRISTIAN YOUNG. Defendant’s attorney

BARRETT ROBIN acted on behalf of the respondent

at all times.

Petitioner’s definition and instructions #1 & #2 in

petitioner’s first set of interrogatories to ADW Corp.

made it clear that #1 “Communications means the

transmittal of information in the form of data, facts,

ideas, opinions, inquiries or otherwise,” and #2 “ADW

Corp., ADW or Defendant means any employees,

agents, attorneys, representative, as well as any other

person acting on behalf of the respondent...”

Mediation was scheduled for 8/12/16. Upon arriv

ing to mediation on 8/12/16 the respondent and peti

tioner were kept in separate rooms, where the media

tor communicated with each of us one at a time. Peti

tioner attended the mediation, and DAVID

CRITTENDEN, WOODY GUNTER for the respond

ents and JOHN HERRING attorney for the respond

ent. ADW and their attorney JOHN HERRING, thru

the mediator, repeated refused all offers made by the

petitioner for over-time wages in this case. During the

mediation the respondent stated that he was a close

friend with CHRISTIAN YOUNG, president of Bartos

Industries, my employer, and that they played golf to

gether.

By the end of the mediation, ADW and their attor

ney JOHN HERRING made an offer thru the media

tor to settle only for cost of litigation. Then the re

spondent and their attorney JOHN HERRING made

the following unlawful retaliatory threats during me

diation; “(1) that petitioner had taken proprietary in

formation from ADW Corp. without consent and that

they can sue petitioner’s current employer Bartos In

dustries, (2) That petitioner had also used proprietary

information from Bartos Industries in petitioner’s mo

tion for summary judgment, and (3) that petitioner

can be black-listed in the industry.” During this time

petitioner was going thru a financial hardship and pe

titioner was in fear of immediately losing his job, be

ing homeless and losing his reputation in the industry

which would destroy his livelihood. Petitioner felt at

the time that he had no choice but to agree to their

cost of litigation settlement offer and give up his right

to over-time wages. So, on 8/17/16 petitioner was co

erced into sign a compromise settlement agreement

and release and filed a dismissal with prejudice

within 3 days. On 8/18/16 the court rendered an order

of dismissal with prejudice.

On 9/13/16 petitioner had his annual evaluation

with CHRISTIAN YOUNG, president of Bartos Indus

tries and PAM ROBERTSON, Director of Bartos In

dustries. During petitioner’s evaluation CHRISTIAN

YOUNG informed petitioner that BARRETT ROBIN

attorney for ADW Corp. hand called him in June of

2016 and informed him that petitioner had use propri

etary information belonging to Bartos Industries in

his testimonial declaration for petitioner’s motion for

summary judgment. CHRISTIAN YOUNG continued

to state that petitioner had also taken proprietary in

formation from ADW Corp. without consent and that

ADW Corp. can sue Bartos Industries for said theft.

In addition, CRISTIAN YOUNG stated he was a close

and personal friend of DAVID CRITTENDEN and

they play golf together and that’s why ADW Corp. will

not sue Bartos Industries.

As a result of this communication by BARRETT

ROBIN on behalf of the respondent, petitioner was de

nied his annual raise and petitioner’s bonus was sig

nificantly lower than previous years. Petitioner esti

mates that he lost approximately $48,000.00 in career

earnings as a result of ADW Corp., retaliation and un

lawful threat to sue petitioner’s employer.

REASONS TO GRANT THE PETITION

The United States court of appeals affirmed a de

cision that exceeds their authority and lacks subject

matter jurisdiction by suspending section 31.03 of the

Texas penal code, the Hobbs Act, the FLSA and grants

the respondent and their attorneys immunity against

prosecution by holding that un-lawful threats of retal

iation, an in terrorem tactic as stated in Jacques v. DiMarzio, Inc., 216 F. Supp. 2nd at (144), are protected

by mediation confidentiality and attorney client priv

ilege which infringes on petitioner’s constitutional

right to access to the courts, due process and the equal

protection clause.

The un-disputed retaliatory threats by the re

spondent during a mediation conference as follows;

“(1) that petitioner had taken proprietary infor

mation from ADW Corp. without consent and that

they can sue petitioner’s current employer Bartos In

dustries, (2) That petitioner had also used proprie

tary information from Bartos Industries in

petitioner’s motion for summary judgment, and (3)

that petitioner can be black-listed in the industry.”

The un-lawful retaliatory threat above is also

know as Texas extortion law which charges the crime

as theft. Extortion occurs when an individual gains

property or money by some type of force of violence,

property damage, harm to reputation or unfavorable

government action. The difference between this kind

of threat and robbery is that the victim is not placed

in imminent fear of physical danger. Instead, the

threatened conduct could occur sometime in the fu

ture and could affect things other than the victim’s

physical body, such as his or her reputation.

Texas penal code § 31.03(a) a person commits an

offense if he unlawfully appropriates property with in

tent to deprive the owner of property and (b) appropri

ation of property is unlawful if it is without the

owner’s effective consent. Section 31.01(C) deception

is preventing another from acquiring information

likely to affect his judgment in the transaction. Sec

tion 31.01(3)(A) consent is not effective if induced by

deception or coercion.

The Fair Labor Act (FLSA) prohibits retaliation by

employers against employees for asserting their

rights under the FLSA in violation of section 15(a)(3)

of the act which prohibits “to discharge or in any other

manner discriminate against any employee because

such employee has filed any compliant or instituted or

caused to be instituted any proceeding under or re

lated to this chapter, or has testified or is about to tes

tify in any such proceeding ...

To establish a prima facie case of retaliation, an

employee must prove that (1) he or she engaged in a

protected activity under the FLSA; (2) his or her exer

cise of this right was known by the employer; (3)

thereafter the employer took an employment action

adverse to him; and (4) there was a causal connection

between the protective activity and the adverse em

ployment action

see Adair v. Charter Cty. of Wayne,

452 F.3d 482, 489 (6th Cir. 2006).

Any adverse employment action is a violation of

the above anti-retaliation provision of the proximate

or motivating reason is the employee’s exercise of his

or her rights under the act. These prohibitions were

designed to permit employees to feel free to approach

officials with grievances and to enhance compliance

with the substantive provisions of the FLSA.

An employer may not interfere with a former em

ployee’s ability to obtain and/or retain subsequent em

ployment. The former employer can accomplish this

purpose by disclosing to a prospective employer that

the employees had filed a wage and hour compliant.

Employers cannot be permitted to punish former em

ployees by seeking to have them “black listed” by po

tential employers. The goal of anti-retaliation provi

sions is to maintain unfettered access to statutory re

medial mechanisms, see Robinson v. Shell Oil Co., 519

U.S. 337 (1997). The second circuit has held that the

potential of retaliation to undermine enforcement of

the law by deterring “other employees ... from protect

ing their rights ... or from providing testimony for the

plaintiff ... may be found to constitute irreparable in

jury,” see Holt v. Cont’l Group, Inc., 708 F.2d 87, 91

(2nd Cir. 1993). Former employee is protected under

FLSA against any type of harassment after employ

ment has ended, see Hayes v. McIntosh, 604 F.Supp.

10 (N.D. Ind. 1984).

This desire to punish the individual for engaging

in protected activity and to deter others from acting

similarly, is what makes it retaliation, see Brissette v.

Franklin County Sheriff’s Office, 235 F.Supp. 2d 63

(2003). Legal proceedings including counterclaims can

constitute actionable retaliation if they are filed

against an employee in response to the employee as

serting statutory workplace rights, see Jacques v. DiMarzio Inc., 216 F.Supp. 2d 139, 141-43 (E.D.N.Y.

2002). A lawsuit ... may be used by an employer as a

powerful instrument of coercion or retaliation and my

dissuade individuals from pursuing their claims, see

Rosania u. Taco Bell ofAm., Inc., 303 F.Supp. 878, 885

(N.D. Ohio 2004). Even the threat of a lawsuit can con

stitute an adverse employment action because it is de

signed to deter the protected activity, see Lovejoy-Wilson v. NOCO Motor Fuel, Inc., 263 F.3d 208, 223.

Respondent’s coercive conduct and that of their at

torneys was a willful violation of the FLSA. A viola

tion under the FLSA is willful if the employer “knew

or showed reckless disregard for ... whether its con

duct was prohibited by the statute,” Singer v. City of

Waco, Tex., 324 F.3d 813, 821 (5th Cir. 2003). The bur

den of showing that an FLSA violation was willful

falls on the petitioner, see Cox v. Brookshire Grocery

Co., 919 F.2d 354, 356 (5th Cir. 1990). Since, peti

tioner’s facts were un-disputed by the respondent and

their attorney, they are considered true as a matter of

law in these proceedings.

The un-lawful retaliatory threats by the respond

ent and their attorneys is a subject matter that is not

part of petitioner’s litigation and therefore does not

have the confidentiality required in mediation. A

Texas court has found no confidentiality when the ma

terial sought did not relate to the substantive issues

of the mediation, see In re Daley, 29 S.W.3d 915, 918

(Tex. App. Beaumont 2000, no pet.).

Moreover, the respondent waived confidentiality of

mediation when they disclosed these threats to a third

party CHRISTIAN YOUNG petitioner’s supervisor,

several months prior to the mediation conference. The

respondent and their attorneys waived the confidenti

ality of the mediation pursuant to rule Texas ADR Act

LR 6-12 where communications made in connection

with a mediation ordinarily mav not disclosed to the

assigned judge or to anyone else not involved in the

litigation, unless otherwise agreed. The respond

ent committed a de facto violation prior to mediation

by disclosing the threats prior to mediation to a third

party not in the litigation. Thereby voluntarily waiv

ing the mediation confidentiality clause in the Texas

ADR, and by virtual of respondent’s disclosure, the pe

titioner also waived confidentiality on the same issues

when he filed a motion to set aside the final judgment

due to fraud. The waiver was mutual and an exception

to the Texas ADR pursuant to LR 6-12.

In evaluating a claim of attorney-client privilege,

we review factual findings for clear error and the ap

plication of the controlling law de novo, In re Avantel,

S.A., 343 F.3d 311, 318 (5th Cir. 2003). When a party

entitled to claim attorney-client privilege uses

confidential information against his adversary (the

sword), he implicitly waives its use protectively (the

shield) under that privilege, Willy v. Admin. Review

Bd., 423 F.3d 483, 497 (5th Cir. 2005).

The attorney client privilege is governed by Texas

law. If attorney-client privilege existed, a communica

tion must be confidential in order to gain the protec

tion of the attorney-client privilege. Further, not only

must a privileged communication be made in confi

dence, it must remain confidential. The un-lawful re

taliatory threats were made to the petitioner during

the mediation and petitioner is not a client of defend

ant’s attorneys and has no duty to keep these threats

confidential.

Furthermore, as per the un-disputed facts, re

spondents attorneys are active participants of the

fraud by conspiring with the respondent in planning

the fraud and concealing the fraud prior to mediation.

In an interrogatory under oath DAVID

CRITTENDEN failed to disclose that his attorney had

spoken to CHRISTIAN YOUNG, petitioner’s supervi

sor about the case prior to mediation. This a material

fact gave the petitioner the false impression that no

retaliatory threats were made to petitioner’s employer

and that petitioner’s career was safe and the extortion

plot was in full force. If DAVID CRITTENDEN stated

the truth as per the rule of law, the deception and ex

tortion plot would have failed. The cat was out of the

bag. Meaning the unlawful threats had lost its power

and that the petitioner was already in peril. There

would have been no coercion to prevent the petitioner

from continuing with his motion for summary judg

ment for the $215,147.52 in damages.

A party may engage in rule 60(b)(3) misconduct if

he fails to disclose evidence he knows about the pro

duction of such evidence was clearly called for by any

fair reading of the discovery order, see Government

Fin. Servs. One L.P. v. Peyton Place, Inc., 62 F.3d 767,

772-73 (5th Cir. 1995). The case law under rule 60(b)(3)

does not often articulate this distinction between out

of court conduct and trial related conduct, see Roger

Edwards, LLC v. Fiddes & Sons Ltd., 427 F.3d 129,

134 (1st Cir. 2005). “Coercion occurs if someone is com

pelled to perform an act by force or threat.” In re

D.E.H., 301 S.W.3d at 828; Arnett, 2008 Tex. App.

LEXIS 3184, at *4 (quoting In re D.E.H., 301 S.W.3d

at 828). “[T]he essence of an undue influence claim is

overcoming the free will of an individual and substi

tuting the will of another, thereby causing a person to

do an act which he would not otherwise have done.”

In re D.E.H., 301 S.W.3d at 828 (quoting B.A.L. v.

Edna Gladney Home, 677 S.W.2d 826, 831 (Tex.

App.—Fort Worth 1984, writ refd n.r.e.) (internal

quotations omitted).

Moreover, during the planning stages of the fraud

by the respondents and their attorneys prior to medi

ation and during mediation there was no attorney-cli

ent relationship. The attorneys and the respondents

were active participant of the fraud and co-conspirators of the fraud. There can be no attorney-client rela

tionship when the attorney and the client are partici

pating in the fraud.

Texas Rule of Evidence 503(a)(5) states that if a

matter for which the privilege has been asserted has

been disclosed to a third party, the party asserting the

privilege has the burden to prove that no waiver oc

curred, see Arkia, Inc., 846 S.W. 2nd at 630. The re

spondent never meet the burden of proof that the at

torney client privilege was not waived.

Texas Rule of Evidence 503(d)(1) lawyer client

privilege exceptions. There is no privilege under this

rule if the services of the lawyer were sought or ob

tained to enable or aid anyone to commit or plan to

commit what the client knew or reasonable should

have know to be a crime or fraud. This rule is also

known as the crime-fraud exception to the attorneyclient privilege, the privilege can be overcome where

communication or work product is intended to further

continuing or future criminal or fraudulent activity,

see United States v. Edwards, 303 F.3d 606, 618 (5th

Cir. 2002).

It is important to understand the reasoning behind

this exception to the privilege, using federal law as a

guide. The Supreme Court set forth in its reasoning in

a 1989 decision as follows; the attorney-client privi

lege is not without its costs. Since the privilege has

the effect of withholding relevant information from

the fact finder. It applies only where necessary to

achieve its purpose. The attorney-client privilege

must necessarily protect the confidence of wrongdo

ers, but the reasons for that protection- the justice ceases to operate at a certain point, namely where the

desired advice refers not to prior wrongdoing, but to

future wrongdoing. It is the purpose of the crimefraud exception to the attorney-client privilege to as

sure that the seal of secrecy between the lawyer and

client does not extend to communications made for the

purpose of getting advice for the commission of a fraud

or crime, see U.S. v. Zolin, 491 U.S. 554, 562-63

(1989).

The opinion by the 5th Circuit court of appeals App.

1, gives the respondents and their attorneys, a special

privilege of immunity from prosecution from alleged

fraudulent conduct by petitioner’s un-disputed facts of

un-lawful retaliatory threats and conceals the conduct

by ruling that the evidence is protected by mediation

confidentiality and attorney client privilege. This case

is about plaintiffs controversies of over-time wage

pursuant to FLSA and not about misconduct which is

a subject matter that is not a part of the litigation.

Therefore, the judgment and opinions of the lower

courts are without the authority required by the pro

visions of the U.S. Constitution, Article III, section 2.

The ruling and opinion are null and void. Therefore,

there is competent substantial evidence that the re

spondent and their attorneys committed fraud on the

court, so the U.S. Supreme court has immediate juris

diction to review the non-final order in question II in

App. 2 as follows.

The United States court of appeals affirmed a de

cision that infringed on petitioner’s constitutional

rights to due process and equal treatment of the law,

by refusing to render a decision in a non-final order

denying plaintiffs motion for reconsideration to strike

respondent’s answer pleading where the lower court

deviated from the established principles of law by: (1)

not following the doctrine of stare decisis and by incor

rectly applying the tolling provisions of Rule

12(a)(4)(A) to rule 81; (2) by acting in excess of its ju

risdiction by allowing respondent’s affirmative de

fense claim of be a “non-traditional engineering firm,”

which is strictly prohibited by the Texas Engineering

Practice Act; (3) and by applying the “plausibility

standard” pursuant to Bell Altlantic Corp. u Twombly,

550 U.S. 544 (2007) and clarified in Ascroft v. Iqbal,

129 S.Ct. 1937 (2009), to petitioner’s complaint and

amended complaint and failing to apply the same

standard to respondent’s answer pleadings.

Rule 12(a)(4)(A) tolling provision is inapplicable to

cases removed from state courts where the time to an

swer the original complaint is specified by rule Rule

81(c)(2) of the Federal rules of civil procedures and the

controlling rule requiring a response to an amended

pleadings is rule 15(a)(3). Petitioner’s originally filed

this case in state court on July 9, 2014 and the re

spondent was served with a summons on 7/28/14 July

22, 2014, requiring the respondent to respond to the

complaint within pursuant to the Texas rules of civil

procedures. Notice of removal was filed on 8/13/14 and

rule 81(c)(1) applies to civil actions after it is removed

from state court. Rule 81(c)(2) states that a defendant

who did not answer before removal must answer or

present other defenses or objections under these rules

within the longest of these periods:

(A) 21 days after receiving - through service or

otherwise — a copy of the initial pleading

stating the claim for relief;

‘

(B)21 days after being served with the sum

mons for an initial pleading on file at the

time of service; or

Rule 81 requires an answer or to present other de

fenses or objections. Pursuant to rule 81(c) respondent

filed a timely motion to dismiss original complaint on

8/20/14. August 20, 2014 is the longest period of time

the respondents have to respond to the original com

plaint/pleading under Rule 81(c). Deadline to respond

is to the original complaint/pleading is unmistakably

set by Rule 81. The petitioner filed an amended com

plaint without leave of court as a matter of law pursu

ant to rule 15 of the federal rules of civil procedures

on 9/9/14. Rule 81 appears to only toll the time to an

swer an original complaint until an amended com

plaint is filed, then rule 15 (a)(3) controls.

The respondent claimed that rule 12(a)(4)(A) tolled

the time to file an answer until the court renders a

disposition on the motion to dismiss petitioner’s origi

nal complaint. Rule 15(a)(3) controls the time to re

spond to an amended complaint, where the rules spe

cifically states that “Unless the court orders other

wise, any required response to an amended pleading

must be made within the time remaining to respond

to the original pleading or within 14 days after service

of the amended pleading, whichever is later. Just be

cause the respondent filed a motion to dismiss under

rule 12, it does not change the time to respond to the

original complaint/pleading set by Rule 81(c) as

8/20/14. Therefore rule 12, in this case is never con

trolling as the time to file an answer to the original

complaint/pleading. The adjusted deadline to respond

to petitioner’s amended complaint was adjusted by

rule 15(a)(3) by adding 14 days to September 9, 2016,

which is the filing date of appellant’s amended com

plaint. Therefore, the longest time to respond/answer

then becomes September 24, 2014. The respondent

filed their answers to petitioner’s amended complaint

on April 2, 2015 approximately 253 days late.

Rule 12(a)(4) is unambiguous and by its express

terms applies only to Rule 12(a)(l)-(3), which are the

times to respond to the original compliant when filed

in federal court. The period of time to answer an orig

inal complaint removed from state court and the time

to answer an amended complaint pursuant to Rule 15,

is not only missing from this list of affected periods,

but it is in relevant circumstances of different lengths.

Rule 12(a)(4) does not extend the time for filing an an

swer to an amended complaint when “the time re

maining for response to the original pleading” has

elapsed. The respondent was required to file an an

swer 14 days after plaintiff filed his amended com

plaint.

The following circuit court case on point makes the

following finding in Gen. Mills, Inc. v. Kraft Foods

Global, Inc., 495 F.3d 1378 (Fed. Cir. 2007), re-affirm

ing Gen. Mills, Inc. v. Kraft Foods Global, Inc., 487

F.3d 1376, 1377 (Fed. Cir. 2007) rehearing & rehear

ing En Banc Denied:

The relevant tolling provision is found in

Fed.R.Civ.P. 12(a)(4)(A). Although neither

party cites authority that construes Rule

12(a)(4)(A)—and we have found none our

selves—by the terms of that rule, the filing of a

motion to dismiss does not extend the time for

filing an answer to an amended complaint, at

least in the circumstance here where the time

for responding to the original complaint has al

ready run. Rule 12(a)(l)-(3) sets forth the dead

lines for answering original complaints and

cross-claims under various circumstances. Rule

12(a)(4) then provides that "[ulnless a different

time is fixed by court order, the service of a mo

tion permitted under this rule [including a Rule

12(b)(6) motion to dismissl alters these periods

of time" so as to extend the deadline until a mo

tion is ruled upon. Fed.R.Civ.P. 12(a)(4) (em

phasis added). However, the time for answering

an amended complaint is not one of "these peri

ods of time." Rather, the deadline for respond

ing to an amended complaint is established senaratelv under Rule 15: "A party shall plead in

response to an amended pleading within the

time remaining for response to the original

pleading or within 10 days after service of the

amended pleading, whichever period may be

the longer, unless the court otherwise orders."

Fed.R.Civ.P. 15(a).

Thus, because no time "remain[ed] for response

to the original pleading" when General Mills

filed its amended complaint, Kraft had only 10

days after service of the amended complaint—

not 10 days after the district court's ruling on

the motion to dismiss—to file an answer and

counterclaim or take such other action as may

have been permitted to protect its interests.

Because Kraft did not do so before its deadline

had passed, the district court did not abuse its

discretion in finding that Kraft had abandoned

its counterclaim. See Johnson v. Berry, 228

F.Supp.2d 1071, 1079 (E.D.Mo. 2002) (holding

that a counterclaim was abandoned when the

defendant failed to respond to an amended com

plaint).

The district court without any compelling reason

deviated from precedence in Gen. Mills, Inc. v. Kraft

Foods Global, Inc., which specifically interpreted the

rule stating “that the tolling provisions of Rule

12(a)(4)(A) apply only to the time to respond to the

original complaint under rule 12(a)(l)-(3)...,” and

therefore is inapplicable to Rule 81 time to respond to

the original complaint, see Gen. Mills, Inc. v. Kraft

Foods Global, Inc., 495 F.3D 1379 (Fed. Cir. 2007).

Stare decisis assures equality of treatment for liti

gants similarly situated, spare judges the task of re

examining rules of law with each succeeding case and

affords the law a desirable measure of predictability.

,The Supreme Court has identified four virtues of the

consistency that stare decisis brings; predictability,

fairness, appearance of justice and efficiency, see

Hohn v. United States, 524 U.S. 236 (1998). Stare de

cisis carries such persuasive force that the court has

always required a departure from precedent to be sup

ported by some special justification, see Dickerson v.

United States, 530 U.S. 428, 429 (2000).

The respondent’s assertion that they were a “nontraditional engineering firm” without providing any

facts that they were a registered engineering firm

pursuant to the Texas Engineering Practice Act §

1001.405 of the Texas State Statues - where the prac

tice of engineering is carried out only by licensed pro

fessional engineers. The Texas Engineering Practice

Act § 1001.403 protects the public - where the profes

sional identification and use of the word “Engineer

ing” in documents, pamphlets, advertisement or an

other similar written or printed form of identification

is limited to a person or firm licensed under this

statue. In addition, § 1001.004(c)(2) only a person li

censed under this chapter may (A) engage in the prac

tice of engineering; (B) be represented in any way as

any kind of “engineer”; or (C) make any professional

use of the term “engineering”; and (3) this chapter

shall be strictly enforced. Section § 1001.004(c)(3) this

chapter shall be liberally construed to carry out the

intent of the legislature. The respondent has no vested

right to claim in their affirmative defense that they

are a “non-traditional engineering firm,” which cre

ates impression with the public that they are author

ized to practice engineering in the state of Texas. No

firm, partnership, association, corporation or other

business entity shall hold itself out to the public or

any member thereof as being engaged in the practice

of engineering.... see Kilpatrick v. State Board of Reg

istration for Professional Engineers. Tex. Civ. Ann.,

610 S.W.2d 867 (1981).

A judgment is void under rule governing relief

from judgment because the court that issued it lacked

the power to do so, not because it was erroneous, see

City Cab Co. of Orlando, Inc. v. All City Yellow Cab,

Inc., 581 F. Supp. 2d 1197 (M.D.Fla. 2008). Motion to

strike under rule 12(f) is not normally granted unless

prejudice would result to movant from denial of

motion, but it may be granted where defense is clearly

legally insufficient as for example where there is

clearly no bona fide issue of fact or law, see United

States v. 729.773 Acres of Land, 531 F.Supp. 967 (DC

Hawaii 1982).

Respondent’s denial in their affirmative defense

that they are a “non-traditional engineering firm,” is

not only prejudicial to the general public. The legisla

tive purpose & intent; liberal construction of the

Texas Engineering Practice Act § 1001.004 (b) the

purpose of this chapter is to; (1) protect the public

health, safety, and welfare; (2) enable the state and

public to identify persons authorized to practice engi

neering this state; and (3) fix responsibility for work

done or services or acts performed in the practice of

engineering.

A court does not have the power, by judicial fiat, to

extend its jurisdiction over matters beyond the scope

of the authority granted to it by its creators, see Stoll

v. Gottlieb, 305 U.S. 171-172 (1938). A court exercises

its law-declaring power when a ruling has an effect on

“primary conduct,” see Hanna v. Plumer, 380 U.S.

460, 475 (1965). As a result of the district court’s lack

of subject matter jurisdiction allowing an affirmative

defense and claim that respondent is a “non-traditional engineering firm” violates the Texas Practice

Engineering Act and the fact that respondent’s an

swer pleading was late, justice requires that the court

must strike respondent’s answer pleading with preju

dice. Action of striking pleading is drastic remedy to

be resorted to only when required for purposes of

justice, see Augustus v. Board of Public Instruction of

Escambia County, 306 F.2d 862 (C.A.5 Fla. 1962).

The court infringed on petitioner’s constitutional

rights to equal treatment of the law by miss-applying

rule 59(e). Rule 59(e) applies only to a motion “to alter

or amend a judgment.” It does not apply to “orders,”

see Muvoekma Tribe v. Babbitt, 133 F. Supp. 2d 42, 48

(D.D.C. 2001). On the other hand a motion for re-con

sideration of an interlocutory order is pursuant to rule

54(b) “any order ... that adjudicates fewer than all the

claims or the rights and liabilities of fewer than all the

parties ... may be revised at any time before the entry

of a judgment adjudicating all the parties ‘rights and

liabilities.” The trial court has inherent power to re

consider and modify interlocutory orders prior to en

try of final judgment, see Bon Air Hotel, Inc. v. Time,

Inc., 426 F.2d 858, 862 (5th Cir. 1970), because the or

der was interlocutory, the trial court at any time be

fore final decree could modify or rescind it, see John

Simmons Co. v. Grier Brothers Co., 258 U.S. 82, 88

(1922). A motion for re-consideration of an interlocu

tory order is pursuant to rule 54(b) “any order ... that

adjudicates fewer than all the claims or the rights and

liabilities of fewer than all the parties ... may be re

vised at any time before the entry of a judgment adju

dicating all the parties ‘rights and liabilities.” Under

rule 54, a district court has “the inherent procedural

power to reconsider, rescind, or modify an interlocu

tory order for cause seen by it to be sufficient, see

Melancon v. Texas, Inc., 659 F.2d 551, 553 (5th Cir.

1981). This rule is liberally construed, see Robinson u.

Lorillard Corp., 444 F.2d 791 (1971). Reconsideration

of interlocutory orders may be granted as justice re

quires, see Cobell u. Norton, 224 F.R.D. 266 (D.D.C.

2004). Interlocutory orders may be reconsidered by

district court when to do so is consonant with justice

or where court has patently misunderstood party, or

has made decision outside the adversarial issues pre

sented to the court by the parties, or has made error

not of reasoning but of apprehension, see Young v.

Murphy, 161 F.R.D. 61, (N.D.I11. 1995).

The petitioner is prejudiced by respondent’s deni

als which lack the necessary supporting facts to sup

port their affirmative defenses, where the respond

ent’s misrepresented that they have a mechanical/air

conditioning, general contracting and engineering li

cense. The petitioner is also prejudiced by respond

ent’s claims in their affirmative defense stating that

plaintiffs duties, which are incidental to a sale of a

product, requires independent judgment and discre

tion. An answer to a complaint requires the respond

ent to provide a sufficient defense that can provide the

petitioner with enough notice to prepare for trial. For

a defense to be sufficient, the defendant has to provide

how the sale of a product and/or how the list of duties

require the use of independent judgment and discre

tion. Respondent’s affirmative defense is unclear, in

sufficient and does not provide petitioner with enough

notice to prepare for trial. Moreover, respondent’s af

firmative defense of independent judgment and dis

cretion is insufficient and a legal definition which

should be stricken as a matter of law. Rules (8)(e)

states that pleadings must be construed as to do jus

tice. Pleadings are intended to serve as a means of ar

riving at fair and just settlement of controversies be

tween litigants, see Maty v. Grasselli Chem. Co., 303

U.S. 197, 200 (1938). Moreover, the use of independ

ent judgment and discretion in the HVAC

■

;r; *»

manufacturer’s representative industry is barred by

the Texas Engineering Practice Act (TEPA) §

1001.301(a) a person may not engage in the practice

of engineering unless the person holds a license issued

under this chapter.

TEPA § 1001.003 where the practice of engineer

ing means the performance of an offer or attempt to

perform any public or private service or creative work,

the adequate performance of which requires engineer

ing education, training, and experience in applying

special knowledge or judgment of the mathematical,

physical, or engineering science to that service or cre

ative work. The practice of engineering includes but

not limited to the following; consultation, investiga

tion, evaluation, analysis, planning, engineering for

testing or evaluating materials for construction or

other engineering use and mapping, design, concep

tual design of engineering works or systems, engineer

ing for construction, alteration, or repair of real prop

erty, engineering for review of the construction or in

stallation of engineered works to monitor compliance

with drawings or specifications The key to determin

ing the sufficiency of pleading an affirmative defense

is whether it gives plaintiff fair notice of the defense,

see Wyshak v. City Nat’l Bank, 607 F.2d 824, 827 (9th

Cir. 1979). “... a defendant nevertheless must plead

an affirmative defense with enough specificity or fac

tual particularity to give the plaintiff “fair notice” of

the defense that is being advanced, see Woodfield v.

Bowman, 193 F.3d 354, 362 (5th Cir. 1999).

The district court applied the plausibility standard

to petitioner’s amended complaint and dismissed

some of petitioner’s claims. The district court then in

fringed on petitioner’s constitutional right under the

5th amendment of due process by failing in their duty

to apply the “plausibility standard” to respondent’s

answers when it denied petitioner’s motion for recon

sideration. “An affirmative defense are pleadings and,

therefore, are subject to all pleading requirements of

the federal rules of civil procedures ...,” see Woodfield

v. Bowman, 193 F.3d 354, 362 (5th Cir. 1999). It is fun

damentally unfair to apply two different standards of

pleading review, specifically when the U.S. Supreme

Court overturned the “no sets of facts” standard in

Conley v. Gibson, 355 U.S. 41 (1957) and replaced it

with the “plausibility” standard in Bell Atlantic Corp.

v. Twombly, 550 U.S. 544 (2007) and clarified in Ash

croft v. Iqbal, 129 S.Ct. 1937 (2009). The Supreme

Court elaborated on the new plausibility standard and

extended its application to all civil cases. Fairness in

pleading and under the Federal Rules should be sym

metric, and the petitioner should be entitled to the

same level of notice of the affirmative defenses as

serted in the case as the respondent receives of the al

legations against it. The basic reasoning of Twombly

and Iqbal is that fairness dictates that the respondent

receive notice of enough facts to state a plausible

claim, applies with equal force to the affirmative de

fense. Equity thus requires that the plausibility

standard apply not only to a petitioner’s allegations,

but to respondent’s affirmative defenses as well.

Under the 5th Amendments, the substantive com

ponent of due process provides heightened protection

against government interference with certain funda

mental rights and liberty interest, see Cook v. Gates,

528 F.3d 42 (1st Cir. 2008). If a government benefit is

a matter of statutory entitlement for persons qualified

to receive them, then the government has created a

due process property interest in that benefit. To show

a 5th Amendment due process violation, an individual

must prove that he or she was deprived of a protected

interest and that the deprivation occurred without the

“appropriate” level of process, see Federal Lands Legal

Consortium ex rel. Robart Estate v. U.S., 195 F.3d

1190 (10th Cir. 1999). Due process clause of the 14th

Amendment, like its 5th Amendment counterpart,

guarantees more than fair process; it also includes

substantive component that provides heightened pro

tection against government interference with certain

fundamental rights and liberty interests, see Troxel v.

Granville, 120 S. Ct. 2054 (2000), Littlefield v. Forney

Independent School District, 268 F.3d 275 (5th Cir.

2001). An unconditional right of access to the courts

exists for civil cases only when denial of a judicial fo

rum would implicate a fundamental human interest,

see Abdul-Akabar v. Mckeive, 239 F.3d 307 (3rd Cir.

2001). The right of access to the courts ... is found in

the due process clause and assures that no person will

be denied the opportunity to present to the judiciary

allegations concerning violations of fundamental con

stitutional rights, see Wolff v. McDonnell, 94 S.Ct.

2963 (1974). Constitutional rights would be of little

value if they could be indirectly denied, see Gomillion

v. Bidwell, 182 U.S. 244 (1901).

Petitioner believes that with the application of the

“plausibility standard” to the answer pleading, the

motion to strike will become as routine as the motion

to dismiss with the goal being judicial economy, see

Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007)

and clarified in Ashcroft v. Iqbal, 129 S.Ct. 1937

(2009).

Justice, fairness and due process requires that the

court apply the “plausibility” standard to respondent’s

answers and affirmative defenses where respondent

must allege sufficient factual basis for its affirmative

defenses to show that the defense is “plausibly viable”

on its face or sufficient factual matter from which a

court can infer potential viability. The possibility that

issues will be unnecessarily complicated or that su

perfluous pleadings will cause the tier of fact to draw

unwarranted inference at trial is the type of prejudice

that is sufficient to support the granting of a motion

to strike, see Jacobsen v. Katzer, 609 F.Supp.2d 925

(N.D.Cal 2009).

CONCLUSION

The Court can review this writ de novo since there

was no jury trial, no factual disputes and questions

presented are purely legal in nature. The relentless

pattern of decisions deviating from the rule of law by

the lower courts, demonstrate a systematic bias

against the petitioner requiring strict scrutiny of the

law.

The attorneys in the North District of Texas are

well aware of these biases by the courts and they don’t

care if the break the law, since the courts will always

rule against pro se litigants in the Northern District.

The petitioner prays that the Court grants this

writ or any other relief that the court may deem just

and fair for the reasons above and reviews this case

on the merits with due process and equal application

of the law.

Respectfully,

Efrain Areizaga, Pro se

4241 Rufe Snow Dr., Apt. 1423

N. Richland Hills, TX 76180

(469) 297-0216

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.