Petition for Writ of Certiorari — Mark Anthony Jenkins, Petitioner v. Timothy O'Rourke, et al.

Supreme Court briefJul 17, 2020

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Text

No.

In the Supreme Court of the United States

MARK ANTHONY JENKINS,

Petitioner,

TIMOTHY O’ROURKE, Jefferson Parish Assistant District

Attorney, Jefferson Parish Juvenile Court, et al.

APPENDIX

A. Judgments on Review

Appendix A1_United States Court of Appeal for the Fifth Circuit,

Opinion of Jan. 10, 2020............................................................................

l-3a

Appendix A2_ U. S. District Court for the Eastern District

of Louisiana, Order & Reasons, Nov. 27, 2018........................................

4-16a

B. State Court Judgments

Appendix B1_Jefferson Parish Juvenile Court,

Minutes of July 7, 2014, sealed in supplemental appendix...................

17sa

Appendix B2_Jefferson Parish Juvenile Court,

Minutes of the September 15, 2014, sealed in supplemental appendix

18sa

Appendix B3_24th Judicial District Court, State of

Louisiana, Judgment of February 4, 2015.............................................

19-20a

Appendix B4_Jefferson Parish Juvenile Court,

Minutes of April 27, 2015, sealed in supplemental appendix.............

21sa

Appendix B5_Louisiana Fifth Circuit, Order of May 26, 2015.....................

22-23a

Appendix B6_Jefferson Parish Juvenile Court,

Louisiana, Minutes of June 15, 2015, sealed in supplemental appendix...24sa

Appendix B7_Louisiana Fifth Circuit, Disposition, July 31, 2015....

25-30a

Appendix B8_24th Judicial District Court, Louisiana

Judgment, February 1, 2016............. ..........................................

31a

Appendix B9_ 24th Judicial District Court for the State of Louisiana

Judgment of May 24, 2016............... ............................................

32a

Appendix B10_Louisiana Fifth Circuit, Order, Nov. 1, 2016.............

33-34a

Appendix Bll_24th Judicial District Court, State of Louisiana,

Amended Judgment, Nov. 7, 2016...........................................

35a

C. Orders Denying Rehearing

Appendix Cl_ U. S. Court of Appeals for the Fifth Circuit denied

en banc rehearing. February 21, 2020....................................

36-37a

Appendix C2_ U. S. District Court for the Eastern District of

Louisiana, January 15, 2019, denied new trial.....................

38-40a

Appendix C3_Louisiana Fifth Circuit, rehearing denied

September 2, 2015..................................................................

41a

Appendix C4_Louisiana Supreme Court, writ of certiorari

denied w. Dissent on September 4, 2015

>>>>>>>>>>>>>

Appendix C5_ Louisiana Fifth Circuit, rehearing denied March 2, 2017

42-43a

44a

Appendix C6_Louisiana Supreme Court, writ of certiorari

denied w. J. Hughes “would grant” September 6, 2017...................

D. Mandate

45a

46-47a

E. Pleadings That Raised the Issue

Appendix El_excerpts from Application for Rehearing, Aug.14, 2015

48-49a

Appendix E2_excerpts from Application for Writ of Certiorari,

August 28, 2015................................................................................

50-53a

Appendix E3_ excerpts from Petition to Nullify, March 10, 2016........

54a

Appendix E4_Request for Reconsideration March 9, 2017...................

55-56a

Appendix E5_Application for Writ of Certiorari, April 20, 2017..........

57-60a

F. Other Essential Material

Ill

Appendix FI_excerpt from Memo of July 9, 2012.......................................

61a

Appendix F2_Jenkins’ Rule to Show Cause, Oct. 17, 2014.......................

ff2-65a

Appendix F3_Excerpt from Exception of Prescription, Nov. 20, 2014......

66a

Appendix F4_Motion to Amend and excerpt from Third

Amendment to petition in 24th Judicial District Court...................

67-70a

Appendix F5_excerpts of transcript of June 15, 2015

hearing in Juvenile Court, sealed in supplemental appendix.......

71-73sa

Appendix F6_ Excerpt from Jackson’s Application for Supervisory Writ,

June 23, 2015.......................................................................................

74-75a

Appendix F7_ Jenkins’ Brief in Opposition to Writ

Application, June 30, 2015 (excerpt)..................................................

76-77a

Appendix F8_excerpt from transcript of May 16, 2016 district court hearing

on exceptions to petition to nullify the 2015 ruling on legal paternity...78-81a

Appendix F9_Fourteenth Amendment....

82a

42 U.S.C.: sec. 1983

82-83a

La. C.C. Art. 203

84a

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Case: 19-30112

Document: 00515267653

Page: 1

Date Filed: 01/10/2020

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

v..

United States Court of Appeals

Fifth Circuit

FILED

No. 19-30112

January 10, 2020

Lyle W. Cayce

Clerk

MARK ANTHONY JENKINS,

Plaintiff - Appellant

TIMOTHY O'ROURKE Jefferson Parish A^istejjt^Distiirt Atto y,

Jefferson Parish Juvenile Court; ROBERT M^MUKFHY Jvoi

the Louisiana Fifth Circuit Court of Appeal; KRISTYL TREADAWAY,

BARRON BURMASTER, Judge,

Defendants'- Appellees

V-

Appeal from the United States District Court

for the Eastern District of Louisiana

USDC No. 2:18-CV-3122

Before DENNIS, GRAVES, and WILLETT, Circuit Judges.

PER CURIAM:*

Appellant Mark Anthony Jenkins brought suit in Louisiana state court

in 2012 contesting his paternity of Mark Anthony Jenkins, Jr. and seeking,

inter alia, nullification of an earlierchild support judgment and removal of his

^^jaasffsssssgsssssssxs: I

Clll. R- 47.5.4.

Case: 19-30112

Document: 00515267653

Page: 2

Date Filed: 01/10/2020

No. 19-30112

jk\

name from Mark Anthony Jenkins, Jr.’s birth certificate.1 Jenkins v. Jackson,

216 So. 3d 1082, 1084-86 (La. Ct. App. 2017). In July 2015, the Louisiana

appellate court found that Appellant had judicially confessed that “he signed

both the birth certificate and an acknowledgement of paternity at the time of

[Mark Anthony Jenkins, Jr.’s] birth in 1997,” such that Appellant’s “cause of

action to revoke his acknowledgement of legal paternity has prescribed.” In a

later appeal, the state appellate court reaffirmed this ruling, and noted it had

jurisdiction to issue the earlier ruling pursuant to its supervisory jurisdiction

over district courts within its circuit. Jenkins, 216 So. 3d at 1090 (“Because

the 24th Judicial District Court is a district court within our circuit, this Court

had the supervisory jurisdiction to render determinations relevant to Mr.

Jenkins’ petition, which included the legal and biological paternity of [Mark

Anthony Jenkins, Jr.]”); LA. CONST. ART. V, § 10 (“[A] court of appeal .... has

supervisory jurisdiction over cases which arise within its circuit.”).

Appellant' Then filed this federal lawsuit against an assistant district

attorney involved in the underlying litigation, a judge on the state appellate

court, his ex-wife’s attorney, and the state district court judge, arguing the

state appellate court lacked s-dbiedt-matter jurisdiction to .determine his.le.gal

paternity and seeking relief under 42 U.S.C. §§ 1983, 1985, 1986, and 1988.

The district court dismissed Appellant’s action under Federal Rule of Civil

Procedure 12(b)(1), holding that it lacked jurisdiction under the RookerFeldman doctrine because (1) Appellant “lost in the state court,” (2) he “alleges

injuries caused by that judgment,” (3) that judgment “was rendered before

[Appellant] filed this action,” and (4) Appellant “specifically asks this [c]ourt to

reverse that judgment.” See Exxon Mobil Corp. u. Saudi Basic Indus. Corp.,

1 Mark Anthony Jenkins, Jr., was horn September 18, 1997. Jenkins v. Jackson, 216

So. 3d 1082, 1084 (La. Ct. App. 2017).

Case: 19-30112

Document: 00515267653

Page: 3

Date Filed: 01/10/2020

No. 19-30112

'544 U.S. 280, 284 (2005) (The Hooker-Feldman doctrine applies to “cases

brought by state-court losers complaining of injuries caused by state-couit

judgments rendered before the district court proceedings commenced and

inviting district court review and rejection of those judgments. ). Th& district

court further determined that the state appellate court had jurisdiction to

' determine Appellant’s legal paternity,

After careful review of the record in this case, full consideration of the

parties’ briefs, and the district court’s thorough order and reasons, we affirm

the district court’s judgment for essentially the reasons stated by that court.

AFFIRMED.

Case 2:18-cv-03122-BWA-JVM

Document 58 Wed

*'W

1 Ul j—'

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

AS-

CIVIL ACTION

MARK ANTHONY JENKINS

NO. 18-3122

VERSUS

SECTION: MO)

ROBERT M. MURPHY, el al.

ORDER & REASONS

filed by defendant Barron Burmasler

Before the Court is a Motion to Dismiss

la intiff Mark Anthony Jenkins (“Jenkins”) responds in opposition.

(“Bunnaster"),1 to which p

Dismiss filed by defendant Kristyl

and in support of which Burmasler replies;2 a Motion to

4 to which Jenkins responds in opposition.5 and m support of which

Trcadaway (“Treadaway ”),

Trcadaway replies;" a Motion to Dismiss filed by defendant Robert M Murphy (“Murphy-).- to

which Jenkins responds m opposirion.8 and in support of which Murphy rcpl.es." and in further

which Jenkins has filed a sur-repiy;'” and a Motion to Dismiss filed by dclendam

opposition to

Timothy O’Rourke rO'Rourke"),1' to which Jenkins responds m opposition.11 and in support of

which O'Rourke replies.'3 Having considered the parties' memoranda and .he applicable law.

the Court issues this Order & Reasons.

1 R. Doc. 15.

J R. Doc. 25.

* R. Doc. 34.

4R. Doc. 19.

* R. Doc. 26.

4 R, Doc. 36.

’R. Doe. 23.

* R. Doc. 37.

4 R. Doc. 41.

10 R. Doc. 47.

" R Doc 24.

” R. Doc. 39.

13 R. Doc. 51.

. .A

--^-wox^-bwa-JVM Document 58

Filed 11/27/18 Page 2 of 13

background

This action is a collateral attack

on a state court judgment.

The pertinent facts and

procedural history of this case were recited by the Louisiana court of appeal fo

r the fifth circuit

m an appeal stemming from the underlying state-court litigation:

Mark Anthony Jenkins, Sr. and Latasha Jackson began their relationship while

Ms. Jackson was in high school. During the time of their sexual invol vement, Ms.

Jackson became pregnant. On September 18, 1997, Mark Anthony Jenkins, Jr.

(hereinafter referred to as Mark, Jr. ’) was bom to Latasha Jackson. According to

Mr. Jenkins, he signed an acknowledgement of paternity establishing filiation to

Mark, Jr., and the acknowledgement was filed by November 1997.1 The

following year, on May 31, 1998, Mr. Jenkins and Ms. Jackson were married. At

some point, the parties separated, and Ms. Jackson obtained a judgment of child

support against Mr. Jenkins on October 27, 2003. Mr. Jenkins and Ms. Jackson

were divorced on April 13, 2004.

On February 15, 2012, Mr. Jenkins filed a “Petition for Revocation of

Acknowledgement of Paternity, for Damages Due to Fraud under C.C. art. 2315,

and for Restoration of Payments Not Due under C.C. art. 2299” in the 24,h

Judicial District Court. In his petition, Mr. Jenkins alleged that Ms. Jackson

fraudulently concealed the truth about the paternity of Mark, Jr. and obtained

child support while knowing that another man, Samuel Scott, was the biological

father. He also alleged that be mistakenly signed the acknowledgement of

paternity for Mark, Jr.

In addition, Mr. Jenkins sought to have his

acknowledgement of paternity revoked, monetary damages from Ms. Jackson, and

a court order for a paternity test for himsel f and Mark, Jr.

In opposition to the petition for revocation, Ms. Jackson filed an “Exception of

Prescription and/or No Cause/Right of Action.” In her exception, Ms. Jackson

argued that Mr. Jenkins’ right to revoke the formal act of acknowledgement was

perempted because he failed to disavow Mark, Jr. within 180 days of the

marriage; thus, he had neither a right of action nor cause of action to revoke the

acknowledgement. The matter was heard by a domestic commissioner. In a

judgment rendered on July 5, 2012, the domestic commissioner sustained the

exception of prescription but overruled the exceptions of no cause of action and

no right of action. Mr. Jenkins filed a “Motion for New Trial,” which was heard

on September 13, 2012. A new trial was granted, and the matter was set for

arguments.2 On October 15, 2012, the domestic commissioner rendered a

judgment in favor of Mr. Jenkins, which overruled Ms. Jackson[’sj exception of

prescription. Ms. Jackson objected to the domestic commissioner’s ruling.

The matter was heard by the trial court on January 16, 2013. In a judgment

rendered on January 22, 2013, the trial court overruled Ms. Jackson’s exception of

Case 2:18-CV-0312 2-BWA-J VM Document 58 Filed 11/27/18 Page 3 of 13

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prescription. The trial court also ordered genetic testing and assigned costs for the

test. Ms. Jackson sought supervisory review of the trial court’s judgment.

In Jenkins v. Jackson, 13-296 (La. App. 5 Cir. 5/14/13) (unpublished writ

disposition), writ not considered, 13-1835 (La. 8/22/13); 122 So.3d 1009, this

Court granted Ms. Jackson’s writ application in part, reversing the trial court's

ruling on the exception of prescription and rendering a ruling that sustained the

exception. Citing J.P. v. C.E., 12-20 (La. App. 3 Cir. 5/2/12); 94 So.3d 107. this

Court found that the two-year prescriptive period in La. R.S. 9:406 should apply

prospectively from its effective date, which was August 15, 2008. Because Mr.

Jenkins did not file his petition to revoke until February 15. 2012, which was well

over the two years from the effective date, Mr. Jenkins’ action to revoke his

acknowledgement of paternity was prescribed. This Court also vacated the order

for genetic testing and remanded the matter to the trial court for determination of

whether Mr. Jenkins was entitled to the genetic testing pursuant to applicable law,

specifically La. R.S. 9:396. Upon remand, Mr. Jenkins filed a “Motion for Court

to Rule on Petitioner's Previous Motion for Genetic Testing under R S. 9:396."

The trial court granted the motion and ordered that Mr. Jenkins. Ms. Jackson and

Mark, Jr. submit to the genetic testing.

On September 11, 2013, Mr. Jenkins filed a “Motion to Amend Petition to Annul

Judgment of Juvenile Court."1 In that motion. Mr. Jenkins alleged that he filed a

petition to nullify child support in the juvenile court; however, he was informed

by the court that the nullification had to take place in the district court. Mr.

Jenkins sought to amend his original petition filed, which was filed in the trial

court, to include a request for damages for mental anguish and nul li fication of the

judgment of child support rendered in the juvenile court. The motion was heard

by the trial court and granted on November 25, 2013.

Mr. Jenkins subsequently filed a “Petition for Nullification of the Judgment of the

Fifth Circuit which Reversed a Judgment of This Court" on June 25, 2014. In that

petition, Mr. Jenkins sought to annul the portion of the May 14, 2013 writ

disposition of this Court that found his right to revoke the acknowledgement

prescribed. He alleged that his acknowledgement of paternity was signed at the

hospital after Mark, Jr. was bom, but the only copy of the acknowledgement was

destroyed during Hurricane Katrina, while in the possession of the State.! Mr.

Jenkins sought to have the judgment of this Court annulled on the basis that it did

not consider whether the form of the acknowledgement was by authentic act.

On October 14, 2014, Mr. Jenkins filed a “Rule to Show Cause Why Plaintiffs

Name Should Not Be Removed from the Birth Certificate and Why An Expert

Should Not be Appointed to Calculate Probability of Paternity.” In that pleading,

Mr. Jenkins requested that, since the genetic testing ordered by the court showed

that he cannot be Mark, Jr.'s biological father, the testing be admitted into

evidence, the signing of the birth certificate be given no legal effect, and his name

be removed from the birth certificate. Mr. Jenkins,also requested that an expert

uase z:ia-cv-U3iz^BWA-JVM Document 58 Filed 11/27/18 Page 4 of 13

be allowed to use Samuel Scott’s DNA report6 to calculate the probability of

paternity, and Ms, Jackson be cast with the costs of the genetic testing.

In opposition to Mr. Jenkins’ petition to revoke acknowledgement and rule to

show cause. Ms. Jackson filed an “Exception of Prescription,” arguing that Mr.

Jenkins’ cause of action was prescribed under the ten-year libera live prescriptive

period. She also argued that fraud was not a procedural avenue that could be used

to vitiate the birth certificate; specifically, Mr. Jenkins could have ascertained the

truth regarding his paternity of Mark. Jr. prior to signing the birth certificate.

A hearing on Mr. Jenkins’ rule to show cause was held on January 21, 2015. In a

judgment rendered on February 4, 2015, the trial court denied the rule and made a

handwritten notation that “no authority [was] provided by mover to show this

court that this is the proper procedure to alter or amend birth certificates. Dept, of

Vital Records is not a party.” In a separate judgment rendered on the same date,

the trial court overruled Ms. Jackson’s exception of prescription, admitted the

genetic testing into evidence, found that Mr. Jenkins is not the father of Mark, Jr.,

and ordered Ms. Jackson to reimburse Mr. Jenkins for the total costs incurred for

the testing, which included attorney’s fees and court costs. The trial court also

ordered a rule to show cause hearing to show why the birth certificate should not

be altered and why DCFS should not authorize the calculation of Mr, Scott’s

probability of paternity for Mark, Jr.

Ms. Jackson filed a “Motion and Order for Appeal” on February 24, 201(5].

seeking appellate review of the trial court ’s rulings that overruled her exception of

prescription and ordered her to pay the costs incurred to prove paternity. The

motion was granted by the trial court, and an appeal was lodged. This Court

dismissed Ms. Jackson’s appeal through an order on May 26, 2015, finding that

the trial court’s February 4th judgments were not final judgments. Ms. Jackson

was allowed 30 days to file an appropriate writ, applicat ion seeking review of the

interlocutory rulings.

After tiie trial court rendered its February 4th judgments, Mr. Jenkins filed a

“Petition for Alternation of a Birth Certificate to Remove Petitioner’s Name as

Father of the Child, Void His Signature, and Change the Surname of the Child”

on February 9, 201 [5]. Subsequently, he filed a “Motion to Amend Petition a

Third Time.” In that motion, Mr. Jenkins sought permission to add allegations

against DCFS, mainly that it failed to establish paternity prior to obtaining a

judgment of child support against him for Mark, Jr. Mr. Jenkins also filed a

“Motion for Order to Calculate the Probability of Paternity.” He claimed that he

obtained permission from the juvenile court to allow the use of the DNA report

for Mr. Scott and requested that the DNA information be used in the instant

matter.

On June 23, 2015, Ms. Jackson filed a supervisory writ with this Court, seeking

review of the trial court’s February 4, 201 [5] judgments. Ms. Jackson alleged that rj

Case 2:18-cv-03122-BWA-JVM Document 58 Filed 11/27/18 Page d oi xo

,11V trial court erred when it overruled her exception of prescription and found Mr.

the

Jenkins not to be the legal father of Mark, Jr. She argued that Mr. Jenkins cause

of action was prescribed under La. R.S. 9:392 and 9:406.7 Ms Jackson fimher

alleged that the trial court erred in ordering her to reimburse Mi. Jenkins lor c

costs incurred in obtaining the genetic testing. In opposition to the wn

application. Mr. Jenkins contended the prior writ disposition did not pret fude his

claim to rebut the presumption of legal paternity created by signing : at'. .r. s

birth certificate because there was no evidence of an authentic act o

acknow ledgem ent

In Jenkins v. Jackson. 15-399 (La. App. 5 Cir. 6/23.15) (unpublished wm

disposition), urn denied. 15-1622 (La. 9/4/15); 177 So.3d 709.' Ms Jackson s

writ application was granted in part and denied in part. This Court found -hat Mi

Jenkins had judicially confessed, in more than one pleading, that he signed both

the birth certificate and an acknowledgement of paternity at the time ot Mark.

Jr.'s birth in 1997, and that Mr. Jenkins' confession constituted full prooi against

him. Consequently, this Court found that Mr. Jenkins' subsequent allegations that

he could not remember signing any acknowledgement or that no authentic act of

acknowledgement existed could not be considered for purposes of pursuing

another attempt to revoke or rebut his acknowledgement of legal paternity in this

bet.

matter. Thus. Mr. Jenkins' cause of action was again Sound to be presen was

pursuant to La. R.S. 9:406. The trial court's ruling concerning prescription

reversed, and Ms. Jackson's exception was sustained as to Mr. Jenkins claim to

revoke or rebut his acknowledgement of legal paternity. 1 his Court further found

no error in the portions of the trial court's judgment that found Mr. Jenkins was

not the father of Mark, Jr., based upon the paternity test report, and ordered Ms.

Jackson to reimburse Mr. Jenkins for the costs incurred tn obtaining the genetic

testing and court costs; however, the order for Ms. Jackson to pay Mr. Jenkins

attorney's fees was vacated

On October 7, 2015, Mr. Jenkins filed a “Motion to Dismiss the Allegations

against DCFS Contained in the Third Amendment to the Petition and Motion to

Rebut Finding of Judicial Confession to Signing ‘An Acknowledgment other

Than the Birth Certificate.” In the motion. Mr. Jenkins alleged that Ms. Jackson

and DCFS judicially confessed in the juvenile court proceeding that there was no

authentic act of acknowledgement, and the June 23rd writ disposition irom this

Court was not the law of the case. He sought to dismiss his allegations against

DCFS in his third amendment to his petition and sought admission ot the judicial

confessions of DCFS and Ms. Jackson into evidence for the purposes of rebutting

this Court’s legal paternity finding. The motion was heard before the trial court

on October 16. 2015. In a judgment rendered on February L 20lb, the motion

was denied.

Subsequently, in the same proceeding. Mr. Jenkins filed a "Petition for

Nullification 1) Request Nullification of Fifth Circuit’s Ruling for Lack ol

Jurisdiction'and for Fraud and Hl-Practicc in the Writ Application. 21 Request a.

^ase z:ia-cv-uiSiZ2-8WA-JVIVi Document 58 Filed 11/27/18 Page 6 of 13

Finding that R.S. 9:406(B)(2) is Unconstitutional, and 3) Request an Injunction/^

against Enforcement of the Rulings” on March 10, 20) 6. Among his numerous

allegations, Mr. Jenkins alleged that the rulings of this Court in the prior writ

dispositions regarding the existence of an authentic act of acknowledgement and

legal paternity were null because this Court lacked the subject matter jurisdiction

to consider the legal paternity of Mark, Jr. He further alleged that Ms, Jackson’s

attorney obtained the rulings in her favor through fraud and ill practices because

she misrepresented the law by claiming that the signing of the birth certificate

made him the legal father of Mark. Jr. and by failing to enter the judicial

confession of Ms. Jackson from the juvenile court that there was no authentic act

of acknowledgement. He maintained that enforcement of the rulings obtained

through fraud and ill practices would be unconscionable and inequitable because

injustice was brought about by depriving him of notice and the right to be heard.

Mr. Jenkins also alleged that La. R.S. 9:406(B)(2) was unconstitutional because it

did not provide for a suspension of the two-year prescriptive period to revoke an

authentic act of acknowledgement obtained by fraud.

On April 5, 2016, Ms. Jackson filed an “Exception of Ho Cause of Action, Res

Judicata, and for Sanctions.” Ms. Jackson argued that Mr. Jenkins’ petition for

nullification did not state a cause of action upon which relief could be granted.

She claimed that Mr. Jenkins’ grounds for nullifying the rulings were baseless;

thus, she requested that the action be dismissed. She also argued that Mr.

Jenkins’ action sought to re-litigate issues that were already considered by this

Court and the supreme court. As a result of the repeated litigation of the same

issues and the personal attack upon her attorney, Ms. Jackson requested sanctions

against Mr. Jenkins. The exception was heard before the trial court on May 16,

2016, On May 24, 2016, the trial court sustained the exceptions of no cause of

action and res judicata and denied the request for sanctions.9 The instant appeal

followed.

On appeal, Mr. Jenkins alleges the trial court erred in sustaining the peremptory

exceptions of no cause of action and res judicata, which resulted in the dismissal

of his action. He argues that the litigation has focused entirely on whether the

two-year prescripti ve period of La. R.S. 9:406 applied to an act executed in 1997,

not whether there had actually been an authentic act of acknowledgement

executed by him.

Mr. Jenkins alleges the trial court erred in sustaining Ms. Jackson’s exception of

no cause of action. He claims that his petition for nullification is authorized by

La. C.C.P. art. 2006 and is not simply another request for review of this Court’s

previous rulings, Mr. Jenkins avers that the grounds for nullity raised in his

petition are mainly based upon lack of subject matter jurisdict ion over the issue of

Case 2:18-cv-03122~BWA-3VM Document 58 Filed 11/27/18 Page 7 of 13

legal paternity and deprivation of the right to be heard through having an ,

opportunity to present evidence. When taking the allegations of the petition as

true, Mr. Jenkins claims that his petition stated valid causes of action.

Mr. Jenkins alleges that he signed an acknowledgement of paternity m his petition for

revocation.

In his ruling, the domestic commissioner found that Mr. Jenkins right

revoke the.

acknowledgement could not prescribe pursuant to the version of La. R S. 9. .06 in effect at <nc

time of the'signing of the acknowledgement. In 2007, La. R.S. 9-.406(B) prov ided.

At any time, a person who executed an authentic act of acknowledgment may

petition the court to rescind such acknowledgment only upon proof, by clear an

convincing evidence, that such act was induced by fraud, duress, material mistake ol

fact or error, or that the person is not the biological parent of the child.

The mal judge made a handwritten notation that the parties "dispensed with lthe

determination of Mr. Jenkins’ right] in light of [the] hearing held."

This was the second request to amend Mr. Jenkins’ petition. In the first amendment the

Department of Children and family Sendees thereinafter referred to as "DC Fh t was added

to the action as an indispensable party.

Mr. Jenkins' reference is to the Louisiana Department of Health.

Mr. Jenkins obtained Mr. Scott’s DNA report from another, unrelated matter in the juvenile

court.

disavowal action

Ms Jackson also argued that Mr. Jenkins should have actually filed a

pursuant to La. C.C. art. )9<. not an action to revoke an acknowledgement, because he filiated

himself to Mark, Jr. by marrying her after Mark, Jr. was Isom. However, she maintained that

action would have also been prescribed.

On writ of certiorari to the supreme court, Justice Hughes dissented, stating.

[T)he seemingly untimely review and intervention of the Court ot Appeal to decide

an issue not addressed in the trial court’s judgment, based on the concept oi a

“judicial confession.” is clearly wrong given the DNA evidence, the multiple

pleadings and amendments thereto, the stipulation oi the parties, and the inability oi

DCFS to produce an authentic act of acknowledgment. This is not justice but judicial

“gotcha." These matters arc best left to the trial court for trial on die merits and

development of a full record.

The continued efforts of DCFS given the DNA results tn the record are also

questionable.

(Emphasis in original).

The initial judgment signed by the mat court did not contain the required decretal language

required to render the judgment final because st faded to indicate the specific relict granted.

See Morraz-Blantion v Outrun. 16-112 (La App 5 Crr. 8/2d 16): 199 So 3d 1220. !2j.1 As

such, after the appeal was lodged, we issued an order instructing the trial court to amend the

judgment to include die necessary decretal language The trial eomt signed an amended

judgment on November 7. 2016 to include decretal language that dismissed Mr Jenkins' JC/

('.io-cv-Uvji^^-BWA-JVM Document 58 Filed 11/27/18 Page 8 of 13

petition with prejudice. (See generally, Rousseau v. Emp'rs Mui. of Wausau, 493 So.2d 121,

124 (La. App. 5th Cir. 1986), where this Court held that a judgment sustaining an exception

of no cause of action is a final, appealable judgment, even in cases where only a portion of the

case is dismissed by the exception.) The amended judgment corrected the deficiency in the

judgment. Accordingly, we find that a final judgment has been rendered and is reviewable on

appeal.

/O-

Jenkins v. Jackson, 216 So. 3d 1082, 1084-89 (La. App.), writ denied, 224 So. 3d 984 (La.

2017).

In its opinion regarding Jenkins5 appeal of the dismissal of his nullity action, the

Louisiana court of appeal for the fifth circuit held that it had subject-matter jurisdiction to enter

the rulings regarding paternity in the July 31, 2015 order pertaining to Jacksons’ writ

application.14 Id. at 1089-90. The court explained;

Mr. Jenkins alleges this Court lacked the subject matter jurisdiction to determine

his legal paternity of Mark, Jr. when reviewing Ms. Jackson’s supervisory writ

applications. As a result, he contends that the writ dispositions rendered by this

Court are null and void.

The nullity of a final judgment may be demanded for vices of either form or

substance. La. C.C.P. art. 2001. A final judgment shall be annulled if it is

rendered by a court which does not have jurisdiction over the subject matter of the

suit. La. C.C.P. art. 2002(A)(3). Except as otherwise provided in La. C.C.P. art.

2003, an action to annul a judgment on the grounds for vices of form may be

brought at any time. La. C.C.P. art. 2002(B).

The jurisdiction of a court over the subject matter of an action or proceeding

cannot be conferred by consent of the parties. Canal/Claiborne, Ltd. v.

Stonehedge Dev., LLC, 14-664 (La. 12/9/14); 156 So.3d 627, 632, citing La.

C.C.P. art. 3. Thus, a judgment rendered by a court with no jurisdiction over the

subject matter of the action or proceeding is void. Id.

According to La. Const, art. V, § 10, except as otherwise provided by the

constitution, a court of appeal has appellate jurisdiction of all civil matters

appealed, including matters from family and juvenile courts, and supervisory

jurisdiction over cases which arise within its circuit. A district court has original

jurisdiction over all civil and criminal matters, with the exception of the excluded

cases listed in the constitution. La. Const, art. V, § 16.

14 The Louisiana court of appeal for the fifth circuit mistakenly referred to the order os having been issued | I

on June 23.2015, when it was actually entered on July 31,2015. See R. Doc. 36-1 at 21 -24.

Case 2:18-cv-03122-BWA-JVM Document 58 Filed 11/27/18 Page 9 of 13

In the instant matter, this Court reviewed supervisory writ applications arising ^

from Mr. Jenkins’ petition for revocation of acknowledgement of patenuty, which' a~'was properly filed in the 24th judicial District Court.10 The district court had the

jurisdiction to determine both the legal and biological paternity of Mark. Jr. in its

review of Mr. Jenkins' petition to revoke. Because the 24,!l Judicial District Court

is a district court within our circuit, this Court had die supervisory jurisdiction to

render determinations relevant to Mr. Jenkins’ petition, which included the legal

and biological paternity of Mark, Jr. As such, despite his assertion that this Court

lacked subject matter jurisdiction, Mr. Jenkins’ legal paternity of Mark. Jr. was

properly before this Court for review in the two supervisory writ applications at

issue."

Mr. Jenkins' contention that this Court had no subject matter junsdiction to

determine his legal paternity of Mark, Jr. lacks merit beyond a doubt because no

set of facts could have been proven in support of his claim. Thus, there is no

relief that could be granted to Mr. Jenkins, and the claim should have been

dismissed. See Guidry (v. Hanover Ins. Co., 09-220 (La. App. 5 Cir. 11/20/09):

28 So.3d 426, 428]. Accordingly, we find that the trial court properly sustained

Ms. Jackson’s exception of no cause of action on the claim of lack of subject

matter jurisdiction raised in Mr. Jenkins' petition for nullification.

The Juvenile Court of JctTerson Parish would not have been the proper venue to tile such a

petition. (See State v. James, 99-1670 (La. App. 4 Cir. 2/23/00); 757 So.2d 81!, K!3, where

the court held, “There is no authority tn Ch.C. an 311 or any other article of the Children's

Code for the filing of a petition to nullify an acknowledgment of paiemitv in J mem it

Court....")

We note that both Mr. Jenkins and Ms. Jackson were given the fair opportunity to argue their

positions in their respective briefs, as no oral arguments were heard for Ms Jackson's

supervisory writ applications. This Court considered the arguments presented by both panics

Jenkins v. Jackson, 216 So. 3d at 1089-90.

On March 22, 2018, Jenkins filed this action in federal court again arguing that the

Louisiana court of appeal for the fifth circuit lacked subject-matter jurisdiction to determine legal

paternity in its July 31, 2015 order regarding Jackson's writ application." Jenkins names as

defendants: O’Rourke, an assistant district attorney involved in the state-court litigation;10

Murphy, a judge on the Louisiana court of appeal for the fifth circuit:17 Trcadaway, Jackson's

attorney in the state-court litigation;18 and Burmastcr. a judge on the 24th Judicial District Court.

n R. Doc. 1 at 1-3.

16 Id. at 4.

17Id. m3.

,SR. Doc. 4 at 1-2.

case 2:18-cv-03122-BWA-JVM Document 58 Filed 11/27/18 Page 10 of 13

Parish of Jefferson, State of Louisiana.19

Jenkins alleges that the defendants conspired t

deprive him of his rights secured by the Fifth and Fourteenth Amendments to the Constitution of

die United States of America by procuring the July 31, 2015 order from the Louisiana court of

appeal when that court allegedly lacked subject-matter jurisdiction to rule on the issue of

paternity.20 Jenkins asserts that his claims are brought under 42 U.S.C. §§ 1893, 1985, 1986,

and 1988, and that he seeks a judgment that the July 31, 2015 ruling of the state court is null and

void for lack of subject-matter jurisdiction, and monetary damages.21

II.

PENDING MOTIONS

Burmaster, Treadway and O’Rourke filed motions to dismiss arguing that this Court

lacks subject-matter jurisdiction over Jenkins’ action by operation of the Rookei-Feldman

doctrine.22 The defendants argue that Jenkins is a “state-court loser” who filed this action in

federal court to collaterally attack a state-court judgment. Jenkins argues that his claims are not

barred by the Rooker-Feldman doctrine because the state-court judgment he attacks, the July 31,

2015 order issued by the Louisiana court of appeal for the fifth circuit, is void for lack of subjectmatter jurisdiction.

III.

LAW & ANALYSIS

Rule 12(b)(1) of the Federal Rules of Civil Procedure permits “a party to challenge the

subject matter jurisdiction of the district court to hear a case.” Ramming v. United States, 281

F,3d 158, 161 (5th Cir. 2001); see also Fed. R. Civ. P. 12(b)(1). “Lack of subject matter

jurisdiction may be found in any one of three instances: (1) the complaint alone; (2) the

complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint

19 Id. at 1.

20 R. Docs. 1 & 4.

21 R Doc. 1 at 3 & 17-19; R. Doc. 4 at 3-5.

R. Docs. 15, 19 Sc 24. Murphy also filed a motion to dismiss but did not raise the Rooker-Feldman

doctrine. See R. Doc. 23. However, this Court's finding that it lacks subject-mailer jurisdiction pursuant to the

Rooker-Feldman doctrine also applies to Jenkins’ claims against Murphy.

Case 2:18-cv-03122-BWA-JVM Document 58 Filed 11/27/18 Page 11 of 13

supplemented by undisputed facts plus the court's resolution of disputed facts,

A3*

Id. I he party

asserting jurisdiction bears the burden of proof that jurisdiction does in fact exist. Id.

Pursuant to the Rooker-Feldman doctrine, “federal district courts, as courts ol original

jurisdiction, lack appellate jurisdiction to review, modify, or nullify final orders ol state courts."

Weekly v. Morrow, 204 F.3d 613, 615 (5th C'ir. 2000) (quoting Liedtke v. State Bar of Tex., 18

F.3d 315,317 (5th Cir. 1994)); see also Rookerv. Fidelity Trust Co.. 263 U.S. 413 (1923); Dist.

of Colum. Ct. of App. v. Feldman, 460 U.S. 462 (1983). The Rooker-Feldman doctrine bars

“cases brought by state-court losers complaining of injuries caused by state-court judgments

rendered before the district court proceedings commenced and inviting district court review and

rejection of those judgments.1’ Exxon Mobil Corp. v. Saudi Basic Indus. Corp , 544 U.S. 280,

284 (2005). The four elements of the Rooker-Feldman doctrine are: (!) a state-court loser: (2)

alleging harm caused by a state-court judgment: (3) that was rendered before the district court

proceeding began; and (4) the federal suit requests review and reversal of the state court

judgment. Id.

Further, “(a) state court judgment is attacked for purposes of Rooker-Feldman ‘when the

{federal) claims are “inextricably intertwined" with a challenged state court judgment.’ or where

the losing party in a state court action seeks ‘what in substance would be appellate review of the

state judgment.’" Weaver

Tex. Capital Bank. N.A.. 660 F.3d 900, 904 (5th Cir. 201!) {per

curiam) (alteration in original) (citations omitted).

However, the Rooker-Feldman doctrine

“does not preclude federal jurisdiction over an ‘independent claim,' even ‘one that denies a legal

conclusion that a state court has reached. " Id. (quoting Exxon Mobil. 544 U.S. at 293). The

doctrine “generally applies only where a plaintiff seeks relief that directly attacks the validity of

an existing state court judgment." Id. “Nonetheless, a party cannot escape Rooker-Feldman by

‘casting ... a complaint in the form of a civil rights action.’" Houston v. Queen. 606 F. App’x

case 2:18-cv-03122-BWA-JVM Document 58 Filed 11/27/18 Page 12 of 13

A3-

725, 730 (5th Cir, 2015) (quoting Liedtke, 18 F.3d at 317), When constitutional questions arise

in state-court proceedings, federal appellate review is available only in the United States

Supreme Court. Moore v. Whitman, 2018 WL 3602774, at *2 (5th Cir. July 26, 2018) (citing

Exxon Mobil, 544 U.S. at 284).

All four elements of the Rooker-Feidman doctrine are satisfied in this case. Jenkins lost

in the state court. He alleges injuries caused by that judgment, which was rendered before he

filed this action, and he specifically asks this Court to reverse that judgment.

In an attempt to escape the applicability of the Rooker-Feidman doctrine, Jenkins argues

that the “void ab initio exception” to the doctrine applies, contending that the July 31,2015 order

that he attacks is void for lack of subject-matter jurisdiction,

Whether the Fifth Circuit

recognizes the “void ab initio exception” to the Rooker-Feidman doctrine is debatable. In

Matter of Cleveland Imaging & Surgical Hasp., L.l.C, 690 Fed. App’x 283 (5th Cir. 2017), the

court stated that it “has neither endorsed nor rejected the ab initio exception” and noted that its

“sister circuits are split on the issue.” Id. at 286 (citations omitted). The court declined to “reach

this issue” because it was clear that the state court had jurisdiction to enter the order at issue. Id.

Three months later, in Burciaga v. Deutsche Bank Natl Trust, 871 F.3d 380, 385-86 (5th Cir.

2017), the court cited the void ab initio exception as an alternate reason that the Rooker-Feidman

doctrine was inapplicable, without discussing whether the Fifth Circuit now accepts the

exception.

In this case, because it is clear that the July 31, 2015 order Jenkins questions is not void

for lack of subject-matter jurisdiction, it is not necessary now for this Court to deduce the Fifth

Circuit’s current position on the void ab initio exception. Indeed, Jenkins filed a motion in the

24th Judicial District Court pursuant to Louisiana Code of Civil Procedure article 2002 seeking

r*)

an order declaring the July 31, 2015 order null and void for lack of subject-matter jurisdiction.

Case 2:18-cv-03122-BWA-JVM Document 58 Filed 11/27/18 Page 13 of 13

Jenkins, 216 So. 3d at 1087-88. The trial court sustained Jackson’s exception of no cause of

action, and Jenkins appealed. Id. at 1088. On appeal, the Louisiana court of appeal held that it

did have subject-matter jurisdiction to render the July 31, 2015 order. Id. at 1090. Jenkins filed

a writ of certiorari with the Louisiana Supreme Court challenging that ruling, and that court

denied writs. Jenkins v. Jackson, 224 So. 3d 984 (La. 2017). Thus, Jenkins has fully litigated in

the state courts the issue of whether the judgment he now seeks to overturn was void ab initio.

The Louisiana state courts have held that it was not. In the lawsuit pending before this Court,

Jenkins asks this Court to function as a super-appellate court and reverse the decisions of the

Louisiana state courts. This is precisely the type of action that is barred by the Rooker-Feldman

doctrine. As such, this Court lacks subject-matter jurisdiction over Jenkins’ suit.

IV.

CONCLUSION

Accordingly, IT IS ORDERED that Burmaster’s motion to dismiss (R. Doc. 15) is

GRANTED, and Jenkins’ claims against him are DISMISSED WITH PREJUDICE;

IT IS FURTHER ORDERED that Treadaway’s motion to dismiss (R. Doc. 19) is

GRANTED, and Jenkins’ claims against her are DISMISSED WITH PREJUDICE;

IT IS FURTHER ORDERED that Murphy’s motion to dismiss (R. Doc. 23) is

GRANTED, and Jenkins’ claims against him are DISMISSED WITH PREJUDICE; and

IT IS FURTHER ORDERED that O’Rourke’s motion to dismiss (R. Doc. 24) is

GRANTED, and Jenkins’ claims against him are DISMISSED WITH PREJUDICE,

New Orleans, Louisiana, this 27th day of November 2018.

BARRY W. ASHE

UNITED STATES DISTRICT JUDGE

SEE SEALED APPENDICES IN

SUPPLEMETAL APPENDIX

SEE SEALED APPENDICES IN

SUPPLEMETAL APPENDIX

24th JUDICIAL DIST

RICT court for the parish of JJPpJv0N

,:"

STATE OF LOUISIANA

NO. 7i 1-419

MARK ANTHONY JENKINS SR.

VERSUS

LATASHA JACKSON

IS3

JUDGMENT.

IfD

to Show Cause why: I) the DNA 1 est

The Exception of Prescription and Rules

; 2) plaintiff should not be found not to be

Report should not be admitted into evidence;

birth certificate should not be altered to

the father of Mark Anthony Jenkins Jr.; 3) the

father; 4) defendant should not reimburse costs incurred to

remove defendant’s name as

d Family Services should not be ordered

prove paternity; 5) the Department of Child an

sties to calculate the probability of paternity; and DN A

to authorize DNA Diagno

Diagnostics should no. be appointed by the court to do so; came on for hearing on

fct!

v\ (y

January 21, 2015.

PRESENT- Cecelia Farace Abadic, attorney for/ and Mark Anthony Jenkins;

PRESEN. ■ C«*ha r

attomey for/ ^ utaste to

Deprutment of Child and Family Services was served w.th

notice but did not attend.

ment of counsel, the Court,

After reviewing the pleadings and hearing the argu

cSfeidering the law, evidence, and testimony of the witness;

and for the reasons this

day orally assigned,

AND DECREED that the Exception of

IT IS ORDERED, ADJUDGED

filed herein by the plaintiff, LATASHA JACKSON, be and the same is

Prescription

' ft

hereby denied.

rr IS FURTHER ORDEREi^-OJUDGED, AND DECREED Iha, the DNA Test

Report on the parties is admitted into evidence.

IT IS FURTHER ORDERED, ADJUDGED

, and DECREED that the DNA Test

Report on the parties is admitted into evidence.

, ADJUDGED, AND DECREED that MARK

IT IS FURTHER ORDERED

is not the father of Mark Anthony Jenkins Jr.

ANTHONY JENKINS SR; ADJUDGED, AND DECREED thatLATASHA

IT IS FURTHER ORDERED

MARK ANTHONY JENKINS SR. the total costs

JACKSON TUCHSON reimburse

DNA Test, including attorney fees, test and court costs.

incurred to obtain the

€

E>3

Case No:711-419. 24th Civil pfSST

IT IS FURTHER ORDERED that the rule to show cause why the birth certificate

should not be altered to remove defendant’s name as father; and the rule to show

cause

why DCFS should not authorize DNA Diagnostics to calculate the probability of

paternity of Samuel Scott using a DNA Test Report in the Juvenile Court record ; and

why DNA Diagnostics should not be ordered to perform the calculation, are taken

under advisement.

IT IS FURTHER ORDERED that a full accounting for attorney’s fees and costs to

c-a

obtain the DNA test be filed within 30 days; and any memorandum on the issue of use

of the DNA Report of Samuel Scott be submitted within 15 days.

JUDGMENT RENDERED AND SIGNED at Gretna, Louisiana, this

cry

of y

■£>.4

,2015.

DGE >

7-1 4^

day

SEE SEALED APPENDICES IN

SUPPLEMETAL APPENDIX

■ n

M ARK ANTHONY JENKINS, SR.

NO. 15-CA-293

VERSUS

FIFTH CIRCUIT

LATASHA JACKSON

COURT OF APPEAL

STATE OF LOUISIANA

ORDER

Considering the Motion to Dismiss an Interlocutory Appeal filed by

appellant Mark Anthony Jenkins. Sr. on May 11.2015, this Court finds as

follows:

La. C.C.P. art. 1915(B)(1) provides, in pertinent part: “When a court

renders a partial judgment... as to one or more but less than all of the

claims, demands, issues, or theories against a party ... the judgment shall not

’ constitute a final judgment unless it is designated as a final judgment by the

court after an express determination that there is no just reason for delay.’'

Subsection (B)(2) provides, in pertinent part: “In the absence of such a

determination and designation, any order or decision which adjudicates

fewer than all claims ... shall not constitute a final judgment for the purpose

of an immediate appeal.”

In this case, there are still outstanding claims alleged in Mr. Jenkins

petition, including the claim for paternity fraud under La. C.C. art. 2315, the

■V

merits of which have yet to^h-? adjudicated by the court.

There is no

designation of the February 4, 2015 judgment as a final judgment pursuant

merits of which have yet to be adjudicated by the court,

There is mo

designation of the February 4, 2015 judgment as a final judgment pursuant

to La. C C P an. 19!5fB)(l>. Therefore.

IT IS ORDERED, ADJUDGED AND DECREED that this, appeal

is dismissed, without prejudice. Appellant is granted thirty (30) days to tile

an appropriate writ application seeking review of the interlocutory rulings

contained in the February 4, 2015 judgment.

Gretna, Louisiana this o) (c

day of May, 2015.

FOR THE COURT:

JUDGE ROBERT A. CHA1SSON

JUDGE ROBERT^MURPHY

JUDGE HANSTrWtJEBERG

A TRUE COPY

ORETNA

-'3$:

26 :

OwW

CO-JK r C 1 -CY

SEE SEALED APPENDICES IN

SUPPLEMETAL APPENDIX

AH’

Application For Writs

No. 15-C-399

COURT OF APPEAL, FIFTH CIRCUIT

STATE OF LOUISIANA

t/5

o •t:

fe-

-n<V

JUNE 23, 2015

\v\

MARK ANTHONY JENKINS, SR.

VERSUS

LATASHA JACKSON

• '1

v“5

■<

Deputy Clerk

IN RE LATASHA JACKSON

APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF

JEFFERSON, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE RAYMOND S. STEIB, JR., DIVISION "A",

NUMBER 71 M19

Attorneys for Relator:

Kristyl R, Treadaway

Sandra S. Salley

Laurel A. Salley

Dixon C, Brown

Attorneys at Law

3445 North Causeway Boulevard

Suite 510

Metairie, LA 70002

(504) 837-5499

WRIT GRANTED IN PART AND DENIED IN PART

(SEE ATTACHED DISPOSITION)

Gretna, Louisiana, this

day of

,2015.

Attorneys for Respondent:

Timothy P. O'Rourke

Assistant District Attorney

,1546 Gretna Boulevard

Harvey, LA 70058

(504) 364-3630

Cecelia F. Abadie

its

MARK ANTHONY JENKINS, SR.

NO. 15-C-399

VERSUS

FIFTH CIRCUIT

LATASHA JACKSON

COURT OF APPEAL

STATE OF LOUISIANA

WRIT GRANTED IN PART AND DENIED IN PART

ti*i

rxi

On February 15, 2012, respondent, M.J., Sr., filed a petition for revocation

of acknowledgment of paternity, wherein he also asserted claims for damages due

to fraud under La. C.C. art. 2315, for restoration of payments not due under La.

C.C. art. 2299, and for genetic testing of relator, L.J., and her minor child, M.J., Jr.

As an initial matter, we note that on May 14, 2013 this Court ruled on a prior

writ application filed by relator seeking review of the trial court’s January 22, 2013

denial of her exception of prescription, wherein she claimed that respondent’s

claim to revoke his acknowledgment of paternity was prescribed. M.J., Sr. v. L.J.,

13-C-296 (La. App. 5 Cir. 5/14/13) (unpublished writ disposition). In that writ

disposition, this Court applied the two-year prescriptive period of La. R.S. 9:406

regarding authentic acts of acknowledgment, and held that “[respondent’s] cause of

action to revoke his acknowledgment of paternity has prescribed.” Id at 2. Asa

result, this Court granted relator’s writ application in part, thereby granting

relator’s exception of prescripton as to respondent’s claim for revocation of his

acknowledgment of paternity,3 Id.

In light of this Court’s finding that respondent’s cause of action for

revocation was prescribed under La. R.S. 9:406, this Court vacated the portion of

the trial court’s judgment that ordered relator to submit to genetic testing under La.

R.S. 9:406, and remanded the matter to the trial court to determine whether

respondent was entitled to an order of genetic testing under any other law, namely

La. R.S. 9:396.4 Id. at 3. On June 26, 2013, the trial court ordered respondent,

relator, and MX, Jr. to submit to genetic testing in accordance with La. R.S. 9:396.

In the instant writ application, relator seeks review of the trial court’s

February 4, 2015 judgment, which denied relator’s second exception of

prescription, found that respondent, M.J., Sr., was not the father of M.J., Jr., and

ordered relator to reimburse respondent for costs incurred to obtain the genetic

3 Respondent filed an application for rehearing as to this Court’s May 14,2013 mling, which was demotion June 26.

~ V

testing, attorney's fees, and court costs. Relator

ds *at

in denying her second exception of prescription, j e °^ °v

kn0’vledgment

whprein she again claimed that respondent s claim to revoke ms a

.-.i» •—“i™ r“,ht

trial court erred in ordering her to reimburse respondent tor costs me

obtaining the DNA test, attorney’s fees, and court costs.

LLl

'VmMW

In ooDosition to this writ application, respondent notes that this Court■ s May

14 2013 writ disposition granted relator’s first exception of prescription under La.

R S^9 406 which involves authentic acts of acknowledgement of paternity.

Resnondent now contends that there is no evidence of an authentic act of

acknowledgment, but rather, the birth certificate is the only evidence °{^ hacknow eugme

A$ suchi respondent claims that this

C^ prlrwrit disposition does not preclude his claim to rebut the presumption

of legal paternity created by signing the birth certificate, which he contends

imprescriptible under former Article 203 of the Louisiana Civil Code.

Our review of the evidence regarding the form of the acknowledgment in

this case shows that in respondent's February 15, 2012 pehtion,j ]r.

opposition ,o

p,„h oooi r,..it

JL Louisiana.

«.

alleged thaf according to the Bureau of Vital Records a copy of the

acknowledgement was unavailable due to Hurricane Katrina,

s:.“

K S£S «V.. ss- n« » gto Calculate Probability of Paternity” and supporting memorandum on Octob

2014, wherein he alleged as follows:

Except for the birth certificate, [respondent] could not• remc™be' ‘f^

signed any other acknowledgment at the hospital in 1997. Finally on

September 15, 2014, the Department of Child

formerly the Department of Social Services, repo

® .

Burmaster that it could not find any acknowledgment of paternity,

authentic or otherwise in its records. DCFS receives hospi

acknowledgments after they are executed since 1997 when die

hospital acknowledgment program was begun. That fact a g

the fact that hospital acknowledgments were not by authentic act m

the

^.scoPered afer the appea, ;o the Flfth Circuit on the issue

1997 was

of prescription of the right to revoke an authentic act was over.

Wmmmhpr 20 2014. relator filed an

exception of prescription claiming

On November 20, 2014, relator filed an exception of prescription claiming

that respondent’s claim to revoke his acknowledgment of paternity was prescribed.

In opposition to relator’s exception, respondent alleged that since filing his origin

petition for revocation of acknowledgment of paternity, he “learned that there was

never a notarial act or an authentic act of acknowledgment - only a signed birth

certificate.”

A declaration that expressly acknowledges an adverse fact and is made by a

party in a judicial proceeding is a judicial con fession that constitutes full proo

against the party who made it. La Louisiane Bakery Co. v. Lafayette Ins. Co., 09825 (La App 5 Cir 2/8/11), 61 So.3d 17, 26. An admission m a pleading tails *

Case No.711-419, 24th Civil pg:32

within the scope of a judicial confession and is full proof against the party making

it. Id. at 27. A judicial confession must be explicit and not merely implied. Id. In

the instant case, we find that respondent judicially confessed in more than one

pleading that he signed both the birth certificate and an acknowledgment of

paternity at the time of Mi., Jr.’s birth in 1997. Therefore, we find that

respondent’s confession constitutes full proof against him, such that his subsequent

allegations suggesting that he could not remember signing any acknowledgment

other than the birth certificate, or that neither a notarial, nor an authentic act of

acknowledgment exists, cannot be considered for purposes of pursuing another

attempt to revoke or to rebut his acknowledgment of legal paternity in this case.

«c

*"”

Moreover, we note that our May 14, 2013 writ disposition held that

“[respondent’s] cause of action to revoke his acknowledgment of paternity has

prescribed.” M.J., Sr., 13-C-296 at 2. Respondent neither contested the form of

his acknowledgment at the time that wnt application was considered by this Court,

nor did he file a timely writ of review to the Louisiana Supreme Court regarding

that decision. Accordingly, we find that respondent cannot circumvent this Court s

prior ruling regarding the prescriptive period applicable to his acknowledgment of

paternity by filing a rule to show cause in the trial court, which attempts to re

characterize the nature of that acknowledgement in a manner contrary to

respondent’s judicial confession made at the time of our prior writ disposition.

Therefore, we find that the trial court erred in denying relator’s exception of

prescription because we have already held that respondent’s cause of action to

revoke his acknowledgment of legal paternity has prescribed. Accordingly, we

reverse the ruling of the trial court and grant relator’s exception of prescription as

to respondent’s claim to revoke or rebut his acknowledgment of legal paternity.

Relator also contends that the trial court erred in finding that respondent was

. -

. .. J -*

Z'* -

- - -*“•

Relator also contends that the trial court erred in finding that respondent was

not the father of M J., Jr., and ordering her to reimburse respondent for costs

incurred in obtaining genetic testing, attorney’s fees, and court costs, as set forth in

its February 4, 2015 judgment.

Our review shows that on June 26, 2013, the trial court ordered relator,

respondent, arid M.J., Jr. to submit to genetic testing in accordance with La. R.S

9:396, which authorizes an order for genetic testing in any civil action in which

paternity is a relevant fact. Although we have found that respondent’s claim to

revoke or rebut his acknowledgment of legal paternity has prescribed, respondent

has also asserted additional claims related to the issue of biological paternity that

have not yet been resolved; specifically his claims for damages due to fraud under

La. C.C. art. 2315, and for restoration of payments not due under La. C.C. art2299. Therefore, we find no error in the portion of the trial court’s February 4,

2015 judgment that admitted the DNA test report into evidence and found that

respondent is not the father of M.J., Jr. based upon that report. This finding is

consistent with the trial court’s June 26, 2013 order for genetic testing under La.

R.S. 9:396, as the issue of biological paternity may, or may not, relate to

respondent’s additional claims that have not vet been determined.

Moreover, we find no error in the portion of the trial court’s February 4,

2015 judgment that ordered relator to reimburse respondent for costs incurred in

obtaining genetic testing, and for court costs. La. R.S. 9:397.3 provides that the

court "shall tax the costs to the party against whom judgment is rendered.”

However, we find that the trial court erred in ordering relator to pay respondent’s

attorney’s fees. “Louisiana courts have long held that attorney's fees are not

allowed except where authorized by statute or contract.” Sher v. Lafayette Ins.

Co,, 07-2441 (La. 4/8/08), 988 So^2d 186, 20L In this case, there is no statute o.

contract authorizing respondent’s recovery of attorney’s fees. Although

re spondent claims that La. R.S. 9:398.1 allows for the recovery of attorney’s fees,

...disagree as that statute only authorizes attorney’s fees where “the court renders

a judgment In favor of a party seeking to establish paternity.’' (Emphasis added).

Because respondent is not seeking to establish paternity in this case, we find that

this statute is not applicable. Accordingly, we find that the trial court erred in

awarding attorney’s fees in favor of respondent and against relator, and we vacate

that portion of the trial court’s February 4, 2014 judgment.

-crrrm"vaui&'uvOJFiusy a i©Bo x« -wvoniif ibspuiiuem ana against relSlor, ana wc vacate

that portion of the trial court’s February 4, 2014 judgment.

cs>

111

In conclusion, we grant this writ application in part and reverse the trial

court’s February 4, 2015 denial of relator’s exception of prescription, thereby

granting relator’s exception of prescription and dismissing with prejudice

respondent’s claim to revoke or rebut his acknowledgment of legal paternity of

M.J,, Jr. We further grant this writ application in part and vacate the portion of the

trial court’s February 4, 2015 judgment that ordered relator to pay respondent’s

attorney’s fees. The writ application is denied in all other respects; therefore, the

portion of the trial court’s February 4, 2015 judgment ordering relator to reimburse

respondent for costs incurred for the genetic testing and for court costs remains in

effect.

Gretna, Louisiana, this

day of

,2015.

JUDGE ROMRT M. MURPIjy/

JUDGE STEPHEN J. WINDHORST

JUDGE

J. LILJEBERG

A TRUE COPY

GRETNA

JUL 3 1 2015

V -r'V

e>*

24th JUDICIAL DISTRICT COURT FOR THE PARISH OF JEFFERSON

STATE OF LOUISIANA

DIVISION:

711-419

MARK ANTHONY JENKINS, SRVERSUS

FIL]

LATASHA JACKSON

FEB 0 1

DEPUTY’ CLERK

FILED

JUDGMENT

This matter came before the Court on the 26th da> of October. 2015, on the Motion RyPiig?

3 Re!

the Allegati

Finding of Judicial Confession fro Signing ‘‘An Ackno\vledRm^r_Qther-IMi3-.tbc &ttth Certfijc

filed by Mark Anthony Jenkins, Sr. on October 7, 2015

PARTIES’

Mark Anthony Jenkins, Sr.

Represented by Cecelia Abadie, La Bar No 19874

And

Lotasha Tuckson

Represented by Kristyl R Trcadawny, La Bor No 32648

THE COURT, based on the pleadings, law, evidence, and argument provided by couns

renders Judgment as follows

IT IS ORDERED ADJUDGED AND DECREED that die Motion to.Dismiss die Allegatjo

Against DCFS Contained in the

Judicial Confession, to Signing “An Acknowlcdgmcnf’ QlhcrJ]

djbfiMAM

.20

d 31

XT—' *

24°’ JUDICIAL DISTRICT COURT FOR THE PARISH OF JEFFERSON

STATE OF LOUISIANA

711-419

DIVISION: A

MARK ANTHONY JENKINS, SR.

-fi

VERSUS

■p'

'C?

LATASHA JACKSON

FILED

DEPUTY CLERK

JUDGMENT

(Vy.

Cause of Action. Res Judicata, and for Sanctions filed by Latasha Tuckson on April 5,2016.

Mark Anthony Jenkins, Sr.

Represented by Cecelia Abadie, La. Bar No. 19874

And

Latasha Tuckson

Represented by Kristyl R. Treadaway, La. Bar No. 32648

THE COURT, based on the pleadings, law, evidence, and argument provided by counsel,

renders Judgment as follows:

IT IS ORDERED ADJUDGED AND DECREED that the Exception of No Cause of

Action and the Exception of Res Judicata are granted.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the Request for

Sanctions is denied.

T“>

<r>

Tills matter came before the Court on the 16th day of May, 2016, on the Excention'of N

PARTIES:

0\0

MARK ANTHONY JENKINS, SR.

NO. 16-CA-482

*2 M

VERSUS

111

FIFTH CIRCUIT

LATASHA JACKSON

COURT OF APPEAL

>?0 &RX

STATE OF LOUISIANA

?•-

“711-^ A

-sH

ORDER

|sr2

3.S

frJCS

Sfo Ia

Plaintiff, Mark Anthony Jenkins, Sr., appeals the trial court’s May

24, 2016 judgment, sustaining the peremptory exceptions of res judicata

and no cause of action filed by Defendant, Latasha Jackson. After review,

we find that this judgment is deficient because it lacks the requisite

decretal language. The judgment indicates that Defendant’s exceptions

were “granted,” but the specific relief granted, e.g., dismissal of the

petition, cannot be determined from the judgment itself.

This Court cannot reach the merits of an appeal unless our

jurisdiction has been properly invoked by a valid final judgment.

Input/Output Marine Sys. v. Wilson Greatbatch Techs. Inc., 10-477 (La.

App. 5 Cir. 10/29/10); 52 So.3d 909, 915. A valid, final judgment must

contain the appropriate decretal language. See, La. C.C.P. art. 1918. The

judgment must name the party in favor of whom the ruling is ordered, the

party against whom the ruling is ordered, and the specific relief that is

granted or denied. Morraz-Blandon v. Voiron, 16-112 (La. App. 5 Cir.

8/25/16); — So.3d

2016 La. App. LEXIS 1594; Claiborne Medical

33-

B/o

pleadings or reasons for judgment. Id.\ Babin v. State Farm Mutual Auto

Inc. Co.t 11-192 (La. App. 5 Cir. 9/27/11); 76 So.3d 100, 102.

Because the trial court has not issued a valid, final judgment in this

matter, we find that this Court lacks appellate jurisdiction. Nevertheless,

we invoke our supervisory jurisdiction and order the trial court to amend

the May 24,2016 judgment. Accordingly,

IT IS ORDERED that the trial court amend the May 24, 2016

judgment to include the appropriate and necessary decretal language

within fifteen (15) days of this order.

IT IS FURTHER ORDERED that the Clerk of Court for the 24lh

Judicial District Court supplement the appellate record with the amended

judgment within ten (10) days of the signing of the amended judgment.

Gretna, Louisiana this I

day of

, 2016.

FOR THE COURT:

JUDGE MARC E/JOHNSON

JUDGE ROBERT M.

*HY

JUDGE STEPHEN J. WINDHORST

“ 24™ JUDICIAL DIS TRICT CO URT FOR TIIE PARISH OF JEFFERSON

STATE OF LOUISIANA

NO.

DIVISION “A”

711-419

MARK ANTHONY JENKINS, SR.

3=*

3lf‘

VERSUS

FILED

LAT ASHA JACKSON

MOV 0 7 2016

'tfO

OEP«^Y CLERK

-C

AMENDED JUDGMENT

•O

Pursuant to the November I, 2016 Order of the Fifth Circuit, the Court hereby amends its

<£>

OF?

Judgment of May 24, 2016, to read:

This matter came before the Court on the 16th day of May, 2016, on the Exceptions of No

Cause of Action, Res Judicata, and for Sanctions filed by Latasha Tuckson on April 5, 2016.

Parties:

Mark Anthony Jenkins Sr.

Represented by Cecelia Abadie, La, Bar No. 19874

And

Latasha Tuckson

Represented by Kristyl R, Treadaway, La. Bar No. 32648

The Court, based on the pleadings, law, evidence, and arguments of counsel, renders

judgment as follows:

IT IS ORDERED, ADJUDGED, AND DECREED that there he judgment in favor of

Latasha Tuckson and against Mark Anthony Jenkins, Sr., granting the Exception of No Cause of

Action and the Exception of Res Judicata.

IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that the Request for

Sanctions is denied.

IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that the Petition for

Nullification filed by Mark Anthony Jenkins, Sr. on March 10, 2016, is hereby dismissed with

prejudice.

SIGNED this 7th day of November, 2016 at Gretna, Louisiana.

JUDGE

°<6*4 3%

OND S. Slljl, JR.

-A

Case: 19-30112

Document: 00515319261

Page, x

UeUt! rneu.

—

THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 19-30112

MARK ANTHONY JENKINS,

Plaintiff - Appellant

TIMOTHY*

the

BARRON BURMASTER, Judge,

Defendants - Appellees

Appeal from the United States District Court

for the Eastern District of Louisiana

ON PETITION FOR. REHEARING EN BANC

(Opinion 1/10/2020, 6 Cir.,

F.3d

)

Before DENNIS, GRAVES, and WILLETT, Circuit Judges.

PER CURIAM:

Treating the Petition for Rehearing En Banc as a Petition for Panel

(

£hS the Petition for Panel Rehearing is DENIED^

the panel nor judge in regular active service of the court having

requested that the court be polled on Rehearing En Banc (FED.R-A* •

— cm. R. 3B), the Petition for Rehearing En Banc ts DENIED. fife

Case: 19-30112

Document; uubiwiy^oi

rage; ^

LJcilt: mcu. utrcx/cvi-v

( )

Treating the Petition for Rehearing En Banc as a Petition for Panel

Rehearing, the Petition for Panel Rehearing is DENIED. The court

having been polled at the request of one of the members of the court

and a majority of the judges who are in regular active service and not

disqualified not having voted in favor (FED. R. APP. P. and 5th ClR. R.

35), the Petition for Rehearing En Banc is DENIED.

ENTERED FOR THE COURT:

STATES CIRCUIT JUDGE

* Judge Kurt D. Engelhardt, did not participate in the consideration of the rehearing

en banc.

Case 2:18-cv-03122-BWA-JVM Document 70 Filed 01/15/19 Page 1 of 3

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

MARK ANTHONY JENKINS

CIVIL ACTION

VERSUS

NO. 18-3122

ROBERT M. MURPHY, et al

SECTION: M (1}

ORDER & REASONS

Before the Court is a motion for new trial filed by plaintiff Mark Anthony Jenkins

(“Jenkins”),1 to which defendants Robert Murphy (“Murphy”), Barron Burmaster (“Burmaster”)

and Rristyl Treadway (“Treadway”) respond in opposition,2 and in support of which Jenkins

replies.3 Having considered the parties’ memoranda and the applicable law, the Court issues this

Order & Reasons.

BACKGROUND

This action is a collateral attack on a state court judgment. The pertinent facts and

procedural history of this case were fully recited in this Court’s November 27, 2018 Order &

Reasons granting the defendants’ motions to dismiss,4 and wit! not be restated herein.

Jenkins argues that this Court should reconsider its November 27, 2018 Order & Reasons

in which it found that Jenkins’ claims are barred by the Rooker-Feldman doctrine and dismissed

his suit for lack of subject-matter jurisdiction.5 Jenkins argues that this Court failed to consider

his contention that the Louisiana court of appeal for the fifth circuit lacked jurisdiction to render

its July 31, 2015 ruling on paternity, thereby making its decision void ah initio and not subject to

'R. Doc.61.

2 R. Docs. 62, 65 & 66.

2 R. Doc. 69.

4 R. Doc. 58.

% Id. at 13.

vaac 4.XO-UV- u^-lzz-bwa-jvm

Document 70 Filed 01/15/19 Page 2 of 3

,C0~.

the Rooker-Feldman doctrine.6 The defendants oppose Jenkins’ motion for new trial arguing that

he has not raised any manifest errors of law or fact or presented new evidence that would warrant

granting a new trial.7

II.

LAW & ANALYSIS

A Rule 59(e) motion calls into question the correctness of a judgment. In re Transtexas

Gas Corp., 303 F.3d 571, 581 (5th Cir. 2002). “Rule 59(e) is properly invoked to correct

manifest errors of law or fact or to present newly discovered evidence.” Id. “A Rule 59(e)

motion should not be used to relitigate prior matters that should have been urged earlier or that

simply have been resolved to the movant’s dissatisfaction.” In re Self, 172 F. Supp. 2d 813, 816

(W.D. La. 2001). The grant of such a motion is an “extraordinary remedy that should be used

sparingly.” Indep. Coca-Cola Employees’ Union of Lake Charles, No. 1060 v. Coca-Cola

Bottling Co. United, Inc., 114 F. App’x 137, 143 (5th Cir. 2004) (citation omitted).

Jenkins seeks to relitage a matter that was previously urged in his opposition to the

motions to dismiss and that was resolved to his dissatisfaction. In ruling on the motions to

dismiss, this Court considered whether the Louisiana court of appeal’s July 31, 2015 ruling on

paternity was void ab initio, and found that it was not.8 Jenkins’ motion for reconsideration

points to no manifest error of law or fact or newly discovered evidence as would alter this

conclusion.

CONCLUSION

Accordingly, IT IS ORDERED that Jenkins’ motion for new trial (R. Doc. 61) is

DENIED.

6 R. Doc. 61-2.

7 R. Docs. 62.65 & 66.

8R. Doc. 58 at 12-13.

^ase 2:18- cv-03122-BWA-JVM Document 70 Fifed 01/15/19 Page 3 of 3

tSL

New Orleans, Louisiana, this 14th day of January 2019.

BARRY W( ASHE

UNITED STATES DISTRICT JUDGE

HOi.

i.rtWwy.

SUSAN M. CHEHARDY

CLERK OF COURT

CHI EF JUDGE

MARYE. LEGNON Q3

rREDERICKA H. 'WICKER'

JUDE G. GRAVOIS

MARC E. JOHNSON

ROBERT A. CHAISSON

ROBERT M. MURPHY

STEPHEN J. WINDHORST

HANS J. UUEBERG

CHIEF DEPUTY CLERK

FIFTH CIRCUIT

101 DERBIGNY STREET (70053)

POST OFFICE BOX 489

JUDGES

CHERYL Q. LANDRIEU

GRETNA, LOUISIANA 70054

www.fifthcircuit.org

SUSAN BUCHHOLZ

FIRST DEPUTY CLERK

MELISSA C. LEDET

DIRECTOR OF CENTRAL STAFF

(504) 376-1400

(504) 376-1498 FAX

September 02, 2015

F-NOTIFIED

There were nc emails sent to attcmey(s).

MAILED

CECELIA F. ABADIE

ATTORNEY AT LAW

20 WHITE DRIVE

HAMMOND, LA 70401

•n

KRISTYL R. TREADAWAY

SANDRA S. SALLEY

LAUREL A. SALLEY

DIXON C. BROWN,

ATTORNEYS AT LAW

3445 NORTH CAUSEWAY BOULEVARD

SUITE 510

METAIRIE, LA 70002

TIMOTHY P. O'ROURKE

ASSISTANT DISTRICT ATTORNEY

JUVENILE COURTJ U V EN1LE COURT

1546 GRETNA BOULEVARD

HARVEY, LA 70058

DEAR SIR/MADAM:

REHEARING WAS THIS DAY DENIED IN THE CASE ENTITLED:

MARK ANTHONY JENKINS, SR.

VERSUS

LATASHA JACKSON

15-C-399

NO:

Jr; -

RMM

SJW

HJL

CHERYL Q. LANDRIEU

CLERK OF COURT

t)l>

Siafe a( M

.-7

flutstati

V. <'

“■

2015“^%

■7

MASK ANTHONY JENKINS, SR.

KC.O,

VS.

LATASHA JACKSON

District Court Div. A, No. 711-419; to the Court of Appeal,

Circuit, No. 15-C-399;

September 4, 2015

Stay denied. Writ denied.

JTK

JLW

GGG

MRC

SJC

HUGHES, J.,

dissents and would grant for assigned reasons.

mmm

wrw

Supreme Court of Louisiana

September 4,2015

QM)\0

Second Deputy

Clerk of Court

For the Court

supreme court of 'Louisiana

-'Garmeri B^dong

Deputy-Clerk of Cpu'/jf^..

-77/

* i _

C.H

SUPREME COURT OF LOUISIANA

2015-CJ-1622

MARK ANTHONY JENKINS, SR.

SEP 0.4 2015

VS.

LATASHA JACKSON

ON WRIT CERTIORARI TO THE COURT OF APPEAL,

FIFTH CIRCUIT} PARISH OF JEFFERSON

Hughes, J., dissents and would grant the writ.

ur>

c=>

T-f

Respectfully, the seemingly untimely review and intervention of the Court of

Appeal to decide an issue not addressed in the trial court's judgment, based on the

C_)

concept of a “judicial confession,” is clearly wrong given the DNA evidence, the

multiple pleadings and amendments thereto, the stipulation of the parties, and the

«K*

inability of DCFS to produce an authentic act of acknowledgment. This is not

justice but judicial “gotcha.” These matters are best left to the trial court for trial on

the merits and development of a full record.

The continued efforts of DCFS given the DNA results in the record are also

questionable.

’^fr

MARK ANTHONY JENKINS, SR.

NO. 16-CA-482

VERSUS

FIFTH CIRCUIT

LATASHA JACKSON

COURT OF APPEAL

STATE OF LOUISIANA

March 22, 2017

Susan Buchholz

First Deputy Clerk

ON APPLICATION FOR REHEARING

Panel composed of Marc E. Johnson,

Robert M. Murphy, and Stephen J. Windhorst

REHEARING DENIED

MEJ

RMM

SJW

^e^uprmc fflourf of

of flowsrana

NO.

MARK ANTHONY JENKINS , SR-

2017-C-0652

VS.

LATASHA JACKSON

For Writ of

IN RE: Mark Anthony JeMin^ ^ if Jefferson,

24th Judicial

Fifth

Certiorari and/or Review,

71x^19; to the Court of.Appeal,

District court Div. A, no.

Circuit, No. 16-CA-482,

September 6, 2017

Denied.

GGG

BJJ

JLW

MRC

SJC

JTC

HUGHES, J-,

would grant.

f*s*r?

Suarem f Courtyo

S^ptotber/o, m

Louies yai

1^0

owrti

Deputy Clerk or

For the Co^rt

t|:

Document 82 Filed 03/02/20 Page x ot ^

Case 2:18-cv-03122-BWA-JVM

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals

Fifth Circuit

FILED

No. 19-30112

January 10, 2020

Lyle W. Cayce

Clerk

D.C. Docket No. 2:18-CV-3122

MARK ANTHONY JENKINS,

Plaintiff - Appellant

TIMOTHY O'ROURKE Jeffersonof

Jefferson Parish^rcTrcui^Court of Appeal; KRISTYL TREADAWAY;

the Louisiana

BARRON BURMASTER, Judge,

Defendants - Appellees

Appeal from the United States District Court for the

Eastern District of Louisiana

Before DENNIS, GRAVES, and WILLETT, Circuit Judges.

JUDGMENT

This cause was con

It is

affirmed.

sidered on the record on appeal and the briefs on file,

ordered and adjudged that the judgment of the District Court is

Case 2:18-cv-03122-B\A/A-JVM Document 82 Filed 03/02/20 Page 2 of 2

IT IS FURTHER ORDERED that Appellant pay to Appellees the costs

on appeal to be taxed by the Clerk of this Court.

Certified as a true copy and issued

as the mandate on Mar 02, 2020

Attest:

dwlt W. O&mLa

Clerk, U.S. Court of Appeals, Fifth Circuit

GINAL

FIFTH CIRCUIT COURT OF APPEAL

STATE OF LOUISIANA

DOCKET NO. 15-C-399

(CIVIL)

CC '

■ c

* i

lug Hi-u

mark ANTHONY JENKINS SR.

VERSUS

LATASHA JACKSON

J t:->.

APPLICATION FOR REHEARING IN CONNECTION WITH THE

DECISION OF THE FIFTH

CIRCUIT COURT OF APPEAL

NO. 15-C-399

granting a writ m part from the ruling of the

24* JUDICIAL DISTRICT COURT,

THE HONORABLE RAYMOND STEIB PRESIDING,

DIVISION “A”; DOCKET NUMBER 711-419

PLAINTIFF MARK ANTHONY JENKINS SR.

Cecelia Farace Abadie #19874

Attorney for Mark Anthony Jenkins Sr.

20 White Drive

Hammond, Louisiana 70401

Phone & Fax 985*542-7859

* /.-•

/V^

mNTTCNTIQMS TN APPLJnATTON FOR REHEARING

£I

1. This court's decision, which stands solely on mischaracterization

of statements as “judicial confessions” to signing an

authentic act of

acknowledgment, will unjustly prevent plaintiff from obtaining

reimbursement of child support he paid due to being defrauded.

2. The parties never placed the fact of the signing of an authentic

act in issue in District Court, and the evidence in that record is

inadequate to support a finding that Jenkins signed an authentic act

of acknowledgment.

3. This Court had no right to consider de novo whether there was a

signed authentic

the

act because that issue was not within the scope of

writ application from the District Court’s February 4, 2015

Judgment.

4. The issue of whether Jenkins signed an authentic act was

dis

posed of in Juvenile Court before this decision was rendered

when the defendants judicially confessed that there

was no

authentic act of acknowledgment.

5. Taking up the legal paternity issue, which is outside the scope of

the writ application from the District Court, and the way it was

done, pose a threat to the judicial system.

SUPREME COURT

ep BE3

STATE OF LOUISIANA

CJ 1621

DOCKET NO. 2015-C-3 99

(CIVIL)

MARK ANTHONY JENKINS SR.

VERSUS

LATASHA JACKSON

FIFTH CIRCUIT COURT OF APPEAL

NO. 15-C-399

24lh JUDICIAL DISTRICT COURT,

DIVISION “A”; DOCKET NUMBER 711-419

APPLICATION FOR WRIT OF CERTIORARI

Cecelia Farace Abadie #19874

Attorney for Mark Anthony Jenkins Sr.

20 White Drive

Hammond, Louisiana 70403

Phone & Fax 985-542-7859

Set

S’

ft §

d C.

/JJ O

o§£»u'

<v.

c-3

..i

<CC

INDEX

WRIT APPLICATION FILING SHEET

..1A

WRIT CONSIDERATIONS

STATEMENT OF THE CASE

3-7

ASSIGNMENT OF ERRORS....

7-8

SUMMARY OF ARGUMENT

8-9

ARGUMENT

9-16

AFFIDAVIT OF VERIFICATION AND SERVICE

APPENDIX

TRIAL COURT’S JUDGMENT ..

18-19

OPINION OF FIFTH CIRCUIT ON APPLICATION FOR WRIT 20-23

REHEARING: was requested timely but “dismissed with prejudice” in

the Court indicates applicant may not be

opinion of

therefore this application is

entitled to a rehearing and

before the 5th

being filed in an abundance of caution

Circuit has ruled on request for rehearing.

WRIT GRANT CONSIDERATIONS

The Fifth Circuit’s writ disposition of July 31, 2015 contains

two rulings on issues not contained in the February 4, 2015

District Court Judgment from which the writ application was

taken. Consideration of those issues violates the Court’s own Order

of May 26, 2015, which set the scope of review. They also conflict

Supreme Court decisions on de novo consideration and the Fifth

.S t

judicial confession to one, that would allow the Fifth Circuit to determine

by a preponderance of the evidence that there was an authentic act of

acknowledgment of paternity of Jackson’s child.

The Fifth Circuit had no right to consider de novo whether

there was a signed authentic act because that issue was not within the

scope of the writ application from the District Court’s February 4, 2015

Judgment.

The issue of whether Jenkins signed an authentic act of

acknowledgment had already been disposed of in Juvenile Court before the

Fifth Circuit ruled to the contrary on that issue.

Deciding the issue of legal paternity after defendants’ baseless

and dishonest request for a continuance, which was only needed to stop

Juvenile Court from deciding the issue, was a departure so far from proper

judicial proceedings as to call for the exercise of the Supreme Court’s

supervisory authority, especially because that issue was not in the scope of

review.

The Court of Appeals exceeded its power in dismissing with

prejudice plaintiffs claim for relief from its erroneous finding of a judicial

confession to signing an authentic act of acknowledgment.

SUMMARY OF ARGUMENT

63 *

Circuit’s decision on judicial confessions. If those rulings are not

reversed, they will cause material injustice to plaintiff by

preventing him from obtaining repayment of child support he paid

due to fraud in a contract, and thereby reward those responsible

for the fraud.

The Fifth Circuit characterized statements as judicial

confessions to signing an authentic act of acknowledgment, when

the jurisprudence shows the statements fail every requirement for

judicial confessions. That ruling in law could be considered the law

of the case and make the Supreme Court the only avenue for

plaintiff to obtain justice. Land v. Vidrine,LEXIS 600, 62 So.3d 36,

(La. 2011) Also, the ruling on judicial confessions came after the

Department of Children and Family Services and defendant

Jackson confessed in Juvenile Court that there was no authentic

act of acknowledgment.

3. The Fifth Circuit was able to make those rulings on the existence

of an authentic act of acknowledgment and on legal paternity

through a departure so far from proper judicial proceedings and by

abuse of its authority as to call for the exercise of this Court’s

supervisory authority.

24™ JUDICIAL DISTRICT COURT FOR THE PARISH OF JEFFERSON g j

STATE OF LOUISIANA

Div. “A”

NO. 711-419

MARK ANTHONY JENKINS SR

VERSUS

LATASHA JACKSON

FILED

DEPUTY CLERK

-n

oC2

-o

/ _ c:

-n

—

flj-.'t'ojv Cor a/u//,

<0 Sptks

,1 REQUESTNULUF!CATI0IiQEf!EniCiE£l!ESRiiUIifi^2SJ4S'’KG~~

TT reiSDICTION.AND-JEQR

AHD11X-PRACli£ETNimE-Vffi

APPLICATIOJiOJREGy^

■^TIT! iTioNAL.AmilMaUESl^^

R,S^9j406BLLliS

ENFORCEMENT OF THE.RULINGS

r>n

es>

1^——

43.

This court has authority under La. C.C.P

. Art. 2006 to annul a judgment rendered

by the Court of Appeal.

44.

The rulings on legal paternity and the existence of an authentic act of

acknowledgment in the Writ Disposition oflttiy 31,2015 are null for lack of subject

matter jurisdiction to rule on legal paternity and to decide de novo the factuai issue which^

determined legal paternity.

COURT OF APPEAL FOR THE FIFTH CIRCUIT

■i ■

£ ■¥

STATE OF LOUISIANA

faSIA

DOCKET N0.16-CA-482

MARK ANTHONY JENKINS, SR., PLAINTIFF & APPELLANT

VERSUS

LATASHA JACKSON, DEFENDANT & APPELLEE

PLAINTIFF/APPELLANT’S REQUEST FOR RECONSIDERATION

FROM GRANTING OF EXCEPTIONS & DISMISSAL OF PETITION

IN 24™ JUDICIAL DISTRICT COURT

PARISH OF JEFFERSON, STATE OF LOUISIANA

THE HONORABLE RAYMOND S. STEIB PRESIDING

DIVISION “A” DOCKET NUMBER 711-419

RESPECTFULLY SUBMITTED,

Cecelia Farace Abadie (19874)

ATTORNEY FOR PLAINTIFF/APPELLANT

MARK ANTHONY JENKINS

20 White Drive

Hammond, Louisiana 70401

Telephone & Facsimile: 985-542-7859

MAY IT PLEASE THE COURT:

1. The Disposition handed down on January 22. 2017 totally ignored, and failed

to address, consider or decide the issue, presented in this appeal, of whether

this court denied plaintiff his civil right to be heard.

Plaintiffs appeal argued that by improperly taking up the legal

paternity issue that was not in the scope of review of the February 4, 2015

Judgment, this court denied Mark Jenkins his civil right to have material

evidence before the court deciding legal paternity.

C.C.P. Art 2002A.(2) provides: “A final judgment shall be annulled if it

is rendered against a defendant who has not been served with process as

required by law and has not waived objection to jurisdiction....” When this

court improperly took up the legal paternity issue and ruled “de novo” on

whether there was a signed authentic act of acknowledgment, which it

discretely called an “acknowledgment of legal paternity,” it “fail(ed) to give

the litigants notice of its sua sponte determination or to provide the

litigants with an opportunity to be heard on the issue.” Wooley v.

Lucksinger, LEXIS 1863, 14 So.3d 311, 364 (La. 2008). Fair notice to the

plaintiff in the instant case, in which the defendant lied in her Assignment of

Issues, had to be implemented by this court by confining its review to the

issues contained in the Judgment of February 4, 2015. Respondent was

blindsided, and notice to the Court in the Opposition Brief and in the Request

for Reconsideration was ignored. As alleged in the Petition, denial of the

€6

SUPREME COURT

STATE OF LOUISIANA

DOCKET NO.

MARK ANTHONY JENKINS, SR, PLAINTIFF & APPELLANT

VERSUS

LATASHA JACKSON, DEFENDANT & APPELLEE

APPLICATION FOR WRIT OF CERTIORARI IN CONNECTION WITH THE

DISPOSITION OF THE FIFTH CIRCUIT COURT OF APPEAL

AFFIRMING THE GRANTING OF EXCEPTIONS OF NO CAUSE

OF ACTION, RES JUDICATA AND DISMISSAL OF PLAINTIFF’S

PETITION FOR NULLIFICATION

IN 24th JUDICIAL DISTRICT COURT

PARISH OF JEFFERSON, STATE OF LOUISIANA

THE HONORABLE RAYMOND S. STEIB PRESIDING

DIVISION “A” DOCKET NUMBER 711-419

RESPECTFULLY SUBMITTED,

Cecelia Farace Abadie (19874)

ATTORNEY FOR PLAINTIFF/APPELLANT

MARK ANTHONY JENKINS SR.

20 White Drive, Hammond, Louisiana 70401

Telephone & Facsimile: 985-542-7859

•• 151

K-

INDEX

Writ Application Sheet

Index

Table of Authorities

lll-IV

Statement of Considerations

1-2

Statement of the Case

,2-7

Assignment of Errors............................ .......... . -........ .................................

Summary of the Argument...........................................................................

,7-9

Argument on Assignment of Error I: errors in history and facts.................. .....

9-10

Assignment pf Error II: cause of action: lack of jurisdiction.........

10-13

Assignment of Error HI: cause of action: denial of right to be heard

13-15

Finality of Judgment....... ...................................... ..................

Assignment of Error IV: exception of res judicata................. .

15-16

Appendix

Amended Judgment of the 24th Judicial District Court

Judgment and Opinion of the Fifth Circuit Court of Appeal

Denial of Request for Rehearing

Minute Entry -Judgment of Juvenile Court, April 27,2015

STATEMENT OF CONSIDERATIONS

It is undeniable that for a Court of Appeals to decide an issue that had not

been ruled on by the trial court violates the jurisdictional limit on supervisory

jurisdiction, and the ruling made without jurisdiction is invalid. It is also

undeniable that when such an unlawful review by writ pi’events the respondent

from having his evidence in the court record before the court of appeal, the

respondent is denied the Constitutional right to be heard, and the rulings are

invalid. These are the causes of action for nullification of two rulings in the

Disposition of July 31, 2015.

Trickery to deny justice in this case began on June 23, 2015 when

defendants Department of child and Family Services and Latasha Jackson, whom

it assisted in obtaining child support, stopped Juvenile Court from deciding legal

paternity by asking for a continuance. The parties had already stipulated in

Juvenile Court on April 27, 2015 that there was no authentic act of

acknowledgment. Knowing that meant Juvenile Court was going to decree

Jenkins was not the legal father, the defendants wanted the rulings on legal

paternity to come from a court where the stipulation was not in the record. The

Fifth Circuit used the opportunity provided by the continuance, and Jackson’s lie

in her Writ Application that the district court had ruled that Jenkins was not the

legal father, to rule on the legal paternity issue. It cherry- picked imprecise

statements about signing “an acknowledgment” and ignored clear statements that

Reconsideration on March 9, 2017, and the Request was denied on March 22,

2017.

ASSIGNMENT OF ERRORS

The 2017 Disposition erred in its history and facts of the case by

repeating the same

factual and legal errors that were used to confuse the content

of the Writ Disposition

of 2013 with the content of the February 4, 2015 Judgment

of District Court.

II.

The

court of appeal did not review the issue of whether the Petition

for Nullification stated a cause

of action to nullify rulings in the Deposition of July

31, 2015 for lack of supervisory subject matter jurisdiction to rule on issues not

decided in trial court an

d not contained in Judgment of February 4, 2015. Instead

issue.

the Deposition substituted a non-issue for the real jurisdictional i

III.

The court of appeal totally ignored the issue of whether the Petition

for Nullification stated a cause of action to nullify rulings in the Disposition of

February 4, 2015 for denial of plaintiff- appellant’s right to be heard.

IV.

The Disposition of July 31, 2015’s de novo ruling that Mark Jenkins

admitted signing an authentic act of acknowledgment; and was

therefore the legal

father, cannot be res judicata because they are invalid for lack of the Fifth

Circuit’s jurisdiction/authority to decide those issues, and for the court s denial of

Jenkins’ right to be heard.

SUMMARY OF THE ARGUMENT

(p o

f^r,

■

- FI

24th JUDICIAL DISTRICT COURT FOR THE PARISH OF JEFFERSON

STATE OF LOUISIANA

NO. 711419

MARK ANTHONY JENKINS SR.

VERSUS

FILED

LATASHA JACKSON

DEPUTY CLERK

MEMORADUM IN SUPPORT OF MOTION FOR NEW TRIAL

y/lf the jurisprudence on La. R.S. 9:406 (as amended in 2008) had held that the statute could be

given retroactive effect, this court wold have to deal with the question of whether the acknowledgment

Mark Jenkins signed was notarial without witnesses or if it was by authentic act. R.S. 9:406 requires

that the acknowledgment have been by authentic act for it to apply. As far as undersigned counsel

knows that proof does not exist. Undersigned counsel filed in the court record on June 20,2012 a

statement she obtained from the Louisiana Bureau of Vital Records, which states that the

acknowledgment was lost in Katrina, There was no indication of its form on the statement.

Furthermore, La, R.S. 9:406 as amended in 2008 is in conflict with a time-honored, almost

axiomatic legal principle that a false acknowledgment can have no legal effect.

In Acts 2008, No. 533, sec.i, en. August n, zuua. tV.O. y.HV/U wna icmmi.li

Gp I

ClilU WllVUivu

THE PAMSH °F PERSON FX*

NO. 711-419

FILED

Div. “A"

MARK ANTHONY JENKINS SR

VERSUS

LATASHA JACKSON

-if \

SR.

\l\%

DEPUTY CLERK

NOW INTO COURT undersigned coun

sel comes MARK ANTHONY

JENKINS, plaintiff in

this suit for damages for paternity fraud

, and on

suggesting that;

Plaintiff learned that the D

epartment of Child and Family Services receives

copies of all executed hospital-based

acknowledgments of paternity from the

Department of Vital Records since

the hospital-based acknowledgment program

was

initiated.

Juvenile Court ordered DCFS,

to produce their copy of the Jenkins

acknowledgment to see if it was i

m authentic form or not. It also ordered Jackson's

attorney to present a signed birth certificate. In the hea

ring on September 15, 2014,

Assistant District Attorney John Fitzmorris

stated that DCFS does not have a copy

of any act of acknowledgment of paternity sig

ned by plaintiff.

•j

Smec there is no authentic act of acknowledgment, the Fifth Circuit's decision

FtL

that the prescriptive period of R.S.9-'406 applied to an authentic act of

acknowledgment signed in 1997, has no legal effect on this suit or the one in

Juvenile Court.

Latasha Jackson’s attorney presented a signed birth certificate and Juvenile

Court ruled that the birth certificate is a legitimate acknowledgment of paternity,

which it does not have authority to revoke.

This court has jurisdiction to order the removal of plaintiffs name as father of

defendant's son from the birth certificate and there is no prescriptive period to

revoke acknowledgment by signing the birth certificate.

C.C. Art. 203, which was in effect in 1997, when the birth certificate was

signed, provides that acknowledgment by registry of the birth certificate

creates a

presumption of paternity" which "may be rebutted by proof that he is not the father

by physical data or evidence."

The DNA Report, ordered by this court and filed in the record as required by

statute, shows that Mark Anthony Jenkins cannot be the father of Latasha Jackson'

However, if the court wants the exact probability of paternity, an expert must be

appointed.

13.

Both DNA reports were produced by DNA Diagnostics Center (DDC) by court

order. DDC would compute the probability of paternity using Scott’s DNA

information, which is in the public record at Juvenile Court, if DCFS gives

authorization to use the Houston-Scott report.

14.

Plaintiff served a Request for Production on DCFS on March 14, 2014

requesting that DCFS sign an enclosed authorization for DDC to use Samuel Scott's

DNA Report to calculate the probability of his paternity, and it refused.

MARK ANTHONY JENKNS moves that Jackson and the Department of Child

and Family Services show cause why- 1) the DNA Test Results for the parties

should not be admitted into evidence, and why the birth certificate should not be

denied legal effect and declared rebutted; 2) why Mark Anthony Jenkins Jr. ’s birth

certificate should not be altered to show Mark Anthony Jenkins is not his father; 3)

why Latasha Jackson should not pay all costs for the DNA testing as provided in

La. R.S. 9-371.1 by a date set by this court; 4) why the court should not order DCFS

to authorize use of the DNA information on Samuel Scott, of order DDC or another

expert to use the DNA information of Samuel Scott, which is in the public record, to

calculate the probability of paternity; and 8) why DCFS should not be ordered to

pay attorney fees and costs for this rule to compel them to authorize the calculation. F*.

Cecelia Farace Abadie, Bar #19874

Attorney for Mark Anthony Jenkins

20 Drive, Hammond, LA 70401

Phone 985-542-7859

CERTIFCATE OF SF/R.VTfTFl

I certify that a copy of this Rule to Show Cause was faxed to both opposing

counsel at 504*837*5411 and 504-364*3559 this day of October, 2014.

Please serveDepartment of Child and Family Services

Latasha Jackson

through attorney of record

Timothy O'Rourke

1546 Gretna Blvd.

Harvey, LA 70058

Kristyl R.Treadaway

3445 North Causeway Blvd.

Suite 510

Metairie, LA 70002

24^ JUDICIAL DISTRICT COURT FOR THE PARISH OF JEFFERSON

STATE OF LOUISIANA

NO:

711-419

DIVISION: A <

MARK ANTHONY JENKINS, SR.

VERSUS

LATASHA JACKSON

FILED:

DEPUTY CLERK

MEMORANDUM IN SUPPORT OF EXCEPTION OF PRESCRIPTION

MAY IT PLEASE THE COURT:

NOW INTO COURT, through undersigned counsel, comes Latasha Tuckson, who offers the

■> following Mmnrmrim in Stmteti of Exception of Prescription.

LAW AND ARGUMENT

The relief

be denied,

„ .ZT "

"“'•mu.iim.l,.,.

prescribed.

Xi^M^fl^onJsPrescrihPH

Plaintiffs request to nullify his formal

Unless otherwise

provided by legislation, a

ten years. La. C.C. Art. 3499.

acknowledgment is

prescribed and should be denied.

Personal action is subject to a liberate prescription of

The Petitio n filed on behalf of Plaintiff, attempting to

revoke his formal

acknowledgment, was filed over fourte

en years after he signed the birth

certificate of the minor child.

Plaintiff offers no authority to support that his cause

of action has a liberative prescription for

than ten years. Because Plaintiff offers no

”

authority to support the timing of his claim, Louisiana Civil

Code Article 3499 applies, making his cause of actio

n subject to a liberative prescription often years,

Since Plaintiff signed the birth certificate on September 19,

1997, his cause of action to revoke said

acknowledgment prescribed on September 19

, 2007, more than four years before the instant

case

Was,iled TfPfPfOfd. the Petition filed in the instant case,

and all subsequent motions are prescribed

and should be dismissed.

M&t-* ■ d jvj

✓

fit

24111 JUDICIAL DISTRICT COURT FOR THT PARISH OF JEFFERSON

STATE OF LOUISIANA

NO. 711-419

Div. “A"

MARK ANTHONY JENKINS SR

VERSUS

LATASHAJACKSON

FILED

DEPUTY CLERK

MOTION TELA MEND PETITION A THIRD TIME

NOW INTO COURT through undersigned counsel comes plaintiff MARK

ANTHONY JENKINS who on suggesting that:

The suspensive interlocutory appeal taken by defendant was dismissed on May 26.

2015 and so plaintiff can present this motion to the court.

According to La. C.C.P Art. 1151 plaintiff MARK ANTHONY JENKINS may

amend his petition only by leave of court or by written consent of the adverse parties.

The Department of Children and family Services (DCFS) was added as a defendant

in the first amendment of the petition to comply with the law and without any

allegations of wrongdoing.

Since then Plaintiff has learned that DCFS violated the law of tins state by failing to

establish paternity as required before obtaining a judgment for support; and that

. ,. ffmpQP, whether intentional or in negligence, is a cause of damages incurred by (p 7

plaintiff

DC! S knew or should have known when Jackson applied lor benefits that

her child was bom outside of marriage, and that the subsequent marriage would only

make plaintiff the legal father of the child if he was the biological father.

TfiFDeparimem did’not offer plaintiff a paternity tcsfto establish liimYs the

biological father, and therefore the legal father of the child by subsequent marriage.

Furthermore. DOS could have asked plaintiff to execute an authentic act of

acknowledgment to establish him as the legal father with the obligation to support the

chdd} but that would have required DCFS to offer plaintiff a paternity test.

The Department has refused a discovery request to produce the records on

taiasha Jackson’s consultation which might show what she told the Department about

the paternity of the child to shed light on the department’s failure to establish paternity.

n;,.

it has been active in die hearings in the related action in Juvenile C ourt to nullify the

order for support. It has been served with discover)* requests under this lawsuit and

With all pleadrngs, judgments, memoranda, and notices in connection with proceedings

tin this court from the rime it was named defendant before the hearing for the paternity

testtook place.

10.

Plaintiff- lias already claimed damages from Laiasha Jackson based on fraud

in the contract for child support. Plaintiff’s requested third amendment would add an

alternative claim for error in the cause of that contract.

WHEREFORE, piainutf nwvtj that the Court grant leave •«> fm the i hml

Amendmeni to die Petition.

Respectfully submitted.

(p.l </

Ce«ii3 faisee Ahadtc. La. Oat No W*-‘J

20 White Dnve. Hairmoik’. I A 704t)l

Phone & fax. 9S5-542-7S5*

cmsRU.Aim

I certify that the fonrpojne is inie and that thi* pitMtat »a* taved n> both opposmfc

cmtsisei or mailed oo May

f^O i $

to;

2:18 -CV-G312 2-SWA -3VM Document a-16 ’SEALED

Case

Fifed 05/08/18 Page 3 of 5

THE PARISH OF JEFFERSON

24th JUDICIAL DISTRICT COURT for

STATE OF LOUISIANA

Div. "A

M0.71M19

mark ANTHON Y JENKINS SR.

VERSUS

LATASHAJACKSON

DEPUTY CLERK

FILED__

The third amen

dmem and supplement to the petition of MARK A

JENKINS SR., a domiciliary of Ascension Parish

, State of Louisiana, who respectful! v

»l petition filed on the 15» cloy of l''*™*?

amends.and supplements his origi

following respects:

Bv adding the following paragraphs:

,2012 in the

“34.

If Defendant Latasha Jackson was merely mistaken in representing that plaintiff vs as

F*t

the father of her child, she is liable for damages suffered by plaintiff because of her

negligence in not informing Mark Anthony Jenkins and the Department of Children and

Family Services, (DCFS) that there was a possibility that another man could be the father of

her son.

35.

Since Mark. Anthony Jenkins is not the biological father of Latasha Jackson s son, and

he signed foe contract to support because he believed the child was fos biological son; the

contract is null for error in its cause.

Case 2-.18-CV-03122-BWA-.3VM

19-30112.730

Document 4-16 ‘SEALED

Filed 05/08/18 Page 4 of 5

37.

ould only be the legal

that Mark Jenkins c

In 2003 DCFS knew or should have known

feecfoW-smmher,iftbechadwas

fleet of his marriage to

ther of foe child by retroactive e

his biological child.

38.

ktH0MY JENKINS a paternity test to

iocnt in not offering MARK A

DCFSwas neglige

establish paternity.

39.

individually, jointly

latasha Jackson and DCFS are

incurred by plaintiff due to

. and solidarity liable for damages

their acts of negligence.

*7O

COURT OF APPEAL

ORIGINAL

FIFTH CIRCUIT

STATE OF LOUISIANA

NO.-20t5<7*P293-

MARK ANTHON Y JENKINS, SR.

VERSUS

C=9

C-J

LATASHA JACKSON

Defendant-Applicant

A CIVIL PROCEEDING

APPLICATION OF LATASHA JACKSON, FOR SUPERVISORY WRIT

OF REVIEW OF THE DECISION OF TWENTY-FOURTH JUDICIAL

DISTRICT COURT

JUDGE RAYMOND S. STEIB, DOCKET NUMBER 711-419, RENDERED

IN OPEN COURT ON JANUARY 21,2015,

AND SIGNED ON FEBRUARY 4,2015

APPLICATION FOR SUPERVISORY WRITS ON BEHALF OF

DEFENDANT- APPLICANT, LATASHA JACKSON

*7#

SEE SEALED APPENDICES IN

SUPPLEMETAL APPENDIX

'7/ -73

**"*

*/.

■

ASSIGNMENTS OR SPECIFICATIONS OF ERROR

The District Court erred when it overruled the Exception of Prescription

filed by Latasha Tuckson and found Mark Anthony Jenkins, Sr, to not

be the legal father of the minor child.

The District Court erred when it ordered that Latasha Tuckson reimburse

Mark Anthony Jenkins, Sr. all costs incurred in obtaining the DNA test,

including attorney’s fees and court costs.

argument

The District Court erred when it overruled the Exception of Prescription filed

by Latasha; And when it ordered that Latasha reimburse Mark Anthony Jenkins, Sr.

all costs incurred in obtaining the DNA test, including attorney s fees and coui i costs.

The District Court erred when it overruled the Exception of Prescription

filed by Latasha Tuckson and found Mark Anthony Jenkins, Sr. to not be

the legal father of the minor child

The District Court committed manifest error when it overruled the Exception

of Prescription filed by Latasha Tuckson and found Mark Anthony Jenkins, Sr. to no-,

be the legal father of the minor child. The only way to revoke an acknowledgment

of paternity is to

follow the legislative requirements of La. R.S. 9:392(A)(7)(h)i

enacted in 1998, and the subsequently enacted La. R.S. 9:406(B)(1) . State v, A.Z.,

12-560 (la. App. 5 Cir. 2/21/13); HOSoJdllSO, 1153. This Court has already held

•-V

COURT OF APPEAL

FIFTH CIRCUIT

STATE OF LOUISIANA

DOCKET NO.

-U

NO. 15 C 399

MARK ANTHONY JENKINS SR.

Plaintiff-Respondent

VERSUS

LATASHA JACKSON

Defendant -Applicant

C11'1

A CIVIL PROCEEDING

OPPOSITION TO LATASHA JACKSON’S APPLICATION FOR WRIT

OF REVIEW OF THE DECISION OF THE 24™ JUDICIAL DISTRICT CU R'

JUDGE RAYMOND S. STEIB, DOCKET NO. 711-419

RENDERED IN OPEN COURT ON JANUARY 21,2015

AND SIGNED ON FEBRUARY 4, 2015

9(p

PLAINTIFF MARK ANTHONY JENKINS SR.’S OPPOSITION TO

APPLICATION FOR SUPERVISORY WRITS

She also suggests that the court can apply law that was not in effect f'.fj

when the birth certificate was signed in 1997 and when the parties married

in 1998; but she does not explain how that can be done under the law.

4. Jackson asks this court to give legal effect to a false birth

certificate, that cannot be given legal effect under the law.

The Louisiana Supreme Court interpreted C.C. Art. 203 B (1) to

require that acknowledger had to be the biological father for the

authentic act of acknowledgment to have legal effect. The Court did not

limit its holding to authentic acts but spoke of “an acknowledgment”

which includes the birth certificate acknowledgment as well.

The validity of an acknowledgment depends on

the existence of a biological relationship. Although

the Louisiana Civil Code does not expressly preclude

an acknowledgment when no biological relationship

exists, this conclusion is self - evident and defin i tional

of an acknowledgment. .. .If the acknowledgment is

null, it produces no effects. Turner v. Busby et al, 883

So.2d 412. 414. (La. 2004).

According to the Turner, a false birth certificate acknowledgment

produces no legal effect. Jenkins’ mistaken birth certificate

acknowledgment should not be given any effect.

5. Defendant is asking this Court to decide de novo the legal father issue.

which she and DCFS have deliberately avoiding addressing in a lower

court.

The District Court judgment dealt only with the biological father

issue. Neither olaintiff nor defendant nresenfed anv rp.mipcf ttiat ontoilo/t o

24TH JUDICIAL DISTRICT COURT

PARISH OF JEFFERSON

STATE OF LOUISIANA

MARK ANTHONY JENKINS, SR.

CASE NUMBER 711-419

VERSUS

DIVISION "A"

LATASHA JACKSON

PROCEEDINGS

MOTION HEARING

Held on Monday, May 16, 2016

Before the

HONORABLE RAYMOND S. STEIB, JR.

Judge Presiding

In Gretna, Louisiana

APPEARANCES•

CECELIA F. ABADIE, ESQUIRE

Representing Mark Anthc#*?Jenkins, Sr.

KRISTYL R. TREADAWAY, ESQUIRE

Your Honor, you did not decide legal paternity

You decided biological

in that judgment,

paternity.

decision on paternity was based on the D. N . A.

report.

And it was obvious because the

THE COURT:

Okay.

But what they were looking at was the

prescriptive period to apply for determining legal

paternity, if I recall correctly,

said is that because of the acknowledgment your

deadline had passed, that if you wanted to deny

paternity on an acknowledgment that deadline had

passed and that your claim had prescribed,

what they ruled.

And what they

That's

MS. ABADIE:

Well, getting back to Wooley, Your Honor, in

Wooiey the Court was denied - was told by the

Supreme Court - the Court of Appeals was told by

the Supreme Court, "You cannot just choose an

issue and decide it if it was not litigated by the

parties."

there was an authentic act of acknowledgment was

not litigated on the record in this Court,

being litigated - being litigated - in the

Juvenile Court.

And, Your Honor, the issue of whether

It was

Now, what happened, I came after Ms. Treadaway

accusing her of fraud and ill practice because

•i

It is wrong, what happened.

correct it, Your Honor,

THE COURT:

Ma'am, I agreed that it was wrong,

gave you an opportunity to appeal,

The appellate

court shot me down and said, "Nope. Sorry,

This

is what applies." And you'11 have an

opportunety

to take it back up on appeal.

I'm going to be

honest with you.

MS, ABADIE:

I agree with you, but the appellate

court has

disagreed.

MS. ABADIE:

Your Honor, last time I came here, you told me

you show me where I have the authority to

determine whether those minutes from Juvenile

Court can be used to rebut the ruling of the

Fifth

Circuit that there was an effective act of

acknowledgment,

THE COURT:

dustice delayed is indeed justice denied.

THE COURT:

But you can

Okay,

Yes.

Okay.

But the problem is -

MS. ABADIE:

And I had to walk out, because, you know, Youx

Honor, I couldn't cite it to you.

But today I

can.

THE COURT:

Okay.

MS. ABADIE:

The problem is I think you're too late.

STATUTORY AND CONSTITUTIONAL PROVISIONS

Constitution of the United States, Amendment XTV

Section 1. All persons born or naturalized in the United States and

subject to the jurisdiction thereof, are citizens of the United States and of

the State wherein they reside. No State shall make or enforce any law

which shall abridge the privileges or immunities of citizens of the United

States; nor shall any State deprive any person of life, liberty, or property,

without due process of law; nor deny to any person within its jurisdiction

the equal protection of the laws.

Section 5. The Congress shall have power to enforce, by appropriate

legislation, the provisions of this article.

Title 42 United States Code §1983. Civil action for

deprivation of rights

Every person who, under color of any statute, ordinance, regulation,

custom, or usage, of any State or Territory or the District of Columbia,

subjects, or causes to be subjected, any citizen of the United States or

other person within the jurisdiction thereof to the deprivation of any

rights, privileges, or immunities secured by the Constitution and laws,

shall be liable to the party injured in an action at law, suit in equity, or

other proper proceeding for redress, except that in any action brought

against a judicial officer for an act or omission taken in such officer’s

judicial capacity, injunctive relief shall not be granted unless a

declaratory decree was violated or declaratory decree relief was

unavailable. For the purposes of this section any Act of Congress

applicable exclusively to the District of Columbia shall be considered to

be a statute of the District of Columbia.

* 4*»*~

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Notes of Decisions

p<?

o/8/96). 68S So.2d 567, rehearing denied, wit de

S. Acknowledgment—In general

Allen v. Anderson, 1951, 55 So.2d 596, [main nied 9(54871 (La. 10725/96), 681 So.2d 375.

volume] decree amended on rehearing -57 So .2d 50. jq

I n form a 1 acknowl edgment

Children either horn or conceived during mar

Allen v. Anderson, 1951, 55 So.2d 596, [main

riage enjoy legitimate filiation whereas children volume] decree amended on rehearing 57 So.2d 50.

born out of matrimony must be filiated through

legitimation, acknowledgement, or by instituting 11- ---- Form of acknowledgment

Allen v. Anderson, 1951, 55 So.2d 596, [main

proceeding to establish filiation. Succession of

volume]

decree amended on rehearing 57 So.2d 50.

Humphrey, A.pp. 2 Cir.1996. 28,298 (La.App. 2 Cir.

SECTION 2, OF THE ACKNOWLEDGMENT OF ILLEGITIMATE CHILDREN

Art. 203. Methods of making acknowledgment; legal effect

A. The acknowledgment of an illegitimate child shall be made by a declaration executed

before a notary public, in the presence of two witnesses, by the father and mother or either of

them, or it may be made in the registering of the birth or baptism of such child.

/ B. (1) An acknowledgment or declaration by notarial act is deemed to be a legal finding of x

paternity and is sufficient to establish an obligation to support an illegitimate child without

the necessity of obtaining a judgment of paternity.

(2) An acknowledgment by registry creates a presumption of paternity which may be

rebutted if the alleged father proves by a preponderance of the evidence facts which

reasonably indicate that he is not the father, provided such facts are susceptible of

independent verification or of corroboration by physical data or evidence.

Amended by Acts 1995, No. 425, § 1; Acts 1997, No. 1244, § 1.

Presumption and application

Section 2 of Acts 1997, No, 12U, ns modified pursuant to the sUdutory revision

authority of the Louisiana State Law Institute, pmvides:

uSectkm 2. Notwithstanding any provision of law to the cordvary, a minor is

considered the child of both patties to a marriage if the child has been raised during

the marriage as if he were the biological or legally adopted child of the parties, has

been dependent upon the parties for his health education, or welfare as evidenced

by the child being named as a dependent on the federal and state tax- returns of the

parties for five consecutive years, and has been classified by a branch of the Umted

States military as a dependent of either party. The promsious hereof shall apply

both prospectively and retroactively, bid shall, only apply to those children born

between July 1, 19S6 and August 1, 1986; however, no provision hereof shod, confer

upon the child the status offorced heir or serve to involuntarily terminate parental

rights."

Date effective

Section 8 of Ads 1997, No. 12U ($ 1 of which amends this article) provides:

"Section 8. The provisions of th is Act shall never take effect unless the secretary

of the United States Department- of Health and Human Sendees, Administrat ion

for Children and Families, determines that the provisions hereof are required for

compliance with the provisions of the Personal Responsibility and Work Opportu n i

ty Reconciliation Act of 1996. "

On behalf of the Secretary of the United States Department of Health and Human

Sendees. Smote Bills 575,'578. 58L 582, 588, 581, 585, 586, 587, 5SS. 597, and 876

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.