Petition for Writ of Certiorari — Khai Quang Bui, Petitioner v. Abdul Alshaer
Supreme Court briefJun 30, 2021
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Supreme Court, U.SFI LED
JUN 3 0 2021
2£S£eoftheclerK
IN THE SUPREME COURT OF THE UNITED STATES
Petitioner, Khai Quang Bui
v.
Respondent, Abdul Alshaer
ON PETITION FOR WRIT OF CERITORARI
TO THE SUPREME COURT OF VIRGINIA
PETITION FOR WRIT OF CERTIORARI
Khai Quang Bui
1124 Duchess dr Mclean, VA 22102
Email: akhaibui@vahoo.com
Number: 571-389-0693
deceived
-JUL-13 2021
I.
QUESTION OF LAW
The question asks this Court should separate and distinct causes of action
overrule res judicata defense.
1
TABLE OF CONTENTS
I.
QUESTION OF LAW
1
II.
INTRODUCTION OF PARTIES TO THE PROCEEDING
7
i.
APPELLANT IN SUPREME COURT OF VIRGINIA
7
n.
APPELLEE IN SUPREME COURT OF VIRGINIA
7
m.
CORPORATE DISCLOSURE
7
IV.
LIST OF ALL PROCEEDINGS
7-16
III.
TABLE OF AUTHORITIES AND TABLE OF CONTENTS
16
IV.
CITATIONS OF ORDERS FROM THE LOWER COURTS
16-17
V.
STATEMENT OF JURISDICTION FOR THIS COURT
17-18
l.
DATE OF ORDER SOUGHT REVIEW
18
li.
DATE OF ORDER REHEARING
18
m.
WRIT OF CERTIORARI
18
IV.
STATUTORY PROVISION ON THIS COURT JURISDICTION ..18-19
v.
NOTIFICATION BY RULE 29.4 (b) or (c)
VI.
CONSTITUTIONAL PROVISION AND STATUES
VII.
CONCISE STATEMENT MATERIALS TO THE QUESTIONS
VIII.
l.
STATE COURT MOTION HEARING PLEA IN BAR
n.
FEDERAL JURISDICTION IN COURT OF FIRST INSTANCE
DIRECT AND CONCISE STATEMENT ARGUMENT
2
19
19-20
20
20-22
22
22-28
IX.
28-30
APPENDIX
1.
Supreme Court of Virginia Khai Quang Bui v. Abdul Alshaer record
No.200989 Circuit Court No.CL2019-14766 February 5, 2021 order.
;
li.
Supreme Court of Virginia Khai Quang Bui v. Abdul Alshaer record
No.200989 Circuit Court No.CL2019-14766 December 8, 2020 order.
in.
Fairfax County Circuit Court CL2019-14766 Khai Bui v. Abdul Alshaer
January 31, 2020 order.
IV.
Fairfax County Circuit Court CL2019-14766 Khai Bui v. Abdul Alshaer
proceeding (5).
v.
Fairfax County Circuit Court CL2019-14766 Khai Bui v. Abdul Alshaer
Transcript of hearing transcribed order on [page 13-14].
vi.
Fairfax County Circuit Court CL2017-16518 Khai Bui v. Abdul
Alshaer April 6, 2018 order.
Vll.
Fairfax County Circuit Court CL2017-16518 Khai Bui v. Abdul
Alshaer proceeding (13).
vm.
Fairfax County Circuit Court CL2017-16518 Khai Bui v. Abdul
Alshaer proceeding (17).
IX.
Fairfax County Circuit Court CL2017-16518 Khai Bui v. Abdul
Alshaer complaint “civil libel defamation tort” file February 12, 2018.
x.
Fairfax County Circuit Court CL2017-16518 Khai Bui v. Abdul
Alshaer proceeding (12).
xi.
Fairfax County Circuit Court CL2019-14766 Khai Bui v. Abdul
Alshaer complaint “Malicious prosecution” filed October 29, 2019.
3
xu.
Fairfax County Circuit Court CL2019-14766 Khai Bui v. Abdul
Alshaer proceeding (1).
xm.
Fairfax County Circuit Court CL2019-14766 Khai Bui v. Abdul
Alshaer “response to plea in bar” filed January 23, 2020.
xiv.
Fairfax County Circuit Court CL2019-14766 Khai Bui v. Abdul
Alshaer proceeding (4).
xv.
Fairfax County Circuit Court CL2019-14766 Khai Bui v. Abdul
Alshaer plea in bar filed November 21, 2019.
xvi.
Fairfax County Circuit Court CL2019-14766 Khai Bui v. Abdul
Alshaer proceeding (3).
xvn.
Supreme Court of Virginia Khai Quang Bui v. Abdul Alshaer record
No.200989 Circuit Court No.CL2019-14766 February 5, 2021 order.
XVlll.
Supreme Court of Virginia Khai Quang Bui v. Abdul Alshaer record
No.200989 Circuit Court No.CL2019-14766 proceeding (1).
xix.
Supreme Court of Virginia Khai Quang Bui v. Abdul Alshaer record
No.200989 Circuit Court No.CL2019-14766 proceeding (3).
xx.
Supreme Court of Virginia Khai Quang Bui v. Abdul Alshaer record
No.200989 Circuit Court No.CL2019-14766 petition rehearing
appendix C p. 46.
xxi.
General Rules of Pleading, 28a U.S.C. Rule 8 (c) (1) (2010).
XXII.
Determination, 28 U.S.C. § 2106 (1948).
xxm.
State courts; certiorari, 28 U.S.C. § 1257 (a) (1988).
XXIV.
Writs, 28 U.S.C. § 1651 (1948).
4
xxv.
State laws as rules of decision, 28 U.S.C. § 1652 (1948).
xxvi.
Va. Code § 8.01-249.3.
xxvii.
Va. Code § 8.01-45.
xxviii.
Va. Code § 19.2-265.6.
xxix.
Supreme Court of Virginia rule 1:6.
xxx.
County of Fairfax Virginia police report (can only be retrieve through
court process).
xxxi.
Fairfax County Circuit Court Khai Bui v. Abdul Alshaer CL201914766 Table of Contents.
5
TABLE OF AUTHORITIES
Ruling Cases
Brown u. Felsen, 442 U.S. 127, 131 (1979)
25
Davis v. Brown 94 U.S. 423,428 (1877) .....
25,27
Lucky Brand Dungarees Inc., ET AL v. Marcel Fashions Group Inc., 590 U.S. (2020)
.................................................... ........ 18,24,27
Taylor v. Sturgell 553 U.S. 880,892 n.5 (2008)
24,27
Constitutional Provision
/
19
U.S. Const, amend. XIV
United States Code
General Rules of Pleading, 28a U.S.C. Rule 8 (c) (1) (2010)
18
State courts; certiorari, 28 U.S.C. § 1257 (a) (1988) ..........
18,20
Writs, 28 U.S.C. § 1651 (1948)
18,20
State laws as rules of decision, 28 U.S.C. § 1652 (1948)
18,20
28
Determination, 28 U.S.C. § 2106 (1948)
Code of Virginia
Va. Code § 8.01-249.3
20
Va. Code § 8.01-45
20
Va. Code § 19.2-265.6
21
Rules of Supreme Court of Virginia
Supreme Court of Virginia rule 1:6
26
...;
6
II.
INTRODUCTION OF PARTIES TO THE PROCEEDING
i.
APPELLANT IN SUPREME COURT OF VIRGINIA
Khai Quang Bui was the appellant for petition of appeal. Appellant address:
1124 Duchess dr Mclean VA 22102, Telephone number: 571-389-0693, Email:
akhaibui@vahoo. com
u.
APPELLEE IN SUPREME COURT OF VIRGINIA
Abdul Alshaer was the appellee for the petition of appeal. Appellee was
represented by Sefton Smyth. He is an attorney license in state of Virginia. His
address is 32 W. Baltimore Street P.O. Box 944 Funkstown, MD 21734,
Telephone number: 301-671-1620, and Email: ssmvth@funkstownlaw.com
m.
CORPORATE DISCLOSURE
Petition for writ of certiorari is filed by and on behalf of Khai Quang Bui; a
corporate disclosure statement is not required when the filing is not by or on
behalf of a corporation.
iv.
LIST OF ALL PROCEEDINGS
Proceedings of lower courts related to the case in this Court:
1. Fairfax
County
General
District
Court,
GC17176768-00,
Commonwealth of Virginia v. Khai Bui, adjudicatory nolle prosequi,
November 8, 2017.
2. Fairfax County Circuit Court, CL2017-16518, Khai Bui v. Abdul
Alshaer, motion plea in bar order entered, April 6, 2018.
7
(1)
COMPLAINT filed November 22, 2017
(2)
PROOF OF SERVICE filed December 8, 2017
(3)
DEMURER filed December 22, 2017
(4)
MEMORANDUM MOTION STRIKE AND DEFAULT
filed January 3, 2018
(5)
OPPOSITION TO MOTION TO STRIKE filed
January 11, 2018
(6)
NOTICE OF APPEARANCE filed January 11, 2018
(7)
PLAINTIFF ANSWER filed January 22, 2018
(8)
MEMORANDUM TO DISMISS SECOND DEMURER
filed January 22, 2018
(9)
MEMORANDUM TO RESTRICT PARTIES FROM
OBTAINING BUSINESS AND PERSONAL DATA filed
January 22, 2018
(10) OPPOSITION TO (9) filed February 2, 2018
(11) ORAL ARGUMENT ON (10) filed February 9, 2018
(12) CIVIL LIBEL DEFAMATION TORT filed
February 12, 2018
(13) PLEA IN BAR filed February 23, 2018 ■
(14) NON-WAIVER RESPONSE TO PLEA IN BAR filed
March 16, 2018
(15) Order: Motion to strike and default January 19, 2018
8
(16) Order: Motion to strike and default January 19, 2018
(17) Orders: Plea in bar order April 6, 2018
3. United States District Court Eastern District of Virginia, 1:18-CV1061, Khai Bui v. Abdul Alshaer, order entered, October 29, 2018.
(1)
August 24, 2018 COMPLAINT against Abdul Alshaer
filed by Khai Bui (Attachments: # 1 Attachment 1, # 2
Attachment 2, # 3 Receipt)(pmil,) (Entered: 08/27/2018)
(2)
August 24, 2018 Summons Issued for service by SPS as to
Abdul Alshaer. (pmil,) (Entered: 08/27/2018)
(3)
September 10, 2018 MOTION to Dismiss for Lack of
Jurisdiction with Roseboro, by Abdul Alshaer. (Smyth,
Sefton) (Entered: 09/10/2018)
(4)
September 10, 2018 Memorandum in Support re 3
MOTION to Dismiss for Lack of Jurisdiction with
Roseboro, filed by Abdul Alshaer. (Attachments: # 1
Exhibit, # 2 Proposed Order)(Smyth, Sefton) (Entered:
09/10/2018)
(5)
September 10, 2018 Notice of Hearing Date re 3 MOTION
to Dismiss for Lack of Jurisdiction with Roseboro, 4
Memorandum in Support (Smyth, Sefton) (Entered:
09/10/2018)
(6)
September 11, 2018 Set Deadlines as to 3 MOTION to
9
Dismiss for Lack of Jurisdiction with Roseboro, Motion
Hearing set for 10/12/2018 at 10:00 AM in Alexandria
Courtroom 800 before District Judge Claude M. Hilton.
(klau,) (Entered: 09/11/2018)
(7)
September 14, 2018 AMENDED COMPLAINT against
Abdul Alshaer, filed by Khai Buijdvanm,) (Entered:
09/14/2018)
(8)
September 14, 2018 MOTION to effect service by Khai
Bui. (dvanm,) (Entered: 09/14/2018)
(9)
September 14, 2018 MOTION for Pro Se E-Noticing by
Khai Bui. (dvanm,) (Entered: 09/14/2018)
(10) September 14, 2018 CERTIFICATE of Service as to
Notice of a lawsuit and request to waive service of a
summons by Khai Bui (dvanm,) (Entered: 09/14/2018)
(ID September 14, 2018 Memorandum in Support re 3
MOTION to Dismiss for Lack of Jurisdiction with
Roseboro, Supplemental filed by Abdul Alshaer. (Smyth,
Sefton) (Entered: 09/14/2018)
(12) September 14, 2018 Opposition to 7 MOTION to effect
service filed by Abdul Alshaer. (Smyth, Sefton) (Entered:
09/14/2018)
(13) September 14, 2018 Memorandum in Opposition re 7
10
(
MOTION to effect service filed by Abdul Alshaer.
(Attachments: # 1 Exhibit)(Smyth, Sefton) (Entered:
09/14/2018)
(14) September 17, 2018 ORDER granting 8 Motion for Pro Se
E-Noticing. Signed by Magistrate Judge Ivan D. Davis on
09/17/2018. (dvanm,) (Entered: 09/17/2018)
(15) September 17, 2018 ORDER denying 7 Motion to Effect
Service. Signed by Magistrate Judge Ivan D. Davis on
09/17/2018. (dvanm,) (Entered: 09/17/2018)
(16) September 19, 2018 SUMMONS Returned Executed by
Khai Bui Abdul Alshaer served on 9/13/2018, answer due
10/4/2018 (dvanm,) (Entered: 09/20/2018)
(17) September 20, 2018 WAIVER OF SERVICE Returned
Executed (dvanm,) (Entered: 09/20/2018)
(18) September 24, 2018 Brief in Opposition to 3 MOTION to
Dismiss for Lack of Jurisdiction with Roseboro, filed by
Khai Bui. (dvanm,) (Entered: 09/24/2018)
(19) September 25, 2018 REPLY to Response to Motion re 3
MOTION to Dismiss for Lack of Jurisdiction with
Roseboro, filed by Abdul Alshaer. (Smyth, Sefton)
(Entered: 09/25/2018)
(20) September 25, 2018 REPLY to Response to Motion re 3
11
MOTION to Dismiss for. Lack of Jurisdiction with
Roseboro, Memorandum in Support filed by Abdul
Alshaer. (Smyth, Sefton) (Entered: 09/25/2018)
(21) October 10, 2018 Per CMH chambers motions set for
10/12/18 on the pleadings (clar,) (Entered: 10/10/2018)
(22) October 29, 2018 ORDER granting 3 Motion to Dismiss
for Lack of Jurisdiction. Signed by District Judge Claude
M. Hilton on 10/29/2018. (dvanm,) (Entered: 10/29/2018)
(23) August 29, 2019 MOTION for Pro Se E-Noticing by Khai
Bui. (dvanm,) (Entered: 08/29/2019)
(24) August 30, 2019 ORDER granting 21 Motion for Pro Se ENoticing. Signed by Magistrate Judge Ivan D. Davis on
08/28/2019. (dvanm,) (Entered: 08/30/2019)
4 . United States District Court Eastern District of Virginia, L19-CV01097, Khai Bui v. Abdul Alshaer, order entered, September 4, 2019.
(1)
August 20, 2029 COMPLAINT against Abdul Alshaer,
filed by Khai Bui. (Attachments: # 1 Civil Cover Sheet, #
2 Receipt)(klau,) (Entered: 08/21/2019)
(2)
August 20, 2019 Summons Issued for service as to Abdul
Alshaer. (klau,) (Entered: 08/21/2019)
(3)
August 20, 2019 MOTION for Pro Se E-Noticing by Khai
Bui. (klau,) (Entered: 08/21/2019)
12
(4)
August 22, 2019 ORDER granting 3 Motion for Pro Se ENoticing. Signed by District Judge Leonie M. Brinkema
08/22/19. (pmil,) (Entered: 08/22/2019)
(5)
August 22, 2019 ORDER that the 1 Complaint be and is
DISMISSED WITHOUT PREJUDICE; if Bui wishes to
proceed with this civil action, he must file a
properly amended complaint no later than close of
business on Monday, September 16, 2019 (See. Order for
details). Signed by District Judge Leonie M. Brinkema on
08/22/19. (pmil,) (Entered: 08/22/2019)
(6)
August 29, 2019 AMENDED COMPLAINT against Abdul
Alshaer filed by Khai Bui.(pmil,) (Entered: 08/29/2019)
(7)
August 29, 2019 MOTION signing of pleadings, motions
and other papers by Khai Bui. (pmil,) (Entered:
08/29/2019)
(8)
August 29, 2019 NOTICE of Waiver of Oral Argument re:
7 MOTION signing of pleadings, motions and other
papers by Khai Bui (pmil,) (Entered: 08/29/2019)
(9)
August 29, 2019 NOTICE of Civil Lawsuit by Khai Bui
(pmil,) (Entered: 08/29/2019)
(10) August 29, 2019 NOTICE of Lawsuit Representation by
Khai Bui (pmil,) (Entered: 08/29/2019)
13
(11) August 29, 2019 AMENDED COMPLAINT Summons
Issued for service by SPS as to Abdul Alshaer. (pmil,)
(Entered: 08/29/2019)
(12) September 4, 2019 ORDER that the Amended Complaint
be and is DISMISSED; Bui's filing captioned 7 "Motion
signing of pleadings, motions and other papers" be and is
DENIED as moot (See. Order for details). Signed by
District Judge Leonie M. Brinkema on 09/04/19. (pmil,)
(Entered: 09/04/2019)
5. Fairfax County Circuit Court, CL2019-14766, Khai Bui v. Abdul
Alshaer, motion plea in bar order entered, January 31, 2020.
(1)
COMPLAINT filed October 29, 2019
(2)
PROOF OF SERVICE filed November 8, 2019
(3)
PLEA IN BAR filed November 21, 2019
(4)
RESPONSE TO PLEA IN BAR filed January 23, 2020
(5)
ORDER - JUDGE BRETT A. KASSABIAN hearing
January 31, 2020
(6)
NOTICE OF APPEAL TO SUPREME COURT OF
VIRGINIA filed February 25, 2020
(7)
STATEMENT OF FACTS BY APPELLANT filed
February 25, 2020
(8)
APPELLEE OBJECTION TO STATEMENT OF FACTS
14
filed March 3, 2020
(9)
NOTICE OF JOINT STATEMENT OF FACTS SIGNING
filed March 5, 2020
(10) JOINT STATEMENT OF FACTS filed March 5, 2020
(11) OBJECTION TO PROPOSED STATEMENT OF FACTS
filed March 5, 2020
(12) STATEMENT OF FACTS EMAIL EXHIBITS filed
March 9, 2020
(13) APPELLANT PROPOSED STATEMENT OF FACTS filed
March 17, 2020
(14) OBJECTION TO PROPOSED STATEMENT OF FACTS
filed March 17, 2020
(15) ORDER - JUDGE BRETT A. KASSABIAN filed
March 18, 2020
(16) NOTICE OF OBJECTION TO APPELLEE’S
STATEMENT OF FACTS filed March 25, 2020
(17) ORDER - JUDGE BRETT A. KASSABIAN filed
April 3, 2020
6. Supreme Court of Virginia, record number 200989, Khai Bui v. Abdul
Alshaer, order entered December 8, 2020, rehearing order entered
February 5, 2021.
(1)
Petition entry date August 6, 2020 - record received
15
April 13, 2020
III.
(2)
Refuse disposition on December 8, 2020
(3)
Petition rehearing receive date December 22, 2020
(4)
Rehearing refused decision on February 5, 2021
TABLE OF AUTHORITIES AND TABLE OF CONTENTS
The petition is prepared under rule 33.1 and it is more than 1500 words. The
table of authorities and table of contents are required under rule 14.1 (c). The
table of contents included items contained in the appendix.
IV.
CITATIONS OF ORDERS FROM THE LOWER COURTS
The lower courts final order in each case relate to the order sought for review
in the petition for writ of certiorari:
1) Commonwealth of Virginia v Khai Bui Fairfax County General District
Court GC17176768-00 (November 8, 2017) (nolle prosequi disposition)
2) Khai Bui v. Abdul Alshaer Fairfax County Circuit Court CL2017-16518
(April 6, 2018) order entered; the order bar the use of magistrate report:
“this matter came to be heard on defendant’s plea in bar, and, it
appearing that the plea in bar is well taken, it is hereby adjudged,
ordered, and decreed that the plea in bar is sustained and this
case is dismissed with prejudice.”
3) Khai Bui v. Abdul Alshaer United States Eastern District Court of
Virginia 1:18-CV-1061 (October 29, 2018) opinion and order entered:
“....as there is no federal question in the case and the parties are
not diverse, this Court stands without subject matter jurisdiction.
For these reasons, it is hereby ordered that defendant’s motion to
dismiss is granted, this case is dismissed without prejudice”
16
4) Khai Bui v. Abdul Alshaer United States Eastern District Court of
Virginia 1:19-CV-01097 (September 4, 2019) opinion and order entered:
“....amended complaint is dismissed”
and that the court does not have jurisdiction on the matters described
in the amended complaint
5) Khai Bui v. Abdul Alshaer Fairfax County Circuit Court CL2019-14766
(January 31, 2020) order entered:
“Plaintiffs claim is barred by res judicata, it is hereby adjudged,
ordered, and decreed that the plea in bar is sustained and case is
dismissed with prejudice. The request for sanction is denied. “
6) Khai Bui v. Abdul Alshaer Supreme Court of Virginia record number
200989 (December 8, 2020) order entered:
“Upon review of the record in this case and consideration of the
argument submitted in support of the granting of an appeal, the
Court is of the opinion there is no reversible error in the judgment
complained of. Accordingly, the Court refuses the petition for
appeal.”
and upon rehearing request Supreme Court of Virginia (February 5,
2021) rehearing order entered:
“On consideration of the petition of the appellant to set aside the
judgment rendered herein on December 8, 2020 and grant a
rehearing thereof, the prayer of the said petition is denied.”
V.
STATEMENT OF JURISDICTION FOR THIS COURT
U.S. Supreme Court by writ of certiorari granted may review final judgments
rendered in lower courts including highest court of a State. Rules of the U.S.
Supreme Court governing review on certiorari 10 (c) state that “a state court
17
or a United States court of appeals has decided an important question of
federal law that has not been, but should be, settled by this Court, or has
decided an important federal question in a way that conflicts with relevant
decisions of this Court.
Lower courts and the highest court of State of
Virginia in the cases Khai Bui v. Abdul Alshaer decided a federal affirmative
defense use in federal cases belong to the federal rule civil procedure 8 (c) res
judicata affirmative defense. 28a U.S. Code Rule 8 (c) (1) res judicata defense
or affirmative defense is a federal law of question for this Court. U. S. Supreme
Court had decided res judicata in precedent cases and recently in Lucky Brand
Dungarees Inc., ET AL v. Marcel Fashions Group Inc., 590 U.S. (2020) on res
judicata defense preclusion. Those decisions are quite different and conflicts
with the lower courts and highest State court of Virginia in the cases of Khai
Bui v. Abdul Alshaer.
i.
The order sought to be reviewed was entered on February 5, 2021 by
the Supreme Court of Virginia
ii.
The order sought to be reviewed is also a rehearing order for a
decision on December 8, 2020 by the Supreme Court of Virginia in
which the appellant’s appeal was refused
iii.
This is a petition for a writ of certiorari
iv.
28 U.S.C. § 1257 (a), 28U.S.C. § 1651, 28 U.S.C. § 1652 and U.S.
Supreme Court Rule 10 (c) are the statutory provision confer on this
18
Court jurisdiction to review on a writ of certiorari the judgment or
order in question
v.
Statement of notifications as required by Rule 29.4 (b) or (c) have not
been made
VI.
CONSTITUTIONAL PROVISION AND STATUES
The case involves a state lower court rulings on res judicata assertion by the
defense in a plea in bar in a subsequent civil cause of action. Federal Rule of
Civil Procedure 8 (c) (1) state that res judicata can be assert as a defense. Res
judicata is too a Supreme Court of Virginia rule of court in civil procedure. 28
U.S.C. § 1652 - State laws as rules of decision said that in this case res judicata
can be use by a state court to render decision in a civil action and that decision
is not immune from a U.S. Supreme Court jurisdiction to review a state court
decision based on a federal law of res judicata and a statue.
This case originated from a general district court nolle prosequi. Petitioner
filed a defamation civil lawsuit and a malicious prosecution civil lawsuit
against the respondent afterward. The constitutional provisions and statues
involve are the U.S. Constitution fourteenth amendment:
“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.”
19
■
provision an individual right to due process, right to file suit on Va. Code §
8.01-45 for the defamation action and Va. Code § 8.01-249.3 for the malicious
prosecution action, and right to appeal a highest court of a state decision, and
right to file a writ for certiorari. Res judicata was used incorrectly to terminate
civil action in the lower courts decisions. Their decisions may affect this case
and future cases. U.S. Supreme Court may review res judicata elements “claim
preclusion”, “issue preclusion” “common nucleus of facts” and “defense
preclusion” with the fourthteenth amendment “due process” provision and
statues 28 U.S.C. § 1257 (a), 28 U.S.C. § 1651, 28 U.S.C. § 1652 and U.S.
Supreme Court Rule 10 (c).
VII.
CONCISE STATEMENT MATERIALS TO THE QUESTIONS
i.
The res judicata issue was raised in a motion hearing in Fairfax
County Circuit Court. It was ordered that the petitioner argument is
not sustained against the defense plea in bar as in order Fairfax
County Circuit Court CL2019-14766, Khai Bui v. Abdul Alshaer
proceeding (5)
“Plaintiffs claim is barred by res judicata, it is hereby adjudged,
ordered, and decreed that the plea in bar is sustained and case is
dismissed with prejudice. The request for sanction is denied. “
Res judicata issues was raised in the respond to motion plea in bar,
Fairfax County Circuit Court CL2019-14766 Khai Bui v. Abdul
Alshaer proceeding (4) and in plea in bar, Fairfax County Circuit
Court CL2019-14766 Khai Bui v. Abdul Alshaer proceeding (3). Issue
20
was that judgment of the defamation case was not on merit of the
case but rather it was on plea in bar single issue of fact. Plea in bar
motion Fairfax County Circuit Court CL2017-16518 Khai Bui v.
Abdul Alshaer proceeding (13) cannot hear all the merit facts of the
case because it is a hearing on a single issue of fact. On the merits
refers the decision rests upon the law as it applied to the particular
evidence and facts presented in the case. It is here the order Fairfax
County Circuit Court CL2017-16518 Khai Bui v. Abdul Alshaer
proceeding (17) dismissed with prejudice applied to the evidences
and facts in the plea in bar. Plea in bar presents magistrate report
as its main evidence to attack the defamation action. There were
other facts in the pleadings of plea in bar but defense did not present
evidence in the hearing. It is accordingly by law was an order to
dismissed with prejudice because the magistrate report is absolute
privilege and plaintiff cannot bring another same charge. See. Va.
Code § 19.2-265.6 (Effective until March 1, 2021) Effect of dismissal
of criminal charges:
“No dismissal of any criminal charge by a court shall bar
subsequent prosecution of the charge unless jeopardy attached
at the earlier proceeding or unless the dismissal order explicitly
states that the dismissal is with prejudice.”
but “with prejudice” meaning a plaintiff is not bar from subsequent
lawsuit with a different cause of action and different evidences.
Defense continue using the case Fairfax County Circuit Court
21
CL2017-16518 Khai Bui v. Abdul Alshaer (April 6, 2018) order
proceeding (17); the order bar the use of magistrate report:
“this matter came to be heard on defendant’s plea in bar, and, it
appearing that the plea in bar is well taken, it is hereby adjudged,
ordered, and decreed that the plea in bar is sustained and this
case is dismissed with prejudice.”
In the appellate court assignment of errors of the petition and
petition rehearing Supreme Court of Virginia record number 200989
Khai Bui v. Abdul Alshaer proceeding (1) and petition rehearing
Supreme Court of Virginia record number 200989 Khai Bui v. Abdul
Alshaer proceeding (3), Supreme Court of Virginia record number
200989 Khai Bui v. Abdul Alshaer petitions raised the issues of res
judicata - claim preclusion and issue preclusion, different causes of
action, different subject matter and err decisions by the circuit court.
After reviewing the errors, highest court of state Virginia refused the
petition after granting petition oral argument and denied a petition
rehearing completely on February 5, 2021. Federal question of
separate and distinct cause of action may overrule res judicata was
raised timely and properly and this Court has jurisdiction to review
the judgment of the lower courts on a writ of certiorari.
ii.
VIII.
This is not a review of a judgment of a United States court of appeals.
DIRECT AND CONCISE STATEMENT
U.S. Supreme Court of a country has the power to review lower court decisions
to ensure that the federal question is not broken. U.S. Supreme Court can
22
review judgment of the highest court of a state when it cannot reverse an order
that does not capture the law of res judicata. Res judicata is a federal law and
many elements of res judicata must be met for an assertion of res judicata
affirmative defense. Separate causes of action are not the same matter if the
causes of action are distinct and involve distinct materials and evidences.
Petitioner filed different actions in the courts of Fairfax County, Virginia and
Federal District Court Eastern District of Virginia. The federal district court
eastern district of Virginia ordered dismissed both cases for their lack of
subject matter jurisdiction and effectively nulled them. The Fairfax County
Circuit Court CL2017-16518 Khai Bui v. Abdul Alshaer proceeding (12)
defamation cause of action and Fairfax County Circuit Court CL2019-14766
Khai Bui v. Abdul Alshaer proceeding (1) malicious prosecution cause of action
are claim preclusion and issue preclusion because they are separate cause of
action and have distinct issues. The lower court order that the subsequent case
is res judicata bar because of the previous case ruling on another plea in bar.
The previous plea in bar ruling was on another libel statement respondent
made to the magistrate court. Respondent inclusion of police officer name in
the magistrate report shows that he intentionally creates a false statement. It
does not show that the petitioner should know about the existence of any police
investigative report until after the defamation case. This malicious prosecution
case is about another libel statement made to the Fairfax County police which
has not been made part of an evidence in previous cases. Res judicata does not
23
/
exist if the defense pleadings and argument does not show the existence of the
same evidence to a cause of action or a damage claim, common nucleus of facts,
suits are the same, and claims for relief are the same. The order and opinion
of the United States Supreme Court confirm that the laws of res judicata
involves claim preclusion, issue preclusion, common nucleus of facts, and
defense preclusion with claim preclusion and issue preclusion as the law of res
judicata See. Lucky Brand Dungarees Inc., ET AL v. Marcel Fashions Group
Inc., 590 U.S. (2020). Claim preclusion “describes the rules formerly known as
‘merger’ and ‘bar.’” Taylor v. Sturgell, 553 U. S. 880, 892, n. 5 (2008). “If the
plaintiff wins, the entire claim is merged in the judgment; the plaintiff cannot
bring a second independent action for additional relief, and the defendant
cannot avoid the judgment by offering new defenses.” Wright & Miller §4406.
But “if the second lawsuit involves a new claim or cause of action, the parties
may raise assertions or defenses that were omitted from the first lawsuit even
though they were equally relevant to the first cause of action.”.
Malicious prosecution is a subsequent cause of action in the case. Legal claim
is a means for a plaintiff to show the court how the actions of the defendant
had caused the plaintiff to suffer loss. Petitioner is suing the respondent for
making false police report. See. Supreme Court of Virginia record number
200989 Khai Bui v. Abdul Alshaer proceeding (3) appendix C p 46 as evidence
that defendant act caused plaintiff to suffer loss. It is itself an occurrence that
is unfamiliar with previous cause of action or claims of relief because plaintiff
24
obtain the report in November 16, 2018 which is after the April 6, 2018 order.
The defense must satisfy the stricture of issue preclusion and claim preclusion
to raise a res judicata affirmative defense See. Davis v. Brown, 94 U. S. 423,
428 (1877) (holding that where two lawsuits involved different claims, preclu
sion operates “only upon the matter actually at issue and determined in the
original action”) The defamation and malicious prosecution were grounded on
different conduct, occurring at different times, involve different libel evidences,
and thus did not share a “common nucleus of operative facts”. If a later suit
advances the same claim as an earlier suit between the same parties, the ear
lier suit’s judgment “prevents litigation of all grounds for, or defenses to,
recovery that were previously available to the parties, regardless of whether
they were asserted or determined in the prior proceeding.” Brown v. Felsen,
442 U. S. 127, 131 (1979). The magistrate report was the center of the
defamation case. The police report is the center of malicious prosecution case.
They are not the same operative facts for the cases. Res judicata cannot bar
another cause action base on previous not litigated claims or issues or “claim
preclusion” and “issue preclusion” according to the ruling cases in the
authorities of this petition.
Supreme Court of Virginia review a petition of appeal record no. 200989 Khai
Bui v. Abdul Alshaer proceeding (1). The court order in Supreme Court of
Virginia Khai Quang Bui v. Abdul Alshaer Fairfax Circuit Court No.CL201914766 December 8, 2020 the complained judgment is not reversible and refused
25
the petition of appeal. Supreme Court of Virginia record number 200989 Khai
Bui v. Abdul Alshaer proceeding (3) rehearing was denied as Supreme Court
of Virginia Khai Quang Bui v Abdul Alshaer record No.200989 Circuit Court
No.CL2019-14766 February 5, 2021 order. The law of res judicata is “claim
preclusion” and “issue preclusion” as in the cite cases on p. 25 Id. The cases
identified other issues when does “common nucleus of facts” applied and when
an evidence proffer is “defense preclusion”. When the “malicious prosecution”
case was rule res judicata bar rule of Supreme Court of Virginia 1:6 in Fairfax
County Circuit Court CL2019-14766 Khai Bui v. Abdul Alshaer January 31,
2020 order, lower court opinion and order is transcribed as Fairfax County
Circuit Court CL2019-14766 Khai Bui v. Abdul Alshaer opinion order January
31, 2020 transcribed on [page 13-14] quote:
“My basis for it is the plain language of Rule 1:6 when read in
conjunction with Judge Bellow’s order dismissing the claim with
prejudice on April 16 th, 2008.
And I conclude that that claim that was dismissed with prejudice
was a claim or cause for action that arose out of the same conduct
in this case which is the incident in 2017 that is common to both
complaints.
I do not find that the exceptions apply in this case as this is a
malicious prosecution claim.
I also do not find that the factual scenario is similar to that of
D’ambrosio v Wolf because one of the claim in D’ambrosio did not
exist at the time of the ruling in the dismissed claim. This claim
did exist. That is the basis for my ruling.”
Res judicata cannot bar the malicious prosecution case base on previous case
order “.. .with prejudice” p. 22 Id. same conduct - common facts, existing claim
or claims, and not yet litigate claim of relief as in cite cases on p. 25 Id. and
26
Taylor v. Sturgell, 553 U. S. 880, 892, n. 5 (2008). The defense of res judicata
Fairfax County Circuit Court CL2019-14766 Khai Bui v. Abdul Alshaer
“response to plea in bar” filed January 23, 2020 did generally state that
malicious prosecution lawsuit was a different cause of action and distinct
issues. Res judicata is recognized in precedent cases as mainly “claim
preclusion” and “issue preclusion” p. 25 Id. Fairfax County Circuit Court
CL2017-16518 Khai Bui v. Abdul Alshaer April 6, 2018 order was not appeal
to a higher court and it was on plea in bar. Plea in bar is a motion for close the
case with a single argument of fact so it is not on merit of a case. Previous
arguments and precedent cases p. 25 Id. state that res judicata is judicially
recognized as “claims preclusion” and “issue preclusion”. A plaintiff may bring
a judicially recognized cause of action if it is a different cause of action See. v
Davis v. Brown, 94 U. S. 423, 428 (1877) (holding that where two lawsuits
involved different claims, preclusion operates “only upon the matter actually
at issue and determined in the original action”) The defamation and malicious
prosecution were grounded on different conduct, occurring at different times,
involve different libel evidences, and thus did not share a “common nucleus of
operative facts”. Res judicata cannot bar the case from the proffer and
litigation of a false police statement of the malicious prosecution case See.
Lucky Brand Dungarees Inc., ETAL v. Marcel Fashions Group Inc., 590 U.S.
(2020).
27
Wherefore, petitioner asks See. 28 U.S.C. § 2106 this Court to grant the writ
of certiorari to the Supreme Court of Virginia and reverse the orders of the
court; the Fairfax County Circuit Court CL2019-14766 Khai Bui v. Abdul
Alshaer January 31, 2020 order would be reversed and the case remanded to
Fairfax County Circuit Court following the higher court of state reverse orders.
IX.
APPENDIX
i.
Supreme Court of Virginia Khai Quang Bui v. Abdul Alshaer record
No.200989 Circuit Court No.CL2019-14766 February 5, 2021 order
ii.
Supreme Court of Virginia Khai Quang Bui v. Abdul Alshaer record
No.200989 Circuit Court No.CL2019-14766 December 8, 2020 order
iii.
Fairfax County Circuit Court CL2019-14766 Khai Bui v. Abdul Alshaer
January 31, 2020 order
iv.
Fairfax County Circuit Court CL2019-14766 Khai Bui v. Abdul Alshaer
proceeding (5)
v.
Fairfax County Circuit Court CL2019-14766 Khai Bui v. Abdul Alshaer
Transcript of hearing transcribed order on [page 13-14]
vi.
Fairfax County Circuit Court CL2017-16518 Khai Bui v. Abdul
Alshaer April 6, 2018 order
vii.
Fairfax County Circuit Court CL2017-16518 Khai Bui v. Abdul
Alshaer proceeding (13)
vm.
Fairfax County Circuit Court CL2017-16518 Khai Bui v. Abdul
Alshaer proceeding (17)
28
IX.
Fairfax County Circuit Court CL2017-16518 Khai Bui v. Abdul
Alshaer complaint “civil libel defamation tort” file February 12, 2018
x.
Fairfax County Circuit Court CL2017-16518 Khai Bui v. Abdul
Alshaer proceeding (12)
xi.
Fairfax County Circuit Court CL2019-14766 Khai Bui v. Abdul
Alshaer complaint “Malicious prosecution” filed October 29, 2019
XU.'
Fairfax County Circuit Court CL2019-14766 Khai Bui v. Abdul
Alshaer proceeding (1)
xm.
Fairfax County Circuit Court CL2019-14766 Khai Bui v. Abdul
Alshaer “response to plea in bar” filed January 23, 2020
xiv.
Fairfax County Circuit Court CL2019-14766 Khai Bui v. Abdul ,
Alshaer proceeding (4)
xv.
Fairfax County Circuit Court CL2019-14766 Khai Bui v. Abdul
Alshaer plea in bar filed November 21, 2019
xvi.
Fairfax County Circuit Court CL2019-14766 Khai Bui v. Abdul
Alshaer proceeding (3)
xvu.
Supreme Court of Virginia Khai Quang Bui v. Abdul Alshaer record
No.200989 Circuit Court No.CL2019-14766 February 5, 2021 order
xvm.
Supreme Court of Virginia Khai Quang Bui v. Abdul Alshaer record
No.200989 Circuit Court No.CL2019-14766 proceeding (1)
xix.
Supreme Court of Virginia Khai Quang Bui v. Abdul Alshaer record
No.200989 Circuit Court No.CL2019-14766 proceeding (3)
29
xx.
Supreme Court of Virginia Khai Quang Bui v. Abdul Alshaer record
No.200989 Circuit Court No.CL2019-14766 petition rehearing
appendix C p. 46
xxi.
General Rules of Pleading, 28a U.S.C. Rule 8 (c) (1) (2010)
xxn.
Determination, 28 U.S.C. § 2106 (1948)
XXlll.
State courts; certiorari, 28 U.S.C. § 1257 (a) (1988)
XXIV.
Writs, 28 U.S.C. § 1651 (1948)
xxv.
State laws as rules of decision, 28 U.S.C. § 1652 (1948)
XXVI.
Va. Code § 8.01-249.3
XXVll.
Va. Code § 8.01-45
xxvm.
Va. Code § 19.2-265.6
XXIX.
Supreme Court of Virginia rule 1:6
XXX.
County of Fairfax Virginia police report (can only be retrieve through
court process)
xxxi.
Fairfax County Circuit Court CL2019-14766 Khai Bui v. Abdul
Alshaer Table of Contents
~2o£i
Khai Bui
1124 Duchess dr
Mclean, VA 22102
Email: akhaibui@vahoo.com
Number: 571-389-0693
30
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.