Petition for Writ of Certiorari — Ganiyu Ayinla Jaiyeola, Petitioner v. Toyota Motor Corporation, et al.
Supreme Court briefFeb 10, 2023
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GANIYU AYINLA JAIYEOLA,
Petitioner,
v.
TOYOTA MOTOR NORTH AMERICA, INC.,
TOYOTA MOTOR CORPORATION, a foreign corporation,
and AISAN INDUSTRY COMPANY, LTD.,
a foreign corporation,
Respondents.
On Petition For A Writ Of Certiorari
To The United States Court Of Appeals
For The Sixth Circuit
PETITION FOR A WRIT OF CERTIORARI
Ganiyu A. Jaiyeola
Pro se
10870 North Stelling Road,
#37D
Cupertino, CA 95014
(616) 635-4025
ganiyu .j aiyeola@gmail. com
RECEIVED
FEB \ *1 BB
£ ^
QUESTIONS PRESENTED
Question 1 presented is:
Whether the Sixth Circuit panel’s decision to
affirm the District Court decision that was
based on the “application of the wrong legal
test” constituted a violation of a Supreme
Court guideline (“an erroneous legal conclu
sion deserves no deference on appeal”1), a de
nial of due process to Plaintiff, and a violation
of the “just” aspect of Rule 1; because even
though the panel applied the correct law to
the District Court decision, the panel and the
District Court held no hearing and Plaintiff
therefore did not have the opportunity to be
heard. Indeed, the panel asserted as follows:
“On remand, the district court denied Jaiyeola’s
motion for sanctions, concluding that he had
failed to meet his burden of proving by “clear
and convincing evidence that Defendants’
counsel presented intentionally false material
to the Court.” Obviously, Plaintiff could not
have presented a “clear and convincing evi
dence that Defendants’ counsel presented
intentionally false material to the Court.”
without a hearing at the District Court or at
the Sixth Circuit.
A “clear and convincing evidence” burden of
proof is a very high standard for a Court to
ask for. In a lawsuit where credibility of the
litigants are tied to the facts of the case, an
evidentiary hearing and cross-examination
1 Koon.
11
QUESTIONS PRESENTED—Continued
must be allowed. Hemphill v. New York, No.
(2022). As the Supreme
20-637, 595 U.S.
Court has noted, cross-examination is the
“greatest legal engine ever invented for the
discovery of truth.” California v. Green, 399
U.S. 149, 158, 90 S.Ct. 1930, 26 L.Ed.2d 489
(1970).” Johnson v. Bell, 605 F.3d 333 (6th Cir.
2010). And if there is a video evidence that is
central to the issues, the Court should admit
the video into evidence. A litigant cannot
overcome a “clear and convincing evidence”
burden of proof without evidentiary hearing,
cross-examination, and admission of evidence
like a video evidence. Both the District Court
and the Sixth Circuit Court of Appeals denied
Plaintiff a hearing. Plaintiff was unable to
overcome a “clear and convincing evidence”
burden of proof at the District Court.
Question 2 presented is:
Whether a Court can correctly decide a law
suit when the Court demands “clear and con
vincing evidence” burden of proof and where
credibility of the litigants are tied to the facts
of the case without conducting evidentiary
hearing, allowing for cross-examination, and
admitting any valid video into evidence.
“Because a district court has no discretion not to
abide by governing law, an erroneous legal conclusion
deserves no deference on appeal. See Koon v. United
Ill
QUESTIONS PRESENTED—Continued
States, 518 U.S. 81,100 (1996).”2 “Rule 1. . . emphasize
that . . . the court should construe and administer
these rules to secure the just, . . . determination of
every action,” Fed. R. Civ. P. 1 (Committee Notes on
Rules—2015 Amendment). The Sixth Circuit Court of
Appeals violated the “just” aspect of Rule 1 and denied
Plaintiff due process when the panel affirmed a Dis
trict Court decision where the District Court used the
wrong legal standard and the District Court denied
Plaintiff a hearing. The Sixth Circuit also denied
Plaintiff a hearing, “injustice was more likely to be
caused than avoided by deciding the issue without pe
titioner’s having had an opportunity to be heard.” Sin
gleton v. Wulff, 428 U.S. 106 (1976). “Accordingly, the
proceedings did not comply with [Rule 1], and neither
did they comport with due process. See, e.g., Mullane v.
Central Hanover Bank & Trust Co., 339 U.S. 306, 314
(1950) (‘The fundamental requisite of due process of
law is the opportunity to be heard.’) (quoting Grannis
v. Ordean, 234 U.S. 385, 394 (1914)).” Nelson v. Adams
USA, Inc., 529 U.S. 460 (2000).
The Sixth Circuit panel asserted as follows: “In deny
ing that motion on remand, the district court applied
Sixth Circuit precedent stating that a party seeking to
show a fraud on the court must present clear and con
vincing evidence of the following elements:
2 United States v. LaDeau, No. 12-6611 (6th Cir. 2013).
IV
QUESTIONS PRESENTED—Continued
1) [conduct] on the part of an officer of the court;
that 2) is directed to the judicial machinery itself; 3) is
intentionally false, willfully blind to the truth, or is in
reckless disregard of the truth; 4) is a positive aver
ment or a concealment when one is under a duty to
disclose; and 5) deceives the court. Carter v. Anderson,
585 F.3d 1007, 1011 (6th Cir. 2009). But the district
court erred in doing so. “The problem with applying
this test is that the fraud-on-the-court doctrine deals
with courts’ inherent power to vacate their judgments,
whereas this case involves a court’s inherent power to
sanction for misconduct in litigation.” Williamson v.
Recovery Ltd. P’ship, 826 F.3d 297, 302 (6th Cir. 2016).
However, the panel went on to make the following as
sertion:
“Despite the district court’s application of
the wrong legal test, “we may affirm the district
court’s order on any ground that is supported by
the record.” Id. (citing Moore v. Lafayette Life Ins.,
458 F.3d 416, 446 (6th Cir. 2006)).” (9a-10a). The
panel’s position is contrary to the position of the Su
preme Court. The Supreme Court is very clear on what
should happen when an inferior Court uses the “wrong
legal test” to decide a lawsuit: “Because a district
court has no discretion not to abide by govern
ing law, an erroneous legal conclusion deserves
no deference on appeal. See Koon v. United
States, 518 U.S. 81, 100 (1996).”3 In plain language, a
United States v. LaDeau, No. 12-6611 (6th Cir. 2013).
V
QUESTIONS PRESENTED—Continued
Court Order based on the wrong legal test is not a valid
Order and should be null and void. The Sixth Circuit
panel denied Plaintiff a hearing, denied Plaintiff due
process, and violated the “just” aspect of Rule 1.
VI
PARTIES
The petitioner is Ganiyu Ayinla Jaiyeola. The re
spondent is TOYOTA MOTOR NORTH AMERICA,
INC., TOYOTA MOTOR CORPORATION, a foreign
corporation, and AISAN INDUSTRY COMPANY,
LTD., a foreign corporation.
DIRECTLY RELATED CASES
Jaiyeola v. TOYOTA MOTOR NORTH AMERICA,
INC, TOYOTA MOTOR CORPORATION, a foreign
corporation, and AISAN INDUSTRY COMPANY,
LTD., a foreign corporation, No. 22-1083, Sixth Circuit
Court of Appeals, judgment entered October 7, 2022.
Jaiyeola v. TOYOTA MOTOR NORTH AMERICA,
INC, TOYOTA MOTOR CORPORATION, a foreign
corporation, and AISAN INDUSTRY COMPANY,
LTD., a foreign corporation, No. l:21-cv-1053, Western
District of Michigan, judgment entered April 14, 2021.
Vll
TABLE OF CONTENTS
Page
Questions Presented...................................................
1
Parties.............................................................................
vi
Directly Related Cases..............................................
vi
Opinions Below.............................................................
1
Jurisdiction....................................................................
1
Statutory Provision Involved....................................
1
Statement of the Case...............................................
3
Background...............................................................
3
Proceedings Below District Court.......................
5
Court of Appeals.......................................................
7
Reasons for Granting the Writ................................
16
I.
A Court of Appeals Must be a Court of
Review and not First View Because of Due
Process and Rule 1 Constitutional Re
quirements ......................................................... 16
II.
A Court Cannot Correctly Decide a Law
suit When the Court Demands “Clear and
Convincing Evidence” Burden of Proof and
Where Credibility of the Litigants are
Tied to the Facts of the Case Without Con
ducting Evidentiary Hearing, Allowing for
Cross-Examination, and Admitting any
Valid Video Into Evidence............................ 20
Conclusion
23
Vlll
TABLE OF CONTENTS—Continued
Page
APPENDIX
United States Court of Appeals for the Sixth
Circuit, Order, October 7, 2022.......................... App. 1
United States District Court for the Western Dis
trict of Michigan, Southern Division, Memo
randum Opinion and Order, April 14, 2021 .... App. 8
United States Court of Appeals for the Sixth
Circuit, Order Denying Petition for Rehearing
App. 12
En Banc, November 15, 2022
IX
TABLE OF AUTHORITIES
Page
Cases
Abercrombie Fitch Stores, Inc. v. Am. Eagle Out
fitters, Inc., 280 F.3d 619 (6th Cir. 2002)...........
18
Algarin u. Town ofWallkill, 421 F.3d 137 (2d Cir.
2005).........................................................................
19
Angel v. Kentucky, 314 F.3d 262 (6th Cir. 2002)..
18
Armstrong v. Manso, 380 U.S. 545 (1965)
8,13, 22
Bell v. Livingston, et al., No. 08-20354 (5th Cir.
2009).........................................................................
19
Buck v. Davis, 137 S.Ct. 759, 197 L.Ed.2d 1
(2017)........................................................................
11
California v. Green, 399 U.S. 149, 90 S.Ct. 1930,
26 L.Ed.2d 489 (1970)
6,15, 20
Carter v. Anderson, 585 F.3d 1007 (6th Cir. 2009)
17
Colorado v. New Mexico, 467 U.S. 310 (1984).....
2
Cook v.Arn. S.S. Co., 134 F.3d 771 (6th Cir. 1998)....7, 21
Davis v. Scott, 157 F.3d 1003 (5th Cir. 1998)......
19
Demjanjuk v. Petrovsky, 10 F.3d 338 (6th Cir.
1993).........................................................................
14
Doe v. Baum, et al., No. 17-2213 (6th Cir. 2018)..
2
Doe v. Baum, 903 F.3d 575 (6th Cir. 2018)........... 8, 22
First Bank of Marietta v. Hartford Underwriters
Ins. Co., 307 F.3d 501 (6th Cir. 2002).................
5
Glover v. Wells Fargo Home Mortgage, No. 144829 (3d Cir. Oct. 14, 2015)..................................
11
X
TABLE OF AUTHORITIES—Continued
Page
Goodyear Tire & Rubber Co. v. Haeger, et al., 137
S. Ct. 1178 (2017)..................................
Grannis v. Ordean, 234 U.S. 385 (1914)
5
2,16,17
Griffith v. Colo. Div. of Youth Serus., 17 F.3d 1323
(10th Cir. 1994).......................................................
19
Hancock v. Miller, No. 20-5422 (6th Cir. 2021)....
15
Hemphill v. New York, No. 20-637, 595 U.S.___
(2022).......................................................................
20
Johnson v. Morales, et al., No. 17-2519 (6th Cir.
8, 13,14,15,22
2020)
Johnson v. Bell, 605 F.3d 333 (6th Cir. 2010)......
6, 20
Knight Capital Partners Corp. u. Henkel AG & Co.,
KGaA, 930 F.3d 775 (6th Cir. 2019)........ 4,13,14,18
Koon v. United States, 518 U.S. 81 (1996)
16,18,19
LaBuy v. Howes Leather Co., 352 U.S. 249 (1957)
11
Luna v. Bell, et al., Nos. 17-5608/5675 (6th Cir.
2018).........................................................................
22
Marshall v. Jerrico, Inc., 446 U.S. 238 (1980).......
8
Mathews v. Eldridge, 424 U.S. 319 (1976)............ 8,13
Microsoft Corp. v. i4i Ltd. Partnership, 564 U.S.
91 (2011)..................................................................
20
Miller v. Sam Houston State University, et al.,
No. 19-20752, c/w No. 19-20753 (5th Cir. Jan.
29, 2021)..................................................................
9
Moore v. Lafayette Life Ins. Co., 458 F.3d 416 (6th
Cir. 2006)................................................................. 17,18
XL
TABLE OF AUTHORITIES—Continued
Page
Mullane v. Central Hanover Bank & Trust Co.,
339 U.S. 306 (1950).......... ....................................
16
Nelson v. Adams USA, Inc., 529 U.S. 460 (2000).
16
Offutt v. United States, 348 U.S. 11 (1954)..........
9
Oxxford Clothes XX, Inc. v. Expeditors Interna
tional of Washington, Inc., 127 F.3d 574 (7th
Cir. 1997).................................................................
10
Quantum Sail Design Group, LLC v. Jannie
Reuvers Sails, Ltd., et al., No. I:2013cv00879
(W.D. Mich. 2018)...................................................
6
Rexnord Indus., LLC v. Kappos, 705 F.3d 1347
(Fed. Cir. 2013).......................................................
19
Santosky v. Kramer, 455 U.S. 745 (1982)..............
2
Singleton v. Wulff, 428 U.S. 106 (1976).................
16
Taylor v. United States, 204 F.3d 828 (8th Cir.
2000).........................................................................
19
United States v. Brettschneider, et al., 19-2423-cr
(L) (2d Cir. 2020)....................................................
11
United States v. LaDeau, No. 12-6611 (6th Cir.
2013).........................................................................
18
United States v. Trogdon, No. 21-2089 (8th Cir.
2022).........................................................................
19
Wantou v. Wal-Mart Stores Texas, L.L.C., 23
F.4th 422 (5th Cir. 2022)......................................
18
Xll
TABLE OF AUTHORITIES—Continued
Page
Wantou v. Wal-Mart Stores Texas, L.L.C., No. 2040284 (S.Ct. January 23, 2023).......................... 20, 22
Williamson v. Recovery Ltd. P’ship, 826 F.3d 297
(6th Cir. 2016)......................................................... 17,18
Statutes
28 U.S.C. § 1254(1)
1
28 U.S.C. § 1331....
1
Federal Rules
Fed. R. App. P. 4.........
5
Fed. R. Civ. P. 1...........
16
Fed. R. Civ. P. 53(a)(1)
11
Fed. R. Evid. 201(b)....
15
1
Petitioner Ganiyu Ayinla Jaiyeola, respectfully
pray that this Court grant a writ of certiorari to review
the judgment and opinion of the United States Court
of Appeals for the Sixth Circuit entered on October 7,
2022.
OPINIONS BELOW
The October 7, 2022, opinion of the court of ap
peals is set out at App. 1-7 of the Appendix. The April
14,2021, decision of the district court is set out at App.
8-11 of the Appendix. The November 15, 2022, order
denying rehearing en banc is set out at App. 12 of the
Appendix. The opinion and orders are not reported.
JURISDICTION
The decision of the court of appeals was entered
on October 7, 2022. A timely petition for rehearing en
banc was denied on November 15,2022. This Court has
jurisdiction pursuant to 28 U.S.C. § 1254(1). The dis
trict court had jurisdiction pursuant to 28 U.S.C.
§ 1331.
STATUTORY PROVISION INVOLVED
No federal statute explicitly prescribes judicial
standards of proof in a civil case. Standards of proof
2
are judicial precedents established by the Supreme
Court.
When a party has the burden of proving any claim
or defense by clear and convincing evidence, it means
that the party must present evidence that leaves you
with a firm belief or conviction that it is highly proba
ble that the factual contentions of the claim or defense
are true. “Clear and convincing” is a higher standard
of proof than proof by a preponderance of the evidence,
but it does not require proof beyond a reasonable
doubt. See Colorado v. New Mexico, 467 U.S. 310, 316
(1984) (defining clear and convincing evidence). “A
“clear and convincing evidence” standard adequately
conveys to the factfinder the level of subjective cer
tainty about his factual conclusions necessary to sat
isfy due process.” Santosky u. Kramer, 455 U.S. 745
(1982). A “clear and convincing” standard of proof re
quired that due process must not be denied. “The next
question, then, is whether a “beyond a reasona
ble doubt” or a “clear and convincing” standard
is constitutionally mandated.” Santosky. If due
process requirements are met for “clear and convinc
ing” standard of proof, then a “clear and convincing”
standard of proof is constitutional. “When it comes to
due process, the “opportunity to be heard” is the con
stitutional minimum. Grannis v. Ordean, 234 U.S. 385,
394 (1914).” Doe v. Baum, et al., No. 17-2213 (6th Cir.
2018).
3
STATEMENT OF THE CASE
Background
This is a motor vehicle product liability case in
which pro se Appellant Ganiyu Jaiyeola (“Plaintiff” or
“Jaiyeola”) asserted claims for injuries and other dam
ages against the Appellees (Toyota Motor Corporation
and Aisan Industry Co., Ltd.—both indicated as “De
fendants” or “Toyota”) arising out of Plaintiff’s 1996
Toyota Camry LE (“Camry”) sudden unintended accel
eration (“SUA”)4 car accident that occurred on Novem
ber 25, 2013. Plaintiff is a disable because of the SUA
car accident. Jaiyeola is married with three (3) chil
dren (15, 11, and 8 years). The facts on Plaintiff’s
Camry, the Camry accident of November 25, 2013,
Plaintiffs’ injuries (including Brain (Subdural Hema
toma), Spinal Cord (Cervical Stenosis with Myelopa
thy), and Fractured Left Eye Socket), brain surgery,
pending spinal cord surgery, and health prognosis are
stated in Plaintiff’s affidavit. (Plaintiff’s Affidavit, R.5
243-2, Page ID #5500-5510).
“The Court received “Plaintiff’s Motion To Strike
the Defendants’ Response (ECF No. 156) Because It
Contains Lies Against Plaintiff And Sanction The
Defendants’ Attorneys (CARMEN M. BICKERDT
and DAVID L. AYERS) For Misconduct (Authoring a
4 “SUA” refers to sudden unintended acceleration of the
Camry.
5 “R.” refers to the record entry number in the District Court
Docket. “R\” refers to the record entry number in a Sixth Circuit
Docket.
4
Response That Contains Lies)” on December 6, 2018
(ECF No. 264). Defendants responded on December 14,
2018 with “Defendants Toyota Motor Corporation and
Aisan Industry Co, Ltd.’s Response in Opposition to
Plaintiff’s Motion to Strike the Defendants’ Response
(ECF No. 156) Because It Contains Lies Against Plain
tiff and Sanction the Defendants’ Attorneys (Carmen
M. Bickerdt and David L. Ayers) for Misconduct (Au
thoring a Response that Contains Lies) [ECF 256]”
(ECF No. 274). The Court entered a judgment in favor
of Defendants and against Plaintiff on August 5, 2019
(ECF No. 305) and denied as moot Plaintiff’s various
other motions, including its motion for sanctions (ECF
No. 304 at PageID.6728). On appeal the Sixth Circuit
reversed and remanded on February 1, 2021, finding
that ECF No. 264 “requests that the court strike a fil
ing and sanction defense counsel. It seems to delineate
between relief on a merits issue and relief on a collat
eral issue [,] . . . ‘[t]he district court should have consid
ered and ruled on the merits of’ that request, which is
separate from Jaiyeola’s request for relief on a merits
issue.” Jaiyeola, 2021 WL 518155, at *5 (quoting
Knight Capital Partners Corp. u. Henkel AG & Co.,
KGaA, 930 F.3d 775, 787 (6th Cir. 2019)).” (R.352, Page
ID #7481-7482). The Sixth Circuit Order (“ORDER of
USCA”) was filed as R.346. Toyota filed a Motion after
R.346 was filed: “RESPONSE IN OPPOSITION TO
PLAINTIFF’S REMANDED MOTION TO STRIKE
THE DEFENDANTS’ RESPONSE (ECF NO. 156)”
(R.348; Page ID #7442-7445). The District Court de
nied Plaintiff the opportunity to be heard by denying
Plaintiff the right to file a Response to Toyota’s R.348.
5
(See (R.349) and (R.351). In an Order dated April 14,
2021 (R.352), the District Court held that “IT IS
HEREBY ORDERED that “Plaintiffs Motion To
Strike the Defendants’ Response (ECF No. 156) Be
cause It Contains Lies Against Plaintiff And Sanction
The Defendants’ Attorneys (CARMEN M. BICKERDT
and DAVID L. AYERS) For Misconduct (Authoring a
Response That Contains Lies)” (ECF No. 264) is DE
NIED.” (R.352). Plaintiff’s Motion for Reconsideration
(R.353-1, Page ID #7489-7509) was Denied. (R.362).
Plaintiff timely filed a Notice of Appeal.6 (R.363). See
Fed. R. App. P. 4.
Proceedings Below District Court
“Federal courts possess certain inherent powers,
including “the ability to fashion an appropriate sanc
tion for conduct which abuses the judicial process.”7 “A
district court has inherent authority to award sanc
tions when a party litigates in bad faith or commits a
fraud on the court. See First Bank of Marietta v. Hart
ford Underwriters Ins. Co., 307 F.3d 501, 512-16 (6th
Cir. 2002) (...). In First Bank of Marietta, the Sixth
Circuit noted that a district court may invoke its in
herent authority to impose sanctions for bad-faith
conduct, even if the district court failed to consider
6 (“Notice of Appeal”) R.406, Page ID #8261).
7 Goodyear Tire & Rubber Co. v. Haeger, et al., 137 S.Ct. 1178
(2017).
6
whether sanctions may be appropriate under any rules
or statutes.”8
To determine the truth of the evidence in a lawsuit
or determine if a litigant has abused the judicial pro
cess, a Court usually conducts evidentiary hearing or
appoints a Special Master. The District Court did nei
ther. “An evidentiary hearing is assuredly a reasonable
response to serious allegations . . . ”9 Evidentiary hear
ing allows for cross-examination. In this case, the Dis
trict Court did not conduct evidentiary hearing and
therefore no cross-examination. The District Court
was “without the aid of the truth-seeking device of
cross-examination.”10 As the Supreme Court has noted,
cross-examination is the “greatest legal engine ever
invented for the discovery of truth.” California v.
Green, 399 U.S. 149,158, 90 S.Ct. 1930, 26 L.Ed.2d 489
(1970).” Johnson v. Bell. At the minimum in this law
suit, “ . . . the interests ofjustice require an evidentiary
hearing where witnesses can be subjected to crossexamination.”11 And the Court did not appoint a Spe
cial Master to seek the truth. Since the District Court
neither held an evidentiary hearing nor appoint a Spe
cial Master to seek the truth in this lawsuit, “the inter
ests of justice” were not served by the District Court.
8 Quantum Sail Design Group, LLC v. Jannie Reuvers Sails,
Ltd.., et al, No. I:2013cv00879—Document 233 (W.D. Mich. 2018).
9 Johnson v. Bell.
10 Johnson v. Bell.
11 Johnson v. Bell.
7
The District Court held that “Plaintiff has not
fulfilled his burden here because Plaintiff has not
come forward with clear and convincing evidence that
Defendants’ counsel presented intentionally false ma
terial to the Court.” (App. 11) and denied Plaintiff’s
Motion for Sanctions against the Defendants’ Attor
neys. Obviously, “Plaintiff has not fulfilled his burden
. . . with clear and convincing evidence ...” because
the District Court denied Plaintiff an evidentiary hear
ing, did not allow for cross-examination, did not allow
the Defendants to produce a video evidence, and did
not appoint a Special Master.
Court of Appeals
The Sixth Circuit Court of Appeals affirmed the
decision of the District Court. The panel asserted and
held as follows: “Although Jaiyeola argues that the dis
trict court should have held an evidentiary hearing on
his sanctions motion, permitted him to file a reply brief
in support of the motion, or referred the matter to a
special master, the district court was not required to do
so before ruling on his motion. See Cook v. Am. S.S. Co.,
134 F.3d 771, 774 (6th Cir. 1998).” (App. 7). The panel’s
assertion and holding are contrary to the norm in
the Sixth Circuit for cases where credibility is an is
sue. “If credibility is in dispute and material to the
outcome, due process requires cross-examination.”
“Cross-examination is essential in cases . . . because it
does more than uncover inconsistencies—it “takes aim
at credibility like no other procedural device,” and
“cross-examination was unnecessary when conduct
8
depicted in videos and photos was sufficient to sustain
a finding of misconduct.”” Doe v. Baum, 903 F.3d 575
(6th Cir. 2018). There was a video evidence in this law
suit but the District Court did not allow for it to be pro
duced or allowed for a hearing. The Sixth Circuit panel
denied Plaintiff due process by not holding a hearing.
«u
The fundamental requirement of due process is
the opportunity to be heard ‘at a meaningful time and
in a meaningful manner.’” See, e.g., Mathews, 424 U.S.
at 333 (quoting Armstrong v. Manso, 380 U.S. 545, 552
(1965)).”12
After the Sixth Circuit’s Order on Plaintiff’s ap
peal (of R.304 and R.305) was filed at the District
Court as R.346, the District Court permitted Toyota to
file a Motion regarding R.346: “RESPONSE IN OPPO
SITION TO PLAINTIFF’S REMANDED MOTION TO
STRIKE THE DEFENDANTS’ RESPONSE (ECF NO.
156)” (R.348; Ex C Page ID #7442-7445). The District
Court did not permit Plaintiff to file a Response Mo
tion. The District Court denied Plaintiff the oppor
tunity to be heard by denying Plaintiff the right to file
a Response to Toyota’s R.348 ((R.349) and (R.351)). The
District Court then went on to rule on the case by deny
ing Plaintiff’s Motion (R.264) to sanction Attorney
Bickerdt and Attorney Ayers. (R.352).
“A litigant has the fundamental right to fairness
in every proceeding. Fairness is upheld by avoiding
even the appearance of partiality. See, e.g., Marshall v.
12 Johnson v. Morales, et al., No. 17-2519 (6th Cir. 2020).
9
Jerrico, Inc., 446 U.S. 238, 242 (1980). When a judge’s
actions stand at odds with these basic notions, we must
act or suffer the loss of public confidence in our judicial
system. “[JJustice must satisfy the appearance of jus
tice.” Offutt v. United States, 348 U.S. 11, 14 (1954).”
Miller v. Sam Houston State University, et al., No. 1920752, c/w No. 19-20753 (5th Cir. Jan. 29, 2021).
In (R.264, Page ID #6249-6256), Plaintiff pre
sented facts that showed that the Defendants and
their Attorneys (Bickerdt and Ayers) intentionally lied
that Plaintiff took pictures of Plaintiff’s SUA accident
1996 Toyota Camry LE during an inspection that was
scheduled by the Defendants at a Toyota dealership in
Grand Rapids, Michigan. In R.156, Toyota asserted
(very strongly and unequivocally): “Four (4) post-suit
vehicle inspections, which Plaintiff attended and took
his own photographs and video footage.” (R. 156, Page
ID #2642). Plaintiff filed a motion to sanction the De
fendants, Bickerdt, and Ayers. (R.264). The District
Court did not consider Plaintiff’s Motion for Sanctions
(R.264) but denied R.264 as moot in the summary judg
ment awarded to the Defendants. (R.304; PagelD
#6728). The Sixth Circuit remanded R.264 back to the
District Court because “A district court retains juris
diction to consider collateral issues, such as sanctions,
even after entry of judgment on the merits.” (R.346).
On Remand, the District Court denied R.264 be
cause “Plaintiff has not fulfilled his burden here be
cause Plaintiff has not come forward with clear and
convincing evidence that Defendants’ counsel pre
sented intentionally false material to the Court.”
10
(R.352). Plaintiff filed a motion for reconsideration.
(R.353-1, Page ID #7489-7509). Plaintiff’s motion for
reconsideration was denied. (R.362).
“A lie uttered in court is not a fraud on the liar’s
opponent if the opponent knows it’s a lie yet fails to
point this out to the court.”13 The District Judge ruled
that Plaintiff had no “clear and convincing evidence”
(R.352); however, Plaintiff repeatedly argued (in R.264),
R.349, and R.353-1 that the Defendants, Bickerdt, and
Ayers intentionally lied against Plaintiff. Indeed, in
R.353-1, Plaintiff asserted as follows: “Toyota never is
sued a subpoena to demand the video and photos that
they claimed Jaiyeola made on August 3, 2017 before
Toyota filed the motion ECF No. 156 (July 5,2018) that
contained lies against Jaiyeola. Toyota had 11 months
(August 3,2017 to July 5, 2018) to demand the alleged
video and photos that Jaiyeola had in his possession.
Also, formal discovery started on January 3, 2018 and
ended on August 22, 2018. (ECF No. 34). Toyota had 6
months (January 3,2018 to July 5,2018) during formal
discovery to subpoena the video and photos that they
claimed Jaiyeola made on August 3, 2017.” (R.353-1,
Page ID #7503-7504).
The District Judge declined to appoint a Special
Master or “conduct an evidentiary hearing.” A Special
Master “ . . . aid judges in the performance of specific
judicial duties, as they may arise in the progress of a
13 Oxxford Clothes XX, Inc. v. Expeditors International of
Washington, Inc., 127 F.3d 574 (7th Cir. 1997).
11
cause.” LaBuy v. Howes Leather Co., 352 U.S. 249, 256
(1957). . . Fed. R. Civ. P. 53(a)(1). ”14
In a false statement case against an Attorney, the
Second Circuit affirmed the conviction of an Attorney
who lied. The Second Circuit asserted that “Material
ity is “broadly construed,” . . . , and “does not require
proof of actual reliance,” . . . Rather, “the test is the in
trinsic capabilities of the false statement itself, rather
than the possibility of the actual attainment of its
end.” . . . ”15 The “intrinsic capabilities of the false state
ment” by the Defendants, Bickerdt, and Ayers consti
tuted a conduct that is an abuse of the judicial process.
Their conduct of intentional false statements against a
pro se Plaintiff had “the risk of undermining the public
confidence in the judicial process.” Buck v. Davis, 137
S.Ct. 759,197 L.Ed.2d 1 (2017).
The origin of the lies by Bickerdt and Ayers is ex
plained in R.265. In R.265, Plaintiff explained how
Toyota hid the evidence of a defect in Plaintiff’s acci
dent Toyota Camry (by failing to provide the pictures
of the defect in the Camry) after the August 3, 2017
inspection of the Camry. The inspection was done by
Toyota at a Toyota dealership in Grand Rapids, Mich
igan. Plaintiff was present throughout the inspec
tion. Plaintiff requested for the defect pictures from
Bickerdt. (Email from Plaintiff to Bickerdt dated
14 Glover v. Wells Fargo Home Mortgage, No. 14-4829 (3d Cir.
Oct. 14, 2015).
15 United States v. Brettschneider, et al., 19-2423-cr (L) (2d
Cir. 2020).
12
September 29, 2017) Bickerdt replied by falsely accus
ing Plaintiff of taking pictures during the inspection.
Bickerdt made the following unequivocal assertions
and false accusations: 1.) “On a related note, can you
provide us with all photos and video you made at the
inspection” (Email from Bickerdt to Plaintiff dated
October 12,2017); 2.) “ . .. please be reminded that you
were present for the inspection and had every oppor
tunity to photograph and video the activities” (Email
from Bickerdt to Plaintiff dated October 20, 2017)
"... we believe you took your own photographs and/or
video at the inspection, and ask you to produce that to
us. We certainly expect to ask for this during the course
of discovery, once we are allowed to take discovery, but
in the spirit of cooperation and us providing our mate
rials to you, we are asking that you send it to us now.
In any event, please take notice of our intent to re
quest, during discovery, all relevant photos, images
and video in your possession, custody and control, in
cluding, but not exclusively, of the inspections in this
case, and ask that you take all necessary steps to pre
serve that potential evidence.” (Email from Bickerdt to
Plaintiff dated October 20, 2017). Toyota never asked
Plaintiff to produce “all relevant photos, images and
video in your possession, custody and control, includ
ing, but not exclusively, of the inspections in this case”
during discovery and Toyota never subpoena any “pho
tos, images and video in your possession, custody and
control” from Plaintiff. Toyota filed R.156 (with lies
against Plaintiff) on July 5, 2018. Discovery ended on
August 22, 2018. In R.265, Plaintiff filed a Motion for
Sanctions against Bickerdt. In R.264, Plaintiff filed a
13
Motion for Sanctions against Toyota, Bickerdt, and
Ayers. The District Court Denied both R.264 and R.265
as moot in its Summary Judgment in favor of Toyota.
R.304.
Attorney Ayers16 has been practicing law since
1983 (39 years). Likewise, Attorney Bickerdt17 has
been practicing law since 2003 (19 years). Both Ayers
and Bickerdt are Senior Attorneys. Both therefore
knew what they were doing when they made false
statements against a pro se Plaintiff.
The intentional false statements against pro se
Plaintiff by Attorney Bickerdt and Attorney Ayers con
stitute Attorney professional misconduct. The miscon
duct should be referred to the disciplinary units of all
the State Bars where Bickerdt and Ayers are licensed
to practice law.
au
The fundamental requirement of due process is
the opportunity to be heard ‘at a meaningful time and
in a meaningful manner.’” See, e.g., Mathews, 424 U.S.
at 333 (quoting Armstrong v. Manso, 380 U.S. 545, 552
(1965)).”18
One lawsuit that is a mirror image of this lawsuit
in terms of “merits” of a Remanded sanction Motion is
Knight Capital Partners Corp. v. Henkel AG & Co.,
KGaA, No. 16-12022 (E.D. Mich. 2019). However,
16 https://www.watkinseager.com/professionals-david-l-ayers
17 https://www.bowmanandbrooke.com/attorneys/carmen-mbickerdt
18 Johnson v. Morales, et al., No. 17-2519 (6th Cir. 2020).
14
unlike this case, the District Court in Knight Capital
Partners Corp. “permitted the parties” to file Motions
on the Remanded Motion. The District Court in this
lawsuit “permitted” Toyota to file a Motion (R.348) on
the Remanded Motion (R.264) but denied Plaintiff’s
Motion (R.349) on the Remanded Motion. Plaintiff was
denied due process and the opportunity to be heard.
The District Court was unfair to Plaintiff.
In his Motion for Reconsideration (R.353-1), Plain
tiff pointed out to the District Court that the Sixth Cir
cuit appointed a Special Master19,20 to find out the
truth in a case that required convincing evidence. Also,
in R.353-1, Plaintiff asked the District Court to U « conduct an evidentiary hearing” on the following elec
tronic mails between Jaiyeola and Bickerdt concerning
the August 3, 2017 accident 1996 Toyota Camry LE in
spection that Toyota did:” (to determine if the false
statement was intentional). (R.353-1, Page ID #75027503). The District Judge denied the Motion for Recon
sideration. (R.353-1). For pro se Plaintiff to get a “clear
and convincing evidence” that Defendants, Bickerdt,
and Ayers intentionally presented false statements to
the Court about Plaintiff, the Court had to appoint a
Special Master or “conduct an evidentiary hearing”
that would allow for cross-examination. “ . . . crossexamination is the “greatest legal engine ever invented
19 Demjanjuk v. Petrovsky, 10 F.3d 338, 348 (6th Cir. 1993).
20 Johnson.
15
for the discovery of truth.” California v. Green, 399 U.S.
149,158, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970) ”21
“Rule 201 outlines the requirements for judicial
notice of adjudicative facts. It permits courts to take
notice of “a fact that is not subject to reasonable dis
pute” because it either “is generally known within the
trial court’s territorial jurisdiction” or “can be accu
rately and readily determined from sources whose ac
curacy cannot reasonably be questioned.” Fed. R. Evid.
201(b). Under this rule and relevant case law, courts
take notice of “developments in related proceedings in
»22 « «
other courts of record.”
court filings in other
cases” are appropriate for judicial notice.”23
Attorney Ayers24 has been practicing law since
1983 (39 years). Likewise, Attorney Bickerdt25 has been
practicing law since 2003 (19 years). Both Ayers and
Bickerdt are Senior Attorneys. Both therefore knew
what they were doing when they made false state
ments against a pro se Plaintiff.
21 Johnson.
22 Hancock v. Miller, No. 20-5422 (6th Cir. 2021).
23 Hancock.
24 https://www.watkinseager.com/professionals-david-l-ayers
25 https://www.bowmanandbrooke.com/attorneys/carmen-mbickerdt
16
REASON FOR GRANTING THE WRIT
I.
A COURT OF APPEALS MUST BE A COURT
OF REVIEW AND NOT FIRST VIEW BE
CAUSE OF DUE PROCESS AND RULE 1
CONSTITUTIONAL REQUIREMENTS
“Because a district court has no discretion not to
abide by governing law, an erroneous legal conclusion
deserves no deference on appeal. See Koon v. United
States, 518 U.S. 81, 100 (1996) . . . ”26 “Rule 1 ... em
phasize that. . . the court should construe and admin
ister these rules to secure the just, . . . determination
of every action,...” Fed. R. Civ. P. 1 (Committee Notes
on Rules—2015 Amendment). The Sixth Circuit Court
of Appeals violated the “just” aspect of Rule 1 and de
nied Plaintiff due process when the panel affirmed a
District Court decision where the District Court used
the wrong legal standard and the District Court denied
Plaintiff a hearing. The Sixth Circuit also denied
Plaintiff a hearing. “ . . . injustice was more likely to be
caused than avoided by deciding the issue without pe
titioner’s having had an opportunity to be heard.” Sin
gleton v. Wulff, 428 U.S. 106 (1976). “Accordingly, the
proceedings did not comply with [Rule 1], and neither
did they comport with due process. See, e.g., Mullane v.
Central Hanover Bank & Trust Co., 339 U.S. 306, 314
(1950) (‘The fundamental requisite of due process of
law is the opportunity to be heard.”) (quoting Grannis
v. Ordean, 234 U.S. 385, 394 (1914)).” Nelson v. Adams
USA, Inc., 529 U.S. 460 (2000).
26 LaDeau.
17
The Sixth Circuit panel asserted as follows: “In
denying that motion on remand, the district court ap
plied Sixth Circuit precedent stating that a party seek
ing to show a fraud on the court must present clear and
convincing evidence of the following elements:
1) [conduct] on the part of an officer of the court;
that 2) is directed to the judicial machinery itself; 3) is
intentionally false, willfully blind to the truth, or is in
reckless disregard of the truth; 4) is a positive aver
ment or a concealment when one is under a duty to
disclose; and 5) deceives the court. Carter v. Anderson,
585 F.3d 1007, 1011 (6th Cir. 2009). But the district
court erred in doing so. “The problem with applying
this test is that the fraud-on-the-court doctrine deals
with courts’ inherent power to vacate their judgments,
whereas this case involves a court’s inherent power to
sanction for misconduct in litigation.” Williamson v.
Recovery Ltd. P’ship, 826 F.3d 297, 302 (6th Cir. 2016).”
However, the panel went on to make the following as
sertion:
“Despite the district court’s application of
the wrong legal test, “we may affirm the district
court’s order on any ground that is supported
by the record.” Id. (citing Moore v. Lafayette Life Ins.,
458 F.3d 416, 446 (6th Cir. 2006)).” (9a-10a). The
panel’s position is contrary to the position of the Su
preme Court. The Supreme Court is very clear on
what should happen when an inferior Court uses the
“wrong legal test” to decide a lawsuit: “Because a
district court has no discretion not to abide by
governing law, an erroneous legal conclusion
18
deserves no deference on appeal. See Koon v.
United States, 518 U.S. 81, 100 (1996) . . . ”27. In plain
language, a Court Order based on the wrong legal test
is not a valid Order and should be null and void. The
Sixth Circuit panel denied Plaintiff a hearing, denied
Plaintiff due process, and violated the “just” aspect of
Rule 1.
A hearing will allow for “just” and due process. “As
we’ve said before, we are a court of review, not first
view.” Wantou v. Wal-Mart Stores Texas, L.L.C., 23
F.4th 422 (5th Cir. 2022). Many Courts of Appeals have
been denying due process and violating “just” by being
“first review”; which they shouldn’t be. “Although we
have grave doubts concerning the correctness of the
district court’s conclusion that the assessment for
parking placards is a tax rather than a fee, we are free
to affirm the judgment on any basis supported by the
record. See Abercrombie Fitch Stores, Inc. v. Am. Eagle
Outfitters, Inc., 280 F.3d 619,629 (6th Cir. 2002) (point
ing out that “[b]ecause this court’s de novo review in
volves only application of legal propositions to the
undisputed facts in the record, we may affirm on any
grounds supported by the record even if different from
the reasons of the district court”).” Angel v. Kentucky,
314 F.3d 262 (6th Cir. 2002). “Despite the district court’s
erroneous application of these legal tests, we may af
firm the court’s order on any ground that is supported
by the record. See Moore v. Lafayette Life Ins. Co., 458
F.3d 416, 446 (6th Cir. 2006).” Williamson v. Recovery
27 United States v. LaDeau, No. 12-6611 (6th Cir. 2013).
19
Ltd. P’ship, 826 F.3d 297 (6th Cir. 2016). “[o]n judicial
review, the correctness of the decision appealed from
can be defended by the [Litigant] on any ground that
is supported by the record.” Rexnord Indus., LLC v.
Kappos, 705 F.3d 1347,1356 (Fed. Cir. 2013). A district
court’s judgment may be affirmed on “any ground that
is supported by the record,” Algarin v. Town ofWallkill,
421 F.3d 137,139 (2d Cir. 2005), including grounds “not
raised in the district court...” Griffith v. Colo. Div. of
Youth Servs., 17 F.3d 1323, 1328 (10th Cir. 1994).
(( a
[W]e can affirm the district court’s judgment on any
ground that is supported by the record.” . . . (quoting
Taylor u. United States, 204 F.3d 828, 829 (8th Cir.
2000)” United States v. Trogdon, No. 21-2089 (8th Cir.
2022). “We find the most straightforward approach to
analyze this appeal is to look at only one of those
grounds. This is because we may affirm the district
court on any ground that is supported by the record.
See Davis v. Scott, 157 F.3d 1003,1005 (5th Cir. 1998).”
Bell v. Livingston, et al., No. 08-20354 (5th Cir. 2009).
As indicated above, courts of appeals are not ap
plying the “just” aspect of Rule 1 and they are denying
litigants due process. “Because a district court has no
discretion not to abide by governing law, an erroneous
legal conclusion deserves no deference on appeal. See
Koon v. United States, 518 U.S. 81,100 (1996). . . ”28
In this case, Plaintiff was denied a hearing at the
District Court and at the Sixth Circuit Court of Ap
peals; a denial of due process. The lack of a hearing
28 LaDeau.
20
distinguishes this case from Wantou v. Wal-Mart Stores
Texas, L.L.C., No. 20-40284 (S.Ct. January 23, 2023),
cert, denied. In Wantou, the District Court used the
wrong legal test, the Fifth Circuit affirmed, and the Su
preme Court denied the cert petition; however Wantou
had a hearing at the District Court and at the Fifth
Circuit Court of Appeals.
II.
A COURT CANNOT CORRECTLY DECIDE
A LAWSUIT WHEN THE COURT DEMANDS
“CLEAR AND CONVINCING EVIDENCE”
BURDEN OF PROOF AND WHERE CRED
IBILITY OF THE LITIGANTS ARE TIED
TO THE FACTS OF THE CASE WITHOUT
CONDUCTING EVIDENTIARY HEARING,
ALLOWING FOR CROSS-EXAMINATION,
AND ADMITTING ANY VALID VIDEO INTO
EVIDENCE
Standards of proof apply to issues of fact. Eviden
tiary standards such as “clear and convincing proof” do
not apply to questions of law. See Microsoft Corp. v. i4i
Ltd. Partnership, 564 U.S. 91,100 n.4 (2011); id. at 114
(Breyer, J., concurring). In a lawsuit where credibility
of the litigants are tied to the facts of the case, an
evidentiary hearing and cross-examination must be
allowed. Hemphill v. New York, No. 20-637, 595 U.S.
___(2022). As the Supreme Court has noted, crossexamination is the “greatest legal engine ever invented
for the discovery of truth.” California v. Green, 399 U.S.
149, 158, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970).” John
son v. Bell, 605 F.3d 333 (6th Cir. 2010). And if there is
21
a video evidence that is central to the issues, the Court
should admit the video into evidence.
The District Court held that “Plaintiff has not ful
filled his burden here because Plaintiff has not come
forward with clear and convincing evidence that De
fendants’ counsel presented intentionally false material
to the Court.” (App. 11) and denied Plaintiff’s Motion
for Sanctions against the Defendants’ Attorneys. A
“clear and convincing evidence” standard of proof is a
heightened standard of proof burden that Plaintiff
could never overcome without an evidentiary hearing,
cross-examination, and the video evidence that the De
fendants’ Attorneys have. Obviously, “Plaintiff has not
fulfilled his burden . . . with clear and convincing evi
dence ...” because the District Court denied Plaintiff
an evidentiary hearing, did not allow for cross-exami
nation, did not allow the Defendants to produce a video
evidence, and did not appoint a Special Master.
The Sixth Circuit Court of Appeals affirmed the
decision of the District Court. The panel asserted and
held as follows: “Although Jaiyeola argues that the dis
trict court should have held an evidentiary hearing on
his sanctions motion, permitted him to file a reply brief
in support of the motion, or referred the matter to a
special master, the district court was not required to do
so before ruling on his motion. See Cook v. Am. S.S. Co.,
134 F.3d 771, 774 (6th Cir. 1998).” (App. 7). The panel’s
assertion and holding are contrary to the norm in the
Sixth Circuit for cases where credibility is an issue,
“if credibility is in dispute and material to the out
come, due process requires cross-examination.”
22
“Cross-examination is essential in cases . . . because it
does more than uncover inconsistencies—it “takes aim
at credibility like no other procedural device,” and
“cross-examination was unnecessary when conduct
depicted in videos and photos was sufficient to sustain
a finding of misconduct.”” Doe v. Baum, 903 F.3d 575
(6th Cir. 2018). There was a video evidence in this law
suit but the District Court did not allow for it to be
produced or allowed for a hearing, “the Court finds
clear and convincing evidence ... is material,
controlling, and clearly would have produced a
different result if presented.” Luna v. Bell, et al.,
Nos. 17-5608/5675 (6th Cir. 2018). The Sixth Circuit
panel denied Plaintiff due process by not holding a
hearing.
The fundamental requirement of due process is
the opportunity to be heard ‘at a meaningful time and
in a meaningful manner.’” See, e.g., Mathews, 424 U.S.
at 333 (quoting Armstrong v. Manso, 380 U.S. 545, 552
(1965)).”29
In this case, Plaintiff was denied a hearing at the
District Court and at the Sixth Circuit Court of Ap
peals; a denial of due process. The lack of a hearing dis
tinguishes this case from Wantou v. Wal-Mart Stores
Texas, L.L.C., No. 20-40284 (S.Ct. January 23, 2023),
cert, denied. In Wantou, the District Court used the
wrong legal test, the Fifth Circuit affirmed, and the
Supreme Court denied the cert petition; however
29 Johnson v. Morales, et al., No. 17-2519 (6th Cir. 2020).
23
Wantou had a hearing at the District Court and at the
Fifth Circuit Court of Appeals.
CONCLUSION
For the above reasons, a writ of certiorari should
issue to review the judgment and opinion of the Court
of Appeals for the Sixth Circuit.
Respectfully submitted,
Ganiyu A. Jaiyeola
Pro se
10870 North Stelling Road,
#37D
Cupertino, CA 95014
(616) 635-4025
ganiyu.j aiyeola@gmail. com
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.