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.

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