Petition — Tucker v. Neal

+

IN THE Ss

SUPREME COURT OF TH UNITED) ST§PR ort &. &

October Term, 197 . / ED

No 75-14 Juc 26 1975

MIGHAEL RODAK, JRCLERK |

STANLEY V. TUCKER,

Petitioner

Va

JEAN NEAL, et al.

Respondent

PZTITION FOR A WRIT OF CERTIORARI TO

THE CIRCUIT COURT OF APPEALS FOR

THz SECOND CIRCUIT

STANLEY V. TUCKBR /

Box 35

Hartford, Conn 061lvul

Page

Table of Authorities ii

Prior Action By This Court i

Citation To Opinions Below 1

Jurisdiction 2

Question Presented 2

Constitutional & Statutory 3

Provisions

Statement of Factual Background 3

SUBSTANTIAL REASONS FOR GRANTING WRIT

I, THE DECISION BELOW IS IN 5

CONFLICT WITH OTHER CIRCUITS

AND OTHER DISTRICTS

Ae OTHER CIRCUITS 6

B. OTHER DISTRICTS 9

II. THE DECISION DENYS FUNDAMENTAL 13

DUE PROCESS RIGHTS UPHELD IN

DECISIONS OF U S SUP. CT.

III. CONN NEWLY ADOPTED, UNIFORM 16

ENFORCEMENT OF FOREIGN JUDGMENTS

ACT PROHIBITS THE LIENS AS

"PHONEY"

CONCLUSION 17

Decision 2nd Ce. Ae Al

Ruling on Cross Motions A 2

For Summary Judgment

.. rt ee ae

TABLE OF ORIT Page

28 Us¢ L54(lLhecevcccccccccsesese 2

28 USC 1963) ceeeccccccsccccvees 14,16,17

FRCP Rule 4. seccccccsee 293965798

FRCP Rule 5 esccccsccesesceseess FY

FRCP Rule 7eccccccccccscccscsees 9

F. 2P Rule 4 deccccccccccccecees 5

FRCP Rule O4eeccseceseeecveseetsie7 98

FRCP Rule Ssecccec.coeccsceeees 9

FRCP Rule 69 sevccseveeseceees 29398

STATE SPATUTES

Conn Ge Se 49mbYsscccveccveveeecy dy LY

Conn Ge Se 52-604 to ee 5» 16

(Pe Ae 73-498)

Calif Civil Code Procedure 170.6 6

ad ° - ° 410,10 6

_ 8 . . 415.40 6

-iii-

PEDERAL CASES Page

Chemical Bank NY v Pug 10

51 FRD 147

Griffin v Griffin 13,14, 15, 17

327 US 220

Henderson 66 v Harvison 12

58 FRD 408

Metanuska Valley v Moliter 15

365 F 2d 358

Nelson v Swing A Way 9

266 F 2d 184

Rumsey v Failing 8

333 F 2d 960

Sapphia v Lauo Lines 9

130 F Supp 810

Stanford v Utley | 15

341 F 2d 265

Veek v Commodity Ent 657

487 F 2d 423

White v Secretary HEW 12

56 FRD 499

USA For Use of Tanos v St Paul 7

361 F 2d 838

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1975

No

STANLEY V. TUCKER,

Petitioner,

-V=-

JEAN NEAL, ET AL,

Respondents

Sa 9 ee

PETITION FOR A WRIT OF CERTIORARI TO THE

CIRUCIT COURT OF APPEALS FOR THi SECOND

CIRCUIT

petioner prays that a writ of certiorari —

issue to review the juugment of the United

States Circuit Court of Appeals for the

Second Circuit entered April 30th, 1975.

PRIOR ACTION BY THIS COURT

This cace has not been before this Honorable

Court before,

CITATION TO OPINIONS BELOW

The Opinion of the United States Court

of Appeals for the Second Circuit is print

ed in the Appendix hereto, infra Al,

o-2@

JURISDICTION

The jurisdiction of this court is invoked

under 28 USC 1254 (1)

QUESTIONS PRESENTED

1. Is the California federal judgment

void due to service not complvine. with

mandatory statutory require oe

service by federal marshall, FRCP Rule 4c?

Are the multitudious liens recorded by

respondents maliciously and with bad

faith void for failure to comply with

statutory requirments for recording by

federal marshall? Rule 64 @& 69 FRCP,

Did the district Court err in applyin

res judicata to issues not litigated ,

in California?

Are the multitudious liens prohibited

by Connecticut's newly enacted P.A,

73-498 prohibiting "phoney judgments"?

Are the California judgments upon

Which respondents base their liens

"phoney judgments?"

Did the District Court err in granting

Summary judement where mineled issues

of fact and law were diSputed7

Did the District Court err in denying

motion to amend complaint to challenge

constitutionality of Conn G. S. 49-44

Is notice and hearing required on "Pr2g-

nirtetne evra a federal judgment since it

creates a new judgment with new rights

Yemedies, and limitations in fovun miata.

ae

CONSTITUTIONAL AND STATUTORY

PROVISIONS

This action involves the validity of

federal judgments rendered in violation of

statutory requirments, failure to make ser-

vice by federal marshall, Rule 4c FRCP,

This action involves the validity of

14 liens recorded in Connecticut in violation

of Connecticut's newly enacted Phoney judg-

ement act and in violation of statutory

requirments for service by federal marshall

9.

This action involved an amendment to the

qomplaint denied by the court to challenge

on due process and equal protection grounds

the constitutionality of Conn G. S. 49-44,

A consistent series of decisions by

the court of appeals have held as void

as Withoyt jurisdiction judgments rendered

in actions without Rule 4c comphiance

and the deciion bébow 18 Contrary to est-

ablished law,

STATEMENT OF FACTUAL BACKGROUND

The factual background leading to this

action is that Petitioner is a resident of

Connecticut since 1961 and Jean Neal is the

sister of former wife of Petitioner both

residing in California. Divorce proceedings

started in California in 1959 and vindicative

and malicious acts took place persistently

over years including concealment of Petition

er's children in other counties or cities

in California wnen Petitioner exercised his

vacation and/ or visitation rights.

aban

Approximately 40 litigations of all types

both civil and criminal were brought against

this Petitionrr in the California state courts

over the decade from about 1959 to about 1969

by Respondent, her relatives and/ or her

attorneys. All of thise actions were dismissed

except two or three like this action were Calif

state court judgments were rendered under con-=

ditions of denial of due process and thus with

out jurisdiction.

Petitioner's sole activity randomely con-

ducted in Californie was to exercise his

first amendment. right to travel across

state lines to visit his minor children dom=

iciled in California and to vindicate their

rights in court,

The claims of Jean Neal come from a Judgment

made in the Superior Court in Ventura @n April

23, 1959. Petitioner claims the state judg-

ment as invalid due to denials of due process

and trial judge disqualified for prejudice

under statute California Civil Code of Pro-

cedure S 170.6.’

Jean Naal filed in the federal courts of

San Francisco a div ersity complaint on the

California state judgment rather than in

the federal courts of Connecticut as she

should have. Service of summons and cnme

plaint was made under the Califormia long

arm statute (CCP 410.10) wnder the provision

for service by air mail requiring return re=

ceipt (CCP 415.40). At this point Petitioner

contends Respondent committed a FATAL ERROR

in that service was made by a peYrsS5o0n Specie

fied in CCP 414,10 ( a person over 18 yrs

and not party to action) whereas the fed-

‘eral rule FRCP 4c mandates that service must

be by federal marshall,

Petitioner contends the complaint served

in the San Francisco federal court lacked a

jurisdictional basis and was fraudulent in

that an ex parte two page jurisdictional ~

basis was filed with the court but never

served. Petitioner received this document

two years later in mails from 9th C,. A.

THUS THE DEFECTIVE SERVICE VIOLATING RULE

4e WAS UNKNOWN TO PETITIONER AND NOT LIT-

IGATED IN THE CALIFORNIA PROCEEDINGS.

Subsequently_without notice or hearing

to Petitioner Respondent “registered” her

California federal judgment in the federal

courts of Connecticut and sete

or hearing proceeded to record about 14 liens

thus immobilizing all of Petitioners assets

during most cryeial years of intense in-

flation in interest rates,

The lack of notice in recording liens and

the nature of judgments rendeged without

due process caused the judgments and liens

to fall wnder the "phoney judgement" prohi-

bition of Connectcut*s newly enacted P,A,

73-498, “Uniform Recognition of Fereign

Judgments Act”

SUBSTANTIAL REASONS FOR GRANTING WRIT

I. THE DECISION BELOW IS IN CONFLICT WITH

OTHER CIRCUITS AN (ER DISTRIC

The many factual circumstances under

which different actions were litigated invol-

ving Rule 4c and application of 4 d(7) have

resulted in a fairly consitent flow of de-

cisions that Service by the federal marshall

is mandatory unless a court order is obtained

for Strvite by an indifferent person. Re-

peatedly other districts and other circuits

rejected for lack of jurisdiction service not

made by the federal marshall or without court

order.

=-6=

FRCP RULE 4 cs"SERVICE of all process shall

be made by a U. S. Marshall

or some person specially app

ointed by the court for that

I.A,OTHER CIRCUITS Purpose”

The recent 9th C,. A. case of Veek v

Commodity Enterprises, 487 F 2d 423, Nov

th, 1973 unequivocably settled this ques-

tion under a factual background remagkably

analagous to this action.

VEEK P 4253

{1,2] The district court was per-

suaded that the mandatory language of

Rule 4(c) could be cireumvented by

Veeck'’s syllogistic argument. We disa-

gree. When personal service of original

process is made pursuant to Rule 4(e),

it must be made by a person specified

by Rule 4(c). See 2 J.Moore, Federal

Practice, § 4.08, at 1009-1011 (2d ed.

1970); 4 Barron & Holtzoff, Federal

Practice and Procedure, § 1092, at 353

(Wright ed. 1969); cf. United States

for Use of Tanos v. St. Paul Mercury

Ins. Co., 361 F.2d 838, 842-843 (C.A. 5,

1966) (dissenting opinion). According-

ly, since Howes was not a person speci-

fied by Rule 4(c), he lacked proper au-

thority to serve the district court’s sum- -

mons upon the appellants.

It is undisputed that Jean Neal's

attorney, Robert R. Anderson, acting on

his own “self-help” without any court order

— service of summons and complaint by

ma

-7@

Veek P 426:

[4] The district court’s lack of in

personam jurisdiction over the appel-

lants renders void its default judgment

against them. Pennoyer v. Neff, 95 U.

S. 714, 726-728, 24 L.Ed. 565 (1877).

Accordingly, the district court should

have granted their motion to set aside

that void judgment. Ruddies v. Auburn

Spark Plug Co., 261 F.Supp. 648, 657

(S.D.N.Y., 1966); Fed.R.Civ.P. 55(c)

and 60(b) (4). .

The 5th C.A. ruled consistent with the 9th

C.A. decision in Veek, supra. See_USA Dr the

U of os v_ St Paul MM I sO

361 F 2d 838 1966,

Page 838: "Writ of garnishment should have

been served by the U.S. marshall

and not by Forida county sheriff"

FRCP Rules 4c, 64

Page 8395 "The federal rules of civil pro-

cedure have statutory effect and

Rule 64 provides that “any existing

statute of the United States governs

to the extent to which it is app-

licable,"

Under this later case the 14 liens recorded

by Respondent , Robert R. Anderson, are void

as well as the federal court judgment ren-

dered in San Francisco federal court,

The district court in this action and

the 2nd C. A. ruled contrary to the 9th

Cede oa the = C. Ae and thus ample

grounds exist for this Court to grant th

writ of certiorari, ;

B=

The 10th C. Ae consistent with the 5th

and 9th decisions makes service by the

U. S. Marshall mandatory or the pro=-

ceeding is void. Rumsey v i

333 F 2d 960 1964,

P 962:1"We are of the opinion in supplemental

proceedings FRCP with respect to the

method of service and to the person

who may make service control rather

than general provisions of state's

practice and procedure."

P 96l:"FRCP have force and effect

nempapssinaiia of statute, FRCP Rule 69a”

While the Courts of Appeal are consistent

in their requirement for compliance with

the statutory rules the Respondents have

repeatedly violated the rules both in their

void judgment, obtained in California and

in the many illegal liens recorded in the

State of Connecticut.

1. FRCP RULE 4 cs Requires service by Us. Se

Marshall in serving

summons, Respondents used

“self-help” and made own

service,

2, FRCP Rule 4 c s Requires recording of

judgment liens by U. S.

marshall, Again Respondents

use "self-help” and filed

14 “illegal liens causing

great damages to this

Petitioner,

3. FRCP Rule 64: Respandents violated Rule

. 64 in filing their 14 liens,

4, FRCP Rule 69: Requires writ of execution

unless court orders other

wise. Respondents used “self

help"

-J=

5+ FRCP Rule 7 : Requires application for

' orders to be in writing and

part of the notice of hearing,

Yet in the California federal

court Respondents applied

"ex parte" and never served

their jurisdictional statement,

6. FRCP Rule 8 1s No jurisdictional statement

was served by the Respondents

with their Califormia federal

complaint,

7+ FRCP Rule 5s Requires service of every

- order and application, The

application containing the

jurisdictional statement was

never served as required by

the rules,

The issues raised in the Connecticut federal

court as to the avalidity of the California

federal judgment by reason of violations of

numerous statutory rules was not litigated

and is properly litigated on collateral

attack on the validity of the judgment at

this time.

Nelson v_ Swing A Way Mfg 266 F 2d 184

th CeAe 1959

"The court must look to the

pleadings and determine the

questions essential to the

former decision"

I. B. THE DECISION CONFLICTS WITH OTHER DISTRICTS

An early case that clearly and unequivocably

resolves the identical question briefed herein

comes from 1955 N.D. Ne Y, Sapphia v_ Lauro

Lines 130 F Supp 810

-l0@

-S2apphia P 810s

Federal Civil Procedure 505

In action for injuries sustained

while aboard ship on high seas, service of

process attempted to be made on opera-

tor of ship by delivering copy of sum-

mons and complaint to operator's agent

for sale of passage tickets for the ship,

would be vacated on his motion therefor

where plaintiff failed to prove that ticket

agent was in fact authorized by appoint-

ment or by law to receive service of proc-

ess, and where there was no showing or

even contention that plaintiff’s counsel,

who attempted service under New York

practice, was specially appointed to make

that service, as required by Federal

Rules. Fed.Rules Civ.Proc. rule 4(c),

In 1970 the Nevada Dist

even further to

Plaintiff’s attempted service under

New York Civil Practice Act, § 229-b

was also abortive despite F.R.Civ.P. 4(d)

(7), 28 U.S.C.A. Only “a United States

marshal * * * his deputy,or * ®*

some person specially appointed by the

court for that purpose” may serv:

process."

we ---

rict Court went

é refuse a litigant who had

'registered" a federal suthanatth

respondents "registered"

an order permitting a Co

serve a lien upon ground

(just as

in Connecticut

unty Sheriff to

Ss the numerous

statutory protections afforded by the

marshall plus statutory application of

the rules made servi

ce b =

po Mey y marshall man

Chemical Bank NY trust Co Pug §$ & GC

51 FRD 147 a

-ll-

Chemical Bank Page 148

Federal Civil Procedure C2586, 606, 2697

Judgment creditor who had regis-

tered judgment with clerk of district

court was not entitled under rule relating

to persons entitled to serve all process to

designation of a person other than Unit-

ed States marshal to make service and

levies of writs of execution, attachment

and garnishment, and term “all process”

as used in rule was not intended to en-

compass writs authorizing or requiring

property to be seized and taken into cus-

todia legis. Fed.Rules of Civ.Proc. rule

4(c), 28 U.S.C.A,

, While process which

functions only as notice to a litigant or

third party, the obligations of the process

server being completed when service is

made, may appropriately be accomplished

by any qualified person under court au-

thorization, this is not so with respect ‘o

process which invokes other duties and

responsibilities subject to court super-

vision and governed by federal statutes.

The statutory requirements for bonding

a United States Marshal and his deputies

(28 U.S.C. § 564), and statutory require-

ments regarding collection and account-

ing for fees (28 U.S.C. § 572), the charg-

es for levying upon and keeping seized

properties (28 U.S.C. § 1921), and the

obligations with respect to judicial sales

(28 U.S.C. § 2001, et seq.), for examples,

are inapplicable to a person whose sole

official connection with court adminis-

tration is a designation under Rule 4(c)

as a person qualified and authorized to

make service.

BES COPY AVAILABLE

In 1972 the ND NY reviewed the same issue

with the same results where "“atempted sere

vice" outside the rules was made just as

in this action respondents made an"atempted

service"outside the rules,

Whit Secretary of Health, Edu tin ¥Welfare

56 F R D Aug 9, 197

Page 4998

Federal Rule of Civil Procedure 3 pro-

vides that a civil action is commenced by

filing a complaint with the court; Rule

4(a) further provides that upon the fil-

ing of the complaint the clerk Shall issue

a summons and deliver it for service to

the Marshal or to a person specially ap-

pointed to se-ve it and Rule 4(c) pro-

vides that service of all process shall be

made by a United States Marshal, by his

deputy or by some person specially ap-

pointed by the court for that purpose,

There was, therefore, no authority al-

lowing plaintiff to attempt service as he

describes, ~~

The latest case reported is from the District

of Texas where a de“ault judgment was set aside

in favor of a_trial on the merits.

nderson 66 Sales Inc v Oo

58 FRD 408 1973,

14 6] While “a party should not be

Page 4121. permitted to flout [the rules] with

impunity,” * and a default judgment

should only be set aside upon a showing

that there “was good reason for the

default,”5 it is clear that any doubts

should be resolved in favor of a trial on

the merits. This Court is not of the

opinion that evidence adduced at an ex

parte hearing which forms the founda-

tion for a default judgment, even though

of a probative nature and introduced in !

good faith, should preclude later scruti- «4

ny

_ oes

IZ. THE DECISION BELOW ACTS TO DENY FUN-

DAMENTAL DUE PROCESS UPHELD IN DE-=

CISIONS O E T UPRE

A leading Supreme Court case in which

the right of a debtor to notice and hearings

(and to present orderly defenses) was up-

held where liens were recorded on out of

state judgments was oleae

327 Ue Se 220 Feb 25th, 2946,

The Griffin supra case involved the

validity of a foreigm (NY) judgment as

to full faith and credit where execution

was commenced within the District of

Columbia. The District Court upheld the

lien( as in this action). The Court of

Appeal upheld the District Court (just

as in this action). The UNITED STATES

SUPREME COURT granted certiorari and

reversed holding that due process was

offended where lir Griffin had his assets

seized or executed on by reason of an

out of state judgment when he contended

he had valid defenses including that the

foreign state judgment was invalid due .o

denial of due process.

Griffin P 228:

Because of the,

omission, and to the extent that petitioner was thus de-

prived of an opportunity to raise defenses pcan 2

to him under the law of New York against the doce oe

of judgment for accrued alimony, there was 4 esa

judicial due process, and henee want of that juris ee

over the person of petitioner prerequisite to the hn ; ;

of x judgment in personam against hina. Me yn Po

Mabce, 243 U.S. 90; ef. Webster v. Reid, i1 Mow. 437,499.

Grif Pa 283

It is plain in any case that a judginent am

personam directing execution to issue against petitioner,

and thus purporting to cut off all available defenses, could

not be rendered on any theory of the State’s power over

him, without so.ne form of notice by personal or substi-

tuted service. +N uchter v. Pizzutti, 276 U.S. 13, 18-20;

Restatement of Conflict of Lays, § 75; and compare

Milliken v. Meyer, 311 U.S. 457. Such notice cannot be

dispensed with even in the case of judgments in rem with

respect to property within the jurisdiction of the court

reudering the judgment, Roller v. [/olly, 176 U.S. 398,

40y,

The_Griffin, supra, case is remarkably

factually similar to this action where the

14 liens were recorded in Connecticut with

out notice or hearing on a out of state

judgment that Petitioner claims is invalid

due to denial of due process,

District Judge Clarie was wrong in not

permitting amendment of the complaint

to challenge on constitutional grounds

Connecticut Ge. Se. 49-44 permitting the

recording of judgemant liens,

Perhaps the fault is with the registration

statube 28 USC 1963 in oon ae the

creating of brand new judgments in the

forum state without notice or hearing.

Judge Clarie used the argument that a

hearing is not essential in that one

was granted presumably in the rendering

state.

This argument is specious since in the

forum state by “registration” creates

a brand new judgment with new rights,

new duties and new time limitations, See

Vi u Valley Lines v Mol 9th CA 1966

os 5 F 2d 358 ——

Stanford vy —tley Btn CA

341 F 2d 265

Both Metanuska and Stanford, supra,

are consistent that the “registration”

of a foreign federal judgment creates

a brand. new federal judgment in the

state of rendition,

IF THIS IS UNQUESTIONABLY SO THEN NOTICE

AND HEARING ARE NANDATORY TO SCREEN OUT

“PHONEY JUDGMENTS” NOT ENTITLED TO FULL

FAITH AND CREDIT.

In light of above cases it appears

this instant action is factually app-

ropriate for petitioning for a three-

judge federal court to hear the consti-

tutional challenge to 28 USC 1963 in

light of Griffin, Metanuska and Stanford

SUPTA.

AN ENLIGHTENED REVIEW BY THIS HONORABLE

SUPREME COURT WILL BE OF GREAT BENEFIT TO

THE CIRCUIT COURTS OF APPEAL AND TO THE

DISTRICT COURTS AND ELIMINATE NEED FOR

A THREE-JUDGE DISTRICT COURT,

III. CONNECTICUT’S NEWLY ADOPTED, UNIFORM

RECOGNITION OF FOREIGN JUDGMENTS ACT

———PROHIBITS THE LIENS AS "PHONEY’

Effective October 1, 1973 Connecticut

adopted the "Uniform Enforcement of

Foreign Judgments Act" G. S, 52-604 thro

609. is a model act adopted by many states,

Of great significance is that this model

act requires notice to the alleged debtors

GS, 52-605 c “within 30 days after

filing of the "tae

1

creditor shall ma

notice ese. to the debtor”

In addition there is a right to pre

sent defenses,

Ge Se 52-606sb"tf the debtor shows the

court any ground upon

which enforcement shall

be stayedeees the court

shall stay enforcement”

A comparison of the "Uniform Enforcement

of Foreign Judgments Act" with G

supra shows this act meets the cemstttutional

test and vides fe) to debto

A comparison of 28 USC 1963 with Griffin

siipra shows 28 USC 1963 DOES NCT MEET

THE CONSTITUTIONAL STANDARDS.

In light of the above startling compar-

ison it is most important that certirr

ari be granted and these issues be re-

viewed for guidance and illumination

for all the courts,

This Court is asked to consider the

conflict in the decisions between the

courts below and other courts briefed

in light of the constitutional standard

set forth in Griffin supra and to

summarilly reverse,

In the alternate the serious consti-

tutional faults in 28 USC 1963

as exposed by the ” i =

litigated herein are grounds for

notang probable jurisdiction to

review on their merits the nation-

wide issues for the benefit of all

the courts,

Respectfully Submitted:

STANLEY V. TUCKER

-A le

UNITED STATES COURT OF APPEALS

FOR THE SECOND DISTRICT

STANLEY V. TUCKER 7

Plaintiff- Appellant

A

-V- ° 74—21921

JEAN NEAL ET AL

Defendant- Appellees

2

Before HAYS,GURFEIN, and GRAAFEILAND

Circuit Judges

Appeal for the USDC -Connecticut

ON CONSIDERATION WHEREOF, it is now

ordered, adjuszed, and decreed that

the judgment of said District Court

be and hereby is affirmed on the

opinion of Honorable T. Emmet

Clarie, Chief Judge,

eh 2a

UNITED STATES DISTRICT COURT

DISTRICT OF CONNECTIBU

STANLEY V. TUCKER

-V- No H=8

JEAN NEAL,et al

RULING ON CROSS-MOTIONS FOR

SUMMARY JUDGMENT

The Plaintiff, Stanley V. Tucker, commeneed

this pro "civil rights action", seeking monetary

damages, a declaratory judgment, and injunce

tive relief against the individual defendants,

who are citizens of the State of Califormia, =~

and the California based law partnership of

Anderson & Anderson. The thrust of the come

Plaint is the plaintiff*s contention that the

defendants conspired to cause, and did in fact

cause, to be recorded upon the land records in

various towns in which the plaintiff owns

property, 14 judgment liens which the plain-

tiff variously describes as "false", "fraud-

ulent", and “pretended.” The defendants have

counter=claimed, seeking a foreclosure of .s

many liens as may be required to satisfy their

judgment, together with costs. The parties

have filed cross=motions for summary judgment

pursuant to Rule 56, FRCP. The Court having

considered the numerous memoranda, affidavits,

and papers filed in connection with the pre-

cent action, finds that tne plaintiff Tucker’

motion for summary judgment should be denied,

end that the defendant's motion for summary

“judgment should be granted,

-A 3-

I

A brief statementof the factual background

of this case is essential to an understandin

of the posture of the parties respective claims,

The defendant, Robert R. Anderson, is a Calif

attorney am a member of the law firm of An-

derson & Anderson, Attorney Anderson's affidavit ©

represents that he first met the plaintiff in

California in 1966 furing his representation

of the vlaintiff'’s former wife after her

divorce from the plaintiff. The affidavit

further states that subsequent to that time

Attorney Anderson saw the plaintiff Tucker on

numerous occasions, usually in connection with

pro se litigation commenced by him “in Calif

courts for Los Aageles to San Jose”,

The affidavi:. of Attorney Anderson states,

the plaintiff does not dispute that one of the

plaintiff's numerous pro se actions in the

State of California was a $215,000 damage

suit filed in the Santa Barbara Superior Court

ageinst Jean Neal, a defendant in the present

action. According to the Anderson affidavit,

that suit ultimately dismissed, but “when

lir Tucker sued Mrs Neal again, this time in

Santa Clara County for 3292,000" he advised

her to bring a legal action for malicious

prosecution. Following her counsel’s advice

birs Neal filed suit against the plaintiff Tucker

in Ventura Superior Court No 50686. The

acfidavit further represents, and the plaintiff

dces not dispute shat a 341,000 counter claim

was filed by him, and that her personally

and without counsel perticipated in all stages

of this litigation, including a jury trial

which was held during the latter part of April

1969. That trial resulted in a jury verdict

in favor of Mrs Neal in the amount of $20,723.61,

Judgment was accordingly entered upon that

verdict and it thereafter became finalized,

In July of 1971 Jean Neal brought an

action on her state court judgment in the

USDC-ND of California CA 71=-1447-AJZ. The

purpose of this action was to establish a

judgement registrable pursuant to 28 USC 1963

and hence enforceable against the plaintifff

Tucker's assets in the State of Connecticut,

The Anderson affidavit represents that the

Plaintiff was served by registered mail in

that: action; that he admitted service; and

that he appeared specially to contest the

Court's jurisdiction in personam, The Court,

however, rujed adversely to him both on his

motion to dismiss for lack of jurisdiction

and again in passing upon Mrs Neal‘s motion

for summary judgment which was granted July

21, 1972 approx a year after commencementof

the action in the N.D. of California, judg-

ment was entered on that same day.

On Sept 25,1972, over two months after

the entry of summary judgment in Mrs Neal's

favor, the plaintiff Tucker filed with the

Clerk of th N.D. an "Application for ex-

tension of Time to File Notice of Appeal.”

Para (6) of that application concedes that

the plaintiff failed to file a timely appeal

of the order of summary judgment entered a

against him. It states, "(as) a result of

pre-cccupation (sic)... Defendant (Tucker)

missed getting a notice of appeal in within .

the time prosecribed (sick) by Rule 4 a FRAP”

Thic application for an extension of time

withint which to appeal the entry of summary

judgment was denied on Oct 20, 1972,

On Nov3, 1972 notice . was given that the

Plaintiff intened to appeal the order of

Judge Zirpoli denytnge his request for an

extension of time within’ which to appeal,

An vappeal was ultimately taken to the 9th CaA

eA Se

where it was dismissed March 27, 19 for

lack of appellate jurisdiction, mg A. Me

tiff Tucker than filed a petition for a writ

of certi: vari to the U. S. Sup. Ct, The

writ however was denied Oct 9, 1973. See

Tucker v Neal, US___, 94 S CT 49 (1973). I

the meantime,, on Sept 5, 1972, Mrs Neal filed

with the Clerk of the District for Conn, a

certification of Judgment of $25,141.70 which

she had obtained against Tucker in the N.D

of California, Therefter the defendants recor-

ded irs Neals judgment liens in the Connecticut

land records of the Towns of Hartford, Bristol,

- Torrington where the plaintiff owns prop-

ervve

_ On April 10, 1973 the plaintiff brought

this action seeking inter alia the nullifica-

tion of those iiens as well as monetary damages,

Over the defendant's objections, this court

permitted an amendment to the complaint allow-

ing the plaintiff to add a "second cause of

action” attacking on due process grounds the

= in basis for the California judg-

ment,

Il

The legal issues before the court are

far less complex than the plaintiff would make

them. Ruel 56 c of the FRC? directs that

summary judmg.ent

“shall enter forthwith if the

Pleadings, depositions, answers

to the interrogatories, and ad-

missions on file, together with

the affidavifs, if any, show that

there 1s no genuine issue as to any

material fact and the moving party is

entitled to judgment”

at Ge

The purpose of the rules in part is to

protect both litigants and the court from

frivolous claims and defenses, and to defeat

attempts to use formal pleadings as a means to

delay the recovery of just demands, Engl

Aetan Life Ins Co 139 F 2d 469, 47 2.07 3 ( 2 Cir

1943). Although the party moving for summary

judgment must sustain the burden of showing *

the non-existence of factual issues which are

both material and genuine, Boyce _v_Merchants_

Fire Insurare’ Co 204 F Supp 31l;, 313, (D=

Conn 1964), it is clear that an unsupported

contention that such an issue does in fact

exist is insufficient to defeat summary judgment,

Boyce v Merchants Fire Insurance Co, Supra. A

e

Also see Waldron v British Petroleum Co 8 FRD

170, 173 (SDNY 1905 } aff'd 361 F 2d 671 ( 2 Cir

1966) aff'd sub nom, First National Bank o

ARizona v Cities Service Co 391 US 253 (196

Not only has the plaintiff Tucke: failed

to set forth "svecific facts or evidentiary

data”"seeeee (Or) concrete particulars,”

showing there is an issue to be tried, Dressler

v i, V Sandpiner, 331 F 2d 130, 133 ( 2 Cir 1964)

he nas also neglected to "adduce factual mat-

ere .1 which raises a substantial question of

the veracity or completeness of the movant’s

showing or presents countervailing facts.”

Beal v Lindsay 468 F 2d 287, 291 ( 2 Cir 1972).

Any dispute between the plaintiff and the def-

endants is purely one as to the law and is,

therefore well-suited to summary disposition,

See generally 6 J, “Moore, Federal Practice,

S 56.15 (1.02) at 2291-2297 (1972 ed).

Iil

Several arguments are advanced by the

plaintiff in support of his present claims..

The first of these, a multi-pronged consti-

tutional argument which is never fully or

-A 7=

clearly developed by the plaintiff, attempts

to equate the recordation of a lien based

on a judgment obtained in another forum with

the type of property deprivations with which

the Court was concerned in Snaidach v Famil

Finance Corp, 395 US 337 (1969); Lyne e=

| Hold Finazce Corp, 405 US 538 (19 arr and

| Fuentes v Shevin, 407 US 67 (1972). This

equation fails for several reason,.s

To the extent that plaintiff claims_Snaidach

Lynch, and Fuentes require a hearing/ before

the recordation in one jurisdiction of a ¢..W~

judgment lien arising from a constitutionalll

valid judgment in another jurisdiction, he

is plainly wronz, The Fuentes decision, like

Snaidach and Goldbers v helly, 397 US . 254 (1970)

mark no radical departure from established

Principles of procedural due process,

"Those decisions were in the main-

stream of past cases, having little

or nothing to do with the absolute

"necessities" of life but establishing

that due process requires an opportunity

for a hearing before a deprivation of

property takes effect. E, G, 0 Cotto

Mills v Administration, 3512 US at

152-153; Wiwiobiinois Ce 291

area ee Sourther R, Co v Virri

JS 190 wientrol or Ceorvie v wrisht

207 US 1273 security rust tov Lex

ancotn, 203 US 323, Bibbin v Smith,

191 Us 310, Glidden v Herrincton,

189 US 255" Fuents v_ Shevin, 407

US at 88-89"

"Due process” is an elusive conceyt

Its exact boundaries are undefinable, and

soe Sees eee according to the specific

actual contexts” Hanneh vy Larche, 363 US

420, 442, (1960); Hill Const v Conn 366 F Sup

737 ( D-Conn 1973). While its very nature is

such as to preclude the univeraal application

of a single, inflexible procedure, id at 742,

in a Fuentes-like context "due process is

affordedeesee by the kinds of “notice and

herring” that are aimed at establishing the

validity, or at least the probable validity

of the underlying claim against the alleged

debtor before * he can be deprived of his

property..."_Fuentes v_ Shevin, 407 US at 67,

In the present case, the uncontroverted

affidavit of the Defendant Robert ANderson

establ..shes, and this Court finds, that the

plaintiff Tucker appeared and participated in

the California trial which resulted in the’

underlying state court oo in favor of

Mrs Neal. That affidavit further represents

and this court also finds, that the plaintiff

was also given the opportunity for a hearing,

and did in fact have a hearing, in the USDC

for the ND of Calif in an action on the

underlying state court judgment. Not only does

the rationale of Fuentes and Snaidach not

apply to the set of facts at hand, but it is

difficult to conceive of how the plaintiff

could have been afforded a more meaninglul

opportunity to be heard, The plaintiff, in

sum, not only had a adequate opportunity to

be heard, but enjoyed a full scale trial in

the state court and a subsequent hearing in

USDC as well,

The plaintiff next argues that his con-

stutional rights were violated by the liens

in question being recorded prior to the time

that the judgment upon which they were based

became final. Until such time as the under

lying judgment became final, the plaintiff

maintains, the judgment was not registrable

pursuant to 28 USC 1963, and the liens’: in

- A Je-

question could not, therefore, be recorded

on the Connecticut land records. The chief

difficulty with the plaintiff's argument

is — it ignoree the facts and disregards

the law.

By its terms 28 USC 1963 permits the

registration of only those judgments which

have become "final", but recognizes that

finality may result either "by appeal” or

by expiration of the time for appeal”, The

foregoing phrase, which must be given its

"ordinary, usual, and natural interpretation”

Abesslen v surphen 94 F Supp 483, 486,

+ CD Utah 1950) simply means that a judgment

is not final, and hence not enforceable

iunder 28 USC 1963 until a direct chalienge

to its validity is "disposed of" on appeal,

or the time within which an appeal mgy be

lodged has lapsed. _Aberztlen v Burnham, ~

supra, Restatement, Conflact of Laws,

comment at 519, (1934)

Here the uncontroverte@d facts indicate,

and this Court accordingly finds, that

neither the underlying state court judgment

against the plaintiff Pucker nor the order

of the USDC - ND of Calif, granting the

defendant Jean Neal's motion for summary

judgment on the underlying state court

judgment were ever appealed, There is,

therefore, simply no fasis in law or fact

for plaintiff's contention that the judg=

ment against him was registered in Conn

before it became final within the meaning

of 28 USC 1963. The only thing appealed

by the plaintiff Tucker was the post-judg

ment order of Judge Zirpoli, denying the

plaintiff an extension of time within which

to file an appeal, Far from being an

appeal of the original order entering

judgment against him, the plaintiff's appeal

-A 10-

merely sought review of the Court's ruling

on his Sept 25, 1972 “Application for an

Extention of Time to File a Notice of Appeal”,

Para (6) of the applicati on concedes that

the plaintiff failed to file a timely appeal

from the order of summary judgment itself,

There is no merit to the plaintiff's

argument that his appeal of Judge Zirpolis

"Order Denying Application For extension

of Time to File Notice of Appeal": deprived

either the underlying state court judg-

ment or the subsequent federal court

judgment of finality. If an otherwise

final judgment could be deprived of dfinal-

ity by the lodging of an appeal from a

postejudgment order denying a litigant an

extension of time within which to appeal

that judgment , then there is no logical

reason why the finality of a judgment

should not also be made to await the out

come of appellate review of other post-

judgement orders. If this were the case

the strong puhlic policy favoring the ter-

mination of litigation throught the finality

of judgments, see e g Baldwin v Iowa.

State Traveling Men's Asso 253 US 522, 524=

526 (1931) would be far too easily frus-

tratted by the simple filing of a poste

judgment motion. Logically, a judgment

could never truly be fi al as jong as the

possibility existed that a post judgment

motion might be filed, . since the appeal

from any ruling on such a motion would be

deemed to have enmeshed the underlying

judgment itself in an appeal, thereby de-

priving it of finality. THe law wisely

rejects the plaintiff's hypothesis,

The plaintiff's application for an

extension of time within which to appeal

the entry of summary judgment against

-A ll-

him wag filed well after the time for the

filing of a notice for the appeal had ex-

pired. Para (6) of the"Application" itself

admits that timely notice of appeal was not

given, Plaintiff's request for an extension

of time, therefore, enjoys no greater status

and stands on no stronger footing than does,

for example, a motion to vacate the judgment

or a motion for a new trial. It is settled

beyond peradventure that such motions do

not destroy the finality of an underlying

money judgment. v_ Banks 77 US 583.

Loever v Schroeder_149 US 580, 585. See

also Restetement, Judgements S 41,

comment d at 163-164 (1942),

The second count of the complaint

launches a collateral attack on the jur-

isdictional basis for the California ie

ement._Thomspon_ v Whitman 85 US 458 (1873).

The plaintiff argues that the judgment of

the USDC for the Nd of Calif is void since

the Court lacked jurisdiction over his per-

son, The defendants doe not dispute the

general proposition that "proceedings in

a COUrtecseee to determine the personal rights

and obligations of parties over whom the

court does not have jurisdiction, do not

constitute due process of law." Pennoyer.

v Neff, 95 US 714, 733 (1878). Rather, the

defendants argue that plaintiff's contacts

with the State of California were more

than adequate to establish in personal

jurisdiction and that, in any event, principles

of res judicata preclude a collateral attack

on the jurisdictional basis for the judgment,

Taking the defendants second argument

first, this Court finds that res judicata

does preclude collateral attack on the

California judgment, and that the plaintiff's

position is in reality no different than

that of the respondent Association in

—aldwin_ v Lowa State 283 US 522 (19321)

-A 12-

In that case the Court held that the res

pondent, an Iowa corporation which had

insuccessfully challenged the in personam

jurisdiction of a Missouri court and there

after permitted its judgment to become

final, was precluded from later collaterally

attacking the jurisdictional basis of that

jv»dgment. In addressing itself to the res-

pondents claims , the Court said”

"The respondent.. insists that to

d. prive it of the defense which it

made in the court below, of lack of

jurisdiction over it by the Missouri

District Court, would be to deny the

due process guaranteed by the l4th Amend,

but there is involved in that doctrine

no right to litigate the same question

twiceeeccece”

See alsa Durbee vy Duke 375 US 106;_Trenies.

ine liinine Co 308 US 663 Southard

vw Sourthard.305 F 2d 730. Restatement,

Judgments S 5 comment j, at 35 (1942),

The uncontroverted facts indicate that

the plaint iff appeared specially before

the Calif federal court, that he contested

that courts jurisdiction over his person by

filing a motion to dismiss for lack of in

personam jurisdiction, that the proceedings

were determined adversely to him, with an

order for summary judgment being entered

agains t him on July 21, 1972, and that by

reason of the plaintiff's failure to appeal,

it became a final judgment. On these facts,

the Court concludes as a matter of law that

the plaintiff, Stanley TUcker, is precluded

from collaterally attacking either the

judgme net or the jurisdictional basis for

the judgment of the USDC for the ND of

Cali onria,.

-A 13-

There is absolutely no merit to the

plaintiff's contention thitthe District

Court never determined or otherwise

passed upon his jurisdictional challenge,

The Court's entry of summary judgment |

against the plaintiff was a tacit rejec

tion of his jurisdictional challenge and

a finding, albeit implicity, of “all the

facts necessary to sustain the jdugment”

Fayerwather v Ritch, 195 US 276, 302,

Shana la lley-fiectri cov Rai iracd Com.

251 US 366 » 372-373 (1919). No explicity

finding of in personam jurisdiction and

certainly no memorandum of decision re-

jecting the plaintiff's jurisdictional

claims, is necessary. See_Yates y US.

354 US 298, 336. Nelson v Swing-Away Mfg

Co 266 F 2d 184 ( Cir 1959

Although non-essential to its de-

termination that the judgment of the

USDC = ND Calif is valid in all respects,

see_Chicaso Life v Cherry 244 US 25, this

Court also finds that the plaintiff's cont

tacts with the State of California were more

than sufficient to satisfy "traiditonal

notions of fair play andsubstantial justice:

Internal Shoe v State of Washington -- 326

US 310. The uncontroverted affidavit of

the defendant Robert Andesson details the

Plaint2ff's attiffities in California. At the

very least that affidavit paints the pore

trait of a person who has on a mininum

of 36 occasions purposely availed himself

of fhe privilege of conducting activities

within the forum state. Hanson vy Denckla

355 US 220,

Surely the plaintiff's maintenance of over

36 pro se lawsuits within California is

no less a significant contact with that

forum than is the defendants simple

“A l4-

allegedly tortious recordation of their

judgment liens in Connecticut, the plain

tiff's authority to the contrary is in

apposite.

The Court has considered the remainder

of the plaintiff's arguments and finds them

to be without merit and underserving of

further comment.

The plaintiff Stanley Tucker's motion

for summary judgment is denied. The def-

endant’s motion for summary judgment is

granted. An order may enter giving judg

ment to the defendant Jean Neal in the

amount of $25,141,70 plus interest and

taxable costs; the de“endants are entitled

to a judgmert of foreclosure, supplemental

proceedings will be held to determine which

of the plaintiff's parcels of property will

be sold to satisfy the defendant Jean

Neal's judmment,

SO ORDERED

Dated at Hartford, Conn this 5th day of

March 1974,

T. Emmet Clarie

United States District Judge.