Petition — Tyler v. Hartford Fire Insurance

Supreme Court brief1982

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08 WE 19 1992

IN THE putes

SUPREME COURT OF THE UNITED STATES Her

October Term, 1981

No.

DONALD E. TYLER,

Petitioner

HARTFORD FIRE INSURANCE COMPANY,

COLORADO MEDICAL SOCIETY, WARREN &

SOMMER, INC,, INSTITUTE FOR CORRECTIVE

PRACTKE, HERBERT ROTHENBERG, M. D.,

WILFRED STEDMAN, M. D., JAMES A,

HENDERSON, M. D., JOSEPH H. POYNTER,

M. D., CARL McLAUTHLIN, M. D., GALEN

MARKS, M. D., ROBERT LARSEN, M. D.,

WILLIAM BUC KMAN, THOMAS H. MITCHELL,

PETER PRYOR, CHARLOTTE PELLETEER,

JEAN KOEHLY, BERNADENE POST, GWEN

STIEBER, GRANT MILLER, M. D., REHARD

EVANS, TERRY FIELDS, JOHN MOTT,

ST, PAUL INSURANCE COMPANIES, AND

BRIGHTON COMMUNITY HOSPITAL

ASSOCIATION,

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

Donald E. Tyler

Counsel for petitioner, pro se

1092 S. W. 2nd Avenue

Ontario, Oregon 97914

Telephone (503)-889-5109

' QUESTIONS PRESENTED

1. Did the District Court abuse discretion,

error, and exceed jurisdiction in ordering

the plaintiff-petitioner to submit a cost“

bond in the amount of $48, 000.00 for purposes

of defendants, and in ordering dismissal of

this case, and with prejudice, because the

petitioner refused to submit such a bond ?

2. Did the District Court error, abuse

discretion, and exceed jurisdiction by

entertaining defendants' motions to assess

their attorney fees against the plaintiff -

petitioner maintaining that threat against the

petitioner for lawful use of the federal court

and in denying petitioner's motion to strike

such motions?

3. Did the District Court error, abuse

discretion, and exceed jurisdiction by

imposing impossible conditions for the

plaintiff-petitioner to maintain this lawsuit

including by ordering:

(a) the petitioner to draft a complaint not

based upon and without the grievances of his

complaint filed,

(b) dismissal of selected allegations of the

complaint,

(d) a "more definite statement" which in

reality is a bill of particulars including facts

in sole knowledge of defendants,

(e) a complaint with separate counts and

claims as to each defendant, and particularly

when the claim is for joint and several

liability and for conspiracy by these 24

defendants and many other persons,

(f) denying motions of the petitioner to

compel discovery, which included any and all

discovery from most defendants,

(g) stay of discovery,

(h) requiring the petitioner, appearing pro

se from Oregon, to confer with counsel of

defendants prior to submitting motions to

compel discovery, and

(i) imposing the impossible condition of

submission of a complaint of the grievances

of the present complaint which would be

subjectively intelligible to the District

Court without objective standards?

4, Did the DistrictCourt error, abuse

discretion, and exceed jurisdiction in

denying petitioner's motion to stay proceedings

pending time for the petitioner to seek

review by this Supreme Court by writ of

certiorari to the Court of Appeals for the

Tenth Circuit of its refusal to issue writ of

mandamus or prohibition to grant relief

requested herein from oppressive orders

ore *

which resulted in dismissal and the

unrecoverable damage therefrom?

5. Have the presiding Judge of the district

court and Judges of the U.S, Court of Appeals

for the Tenth Circuit illegally and unlawfully

closed the federal courts to this petitioner

in violation of his common law rights, in

violation of the purpose of the Declaration

of Independence, in violation of his rights

guaranteed by the preamble, Ist, 5th, and

7th Amendments and Art. III, sec. 2, Art. IV,

sec. 2 of the U.S, Constitution, and in

violation of the purposes of 13 U. S. C. § 241

and 42 U. 8. C. 88 1983, 1985, and 1986?

INDEX

Questions presented

Table of citations

Opinions below

Jurisdiction

Constitutional provisions,

statutes involved

U. S. Constitution

Title 15 U.S.C.

13 U. S. C. 8. § 241

42 U. S. C.

Colorado Revi sed Statutes, 1973

104-109

1243.5 -102

1316-101

1316-102

13-17-10)

13-90-107

18-4-412

5 (i)

Statement of Case 19

Reasons for granting the writ 32

A. The order of cost bond and

dismissal of this case because

of noncompliance was a gross

abuse of discretion, in excess of

jurisdiction, and a gross violation

of fundamental Constitutional and

natural common law rights 32

No cause shown or found 38

Bond amount unreasonable

and arbitrary 41

Bond for discovery and

attorney fees error 42

B. The court errored and abused

discretion in denying petitioner's

motion to strike motions of

defendants to award them

n attorney fees 43

¥ ' | 5 (ii)

Page

C. Dismissal of selected allegations

was without authority and in excess of

jurisdiction ...46++ +e +eee

D. Striking of parts and all of the

complaint was without authority

and in excess of jurisdiction..... 50

E. More definite statement was

ordered without authority and in

abuse of discretion .....++ + 55

F. Order to separately state claims

and counts as to each defendant was

arbitrary, unreasonable and in

abuse of discretion + + 56

G. Motions by petitioner to compel

discovery were denied in 4205 of

discretion and in conflict with

decisions of this Supreme Court..... 61

Closure of court complete 63

Conclusion 65

5 (iii)

Appendix A

Motion to alter or amend judgment

Order denying motion to alter or

amend judgment

Reporter's transcript motions

for judgment

Waiver of hearing

Plaintiff's response to motions

to enter judgment

Motion to strike motion for

attorney fees

Reporter's transcript pretrial

conference

Complaint

Verification of complaint

Exhibit A, Hartford-C MS contract

Exhibit B, complaint #28036

its exhibit C

5 (iv)

A-50

A-54

A-58

A-9l

A-144

A-145

A-146

A-147

its exhibit D

its Exhibit F

Exhibit C (Gaylor letter)

Exhibit D (Brittain letter)

Exhibit E (Brittain and

Stedman letter)

Exhibit F (Buckman letter)

Exhibit G (Mitchell letter)

Exhibit H (Buckman letter)

Exhibit 1 (Brittain letter)

Exhibit J (Poynter letter)

Exhibit K (petitioner's response)

Exhibit L (verdict, case #28036 )

Exhibit M (questions answered

by jury)

Judgment

Order of dismissal! with prejudice

and judgment for defendants

5 (v)

A-190

7 ee is.

TABLE OF CITATIONS

CASES Pages

Adams Dairy Co. v. National Dairy

Products Corp., 293 F.Supp. 1168

(Mo.,1968) . «ss + „(13

Angle v. Chicago, St. Paul, Minneapolis

& Omaha Ry. Co., 151 U.S. |, 38 L. Ed.

55 (1893). «2 2 se ee se 35,3

Associated Industries of New York

State v. Ikes, 134 F. 2d 694

(2nd Circ, 19 4)) ww eo oe) 49

Augustus v. Bd. of Pub. Instruction,

306 F. 2d 862 (5th Circ, 962) 52, 54

Baker v. Sisk, | FRD 232 (Okla, 1938). . 47

Bergeron v. Mansour, 152 F. 2d 27

Ust Circ, 94). (7

Bivens v. Six Unknown named agents

of Federal Bureau of Narcotics, 403

U.S, 388, 918. Ct. 1999, 29 L. Ed. 2d

619 (1971) 2 ww we ew wee 1

5 (vi)

C ASES Pages

Brown & Williamson Tobacco Corp,

v. U.S., 201 F. 2d 819 (6th Circ, 1953)....52

Butler v. Pollard, 482 F.Supp.

847 (Okla, 1979) ꝶ UU 32

Byram Concretanks, Inc. v. Warren

Concrete Products Co., 374 F.2d 649

(3rd Circ, 1967) . «. „343

Canadian Ingersoll-Rand Co. v. D.

Love man & Sons, Inc. . 227 F.Supp.

829 (On, 1906 %/ 33

Card v. Elmer C. Breur, Inc.,

42 F.Supp. 701 (Oh, 194). Sil

Clark v. Atlanta University, Inc.,

65 FRD 414 (Ga, 1970) 852

Clark v. Machette, 92 Colo 365,

21 P. 2d 182 (%)) « «© © + © « 48

Cohen v. Beneficial Industrial

Loan Corp., 337 U.S. 541, 93 L. Ed.

1528, 69 S. Ct. 1221 (19 46) . 10, 37

5 (vii)

CASES Pages

Conley v. Gibson, 355 U.S, 41, 2 L.

Ed. 2d 80, 78 8. Ct. 99 (19577 61

Courte au v. Interlake S. S. Co..

L FRD 429 (Mich, 19 40). 351

Daughtery v. Firestone Tire and

Rubber Co., 85 FRD 693 (Ga, 1980)... 52

Egan v. Pan American World Airways,

Inc., 62 FRD 710 (Fla,1974)..... 55

Ehrman v. U.S., 4 FRD 29 (NY, 1941)... 56

E quitable Securities v. Johnson, 36

Colo, 377,85 P. 840 (1906) ..... 48

Federated De pt. Stores, Inc. v.

Grinnell Corp., 287 F.Supp, 744

(NY¥,1968) . 2. 2 32

Floe v. Plowden, 10 FRD 514

(S.Car., 1950) / 536

FRA S. p. A. v. Surg-O-Flex of

America, Inc., 415 F.Supp. 421

(NY, 1976) >. „ „„ *# 9 „ „ * 9 „* 9 * 53 E

5 (viii)

CASES Pages

Fuchs Sugars & Syrups, Inc. v.

Amstar Corp., 402 F.Supp. 636

(NY, 1975) 5 2 ow 2 32,34

Gillam v. A. Shyman, Inc., 205

F.Supp. 534 (Alaska,1962) ..... 43

Gretener, A. G. v. Dyson-Kissner Corp.,

298 F.Supp. 350 (NY, 1969 59

Groves v. Paden City Glass Mfg.

Co., 2 FRD 300 (W. va. , 1942). 54

Hodgson v. Virginia Baptist Hosp.,

Inc., 482 F. 2d 821 (4th Circ,1973)....56

Hoffman v. Halden, 268 F. 2d 280,

(9th Circ, 95) „f(17

Hoffman Motors Corp. v. Alfa

Romeo S. P. A., 244 F.Supp. 70

Nr. 19 / %c/ . « J ets ws we „54

Hughes v. Reed, 46 F. 2d 435

(10th Circ, 193). 418

Huskie v. Griffin, 74 A. 595(N.H,1909)...49

5 ( ix)

„

CASES Pages

Johnson v. Am, Aviation Corp.,

64 FRD 435 (N. D., 1974). 52

Lohse Patent Door Co. v. Fuelle,

114 S. W. 997 (Mo., 190) 49

Lowe v. Consolidated Edison Co.,

F RD 559 (NY, 194) 57

Mahoney v. Bethlehem Engineering

Corp., 27 F.Supp. 865 (NY. 1939) ....55

Mitchell v. E-Z Towers, Inc.,

269 F. 2d 126 (5th Circ, 1959). 56

Murto v. Lemon, 19 Colo, App. 314,

75 P. 160 (1903) . 2. «6 „(8

Nagler v. Admiral Corp., 248

F. 2d 319 (2nd Cire, 1957) 38

National Distillers Prods, Corp. v.

Hindech, 10 FRD 229 (D. Colo. , 1950). 36

Newell v. O. A. Newton & Son Co.,

95 F.Supp. 355 (Dela. , 1950) “eevee 38

5 (x)

CASES Pages

Newin Corp. v. Hartford Accident

and Memnity Co., 31 N. v. 2d 2il,

333 N. E. 2d 163 (%s) 30

Pittsoa-Lazerne Corp. v. U. S.,

86 F.Supp. 460 (Pa, 194900 ç53

Powell v. Workmen's Comp. Bd. of

New York, 327 F. 2d 131(2ad Circ, 1964).... 47

Randolph Laboratories, Inc. v. Specialties

Development Corp., 52 F.Supp.

897 (NJ,1945) «2.2.22 à2⁊j 333,54

Robinson v. Missouri Pacific

Transp, Co., 85 F.Supp. 235

(W. D. Ark, Hot Springs Div, 1949). 50

Rogers v. Rogers, 96 Colo 473,

44 P. 24 909 (1935) j 222 48

Schramm v. Krischell, 84 FRD 294,

(Conn., 1979) 2 „„ 532

Smith v. Kent Oil Co., 261 P. 2d

149 (Colo. , 1953) „52 „ „„ „„ „„6„„ 47

CASES Pages

South Side Drive In Co, v. Warner

Bros, Distributing Corp., 30 FRD 32,

(Pa., 1962) viĩvUÜ « se ee „353523

Sopkin v. Missouri Nat'l Life Ins.

Co., 222 F.Supp. 984 (Mo. , 1963),....56

Topping v. Fry, 147 F,2d 715,

(7th Circ, 1945) . 7

U.S. v. Crown Zellerbach Corp.,

141 8. Supp. 118 (Ul. , 195 54

U. S. Aluminum Siding Corp. v.

Dun & Bradstreet, Inc., 163 F.Supp.

906 (8. D. NV, 1958) (8, 49

United States Dental Institute v. Am.

Assoc. of Orthodontists, 396 F.Supp,

565 (UI. „ 17) V 32, 33

United states use of Deane Rowley

Const. Co. v. Rowley Const. Co.,

2 FRD 6 (RI. 19 4ù)))). 6,54

Van Dyke Ford, Inc., v. Ford Motor

Co., 399 F.Supp. 277 (Wis, 19754. 33

* — 9

* 68 (NA)

CASES

Pages

Wishnick v. One Stop Food * Liquor

Store, Inc., 60 FRD 496 (nl. , 1973. . 56

Constitutions, Statutes, Rules

U.S. Constitution

Preamble

Article I, sec 10

Article III, sec 2

Articl IV, sec 2

First Amendment

2nd Amendment

4th Amendment

5th Amendment

7th Amendment

9th Amendment

4,12, A-5, A-5I

4, 12, 35, A-5, A-51

4, 12, 21, 43, 48, A- 27,

A-47, A-51, A-133

A-133

12, 21, A-133

4, 13, 34, 43, 48, A-5,

A- 27, A-47, A-51, A133

4,13, 21, 34, 43, 45, A-5,

A-27, A-47, A-51, A-57,

A-133

21. A-133

5 (xiii)

Pages

13th Amend ment A-133

14th Amend ment 13, 21, A-51, A-133

Declaration of Independence 9, 33, A-3, A-51

Enabling Act of Colorado A-52

Federal Statutes

13 U. S. C. 8 241 4, 14, 21, 34,45, A-5,

? A-93

15 U.S.C, 88 1,2,15...14, 21, 25, A-93, A-137

28 U. 8. C. 88 1254, 2101 9

42 U.S.C, 88 1983, 1985,1986.... 4.14, 15,

21, 34, 45, A-5, A-93

Magna Carta 9,33

Supreme Court Rule 18 9

Federal Rules of Civil Procedure

Rules 1, 26, 34, 36, 37 61

Rule 8 | 47,60

Rule 9 47

Rule 12 45,50,51,54,55

Rule 54 42

Rule 59 A-

78 — ‘ & &£ ieteat . ge

Page 8

Colorado Revised Statutes, 1973

10-4-109

12-43,5-102

13-16-01

13-16-102

13-17-10]

13-90-107

18-4-412

Colorado Session Laws

1976, p. 526

1977, p. 667

Other Authorities

16, 24, 30,62

17,44, A-51, A-55

17, 35, 42, A-8, A-51

18,42, A-51

18, 28

18, 24, 29

BLACKSTONE: Commentaries on

the Laws of England, Vol. I b 33

31 A. L. R. 3 1438 49, 50

15 C. J. 8. p. 1027 50

ISA C. J. 8. pp. 669, 678, 681 47

20 C. J. 8. pp. 455-460 42

a 5 (xv )

a ere 9 3 * *

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1981

DONALD E, TYLER

Petitioner,

HARTFORD FIRE INSURANCE COMPANY,

COLORADO MEDICAL SOCIETY, WARREN &

SOMMER, C., INSTITUTE FOR CORREC-

TIVE PRACTICE, HERBERT ROTHENBERG,

M. D., WILFRED STEDMAN, M. D., JAMES A,

HENDERSON, M. D., JOSEPH H. POYNTER,

M. D., CARL McLAUTHLIN, M. D., GALEN

MARKS, M. D., ROBERT LARSEN, M. D.,

WILLIAM BUCKMAN, THOMAS H. MITCHELL,

PETER PRYOR, CHARLOTTE PELLETEER,

JEAN KOEHLY, BERNADENE POST, GWEN J

STIEBER, GRANT MILLER, M. D., RICHARD

EVANS, TERRY FIELDS, JOHN MOTT, ST.

PAUL INSURANCE COMPANIES, AND

BRIGHTON COMMUNITY HOSPITAL

ASSOCIATION, Respondents.

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

To the Honorable Chief Justice and

Associate Justices of the Supreme Court of

the United States:

Donald E. Tyler, petitioner, prays that a

writ of certiorari issue to review the judgment

of the U,S, District Court for the District of

Colorado entered in the above entitled case on

April 28, 1982, which is in the U.S, Court of

Appeals for the Tenth Circuit, appeal pending.

OPINIONS BELOW

Petitioner's motion to alter or amend

judgment is in Appendix A, infra, pages A-l

through A-6. Final judgment

denying petitioner's motion to alter or amend

judgment is in Appendix A, infra, pages A-7

through A-9. Reporter's transcript of hearing

in which order of dismissal issued is in |

Appendix A, pages A-10 through A-44. Peti-

tioner's waiver of hearing, mailed certified with

return acknowledgement of receipt received by

the court April 19,1982, but filed April 26,1982,

referred to in aforementioned franscript is in

Appendix A, pages A-45 through A-49. Peti-

tioner's response to motions to enter judgment

is in Appendix A, pages A-50 through A-53,

Petitioner's motion to strike motion for attorney

fees is in pages A-54 through A-57. Reporter's

transcript of proceedings February 17,1982, in

which cost bond and other impossible conditions

to maintain the action were ordered is id Pages

A-58 through A-90. Judgment and order of

dismissal entered May 25, 1982, after notice of

appeal, are at pages A-188 and A-190,

JURISDK TION

Final judgment was entered April 28, 1982.

Notice of Appeal to the U. 8. Court of Appeals

for the Tenth Circuit was timely filed in the

District Court on May 24,1982, and in the U. 8.

Court of Appeals on May 25,1982. ( Page A-203)

The record was received in that Court on June

8, 1982, (Page A-206) Jurisdiction in the

Supreme Court is based upon 28 U.S.C. 88

1254 (1) and 2101(e) and Supreme Court Rule 18.

EI is submitted that the closure of federal courts

to this petitioner and to anyone else in the

choosing of judges of a U.S. District Court and

with approval of judges of the Court of Appeals

is of such imperative public importance as to

justify deviation from usual appellate process,

Open courts and trial by jury were of such

importance as to be demanded of the King of

England at Runnymede in [215 and presented

in 1776 in the Declaration of Independence.

Those rights were guaranteed in the Bill of

Rights. This Court deviated from normal

appeal procedure for a case of similar nature but

much les e far reaching, Cohen v. Beneficial

Industrial Loan Corp., 337 U.S. 541,93 L. Ed.

1528, 69 8. Ct. 1221 (19486). The closure of the

federal courts to the petitioner was done under

color of state statutes concerning use of courts

of the State of Colorado by non-residents of

the state and penalties that could be 1 8000

for abuse of use of state courts. The court

ordered the plain tiff-petitioner to post a

$48,000 bond for purposes of defendants and

threatened award of attorney fees to defendants.

He also ordered impossible conditions

including restrictions as to the grievances he

would allow in the complaint, The issues

herein have already been presented to the

Tenth Circuit Court of Appeals, EB denied

petition for writ of mandamus or prohibition

to prevent dismissal of this case based upon

the aforementioned abusive orders, Both the

District Court and the Court of Appeals denied

motions to stay proceedings in this case for

time for the petitioner to seek review by writ

of certiorari by this Court of that Appeal

Court decision, The appeal has obviously

been erroneously predecided and will waste

time and money. Time is of essence to the

petitioner and to other citizens who may

similarly be denied use of the courts, and as

here,after expending considerable time and

money. The petitioner continues to be denied

the right to practice medicine and the public

is being denied his services as long as this

and related cases are in dispute. Further,

the case subject of thie petition is concerned

with a conspiracy which interferes with and

prevents justice in essentially every

1¹

case in state and federal courts in Colorado

alleging medical malpractice.

CONSTITUTIONAL PROVISIONS, STATUTES

INVOLVED

The U.S. Constitution provides in

pertinent parts:

Preamble: We the People...in Order to...

establish Justice,... and secure the Blessings

of Liberty...

Article III, section 2: The judicial power

(of the United States) shall extend to all cases

++. arising under this Constitution, the Laws of

the United States, ... between Citizens of

different States

ARTTELE IV, section 2: The Citizens of

each State shall be entitled to all Privileges

and Immunities of Citizens in the Several

States.

Amendment I: Congress shall make no

law ... abridging ... the right of the people

to petition the Government for a redress of

grievances,

Amendment IV: The right of the people

to be secure in their persons, houses, papers,

and effects, against unreasonable searches

and seizures, shall not be violated, and no

Warrants shall issue, but upon probable

cause, supported by Oath or affirmation, and

nye

particularly describing the place to be

searched, and the persons or things to be

seized,

Amendment V: No person shall be...

deprived of life, liberty, or property,

without due process of law:

Amendment VII: In Suits at common law,

eee the right of trial by jury shall be preserved,

and no fact tried by a jury, shall otherwise be

re-examined in any Court of the United States,

than according to the rules of common law,

Amendment VIII: Excessive bail shall not

be required, no excessive fines imposed, ...

Amendment XIV: ... No State shall make

or enforce any law which shall abridge the

privileges or immunities of citizens of the

United States; nor shall any State deprive any

person of life, liberty, or property, without

due process of law; nor deny to any person

within its jurisdiction the equal protection of

the laws

Title 15 U, S, C. provides in pertinant part:

1. Eve ry contract, combination in the

form of trust or otherwise, or conspirac y in

restraint of trade or commerce among the

several states . . . is hereby declared illegal, ...

2. Every person who shall monopolize,

or attempt to monopolize, or combine or

conspire with any person or persons, to

monopolize any part of the trade or commerce

among the several States .. shall be Nane

guilty of a pag eee

8 15, Any person who shall be injured in

his business or property by reason of

anything forbidden in the antitrust laws may

sue therefor in any district court of the United

States in the district in which the defendant

resides or is found or has an agent, without

respect to the amount in controversy, and

shall recover threefold the damages by him

sustained, and the cost of suit, including a

reasonable attorney's fee. The court may

award under this section ... interest on the

actual damages for the period beginning on

the date of service of such person's pleading

«ee the court shall consider only--

(1) ...acted intentionally for delay, or...

in bad faith;

(2) ...dilatory behavior...

(3)...delaying the litigation or increasing

the cost thereof.

Chapter 13 U.S.C.S, 8 241 provides:

If two or more persons conspire to injure,

oppress, threaten, or intimidate any citizen in

the free exercise or enjoyment of any right or

privilege secured to him by the Constitution or

the laws of the United States, or because of his

having so exercised the same; or If two or

more persons go in disguise on the highway, or

on the premises of another, with intent to

prevent or hinder hs free exercise or

enjoyment of any right or privilege so secured--

They shal! be fined not more than $10, 000 or

imprisoned not more than ten years, or both;

Title 42 U. S. C provides in pertinent parts:

14 N

1983. Every person who, under color of

any statute, ordinance, regulation, custom, or

usage, of any State or Territory, subjects, or

causes to be subjected, any citizen of the

United States or other person within the

jurisdiction thereof to the deprivation of any

rights, privileges, or immunities secured

by the Constitution and laws, shall be liable to

the party injured in an action at law, suit in

equity, or other proper proceeding for redress.

§ 1985. ...(2) Obstructing justice;

intimidating party, witness, or juror. If two

or more persons in any State or Territory

conspire to deter, by force, intimidation, or

threat, any party or witness in any court of the

United States from attending such court, or

from testifying to any matter pending therein,

freely, fully, and truthfully, or to injure such

party or witness in his person or property on

account of his having so attended or testified,

or to influence the verdict, presentment, or

indictment of any grand or petit juror in any

such court, or to injure such juror in his

person or property ...; or if two or more

persons conspire for the purpose of impeding,

hindering, obstructing, or defeating, in any

manner, the due course of justice in any State

or Territory, with intent to deny to any

citizen the equal protection of the laws, or to

injure him or his property for lawfully

enforcing, or attempting to enforce, the right

of any person, or class of persons, to the

equal protection of the laws; (3)...

the party so injured or deprived may have an

action for the recovery of damages,...

§ 1986. Action for neglect to prevent

conspiracy. Every person who, having

knowledge that any of the wrongs conspired to

be done, and mentioned in the preceding

section (42 U.S.C. 8 1985), are about to be

committed, and having power to prevent or aid

in preventing the commission of the same,

neglects or refuses so to do, if such wrongful

act be committed, shall be liable to the party

injured, or his legal representatives, for all

damages caused by such wrongful act, which

such person by reasonable diligence could have

prevented; and such damages may be

recovered in an action on the case; ...

Colorado Revised Statutes, 1973, provide

in pertinent parts:

10-4-109. Non renewal of medical

malpractice policies. (1) No insurer shall

refuse to renew a policy of medical malpractice

insurance unless... advance notice.

12-43. 5-102. Establishment of review

committee - function. (1) A review

committee may be established pursuant to a

this section yaluate the

of care being given patients 7 any 2 —

eee to ents rized,

and impr actice of suc

physician.

(2)...Such a committee may be authorized

only by: ... (d) A society or an association

of physicians whose membership includes not

less than one-third of the medical doctors or

doctors of osteopathy licensed...

(3) (a) eee An investigation may relate. or

u. Sitscting tho qeelity of core

. — yx ae

provided,

(b) (I) If the findings of the investigation

indicate substantial lack in the quality of care

„the review committee shall hold a hearing...

(II) The physician allegedly offering

Substandard care shall be notified of such a

hearing... (c) After such hearing, the review

review committee shall make any recommen-

dations,..to the governing board of the

hospital or as provided by written bylaws of

the hospital or by federal law or regulation.

A copy of such recommendations shall be given

to the physician allegedly offering substandard

care, and he shall have the right to appeal the

decision of the review committee to the

governing board or other body to which the

recommendations are made, (emphasis added)

(Effective date of paragraphs (2) (d) and

(3) (a) is July EZ. Colo. Sess. L. 1977, p. 667)

13-16-101. Security for costs. In all actions

„Where the plaintiff. . . is not a resident of this

state...before he institutes such suit shall file

„ an instrument in writing, of some responsible

person being a resident of this state,...whereby

such person shall acknowledge himself bound

to pay...all costs which may accrue in such

action either to the opposite party or to any of

the officers of such courts...

13-16-10 . Motion to require cost bond,

If such action is commenced without filing such

instrument of writing...,or if, in any case,

the court is satisfied that any plaintiff is unable

to pay the costs of suit, or that he is so

unsettled as to endanger the officers of the court

with respect to their legal demands, it is the

duty of the court, on motion of the defendant

or any officer of the court, to rule the plaintiff,

on or before the day in such rule named, to give

— oe

security for the payment of costs in such suit.

If such plaintiff neglects or refuses, on or

before the day in such rule named, to file

such instrument, the court, on motion, shall

dismiss the suit. ...

13-17-101 Attorney fees. (I) Subject ot the

provisions of subsections (2) and (3) of this

section, in any suit involving money damages

in any court of this state, the court shall award,

.. in addition to any costs otherwise assessed

reasonable attorey fees. (emphasis added)

(3) The court shall not award attorney fees

among the parties unless it finds that the

bringing, maintaining, or defense of the

action against the party entitled to such

award was frivolous or groundless. ...

13-90-107, Who may not testify without

consent records, ... d) A physician or

surgeon duly authorized to practice... shall

not be examined without the consent of his

patient. . . , but this paragraph (d) shall not

apply to: ... (II) A review of a physician's

services by any of the following: ... (D) A peer

review committee of a society or association

of phsicians. „„ and only E physician

has signed a release authorizing such review:

(Effective date of III (D) is = 1, 1976)

18-4-412. Theft of medical ords or

medical information - penalty.

(1) Any person who, without proper

authorization, knowingly obtains a medical

record or medical information with the intent

to appropriate the medical record or medical

information to his own use or to the use of

another, who steals or discloses to an

unauthorized person a medical record or

medical information, or who without

authority, makes or causes to be made a copy

of a medical record or medical information

commits theft of a medical record or medical

information, eee

(3) Theft of a medical record or medical

information is a class 5 felony.

STATEMENT OF CASE

The complaint is printed in Appendix A,

pages A-9i through A-187, This case is

related to other pending petitions for writ of

“ certiorari in this Court, numbers 81-2007 and

81-2139. With no limit on their methods, in

and out of court, there is no reason to expect

insurance company defendants to pay their

lawful obligations. The State Courts continue

even without jurisdiction in the case subject of

81-2007 rather than require the insurance

companies to pay judgment on the jury verdict.

The defendants admit that, or flaunt power, by

not answering the petition. The federal courts

of the Tenth Circuit a: . now also closed to the

petitioner unless there is remedy by this Court.

The plaintiff, the petitioner here, is a

Mayo Clinic -trained urologist certified by the

American Board of Urology. His established

medical practice in Colorado was destroyed

and he has been unable to work at his chosen

profession since 1977 and continuing as a

result of the illegal acts committed by the

defendants and co-conspirators intentionally

for the unlawful purpose of malicious

interference with his medical practice. This

included unlawful obstruction and interference

with lawsuits for damages and designed to

restore his ability to practice medicine and

outrageous conduct to intentionally cause him

emotional distress. The action is complex

but the complaint clearly states the common

law causes of action. The claims for

interference with business and outrageous

conduct involve many wrongful acts, several

ways in which those acts were wrongful and

unlawful including libel, perjury, subornation

of perjury, breaches of fiduciary duties, .

breaches of contracts, abuses of purposes of

committees of the state medical society

operating under color of State statutes, deceit,

fraud, harassment, intimidation, oppression,

malicous abuse of power of uniformed police,

and includes unlawful oppression and abuse of

witnesses and potential witnesses of the

plaintiff, and abuses of persons doing business

with the petitioner, violations of the Ist, 4th,

5th, 7th, 9th, and 14th Amendment rights of

the plaintiff-petitioner, and violations of

Title 15 of the United States Code causing

damage to the petitioner, I involves claims

under Title 15 and title 42 l 1983,1985 and

1986 of the United States Code and for violation

of Chapter 13 8 241, U. 8. C. 8. See Bivens v.

Six Unknown pames Agents of Federal Bureau

of Narcotics, 403 U. 8. 388, 91 8. Ct. 1999,

29 L. Ed, 24 619 (1971)

Action was brought against defendants

Marks, Larsen and others in 1975, complain*

of which is Exhibit B of the complaint of this

case. (Pages A- 146 through A-151 ). That

case arose primarily as a result of Marks,

Larsen, and others“ scheduling of a disciplinary

hearing of the petitioner admitted by them to

be without charges . Notice of the hearing

was indequate stating it was to be about the

petitioner's conduct in the emergency room .

(Exhibits C and D cf Exhibit B of compiaint,

pages A-147 through A- 149 ).

There was and is no legitimate defense for

Marks and Larsen in that case. Documentary

evidence and admissions proved they scheduled

the hearing without charges, breached medical

staff bylaws, gave inadequate and untimely

notice of a hearing, and acted against the

petitioner illegally depriving him of his right

to work on call duty in the emergency room

in 1974 and prevented his reappointment to the

Brighton Hospital and appointment to other

hospital medical staffs for 1975 and thereafter,

The medical society and Hartford joined in

after that, contrary to garbling of facts by the

Colorado Court of Appeals. (Petition 81-2139).

Marks and Larsen were insured for the

foregoing lawsuit for one million dollars each

by Hartford. Colorado Medical Society has a

vested interest because of a contract, subject to

Title 15 U.S.C. action herein, which includes

refund of premiums to its insured members

that are unused to pay Colorado claims. To

gain unlawful help in defending Marks and

Larsen, Hartford's claim adjuster, Francis

Fry, published to Robert Brittain, M. D., all

of its files concerning the petitioner including

libelous documents, correspondence among

attorneys, Marks, Larsen, Fry and other

Hartford personnel, hospital records of

patients of Tyler unlawfully in its possession

(codified as a felony by C. R. 8. 1973, 18-4-412, :

supra) supplied to it in breach of contracts

between patients, Tyler, and Hospital; and

the files included other matter alleged.

Brittain, a member of the Risk Management

Committee of the Colorado Medical Society,

and in the employ of the medical society,

republished the contents of aforementioned

documents in committee meetings in 1976 at

which non-physicians who were not members of

the committee were present. Defendant Pryor

also republished certain libelous documents to

members of the committee for conspiratorial

purposes as alleged, The committee had no

authority to act under C.R.S. 1973, 12-43.5-

102, supra, if at all, before the effective date

of July 1, 1977, of amendment of that statute,

in spite of finding of such without argument

by the Colorado Court of Appeals. (petition for

writ of cert, 81-2139)Colo.Sess, I. . 1977, p.667.

1 7

24 s n 3

F =| 1 bo

The pending cases instituted by the

petitioner as plaintiff did not involve quality of —

medical care, admitted by defendants, That

was the only possible jurisdiction of the

committee by any rule or color of statute,in

effect or not,for the committee to examine

medical records of patients cared for by the

petitioner. Defendant members of the

committee have essentially admitted in

depositions in related cases that the primary

function of the committee was to aid Hartford

in defending lawsuits against physicians

insured in the Hartford- Medical Society

program. Subject to Title 15, U. S. C., the

combination to interfere with justice by

damage to the petitioner in his profession

for suing physicians insured in the program

and the oppression of aay physicians who

might testify adversely to such insured

physicians in this and other lawsuits is

complained of.

As a proximate result of the foregoing,

and pursuant to conspiracy as alleged and to

cause the petitioner emotional distress,

defendants wrote the petitioner a series of

abusive, threatening, intimidating, oppressive

deceitful letters appended as exhibits to the

complaint. They in effect demanded that the

petitioner grant them permission to examine

all hospital medical records of his patients.

The purported deceitful, fraudulent reason for

the demand, on its face not in the jurisdiction

of the committee, was to determine whether

records of patients seen by the petitioner three

years previously in 1974, in Brighton

Community Hospital, and particularly in the

emergency room, were sufficient for

defensive legal purposes in the hypothetical

event the petitioner were sued by any such

persons. Defendant committee members

have admitted that they had no reason to

believe such suits would occur, and that they

understood the statute of limitations for such

suits was two years. When the letters were

written in 1977, the committee knew the

petitioner was not practicing in any emergency

room, Emergency room practice was unrelated

to his insurance in 1977 and for 1978. The

interest of the committee members was

deceitfully connected with the lawsuit against

Marks and Larsen which they had discussed in

meetings. The inference is clear that the

committee members and employees and

agents of Hartford acted against the petitioner

for various purposes and motives including:

(J) they wanted to search unreasonably in a

“fishing expedition" for something they hoped

might discredit the petitioner in the trial

against Marks and Larsen (violating the 4th

Amendment); (2) they intentionally acted to

cause the petitioner severe emotional distress;

(3) they purposely acted to retaliate against

the petitioner for bringing suit against

physicians insured by Hartford in the Medical

Society program, and (4) they purposely acted

to force the petitioner to quit practicing

medicine and to leave Colorado,

The letters did not request production of

medical records, as claimed by the Colorado

Court of Appeals in garbling of facts. (81-2139)

If they could coerce the petitioner to grant per-

mission, the defendants obviously planned to

obtain the records themselves. They cited

C. R. S. 1973, 13-90-107, as amended effective

July I. 1976, that they could examine persons“

medical records without their permission.

Colo.Sess. Laws, 1976, p. 526. Patients

seen by petitioner in 1974 had no reason to

believe their contracts for privacy would be

violated. I the statute is given retroactive

effect, it is submitted that it violates Article I,

section 10 of the U.S, Constitution, The

plaintiff was given no valid medical care

reason for allowing the committee to examine

records, The defendants were attempting to

coerce the petitioner to violate the confidences

of his patients to satisfy the malicious illegal

eemotives of the defendants, Hartford then

imposed the unconcionable condition precedent

to any renewal of the petitioner's insurance

permission to Hartford for it to examine all

medical records of patients cared for by the

petitioner in breach of professional ethics, in

breach of contracts with patients, in invasions

of privacy, and in violation of principles

codified as a felony in C. R. S. 1973, 18-4- 412,

supra, (pages A-163 through 165).

The petitioner did not grant the requested

permission, The defendant

committee members then acted without notice

of hearing, without charges, and without

hearing and determined that the petitioner did

not cooperate, which term they refused to

elaborate upon in depositions in a related case.

On that basis the committee recommended

non-renewal of petitioner's professional

liability insurance for 1978. That was clearly

without jurisdiction and outside the

authority of C. R. S. 1973, 12-43. 5-102, supra.

The case also involves other acts as alleged.

Damages proximately resulted as alleged.

Discovery was ordered stayed on January

ll, 1982, after the plaintiff had attempted to

obtain order to compel defendants to comply

with discovery requests. On February 17, 1982,

the Court ordered (Pages A-58 through A-90):

(1) petitioner to post a bond of $ 48, 000,

(2) dismissal of certain allegations of complaint,

8 more definite statement,

(4) striking parts and then all of complaint,

(5) separate counts and claims as to each of

the 24 defendants, and

(6) denial of patitioner's motions to compel

discovery.

The petitioner sought relief from the

Court of Appeals for the Tenth Circuit by

petition for writ of mandamus and/or

prohibition, R was filed March ll, 1982, and

denied on March 18, 1982 by the Honorable

Robert H. M-Williams and the Honorable

William E. Doyle Motion to the District

Court to stay proceedings pending petition to

this Court for writ of certiorari to that case

was filed March 24, 1982. Motion to order

stay of proceedings pending petition to this

Court was denied by the Appeals Court on

April 20, 1982. On April 21, 1982, the case

was dismissed,

Federal issues presented herein have

been presented at every stage of proceedings

including in the complaint, motions for

discovery, in response to motions by

defendants, and in motion to amend or alter

judgment. The district court recognized the

existence of federal issues on February 17,

1982, in denying defendants’ motions to stay

proceedings pending cases in state courts,

(A-67). No other federal issues were ruled

upon by the Court,

REASONS FOR GRANTING THE WRIT

A. The Order of Cost Bond and Dismissal

of this Case because of noncompliance was a

gross abuse of discretion, in excess of

jurisdiction, and a gross violation of

fundamental Constitutional and Natural

Common Law Rights.

It is submitted that citizens of this nation

subscribed to a Declaration of Independence

complaining of deprivation of benefits of trial

by jury and tenure of judges subject only to

the will of the sovereign. I is further

submitted that prior to adopting the U.S,

Constitution the people required that the

common law right to trial by jury for damages

be guaranteed in writing in the Bill of Rights.

The right of trial by jury for redress of

injuries was secured in the Magna Carta in

1215 as a natural common law right of

Englishmen, It guaranteed that such use of

the courts was to be "freely without sale,

fully without any denial, and speedily without

delay. BLACKSTONE: Commentaries on

the Laws of England, Vol. I, p. I4l. This

Supreme Court has held that the right to trial

for damages is a property not subject to

deprivation by any legislature. Angle v.

Chicago, St. Paul, Minneaplis & Omaha Ry.

Co., 151 U.S, 1, 38 L. Ed. 55 (1893). Being a

property, it is subject to the 5th Amendment as

well as to the 7th Amendment.

Right to trial could not be denied by kings;

and millions have died believing that was a

principle for which they were fighting. But

three appointed judges with lifetime tenure have

denied that right to the petitioner. Those judges

deem it within judicial discretion to require a

bond of any arbitrary prohibitive amount of any

party as a condition to use the courts as a

forum. That is an arbitrary power to close the

courts to any party at any time in the choosing

of the judge. It is submitted that this is in

gross violation of the Constitution, 13 U. S. C.

§ 241, 42 U.S.C. 88 1983, 1985, and 1986, supra.

Such manifest bias and prejudice can only be due

to the petitioner's minority religious affiliation

which defendant Mott injected in a related trial.

The Court acted under color of C. R. 8.

1973, 13-16-102, supra. The r of the

statute and its purpose is clearly related to

the interest of Colorado in securing costs in its

courts incurred by non-residents of the state.

It relates to usual costs allowed such as

docket fees and jury fees. Costs incurred in

Federal Courts are not within the jurisdiction

or interest of the Colorado Legislature.

The statute is in obvious violation of Art. IV,

sec. 2 of the U.S, Constitution but that need

not be addressed in this decision. The

statute plainly does not apply to actions in

federal courts, Further, the statute does not

include bond for discovery costs as the Court

here demands, and for fees of defendants’

attorneys in any instance, The power to

legislate costs, fees, and security of such in

federal courts for federal claim actions and

for diversity actions is in Congress. Art. III.

sec 2, U. 8. Constit.

The instant case involves common law claims

which encompass claims under federal statutes

and involves Citizens of different states, Had

Congress intended cost bond to be required of

a plaintiff for federal actions, and/or

diversity actions in federal courts it would

have so legislated.

The order of the District Court does not

follow a prior decision of the same court which

held that the state statutes relied upon here do

not apply to actions in federal courts,

National Distillers Prods, Corp. v. Hindech,

10 FRD 229 (D,Colo., 1950).

Requirement of a bond of the plaintiff for

purposes of defendants in the amount of $48, 000

is inconsistent with the rules of procedure,

in 2 with the intent of Congress, and is

substantive and not a matter of procedure.

Rule | provides for inexpensive determination

of actions. The rules further provide for

expected predictable fees charged uniformily

to all litigants regardless of state of residence,

The requirement of a prohibitive bon” in this

instant case is in conflict with the intent of

Congress to encourage private antitrust actions

by awarding triple damages and attorney fees

to the winning plaintiff. No allowance is

made for discovery and attorney fees of

defendants. This Supreme Court determined

that requirement of a bond is substantive and

not procedural. Cohen v. Beneficial Industrial

Loan Corp., supra. In that case it was held

that the State could close its courts conditioned

upon a reasonable bond for statutory derivative

stockholder actions, That statute apparently

related to costs incurred by the corporation

defending against its own stockholders, The

State statute involved here concerns costs of

use of state courts, not expenses of persons

and corporations defending common law claims

and federal claims in federal courts.

No Cause Shown or Found

In the absence of extra-ordinary

circumstances motions for cost bonds have

been denied, Newell v. O. A. Newton & Son Co.

95 F.Supp. 355 (Dela., 1950), The defendants

made no showing and the Court made no

finding that this petitioner presented such

extra-ordinary circumstances. The Court

found (1) the plaintiff-petitioner is a non-

resident of Colorado, (2) there are "threads"

in the pleadings that the petitioner is

unemployed, (3) the suit is complex, (4) the

numerous filings, (5) the exigent circumstances

with discovery, and (6) the demand is

nexcessive. (pages A-88 and A-89). The

petitioner is apparently penalized because of

mob of defendants, the grossness of their

conduct, the large monetary damage inflicted,

the many people they have damaged, and

their refusals to comply with requests for

discovery. Even if the Court found the

petitioner unemployed,which it did not, that is

not a finding that the petitioner is unable or

unwilling to pay for lawful debts when they

_ become due. The petitioner submits that his

unemployment and his non-residency are due

to the unlawful acts of the defendants, subject

of this action, By the Court's reasoning,

any powerful oppressive defendant that can

maliciously cause a person to become

unemployed and make his residence in

Colorado undesirable can thereby and

thereafter cause the federal courts to be

closed to the displaced person.

There is no apparent relationship between

the amount demanded and need for a cost bond

in the interest of the court. It is obviously

related to the need and desire of the

defendants to prevent the access to the courts

of the plaintiff, and particularly to prevent a

trial by jury. E is submitted that the finding

that the demand is "excessive" is in excess of

the jurisdiction of the Court, indicates a bias

and a pre-judgment, and invades the province

of the jury. The order of $48,000 bond is

a clear threat of such an award to defendants

under some color of authority. The order of

$48,600 bond under any color is illogical and

unreasonable by simple analysis, If the case

were groundless, it would have been summarily

dismissed without significant expenses being

involved, The request of $96,000 bond by

defendants was an obvious admission that their

preliminary motions to dismiss, strike, make

more definite statements, and refusals to

NA 3 =: 9.

comply with discovery were frivolous and

designed to delay, harass, and cause

unnecessary expense, It was an admission

that considerable litigat ca was expected. I

clearly indicated the desperation of the super

rich defendants for their lack of defense and

their need to close the courts to the petitioner.

A child could diagnose the situation. The

Court denied motions to dismiss for failure

to state a claim for which relief can be

granted, thereby r that the re is no

legitimate basis for considering ene t he

plaintiff-petitioner, The verified complaint

establishes a prima facie case.

Bond Amount Unreasonable and Arbitrary

No cause was shown and no cause was

found for the amount of cost bond ordered.

The defendants did not itemize costs for

which they sought a bond in the amount of

$96,000.00, The Court did not itemize

the basis for the $48,000 bond ordered. It is

clear that the amount was determined in an

unreasonable, arbitrary manner to be used in

any manner to the pleasing of the Court.

Bond for Discovery and Attorney Fees Error

The amount of cost bond ordered, and the

reasons, in association with motions to award

defendants attorney fees, indicates that it

was intended to include anticipated award of

attorney fees to defendants and their expenses

of discovery. The Colorado statute relied

upon, C. R. S. 13-16-102, supra, provides only

for usual court costs, not discovery expense

and attorneys fees. 20 C. J. S. pp. 455-460;

C.R.S. 1973, 13-17-101, supra. Even

where a district court had enacted a local rule

elidiviog cost bond, it * applied to costs

allowed under Rule 54 (d), and did not authorize

allowance of attorney fees and expenses to a

successful defendant in an antitrust case.

Adams Dairy Co. v. National Dairy Products

Corp., 293 F.Supp. l168(Mo.,1968). The

petitioner submits that there is no authority to

award defendants attorney fees or expenses of

discovery in any case in federal courts other

than pursuant to common law suit for malicious

prosecution. Ist,5th, and 7th Amendments,

U.S.Constit, Other courts have held that

attorney fees are not allowed in defense of any

federal antitrust case even if baseless, Byram

Concretanks, Inc. v. Warren Concrete

Products Co., 374 F. 2d 649 (3rd Circ, 1967);

Gillam v. A. Shyman, Inc., 205 F.Supp. 534,

(Alaska, 1962); Adams Dairy Co., supra.

B. The Court Errored and Abused Discretion

in denying petitioner's motion to strike motions

of Defendants to award them attorney fees.

As noted above, there is no legitimate

basis for considering awarding defendants

—-

attorney fees or discovery expenses in this

case. Motion for attorney fees was made under

color and pretense of C. R. S. 1973, 13-17-1101,

supra, The statute is in derrogation of common

law, is penal, and establishes a new liability for

use of courts, Ik must be strictly interpreted,

82 C. J. 8. 38 389, 393, and 394. The statute

clearly states that it applies to use of courts of

the state. The Colorado legislature has no

jurisdiction of use of federal courts. The

United States District Court is not a court of

the state of Colorado. The District Court

refused to strike defendants’ motion under color

of that statute and indicated that it would

countinue to or would again entertain motions

for attorney fees. (Page A-38 and A-42). As

long as those motions are entertained, or to

be allowed, they are a threat to this

petitioner's and to anyone else's use of

federal courts.

Consistent with the abuse in order of $48, 000

bond, the allowance of motions for attorney

fees ig a threat that the Court will also abuse

"discretion" and enter an exorbitant judgment

against this plaintiff as punishment and

retaliation tie bringing and now maintaining

this action against these defendants, Motions

and claim by any other procedure or pleading

for award of attorney fees and/or discovery

expenses by defendants must be ordered

stricken and not to be allowed by this Supreme

Court to remove such threat against this or

any other plaintiff for bringing action in any

federal court. Ist, 5th, 7th Amendments,

U.S, Constit.; 13 U.S.C. § 241; 42 U. 8. C.

88 1983, 1985, 1986.

C. Dismissal of Selected Allegations was

without authority and in excess of jurisdiction

Rule 12(b)(6), F. R. C. P., provides for

dismissal for failure to state a claim for

which relief can be granted. No rule provides

for "dismissal" of particular selected

allegations. The district court dis:nissed

paragraphs of the complaint numbered 40-53,

63-68, and 103. (Pages A-69 through A-7I).

Elimination of those allegations was

inappropriate done under any label. Those

allegations dismissed under color of Colorado

Statute of limitations for actions for libel

and slander contain far more than allegations

of libel and slander, They are essential

all egations of unlawful overt acts upon

which the claims of wrongful interference with

business and outrageous conduct are based,

Other courts have held that the facts and

circumstances constituting the cause of action

for conspiracy and particularly the acts

which constitute the gravamen of the action

must be alleged with particularity, I5A

C.J.S. pp. 669,675,681; Hoffman v. Halden

268 F. 2d 280 (9th Circ, 1959); Powell v.

Workmen's Comp. Bd. of State of New York,

327 F.2d 131 (2nd Circ, 1964), Rule 9(b),

F. R. C. P., requires all averments of fraud

to be stated with particularity. The dismissed

allegations include particulars of fraud,

deceit, and pretext alleged in paragraphs

61, 62, 69 and 91.

Bar by statute of limitation is an

affirmative defense and must be pleaded,

Rule 8(c), F. R. C. P. Statutes of limitation

have been held by other courts to not be

grounds for dismissal by motion as the

district court did here. Baker v. Sisk,

1 FRD 232 (Okla, 1938); Topping v. Fry, 147

F. 2d 715 (7th circ,1945); Bergeron v.

Mansour, 152 F. 2d 27 (Ist Circ, 1945);

Smith v. Kent Oil Co., 261 P. 2d 149 (Colo, 1953}

In dismissing claims of libel and slander

as acts in conspiracy to injure business the

Court is in conflict with established Colorado

law, prior decision of the Court of Appeals

for the Tenth Circuit, and with the generally

accepted rule. Clark v. Machette, 92 Colo

365, 21 P. 2d 182(1933); Hughes v. Reed, 46

F. 2d 435 (10th Circ, 1931); 53 C. J. S. p. 983;

12 C. J. p. 612; Rogers v. Rogers, 96 Colo

473, 44 P. 2d 909 (1935); Murto v. Lemon,

19 Colo. App. 314, 75 P. 160 (1903) Equitable

Securities v. Johnson, 36 Colo. 377, 85 P.

840 (1906).

The action is not for libel. It is an action

for interference with business and outrageous

conduct, Action for wrongful interference

with business can be based upon statements

that are true if made for the purpose of

damaging business. U.S. Aluminum Siding

Corp. v. Dun & Bradstreet, Inc., 163 F.Supp,

906 (S.D.NY, 1958); Huskie v. Griffin,

74 A. 595 (N. H., 1909).

Paragraph 103 was dismissed with the

reason,''Plaintiff has no standing to make

claims on behalf of those individuals. (A-71)

The plaintiff is obviously suing for his own

damages and in behalf of no one else. The

doctrine of standing to sue is irrelevant,

Associated Industries of New York State v.

Ikes, 134 F. 2d 694 (2nd Circ, 1943). The

allegations of paragraph 103 clearly relate to

damage to petitioner's professional practice

by intimidation and abuse of those who would

otherwise do business with him, Lohse

Patent Door Co, v. Fuelle, 114 S. W. 997

(Mo,1908), I relates to abuse and damage

to the plaintiff's witnesses and potential

witnesses and the encompassed conspiracy to

suborn perjury as a part of the larger

conspiracy to injure business. Annot. 31

49 4

‘eh eee

oer

A. L. R. 3d 1438; Newin Corp. v. Hartford

Accident and Indemnity Co., 31 N. V. 2d 21,

333 N. E. 2d 163 (1975); Robinson v. Missouri

Pacific Transp. Co., 85 F. Supp. 235 (W. D.

Ark, Hot Springs Div. , 1940); 15 C. J. 8.

p. 1027. Paragraph 103 also relates to conduct

maliciously inflicted upon the supporters of

the petitioner for the ultimate purpose of

intentionally causing the petitioner severe

emotional distress.

The dismissal of allegations was without

procedural authority and substantively denies

the petitioner of right of trial of his grievances

and of the issues of the case, 7th Amendment.

D. Striking of Parts and All of the Complaint

was without authority, in excess of jurisdiction.

Rule 12(f) , F. R. C. P., provides

the court may order stricken from any pleading

any insufficient defense or any redundant,

immaterial, impertinent, or scandalous

matter. Other courts have held that matter

stricken from the complaint must clearly fall

within those four categories. Card v. Elmer

C. Breur, Inc., 42 F.Supp. 701 (Oh, 1941);

Bowles v. Krause Milling Co., 62 F.Supp. 244

(Wis, 1945); Courteau v. Interlake S. S. Co.,

1 FRD 429 (Mich, 1940); United States use of

Deane Rowley Const. Co. v. Rowley Const. Co.,

2 FRD 6 (RI, 1940). The Court made no finding

related to the paragraphs stricken, but indicated

a reason was "insufficient." (Page A-74). The

Court threatens to strike allegations that are

"argumentative." (A-75)It is submitted that

alm ost any allegation could be found to be

argumentative. Those are not reasons usually

allowed to strike complaint allegations.

The following interpreta tions of Rule 12(f)

made by various courts are in conflict with the

acts of the Court here, Striking is a drastic

measure to be resorted to only when required

for purposes of justice, is not favored, is to

be used sparingly, and the authority is

strictly construed. Butler v. Pollard, 482

F.Supp. 847 (Okla, 1979); Fuchs Sugars &

Syrups, Inc. v. Amstar Corp., 402 F. Supp.

636 (NY,1975); Brown & Williamson Tobacco

Corp. v. U. S., 201 F. 2d 819 (6th Circ, 1953);

Augustus v. Bd. of Pub. Instruction, 306 F. 2d

862 (5th Circ, 1962); Johnson v. Am. Aviation

Corp., 64 FRD 435 N. D., 1974); Clark v.

Atlanta University, Inc., 65 FRD 414 (Ga, 1974).

Any doubt as to motion to strike should be

resolved in favor of denying the motion.

Daughtery v. Firestone Tire and Ru bber

Co., 85 FRD 693 (Ga, 1980); Schramm v.

Krischell, 84 FRD 294 (Conn, 1979). This is

particularly true in "big" cases such as

antitrust actions. Federated Dept. Stores,

Inc. v. Grinnell Corp., 287 F.Supp. 744

(NY, 1968); United States Dental Institute v.

Am, Assoc. of Orthodontists, 396 F.Supp.

S6XIil., 1975); Van Dyke Ford, Inc. v. Ford

Motor Co., 399 F.Supp. 277 (Wis, 1975);

South Side Drive In Co. v. Warner Bros.

Distributing Corp., 30 FRD 32 (Pa, 1962).

In order to strike it must be clear that the

portion stricken has both no bearing on the

subject matter of litigation and that its

inc lus ion will unduly prejudice the other

party. FRA S. p. A. v. Surg-O-Flex of

America, Inc., 415 F.Supp. 421 (NY, 1976);

Pittson-Luzerne Corp. v. U. S., 86 F.Supp.

460 (Pa, 1949). Allegations concerning

particulars of fraud should not be stricken,

Rule 9(b); Canadian Ingersoll-Rand Co. v.

D. Loveman & Sons, Inc., 227 F.Supp. 829

(Oh, 1964). Allegations of evidential facts

in cases involving complex issues, although

unnecessary under rule of brevity, are not

stricken if not prejudicial, Randolph

Laboratories, Inc. v. Specialties

Development Corp., 62 F.Supp. 897 (NJ, 1945).

Allegations providing better understanding of

a claim for relief by providing background

facts are not to be stricken. Hoffman Motors

Corp. v. Alfa Romeo S. P. A., 244 F.Supp. 70

(NY, 1965); U.S. v. Crown Zellerbach Corp.,

141 F. Supp. 118 (Ul, 1956); Fuchs Sugars &

Syrups, Inc. v. Amstar Corp., supra; U. S.

use of Deane Rowley Const, Co., supra;

Groves v. Paden City Glass Mfg. Co.,

2 FRD 300 (W. Va., 1942). Striking is not to

be used to determine disputed substantial

questions of law. Augustus v. Bd. of Pub.

Instruction, supra.

The Court ordered stricken paragraphs

55,60, and 75-79 and then the .

complaint. (pages A-75, A-77, A-7868). There

was 85 showing or finding whatsoever that

the stricken parts were within Rule 12 (f).

That the court could find that the complaint

could not be dismissed for failure to state a

claim (page A-71) and then strike the entire

complaint is on its face a gross abuse of

discretion, without authority, and in excess

of jurisdiction, Other courts have held that

striking is not to be used as here to make

_ meaningless or to dismiss all or part of a

complaint. Egan v. Pan American World

Airways, Inc., 62 FRD 710 (Fla, 1974);

Mahoney v. Bethlehem Engineering Corp.,

27 F.Supp. 865 (NY, 1939).

E. More Definite Statement was- ordered

without authority and in abuse of discretion

The motions of defendants were for

particulars and requests for details and

particularly for facts solely in their know-

ledge. Bills of particulars were abolished

by the 1946 Amendment to Rule 12 (e).

It has been found to be an abuse of

discretion to use Rule 12 (e) to order plaintiff

—

to amend his complaint which was sufficient

to withstand a motion to dismiss. Mitchell v.

E-Z Towers, Inc., 269 F. 2d 126 (5th Circ, 1959);

Similar, Sopkin v. Missouri Nat“ Life Ins. Co.,

222 F.Supp. 984 (Mo, 1963); Floe v. Plowden, 10 8

FRD 514 (8. Car. , 1950); Wishnick v. One Stop

Food & Liquor Store, Inc., 60 FRD 496

(UI. , 1973); Hodgson v. Virginia Baptist Hosp,

Inc., 482 F. 2d 821 (4th Circ, 1973).

No specific allegations were found by the

Court to be unintelligible. There is no reason

why all allegations cannot be admitted, denied,

or answered that due to lack of information

they are denied. That is all that is required

as far as Rule I2 (e) is concerned. Ehrman

v. U. S., 4 FRD 29 (NY, 1941).

F. Order to Separately State Claims and

Counts as to each defendant was arbitrary,

unreasonable, in abuse of discretion,

The petitioner was ordered to separately

state claims and counts as to each defendant,

(Pages A-78,79,80). That is inconsistent

with the basic nature of the lawsuit,

Conspiracy is alleged, and joint and several

liability for all acts is alleged. All allegations

apply to each and every defendant. As to

whether a specific act was committed by a

specific defendant, such ‘s specified in the

complaint as known by the petitioner. Each

defendant has it within his knowledge as to

whether he committed acts alleged. The

two claims for relief are already alleged in

separate counts, See Lowe v. Consolidated

Edison Co., I FRD 559,562 (N, 1940). The

order needlessly requires massive,

overwhelming paper work and would lengthen

the complaint to more than 20 times its

present length. The loss of time and expense

would be worthless to all parties, except

for its harassment value. See Nagler v.

Admiral Corp., 248 F.2d 319 (2nd Circ, 1957).

F. Order to amend the complaint was

unreasonable and in excess of jurisdiction

| The petitioner submits that the Ist and

7th Amendments guarantee him the right to

present his grievances in trial for redress of

injuries. This Court denies that right. The

Court presented inconsistent criticism of the

complaint, and ordered 3 which

excluded the petitioner's grievances.

It imposed impossible conditions as to the

complaint to maintain the lawsuit. The two

claims for relief are clearly designated

in capital letters. The essential elements

of those two claims for relief are clearly

alleged, Acts of the defendants, motives for

those acts, and damages resulting are plainly

alleged in language that is easily understandable.

No mistakes in spelling, grammar, or

diction have been cited which then might be

corrected. Anyone can state that any writing

is unintelligible. By reasonable objective

standards, there is no reason that the

complaint cannot be understood, The finding

that it is unintelligible by the judge is

subjective, and the petitioner submits that

no objective reason being apparent or found,

the finding is arbitary and unreasonable.

The Court complains of the length of the

complaint. On the other hand the Court

requires more specificity including more |

specificity of the damage to the petitioner's

„trade“ due to violations of antitrust laws.

(Pages A-73,A-74). The court in Gretener,

A. G. v. Dyson-Kissner Corp., 298 F.Supp.

350 (NY, 1969) held that allegation that a

defendant violated antitrust laws to the

detriment of the plaintiff and the public and

that such violations proximately caused

damage to the plaintiff sufficiently e

a cause of action. The petitioner's complaint

supplies the necessary details, even though

those details are not in the liking of the court.

In other gross inconsistency with Rule 8 (a),

F. R. C. P., and its criticism of the length

of the complaint, the court ordered separate

counts and claims as to each defendant, After

denial of motions directed to failure to aver

time and place, (A-78), the court ordered

ales of the complaint by requiring

the plaintiff to set forth time and place of

allegations and particularly those known

only to the defendants in the conspiracy, (A-80)

The court ordered enlargement of the

complaint in requiring details of fiduciary

duties and contracts which include particulars

already supplied defendants in memoranda

et hae ow Ba

eee Sea

N aa "

and in answers to interrogatories.

The most frustrating and impossible

requirement is the framing of a proper

complaint of the issues of this case not

subject to dismissal and yet omit basic

allegations essential to maintain actions for

conspiracy and outrageous conduct which the

Court has ordered dismissed and stricken.

G. Motions by petitioner to Compel Discovery

were denied in abuse of discretion and in

conflict with decisions of this Supreme Court

Defendants refused to answer

interrogatories, produce documents, and to

appear for depositions, The petitioner was

denied any and all discovery from most

defendants, and esseatial

discovery from all defendants. This is in

conflict with Rules I, 26, 34, 36, 37, and

Conley v. Gibson, 355 U. 8. 41, 2 L. Ed. 2d 80,

78 S. Ct. 99. Denied discovery included:

(1) identification of real parties who are

paying for litigation expenses of defendants,

(2) documents published by Hartford to

Brittain (paragraphs 40 and 45 of complaint),

(3) documents published by Pryor (paragraph

51 of complaint), (4) correspondence about

the petitioner and his insurance including

that referred to in paragraphs 64-68 copy of

which C. R. S. 12-43,5-102(3)(c) mandatorily

required defendants to furnish the petitioner.

(5) minutes of meetings of the Risk

Management Committee, (6) identification

of persons attending those meetings, (7)

information concerning all physicians whose

patients' medical records have been requested

for examination by the Risk Management

Committee and/or Hartford personnel,

(8) records of actions taken against

Doctors Hutchinson and Shidler by BCH, and

(9) assets and income of each defendant,

No findings were made by the Court

upon which denial of motions to compel

discovery was based, Since the Court

refused to grant the petitioner any discovery

requested including order for defendants to

| appear for depositions, sanctions threatened

by the Court (page A-87) for failure to

respond to discovery are obviously directed

only at the petitioner. Discovery was to have

been completed by January 15, 1982. The

Court stayed all discovery on January Il,

1982, in the face of depositions noticed

to be taken in Colorado on January 13,1982,

by the plaintiff. The order was mailed

January II, 1982, to the plaintiff in Oregon.

Closure of Court Complete

The presiding judge's orders must be

considered in entirety to understand the

purpose and impact. He ordered the

petitioner to post a prohibitive bond in the

amount of $48, 000 after determining that

the petitioner was probably unemployed.

He refused to strike motions to award the

defendants attorney fees thereby maintaining

a continuin: threat of possible award of an

exorbitant judgment against the petitioner.

He then secured the closure by adding

impossible conditions of the complaint

which included omission of essential

allegations and the grievances of the plaintiff-

petitioner. Even if the orders of cost bond

and attorneys fees threats are removed,

the court will still be closed by the abuses

of misapplications of procedural rules, The

matter cannot be considered piecemeal,

Either there is a right to trial or there isn't.

A right to trial is a right to trial of the

matters complained of and not the matters

suiting the judge.

* . 35 3 4 3 A

Order of cost bond, threat of award of

attorney fees and discovery expenses against

the plaintiff-petiticner, and impossible

procedural conditions need to be addressed in

totality to correct arbitrary closure of the

federal courts to the petitioner and others.

This petition should be considered together

with petitions #81-2007 and #81-2139 for a more

total picture of the conspiracy to close courts,

CONC LUSION

For the Riegeine reasons this petition for

a writ of certiorari should be granted,

Respectfully submitted,

Donald E. Tyler

Counsel for petitioner, pro se

1092 S. W. 2nd Aveaue

Ontario, Oregon 97914

Telephone (503)-889-5109

June 8, 1982

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.