Petition — Shelton v. United States

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CASE NO. lias icibietanctnnsad

UNITED STATES SUPREME COURT

OCTOBER 1982 TERM

JAMES SHELTON

s

PETITION #EI

V.

UNITED STATES OF AMERICA,

ESPONDENT.

ON WRIT OF CERTIORARI TO THr

UNITED STATES COURT OF APPEALS FOR

NINTH CIRCUIT

PETITION FOR CERTIORARI

FOR PETITIONER:

James Shelton

Attorney Pro Se

4735 Villiage Pl. N.&.

Seattle, Wa. 98105

206-525-6200

QUESTIONS PRESENTED POR REVIEW

MAY A FEDERAL COURT DISMISS PROPERTY

RIGHTS BASED ON UNTIMELY MOTION OR PROCESS,

SUCH AS CONTEMPLATED BY DOCTRINE OF "LAW

OF THE CASE" OR FPEDERAL RULES OF CIVIL

PROCEDURE?

PARTIES

PETITIONER: James Shelton d/b/a University

Village Music Center.

RESPONDENT: United States of America.

TAPLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW 1

PARTIES @®eeeeseeeeeee 1

TABLE OF AUTHORITIES

CASES @®eeeeeee0eee#e 3

STATUTES & AUTHORITIES. ..... 4

OFFICIAL & UNOFFICIAL -REPORTS REF. 5

GROUNDS FOR JURISDICTION wccccccc 7

STATUTES & PROVISIONS OF CASE.... -

STATaren) OF THE ChSSs cc ccccccsce 8

BRGUroee POM THE BR iwc co cccecese 14

INDEX

9th Circuit Order 5 Apr. 1983 23

9th Cir. Memo 22 Feb. 1983 24

9th Cir. Memo 3 Mar. 1978 26

9th Cir Order 5 Apr. 1979 28

District Court Order 16-2-82 29

District Court Order 22-2-82 30

District Court Order 23-2-82 31

District Court Order 25-2-82 |

Court Minutes 25 Feb. 1982 34

Court Judgment 1 Mar. 1982 35

Court Judgment 30 Mar. 1977 36

28 USC, Rule 6 FRCP 37

28 USC, Rule 56 FRCP 38

TABLE OF AUTHORITIES

CASES Page

Anderson v. rurgauy

o % @ee0eee34s+5eees# 15

Durgin v. Graham (1967)

388 Uewe 19 @eeeceeveeeesr 1%

Frey v. Frankel, (10th Cir. 1966)

an Fee ae 17,18

Fuentes v. Shevin, (1972)

e * eeeeseeewe#eeeere 2?

Halverson v. Campbell Soup Co.,

eat F.2d B10 (7th ar. 1967) 10,12

Hickman v. Taylor, (1974)

* ° eeeeeee#eeesve 15

Hulson v. Atchison. T&S.F.R.Co.,

————“289 F.0d 726 (7th Cir. 1061) 13,16

James Shelton v. U.S. Dist. Court,

Unpub. Memo #79-7001 6

James Shelton v. U.S. Customs, etc.

565 s.cd 1140 (9th cir. 1977) 6

James Shelton v. U.S.,

Unpub. Memo #/8=3695 ry

Lincoln National Life Ins.Co.v. Roosth

SUG F.ed 110, Cert. Den Sie U.S.

Giz, G> S.Ct. feo. S&S L.d.20 720

(Sth Cir. 1953) 19

Lockhart v. Hoenstine,(3rd Cir. 1969)

41T *.20 455 Cert Den 396 U.S.941, 16,17

Page

Serrano v. Priest, (1977)

Chile @e@eeeeee#eerees? 22

societe Inter. Pour Part. Indus.v.Rogers,

eDe tod e 7

78 S.Ct. 1087 11,12

U.S. V. One Classic Guitar, etc.

577 Fico 585 (1978) 5, We 1 Fete

STATUTES AND AUTHORITIES

Doctrine "Law of the Case".....1,19,20,21,22

FP.R.C.P. eeccccece +, 47,78

Restatement of Judgments 8 6..... 15

U.S. Constitution Amendment 5.... Ter

19 USC 1604 eeeeseceees 9

28 USC Rule 6 we O11, 12.75, 150 16.22

28 USC Rule 56 snoce ©, 02,13. %6, 76.20

28 USC 1254 Sevencccene 7

26 USC 1345 eoececccece 9

26 USC 1555 Seeeeeeeeee ,

4

OFFICIAL & UNOFFICIAL REPORTS REFERENCE

On 18 June 1976 Customs agency district

office issued Order regarding Petition to

District Director #76-3001-00175. This

Order was not signed by the District Dir-

ector (The hearing officer).

On 24 August 1976 Customs agency dis-

trict office issued Order purportedly in

behalf of Regional Director regarding the

appeal of customs case #76-3001-00175. The

order was not signed by either District Dir-

ector or Regional Director (Hearing Officers)

but merely initialed by someone.

On 13 September 1976 Customs Agency

district office issued order forfeiting

property of customs case #76-3001-00175.

The District Director's Signature was stamp-

ed on this order by unkown party.

United States v. One Classic Guitar,etc.

571 Feed 589 (1078 Remanded 9tn cir. )

James Shelton v. U.S. District Court, U.S.

Unpublished memorandum #70-7001

(9th Cir. 1979, refusing mandamus) 1/

1/ Prior to Petition process an action was

Tiled regarding use of real property. These

two cases did not deal with counterclaim

issues herein regarding petition process

and default thereof or-.the subject guitar

property rights. We list the cases here

for reference only.

James Shelton v. United States

unpublished memorandum #78-3695 (9thCin)

(Refile of first Case)

GROUNDS FOR JURISDICTION

On 22 February 1983 Ninth Circuit

Court filed and entered judgment which

affirmed the District Court's dismissal of

property rights and positive defenses.

On 5 April 1983 Ninth Circuit Court

filed and entered judgment which denied

rehearing and appellant's request for

publication of the decision.

28 U.S.C. 1254 confers on this Court

jurisdiction to review this judgment by

Writ of Certiorari.

STATUTES AND PROVISIONS OF THE CAS=

The Constitution, Amendment Five.

No person shall be held to answer

for a capitol, or otherwise in-

famous crime, unless on a pre-

sentment or indictment of a

Grand Jury, except in cases aris-

ing in the land or naval forces,

or in the militia, when in actual

service in the time of war or public

danger; nor shall any person be

7

Subject for the same offense to

be twice put in jeopardy of life

or limb; nor shall be compelled

in any criminal case to be a

witness against himself, nor be

deprived of life, liberty, or

property, without due process

of law; nor shall private pro-

perty be taken for public use,

without just compensation,

Federal Rules of Civil Procedure:

Rule 6, 28 USC. Entitled: TIME

(See index) :

Rule 56, 28 USC. Entitled: Summary

Judgment (See index)

STATEMENT OF THE CASE

Defendant/Petitioner, James Shelton,

Owns and operates a small family music

Store in Seattle, Washington.

A disoute arose over the price and

Guty of a guitar which had been routinely

ordered from Europe. The U.S. Customs

Petition process was defaulted when the

Petition was not answered.

Subsequently, United States filed a

complaint for forfeiture in U.S. District

court. Jurisdiction on the complaint was

28 U.S.C. 8 8 1345 & 1355 and 19 USC 1604,

Mr. Shelton countercomplained as a

positive defense that the customs petition

process was unfair and Mr. Shelton was

deliberately omitted from the hearings and

not notified of those hearings. And, that

the petition process was taken from him

when unauthorized party initialed and

rubber stamped stamped decisions in the

District and Regional Director's names.

And, that the matter was subsequently

prosecuted maliciously.

After filing case the United States

has twice tried to get the matter dismissed.

The United States applied for and was

granted summary judgment dismissing the

counterclaims and dismissing Mr. Shelton's

claim to the guitar in 1976 by Judge Sharp.

Mr. Shetton appealed and the matter

was remanded bv Ninth Circuit Court of

Appeals panel, Browning, Goodwin and

Kennedy. There was no disagreement among

panel on controlling law. United States v.

One Classic Guitar and case, etc., 571 F.2d

589.

Subsequently, after some 5 years the

matter was to come to trial in December

1981, Mr. Shelton subpoena the Plaintiff

to produce the guitar and some documents

for inspection by expert witness. Plaint-

iff did not obey the subpoena and Mr. She-

lton and the expert witness were left

waiting when plaintiff did not show up.

Subsequently, plaintiff requested

deposition of Mr. Shelton and some docu-

ments. Mr. Shelton refused pursuant to

Plaintiff's non compliance of subpoena.

Under the circumstances Mr. Shelton

relied on Halverson v. Campbell Soup Co.

(1967) 374 F.2d 810 (7th Cir.)

10

Discretionary sanctions of this

rule are inapplicable where the

objecting party has disregarded

discovery procedures provided in

the rules.

Mr. Shelton also relied in part on this

Court's ruling in: Societe Internationale

Pour Participations Industrielles v.

Rogers, 357 U.S. 197, 2 L.Ed.2d 1255,

78 S.Ct 1087

Provisions of F.R.C.P. Authorizing

federal district court to dismiss

action for noncompliance of dis-

covery must be read in light of

provisions of Fifth Amendment that

no person shall be deprived of

property without due process of

law; there are constitutional limit-

tations on power of courts, even

in aid of their own valid process,

to dismiss action without afford-

ing party opportunity for hearing

on merits of his cause,

However, plaintiff subsequently

submitted motion for sanctions for non

compliance of discovery. Plaintiff's

motion did not meet the minimum require-

ments perscribed in F.R.C.P. Rule 6. But

the district court jgismissed Mr. Shelton's

11

claim to the property dispite the untimely-

ness and the foregoing circumstances.

Subsequently, plaintiff submitted

another motion to dismiss Mr. Shelton's

counterclaims and postive defenses to the

said property. Plaintiff quoted and includ-

ed verbatum his earlier 1976 motion to dis-

miss. This motion algo did not comply

with minimum requirements of F.R.C.P. 6, 56.

district court judge Rothstein granted the

summary judgment even though it had been

previously remanded by 9th Circuit court

and even though not in conformance with

F.R.C.F. 6, 3.

Mr. Shelton, again appealed to 9th

Circuit court of Appeals. Mr. Shelton

maintained inter alia on appeal that the

district court abused its discretion in

view of Societe Internationale Pour Part-

icipations Industrielles v. Rogers, Supra

and Halverson v. Campbell Soup Co., Supra

and the untimely process of plaintiff's

12

motions including F.R.C.P. 6, 56 and the

doctrine of ‘law of the case wit regard to

plaintiff's motion for summary judgment,

reference U.S. v. One Classic Guitar &

Case, etc., 571 F.2d 589, Supra.

Plaintifff, in his brief did not even

address the foregoing issues but merely

presented an overview of the case since he

couldn't controvert the defects outlined,

by the defendant.

The 9th Circuit court panel of Wallace,

Kennedy and Eug ignored court precedent,

"law of the case" doctrine and the untimely

process worked on Mr. Shelton though the

district court. In tits regard Mr. Shelton,

in addtion to the supra cases, cited-

Hulson v. Atchison, T. & S.F.R. Co. (1961)

289 F.2d 726 (7th Cir.) to wit:

F.R.C.P. Rule 6 forbids trial judge

or appellate court from entering

judgments where motion was not made

within limitations imposed by rules.

13

Note:In his answer to complaint Mr. Shelton

countercomplained that he was prevented

from attending the Customs hearings during

the petition process: First Counterclaim .

Paragraph 4.

ARGUMENT FOR THE #RIT

The writ of certiorari should be allowed

to protect the property rights our fore-

fathers fought so hard for and to provide

continuity between the Court's circuits

and to assert the time provisions of F.R.

C.F. which afford time for opposing party

to properly respond to court matters and

the orderly flow of court process.

Mr. Shelton presented one of the best

plead civil appeals to the 9th Circuit

in recent times. Virtually every con-

ceivable point was covered and backed by

case law. The appeal included some 74

cases, beginning as far back as English

common law and ranging to modern times.

It is really a marvel to read such a well

14

eT ee

plead case. In fact the case was so well

covered that appellee never addressed the

issues in his brief and resorted to a sort

of historical overview for a brief.

It is therefore disappointing to have

the 9th Circuit opinion so far removed

from the other circuits and even from the

precedents of this Court. Noteably:

Hickman v. Taylor (1974) 392 U.S. 495, and

Fuentes v. Shevin (1972) 407 U.S. 67, and

Durgin v. Graham (1967) 388 U.S. 919.

Where any act is required to be done

it must follow F.R.C.P. 6

Anderson v. Yungkau, 329 U.S. 482

The process in the 9th circuit courts

was not timely and it is clear that the

courts, therefore, lacked jurisdiction.

The lack of any essential element

jurisdiction (power or notice) will

render the judgment unenforceable.

Restatement of Judgments 8 6.

In this regard the 9th circuit is in

conflict with not only this Court's ruling

15

but also other circuit courts as shown in

previous chapter and here:

F.R.C.P. Rule 6 forbids trial judge

or appellate court from entering

judgments where motion was not made

within limitations imposed by rules.

7 & Se Pele CO.-

Hulson v. Atchison

260 *.cc foo (7th Cir. T9671)

Plaintiff's motion for summary judgment

to dismiss the counterclaims and positive

defense to property rights strays even

further from case law and court precedent.

Not only was the motion not in accordance

with F.R.C.P. Rule 6 but also failed to

meet the larger requirements of F.R.C.P.

56 for summary judgment.

The trial court has a duty to see

that parties have been given reasonable

opportunity to make their record

complete or explain their inability

to do so before ruling on motion

for summary judgment.

Lockhart v. Hoenstine (1969)

, 2s er. n. 396 U.S. 941

(3rd Cir. 1969)

Again other circuits require compliance

with the rules and big government should

16

——————

not be allowed to run roughshod over a

gmall family business in this manner. It

would seem the courts would timper judg»

ments to prevent this kind of thing.

On motion for summary judgment

in federal district court, it is

no part of court's function to

dectde issues of fact but solely

to determine whether there is an

issue of fact to be tried.

Lockhart v. Hoengtine(3rd Cir. 1969)

411 F.2d 455 Cer.ben. 396 U.S. 941

The court record clearly shows that

an expert document examiner certified the

petition decisions as being fraudulent, 60

that a triable issue does exist on the

counterclaims.

In considering motion, appellate

court is required to examine record

in light most favorable to party

opposing motion.

Frey v. Prankel, (10th Cir. 1966)

361 F.od 437

The 9th Circuit court in dismissing

this counterclaim decided a point of fact.

This is improper use of summary judgment

17

process in every other circuit. There was

certified evidence in the record demonstrat-

ing fraudulent action on the petition so

that there is a triable issue of fact in

this regard.

Requirements for granting of motion

for summary judgment are to be strictly

applied to insure that genuine factual

issues will not be determined without

benefit of trial. F.R.C.P. rule 56,

28 USCA.

1966)

Frey v. Frankel (10th Cir.

351 F.0d 437

Moreover, this motion had already been

heard and remanded by 9th Circuit, U.S. Vv.

One Classic Guitar, etc. 571 F.2d 589, and

plaintiff even eited his earlier motion

verbatum and presented no new theory or

affidavit so that his motion was identical

to the first one already review by 9th cir-

cuit court. 1/

4/Al though Diaintiz? cited 2 cases which

were not in his earlier appeal brief, these

precedent and they were oider cases that

could have and should have been included

in his chapter on that subject in his

first brief on this motion.

18

This is clearly against the doctrine

of "law of the case", The doctrine of

law of the case is adhered to in other

circuits. The doctrine is paramont in

preventing party from seeking a more

sympathetic panel as was done in this case.

CONCISE RULE OF LAW: The doctrine

of "law of the case" requires that

a decision on any: question identical

to one previously litigated in a

particular court, once made, will

not be reexamined and redecided in

that court merely because of a

change in the composition of that

court where: (1) there is no dis-

agreement among the judges on the

controlling legal principals and

(2) the underlying records of the

two cases are substantially identical.

Lincoln National Life Ins. Co. v. Roosth

Fs » Cert Den ode Jie,

BS Ss. Ct. 726, 9 bi Besee fee

(Sth Cir. 1963)

As shown in Statement of The Case

section herein, the judges were not the

sane in hearing the two motions and each

ruled differently. The earlier panel

Renanded without costs, while the latter

panel Dismissed and awarded costs. Two

completely opposite points of view on the

same issue i.e. Mr. Sheltor's Counterclaims.

19

The foregoing clearly establishes the

untimely and unjust nature of the process

worked through the 9th circuit courts by

plaintiff and points out that this is not

condoned in other circuits.

The theory behind doctrine of "law of

the case" is that justice requires a certain

stability in the law --a sort of permanence

and sureness in decision which transcends

variations in a courts actions resulting

from a change in personal composition, etc.

Mr. Shelton felt if the 9th circuit

was going to set new precedents of law

then the matter ought to be published.

However, 9th circuit has denied request for

publication, which leaves us all in the

dark as to what the 9th circuits tntentions

are? From the foregoing it appears the

9th circuit wants to break precedent only

on the instant case, which of course

would be unfair and unheard of.

20

The “law of the case" requirement be-

comes even more important in modern court

systems where the likelihood that any one

case will get exactly the same appellate

panel each time is not as gre*t as in earlier

times. Here, the absence of any disagree-

ment on controlling law and the identity

of the two records makes application of the

"law of the case" doctrine essential to

justice. To permit a reversal here be-

cause by ‘pure chance" the party happened

to get a more sympathetic appellate panel,

leads to unacceptable uncertainty in the

judicial system.

Note that this doctrine is a limite

ation upon the power of a court to recon-

sider its prior decisions, like res judi-

cata, but also it is a policy consideration

going to questions of judicial administra-

tion. With the crowded dockets of present

day courts this doctrine is also essential

to preserve the courts calendar.

21

Stability and certainty, of course,

are the underlying considerations of the

doctrine. These considerations in turn

go to questions of judicial efficiency and

public confidence in the judicial system.

Note, finally, that the Court of

Appeals here is a court of last resort for

most civil cases. As such, there is need

for its judgments to carry finality, making

flexibility of the doctrine here not

acceptable.

Of course, even assuming (arguendo),

the application of this doctrine were dis-

eretionary, not mandatory, but nothing

about this case warrants the rejection of

the doctrine and overruling of the prior

decision.

The public has a right to the provi-

sions of F.R.C.P. 6, 56 and doctrine of

"law of the case" and attorney fees should

be awarded for vindication of that right.

Serrano v. Priest, (1977) 20 Cal.3d 25.

22

Petitioner previously presented this

case law to 9th circuit court to no avai).

The long and the short of it is, plaintiff

sat on his hands and did nothing for 5

years and then a few weeks prior to trial

put on a series of rapid fire motions on

shortened times designed to prevent Mr.

Shelton, who is inexperienced at law,

from formulating adiquate defenses.

Plaintiff, thereby, unjustly and without

merit acquired Mr. Shelton's property.

Dated this 22 April 1983,

Respectfully Submitted,

-

fe i

a

se

James Shelton

Attorney Pro Se

4733 Village Pl.N.&.

S€attle, wa. 98105

206-525-6200

22a

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff/Appellee,

NO. 82-3124

vs

One Classical GUITAR and CASE,

and JAMES SHELTON,

ORDER

y Defendants/Appellants.

Appeal from the United States District

Court for the Weatern District of

Nashington

Before: Wallace, and Hug, Circuit Judges.

The pertition for rehearing is DENIED.

Also, appellant's request for publication is

DENIED.

Fétitioner’s Nove:

Filed on 5 April 1983.

23

DO NOT PUBLISH

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff/Appellee, NO. 82-3124

ONE CLASSICAL GUITAR and casE,) MEMORANDUM

and JAMES SHELTON,

Defendants/Appellants.

Submitted - November 24, 1982

Decided - February 22, 1983

Appeal from the United States District

Court for the Western District of Wash.

Honorable Barbara J. Rothstein,

United States District Judge, Presiding

Before: Wallace, Kennedy, and Hug, Circuit

Judges. *

Appellant's counterclaims were properly

dismissed. There was no demonstration that

the Government either deliberately prevented

appellant from attending hearings or did not

correctly follow the appropriate procedures

in all respects. Thus no triable issues of

¥The panel is unaminously of the opinion that

oral argument is not required in this case.

Fed.R. App. P. 24(a).

24

fact underlay the first counterclaim.

The second counterclaim, for malicious

prosecttion, has been concluded by earlier

judgments. See Shelton v. United States

Customs Service, 565 F.2d 1140 (9th Cir. 1977)

Shelton v. United States, No. 78-3695 (9th Cir.

July 21, 1980)(memorandum decision).

The third counterclaim is equally without

merit. The actions taken by the Customs Service

do not amount to a due process violation be-

cause the Government acted expeditiously in

processing the claim and in filing its complaint.

There was no entitlement to a preseizure hear-

ing. United States v, Two Hundred Ninty-Fivg

Ivory Carvings, 689 F.2d 850, 857 (9th Cir.1982).

The district court also correctly dis-

missed the property claims as a sanction for

failure to cooperate in discovery efforts. See

GK, Properties v. Redevelopment Agency, 577

F.2d 645, 647 (9th Cir. 1978).

The other issues on appeal are without

merit, being either repetitious or clearly

frivolous. The judgment of the district court

25

in all respects is affirmed.

Costs will be awarded to the Government

upon its filing of a timely bill.

Petitioner's Note:

This Memorandum was filed on 22 Feb. 1983,

There is gross disparity between this

memorandum and the case record. As example:

1. Memorandum states = Shelton was not pre-

vented from attending hearings. (Record shows

there was no notice of hearings even when

Shelton specifically requested notice and that

hearing decisions were not properly signed and

issued pursuant to 19 CFR et seq.)

2. Memorandum states no triable issue exists,

(Record contains expert witness certification

that the decision documents were fraudulent).

3. Memorandum upholds district court in all

respects (Record shows the plaintiff's motions

in district court did not even meet the mimimum

5 day mailing times and holidays contained in

FRCP 6).

4. The counterclaims dismissal had previously

been dealt with and remanded by 9th Cir. (

States v. One Classic Guitar etc. 571 F.2d 589

and therefore, this second review is prohibited

by doctrine of "Law of the case",

25a

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

dud MEMORAN DUM

ONE CLASSICAL GUITAR AND CASE

and JAMES SHELTON, dba UNIVERSITY

VILLAGE MUSIC CENTER,

Defendant/Appellants.

Appeal from United States District Court

for the Western District of Washington

BEFORE: Browning, Goodwin and Kennedy, Circuit

Judges.

This is an appeal from a forfeiture pro-

ceeding commenced in the district court pur-

Suant to 19 U.S.C. 3 1608. The United States

brought the proceeding against appellant Shelton

and an imported guitar and case. For the reasons

which follow, we believe that the government's

motion for summary judgment was imppoperly

granted by the district court, and we therefore

reverse and remand for further proceedings.

The government contends that the guitar

in question has a value of between $600 and

$800 in Spain and approximately $2,000 in the

United States, substantially in excess of the

26

$265 value orally declared by appellant in

previous proceedings before the Customs

Department. The government's case is based

in large part on an entry in the appellant's

books for $734, which apparently relates to a

cashier's check made out to the Spanish ex-

porter. Shelton contends that this money was

sent to the exporter for the purchase of two

guitars, not just one, and that after his

troubles with Customs began he wrote to the

seller asking him to hold the second guitar

until the dispute about the first one had been

settled.

The moving party for summary judgment has

the burden of showing the absence of any

genuine issue of material fact. Adickes v.

S.H. Kress & Co., 398 U.S. 144, 157 (1970);

Arney v. United States, 479 F.2d 653, 659-60

(9th Cir. 1973). This is true whether of not

the moving party would at trial have the

burden of proof on the substantive issue con-

serned. 6 Moore's Federal Practice 56.15(3),

at 56-480, 56.17(26) (2d ed. 1976).

a7

™Tn this case, it appears there are genuine

issues of material fact which should not be >

resolved on a motion for summary judgment.

Shelton is proceeding in propria persona and

although his briefs are not as lucid as might

be desired, they adequately raise the issue of

whether summary judgment was improvidently

granted. Appellant has made a sufficient

showing to raise a genuine issue as to the

guitar's value and the price paid for it.

Summary judgment is inappropriate. Our holding

renders it unnecessary to consider the other

issues raised2en.appeal. de intimate no

opinion as to the merits of appellant's case,

or the proper outcome upon a trial below.

The judgment is reversed, and the cause

is remanded to the district court for further

proceedings.

Petitioner’s Note:

Memorandum was filed March 3, 1978.

Memorandum held that triable issues

should not be resolved on a motion for summary

judgment.

27a

UNITED STATES COURT OF APPEALS

FOR NINTH CIRCUIT

JAMES SHELTON, NO. 79-7091

Petitioner,

D.C.NO. 76-731

vs

UNITED STATES DISTRICT COURT

FOR NESTERN DISTRICT OF ORDER

NASHINGTON,

Respondent,

and

UNITED STATES O*¥ AMERICA,

Real Party in Interest.

Before: Goodwin and Sneed, Circuit Judges.

Upon due consideration, the petition for

mandamus is denied.

Petitioner's Note:

Filed on April 5, 1979

Involved discovery refusal by United States.

28

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

UNITED STATES OF AMERICA,

Plaintiff, NO. C76<-731R

vs

MOTION TO

ONE CLASSICAL GUITAR AND CASE, SHORTEN

Defendants. TIME

and

JAMES SHELTON, d/b/a UNIVERSITY

VILLAGE MUSIC CENTER,

Claimant. )

COMES NOW the plaintiff, by Robert M.

Taylor, assistant United States Attorney, and

moves the Court to shorten the time for hear-

ing on plaintiff's motion for sanctions to

February 19, 1982. This motion to shorten

time is necessary because trial in this matter

is set for March 1, 1982.

DATED this(10th) day of (February), 1982.

Gene S. Anderson

United States Attorney

(Signed)

Robert M. Taylor

Assistant U.S. Attorney

29

IT IS SO ORDERED.

Dated this (16th) day of_(February), 1982.

MOTION TO SHORTEN TIME

( Sisned)

nite ates stric udge

Petitioners Note:

Motion lodged February 10, 1982.

Order filed 16 February 1982.

Allowing for holidays, weekends and 3 day

mailing under FRCP 6, defendant could not

reasonablely be expected to recieve this motion

until February 18, 1982. This is 2 days after

the order was signed.

29a

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

UNITED STATES OF AMERICA,

Plaintiff, NO. C76-731R

vs

ONE CLASSIC GUITAR AND CASE, ORDER

Defendants,

and

JAMES SHELTON, d/b/a UNIVERSITY

VILLAGE MUSIC CENTER,

Claimant.

This matter having come to the Court's

attention on the plaintiff's Motion to Shorten

Time for Hearing pursuant to CR 6(d), Rules

for the United States District Court for the

Western District of Washington, and the Court

being fully advised in this matter, it is

therefore,

ORDERED that the date of February 25, 1982

is hereby set for hearing.

Dated this (22nd) day of February, 1982.

(Signed) _

United States District Judge

30

Presented by:

(Signed for)

Robert M. Taylor

Assistant U.S. Attorney

Petitioner's Note:

Motion:

Lodged on 18 February 1982.

Mailed on 18 February 1982,

Order:

Signed on 22 February 1982.

Filed on 22 February 1982.

Order set summary judgment hearing for

25 February 1982.

Allowing for holidays, weekends and 3 day

mailing under FRCP 6, defendant cculd not

reasonablely be expected to recieve this motion

until 25 February 1982. This is 3 days after

this order was signed and actually the day set

for hearing summary judgment motion. FRCP 56

actually controls summary judgment. times.

30a

UNITED STATES DISTRICT COURT

NESTERN DISTRICT OF WASHINGTON

UNITED STATES OF AMERICA,

Plaintiff, NO. C76-73%

ORDER GRANTING

PLAINTIFF'S

ONE CLASSIC GUITAR AND CASE, MOTION TO

IMPOSE SANCTIONS

vs

Defendants,

and

JAMES SHLTON, d/b/a UNIVERSITY

VILLAGE MUSIC CENTER,

Claimants. )

THIS MATTER comes before the court on

plaintiff's motion to impose sanctions under

Fed.R.Civ.P.37. Having considered the motion,

memoranda of counsel and the record herein,

the court finds and rules as follows:

Claimant, James Shelton, was served by the

United States with proper notice of his de-

position scheduled January 22, 1982. Mr.

Shelton failed to appear. He was immediately

contacted and offered an opportunity to appear

but refused and stated that he did not wish to

be deposed. He has since submitted a "Reply

to Notice of Deposition” stating that he does

31

not believe he should be required to appear

and produce documents.

Mr. Shelton's refusal to appear is un-

warranted and wilful. He has not sought a

protective order. His behavior justifies

dismissal of his claim. G.K. Properties v.

Redevelopment Agency, 577 F.2d 645, 647

(9th Cir. 1978).

It is hereby ORDERED that Mr. Shelton's

claim be DISMISSED and that this case proceed

to forfeiture. This dismissal is conditional;

if Mr. Shelton arranges to be deposed by the

United States on or before March 1, 1982, the

dismissal will be vacated and trial will begin

on Wednesday, March 3, 1982.

The clerk of the court is directed to

send uncertified copies of this order to all

counsel of record.

DATED at Seattle, washington this(23rd) day of

February, 1982.

(signed)

Barbara J. Rothstein

United States District Judge

Petitioner's Note:

32

Filed on 23 March 1982.

Allowing for holidays, weekends and 3 day

mailing under FRCP 6, the earliest defendant

could reasonablely be expected to receive this

order is March 1, 1982. Thts is the day the

court's ultimatum expired.

This order makes no allowance for plain-

tiff's non-compliance with discovery subpoena.

UNITED STATES DISTRICT COURT

NESTERN DISTRICT OF WASHINGTON

AT SEATTLE

UNITED STATES OF AMERICA,

siceesieein NO. C76-731R

vs

SUPPLEMENTAL

ONE CLASSIC GUITAR AND CASE, )ORDER RE:

PLAINTIFF'S

Defendant, MOTION TO IMPOSE

SANCTIONS

JAMES SHELTON,

Claimant. )

THE COURT hereby supplements its order of

February 24, 1982 to require the defendant, in

order to avoid dismissal of his claim, not

only to arrange to be deposed but to produce

documents as specifted in plaintiff's notice

of deposition. In all other respects the

court's order of February 24, 1982 remains in

effect.

IT IS SO ORDERED.

The clerk of the court is directed to send

uncertified copies of this order to counsel of

record,

DATED at Seattle, Washington this (24th)

day of February, 1982.

(Signed)

arbara J. Rothstein

United States District Judge

Petitioner's Note:

Order filed on 25 February 1982,

Allowing for holidays, weekends and 3 day

mailing pursuant to FRCP 6, the earliest the

defendant could be expected to receive this

order is 2 March 1982. This is one day after

the court's ultimatum expteres.

33a

UNITED STATES DISTRICT COURT

NSSTERN DISTRICT OF WASHINGTON

PRESENT: THE HONORABLE BARBARA J. ROTHSTEIN

UNITED STATES DISTRICT JUDGE

C. R. KRIMZEY

Court Clerk

Date: February 25, 1982

MINUTES - CIVIL

Case No. C76=-731R

Title: United States of America v. One Classic

Guitar, etc.

Attorney for plaintiff: Attorney for Defendant:

None- present None Present

Proceedings: In Chambers:

The court orders that the plaintiff's motion

for summary judgment reaffirming Judge Sharp's

order dismissing defendant-claimant's counter-

claims GRANTED.

ec: Robert Taylor, AUSA

James Shelton

Petitioner's Note:

Filed 25 February 1982

- The summary judgment motion was filed and

mailed on 18 February 1982. Allowing for week-

ends, holidays and 3 days mailing pursuant FRCP

6, defendant only had 3 days to respond. Ref-

erence FRCP 56.

34

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

UNITED STATES OF AMERICA

Civil Action

VS No. C76<-731R

ONE CLASSIC GUITAR

JAMES SHELTON d/b/a JUDGMENT

University Village Music Center

This action came on for trial (hearing) before

the Court, Honorable Barbara J. Rothstein

United States District Judge, presiding, and

the issues having been duly tried (neard) and

a decision having been duly rendered,

It is Ordered and Adjudged that the Court

grants plaintiff's motion for summary judgment

reaffirming Judge Sharp's order dismissing

defendant-claimant's counterclaims.

Dated at Seattle, washington, this 1st day of

(signed)

Deputy erk oO ourt

Petitioner's Note:

March, 1982.

Filed on 1 March 1982.

United States District Court

Western District of Washington

at Seattle

UNITED STATES OF AMERICA, Civil Aetion

Plaintiff, No. C76<-731S

vs

ONE CLASSIC GUITAR AND CASE,

JUDGMENT

and Defendants

JAMES SHELTON, d/b/a Universit

Village Music Center ancetas’.

Claimant.

This action came on for consideration before

the Court, Honorable Morell E. Sharp United

States District Judge, presiding, and the

issues having been duly considered and a

decision having been duly rendered,

It is Ordered and Adjudged that plaintiff's

motion for summary judgment with regard to the

Complaint for Forfeiture is GRANTED and judg-

ment of forfeiture and judgment denying

claimant's counterclaims is hereby entered.

Dated at Seattle, Washington, this 30th day of

March, 1977.

(signed)

Depu erk of Court

Petitioner's Note: Tied 30 March 1977

36

RULES OF CIVIL PROCEDURE

Rule 6 TIME

(a) Computation. In computing any period of

time prescribed or allowed by these rules,

by the tocal rules of any district court, by

order of the court, or by any applicable

statute, the day of the act, event, or default

from which the designated period of tttme

begins to run shall not be included. The last

day of the period so computed shall be includ-

ed, unless it is a Saturday, a Sunday, ora

legal holiday, in which event the period runs

until the end of the next day which is not a

Saturday, a Sunday, or a legal holiday. ‘When

the pericd of time prescribed or allowed is

less than 7 days, intermediate Saturdays,

Sundays, and legal holidays shall be excluded

in the computation. As used in this rule and

in Rule 77(c), "legal holiday" includes New

Year's Day, Washington's Birthday, Memorial

Day, Independence Day, Labor Day, Columbus

Day, Veteran's Day, Thanksgiving Day, Christ-

mas Day, and any other day appointed as a

37

holiday by the President or the Congress of

the United States, or by the state in which

the district court is held.

(>) Enlargement. ‘when by these rules or by a

notice given thereunder or by order of court

an act is required or allowed to be done at

or within a specified time, the court for

cause shown may at any time in its discretion

(1) with or without motion or notice order the

period enlarged if request therefor is made

before the espiration of the period originally

prescribed or as extended by a previous order,

or (2) upon motion made after the expiration

of the specified period permit the act to be

done where the failure to act was the result

of excusable neglect; but it may not extend

the time for taking any action under Rules

50(b),52(b), 59(b), (d) and (e), and 60(d),

except to the extent and under tne conditions

stated in them.

(c) Rescinded. Feb.28, 1966, eff. July 1,1966.

(d) For Motions - Affidavits. A written

motion, other than one which may be heard ex

37a

parte, and notice of the hearing thereof

shall be served not later than 5 days before

the time specified for the hearing, unless a

different period is fixed by these rules or

by order of the court. Such an order may

for cause shown be made on ex parte applicas:

tion. When a motion is supported by affidavit,

the affidavit shall be served with the motion;

and, except as otherwise provided in Rule 59

(c), opposing affidavits may be served not

later than 1 day before the hearing, unless

the court permits them to be served at some

other time.

(e) Additional Time After Service by Mail.

Whenever a party has the Bight or is required

to do some act or take some proceedings within

a prescribed period after the service of a

notice or other paper upon him and the notice

or paper is served upon hom by mail, 35 days

shall be added to the prescribed period.

37b

ash gt JUDGMENT

Rule 56

Summary Judgment

(a) For Claimant. A party seeking to recover

upon a claim, counterclaim, or cross-claim

or to obtain a declaratory judgment may, at

any time after the expiration of 20 days from

the commencement of the action or after service

of a motion for summary judgment by the ad-

verse party, move with or without supporting

affidavits for a summary judgment in his favor

upon all or any part thereof.

(>) For Defending Party. A party against

whom a claim, counterclaim, or cross-claim is

asserted or a declaratory judgment is sought

may, at any time, move with or without support-

ing affidavits for a summary judgment in his

favor as to all or any part thereof.

(c) Motion and Proceedings Thereon. fhe mation

Shall be served at least 10 days before the

time fixed for the hearing. The adverse party

prior to the day of hearing may serve opposing

affidavits. The judgment sought shall be

38

rendered forthwith if the pleadings, depos-t.

sitions, answers th interrogatories, and ad-

missions on file, together with the affidavits,

if any, show that there is no genuine issue as

to any material fact and that the moving party

is entitled to a judgment as a matter of law.

A summary judgment, interlocutory in character,

may be rendered on the issue of liability

alone although there is a genuine issue as to

the amount of damages.

(d) Case Not Fully Adjudicated on Motion.

If on motion under thts rule judgment is not

rendered upon the whole case or for all the

relief asked and a trial is necessaru, the

court at the hearing of the motion, by examin-

ing the pleadings and the evidence before it

and by interrogating counsel, shall if pract-

icable ascertaim what material facts exist

without substantial controversy and what

material facts are actually and in good faith

controverted. It shall thereupon make an

order specifying the facts that appear without

substantial controversy, including the extent

38a

to which the amount of danafes or other

relief is not in controversy, and directing

such further proceedings in the action as are

jast. Upon the trial of the action the facts

so specified shall be deemed established, and

the trial shall be conducted accordingly.

(e) Form of Affidavits; Further Testimony;

Defense Required. Supporting and opposing

affidavirs shall be made on personal knowledge,

shall set forth such facts as would be ad-

missable in evidence, and shall show affirm-

atively that the affiant is competent to test-

ify to the matters stated therein, Sworn or

certified copeis of all papers or parts there-

of referred to in an affidavet shall be attach-

ed thereto or served therewith. The court may

permit affidavits to be supplemented or oppos-

ed by depositions, answers to interrogatories,

or further affidavits. when a motion of sum-

mary judgment is made and supported as pro-

vided in this rule, an adverse party may not

rest upon the mere allegations or denials of

his pleading, but his response, by affidavits

38b

or as otherwise provided in the rule, must

set forth specific facts showing that there

is a genuine issue for trial. If he does

not so respond, summary judgment, if appro-

priate, shall be entered against him.

(f) When Affidavits are Unavailable. Should

it appear from the affidavits of a party

opposing the motion that he cannot for reasons

stated present by affidavit facts essential to

justify’ his opposition, the court may refuse

the application for judgment or may order a

continuamce to permit affidavirs to be obtain-

ed or depositions to be taken or discovery to

be had or may make such other order as is just.

(g) Affidavits Made in Bad Faith. Should it

appear to the satisfaction of the court at

any time that any of the affidavits presented

pursuant to thés rule are presented in bad

faith or solely for the purpose of delau,

the court shall forthwith order the party

employing them to pay to the other party the

amount of the reasonable expenses which the

filing of the affidavits caused him to incur

38e

including reasonable attorney's fees, and

any offending party or attorney may be ad-

judged guilty of contempt.