# Petition — Shelton v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_0986%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1983 - **Citation:** 463 U.S. 1209 ## Text 7 wo 2 powat ie) e-a) cal | | ae ae 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_0986%3A1. Public record. Not legal advice.