# Petition — Ostric v. Corporation of St. Mary's College > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_0314%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1983 - **Citation:** 464 U.S. 936 ## Text oe sig | Pees eee oe -~—we . i meas t 3 | ; : a ‘ i Si oie a oe A AToer aA =o reer -* bes ot ve le) be ~ - = “ ~—-! ~+— ee et et Sw wee ~- ~—+ ~ sie ee sn +9 -7-vy As trRmt raat mrmRee ~ . . ‘ 7 ‘PAS et Sei) wees’ o ee ee ae ~ Som oem Shem ee ae) T= ~ _ 7- Sane me § ¥v °C 'e yl @ wD mm © IMfeei nw © So doo ST Arr “I DFM AD fFromennds - f ‘ 4 ws? 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B. Whether this Court of Appeals gross- ly misapprenended and/or mispresented the facts relevant to the issues pre- sented for review, based its decisions on such misapprehension cf the facts, and failed to adhere to proper procedure in reaching a decision in dealing with the fundamental issues that follow. ii pe o Le “” 4 fe) 3 i 1. Whether the Petition plaint gave the Defendants (Respon- dents) “fair notige of what... /nis/ claim is and the grounds upon which it rests .. ."3* 2. Whether there existed (a) a continuing and civil conspiracy a- gainst the Petitioner under 42 U.S.C. 88 1983, 1985, and 1986 (>) engaged in by all Defendants and (c) the Petitioner's other closely inter- related claims stemming from the same conspiracy; 3. Whether the Defendants’ (Res- pondants') Motions to Dismiss are valid and, assuming as the Court bde- low held, that they are, whether the Trial Court resolved all matter of doubt in favor of the Plaintiff (Petitioner); * Conley v. Gibson, .78 S.Ct. at 103, 355 U.S. at 48 - cited by Wright, Charles Alan - ' oo a a (Third 197 9% D. 323. iii is . . . (Petitioner) in ; Washingzon v. Unitec States, 357 U.S 348 - cited by Stermm and Gressman, id Pe 299. - the latter, or were they involved in * systematic distortion of the truth and obstruction of justice = through the Trial Court's action and the Court of Appeals' sanction - 1. in granting Defendants' Motions to Dismiss; 2. In not entering default judg- ment scught by the Petitioner against Defencants; 3. In ordering that the Petitioner file an amended ccemplaint; 4, In denying the Petitidier's "Motion for Determination of the aintiff's Entire Case... ."3 5. In failing to rule upon the Petitioner's "Motion for Reversal or Amendment of the Court's Order of 6. In considering the Defendants’ "Motion for Judgment on the Pleadings for Failure to State a Claim Upon Which Relief Can Be Made” as a bona fide motion and granting it; vi 7. In entering, on December 7, 1981, a final order of dismissal court's order"; and January 6, 1982 the Petitioner's List of other parties to this case besides those included in the caption on the cover is as follows: the Congregation of the Holy Cross, Notre Came; William A. Hickey, Vice- President and Dean of Faculty of St. Mary's College, Notre Dame; Rita Mary Cassidy, Pro- fessor of this college; Donald M. Hornine, Professor of this college; John M. Duggan, President of this college; Jason D. Lindower, Controller of this college;. Michael R. McKee, Professor of this college; Sr. Rose Bernard Tarleton, Professor of this college; Thornburg, McGill, Deahl, Harman, Carey and Murray, legal firm; Frederick F. Thornburg, associate of this legal firm; Thomas C. Murray, associate of this legal firm; Indiana Civil Rights Commission (nereinafter ICRC); Mary W. Shafer, Commission- er of the ICRC; J.L. Maymnard,Director of the ICRC; John C. Carvey, Chairperson of the ICRC; Theodore L. Sendak, Attorney General of In- Giana; and Jabm W. Montgomery, Judge of t. Joseph Circuit Court cf South end, Indiana. TASLE OF CONTENTS QUESTIONS FRESENTED FCR REVIEW TABLE OF CONTENTS se eeeee @ ee © @ © e © tHe ARPT . “~~ Ay OPINIONS Bein cece ee eh 64.8868 06 65 6 KOS lan] Louk -~ - -*? > ~\r rR - Aa? STATEMENT OF JURISDICTI re CONSTITUTIONAL PROVISIONS, STATUTES, ~~ —_ wrear Jab Aare ih -) al ieied marae ORDINANCE ANY Ass’ oo Wit ee ee ee ee STATEMENT OF THE CASE .cccscvocsvecs 1. /General Nature of the Case and of Complaint/ coccceoes 2. /Claims for Relief/ wceccces 2, Pe t 1. The Petitioner - a lay in matters of law yet unable to find a lawyer to represent him*: © brought, on his own behalf, this civil case (to be tried by jury) before the United States District Court for the Northern Dis- trict of Indiana, South Bend Division, Honor- able Allen Sharp, Judge. He commenced his action (File No, S79=-256) by filing, on August 31, 1979, his Complaint agains)(1), Supra: in addition, the Petitioner's claim of total pecuniary, compensatory and punitive damages against all Defendants is for a sum of $8,931, 600.00. By his Affidavit in support (dated August 31, 1979), attached to his Complaint, the Pe- titioner did "certify (under oath) that... . + tatemen (in the foregoing and attached Complaint ) e +rue and correct and th - ig made... upon... (his) personal mowl- edge of said facts" (emphasis added). 3. On September 22, 1979, on behalf of Dee fendants Administration and Faculty, Vincent P, Campiti, one of their attorneys,* filed untimely a Motion To Dismiss tegether with a * Their second attomey being Arthur A. May. Contrary to the provisions of Rule 5(a), and Rule 5 of the Trial Court, )(4), for the reason that the... /Petitioner/ has failed to state a claim upon which relief can be granted.” On October 17, 1979, the Petitioner filed timely and under Rules 54(c) and 55(a) and (>)(1), /supra/ ... his “Demand for Judg- ment By Default", together with a Memorandum in Support, against Defendants Adm: inistration and Faculty in which the Fetitioner claimed their said Motion +o Dismiss, together with a Memorandum, was filed untimely, in LY » and for fraudulent ard dilatory purposes, being therefore invalig. The Fetitioner re- quested that the Clerk of Trial Court enter a default against these verte alter- 3 fee ct tO) o ap | natively that the latter be requested to file, within 10 days, an answer to the Petitioner's Complaint in form of a properly prepared re- sponsive pleading (App. 2/3 and 2/4, pp. 139a= 151a). On November 7, 1979, on dehalf of Defen- dants Lawyers, attormey R. Kent Rowe filed untinely a Motion to Dismiss (together with a Memorandum in Support) in which it was stated that these Cefendants “move that... .« /the Petitioner's/ claim for relief be stricken and dismissed as to these moving Defendants in accordance with Rules & and 12(f), /gupra/ .. . because said pleading is 14 replete with scurriious, offensive and obdiec= tionable allegations and should not be per- i+ 4 + A ~~ + + | ; mitted to remain of record; the form of clain + 9 + + 9 - ‘ - 9 4 Zor relief fails *o comply with Rule 8 require - his "Response To The Attorney General's Moe court. in this pleading (NR. &, p. 4), the or Petitioner claimed that these "Defendants - t by filing said Motion to Dismiss in... /said/ Court... = did + 3 . with £t3 d iv : -s '; fand that/ they g ; i ¥v o a, responsibilities, nor duties toward the /Petitioner/, a citizen of the United States.” As stated above (p. 11), contrary to these 15 Defendants' allegations in their Motion to Dismiss, the Petitioner claimed that there are abundant facts in the Petitioner's Com- and Administration and Faculty) in continuing civil conspiracy (a) under 42 U.S.C. S88 195 facts indeed amply shew - without even consid- ering the question of eventual liability of Public Officials under § 1983 - Defen- s ointly engaged with Defendants Public /State/ Officials in various prohibited actions against Petitioner; they acted “under color of ... /law and/ sub- sect/ed/, or cause/d/ to be subjected... . /the Petitioner/ to the deprivation of... rights, /and/ privileges .. . secured by the Constitution and laws" of the United tates (App. C*, p. 185a)s among others, 16 those secured by its Amendments I, V, VII, These prohibited actions were made "under trative Adjudication Act /of Indiana/ -- I¢ 1971, 4e22-1 (App. H*, pp. 206a-217a). In this pleading, the Petitioner prayed the rial Court that these Defendants' "said dila- tory claim without merits contained in said » « « ‘Motion to Dismiss' and 'Memorandum' de rejected and their ‘Motion to Dismiss’ lied..." or alternatively, that said De- Zendants be required to file, within 10 days, their answer to the Petitioner's Complaint in form of a properly prepared pleading (NR. 2, pp. 2-9). Cn November 20, 1979, the Petitioner filed his "Notice About Defendants’ Contempt For The Federal Rules And Of Petitioner's Obiec- tions To Defendants' Motion To Dismiss" (NR. 9), namely against Defendants Lawyers; th Petitioner claimed Defendants Lawyers showed 17 . +~omnr: con Temps $7 FV e¢ -~- /illustrative wee 1979. . «. »" (emphasis added). Yet, without expressing any excuse or reason, they left the time to expire without filing their re- ponsive pleading! Instead of the responsive pleading, they filed untimely, - 3 days after tion to Dismiss.” The s invalid it was not filed | their invalid "Moe Petitioner claimed that for the following rea- 4 +-— melyv; not served = 8) offensive matter which does not £0 *0 merit (NR. 9, pe 3).* Therefore, the Fet prayed that the Trial Court declare said "Mo- tion To Dismiss" null and order these DLefen- dants to file their responsive pleading with in 10 days (id., pp. 6=7). 4, In the three months following the filing (August 31, 1979) of the Fetitioner's Complaint, no oper step hac ceen taken ither by the Trial Court or by the Defen- =. * 4 = 2 * dants; no ruling had deen made either upon the Defendants' aforementioned “Motions to Dismiss” or upon the Petitioner's three afore- said pleadings - succeeding his Complaint - even though each of the Fetitioner's pleac- ings contained "two or more statements of a claim /requests/ made in the altermmative” (Rule 8(a), supra). None of the Defendants ~~ * These reasons are similar to those for which the Petitioner Claimed (on po. 13-14) that the aforesaid ‘Motion te Di by Defendants Adminis tion and Faculty was invalid. ever filed a responsive pleading despite le 12(a), supra, which in its relevant part provides: ". . . The service of a motion permitted under this rule /including Motions to Dismiss/ alters this period /in the afore- said Defendants' matter, 20 days/ to time as notice of the court's action.” (Emphasis ad- ded.) AcCordingly, the Petitioner concluded that - by its nonruling upon the Defendants’ said "Motions to Dismiss" and by its Order of December 3, 1979 (App. S, p. 65a) = the Trial Court indeed, de facto, "postpone/d/ its disposition /of these Motions" //intil the crial* on the merits.” (Rule 12(a), supra.) * In the sense of "/a/ judicial examination and determination of issues between parties to actions... (citation omitted)" (Black's Law Dictionary (1979 ed.), p.» 1348) = in the present case - by the judge, sua sponte with- out trial by jury even though the petitioner demanded a tri It should be pointed out here that not nly has the Trial Court failed to rule upon Fretitioner's requests in all three above de- used to comply with Feder jo [nd ay 4 ts wo “” oO te qa ” ) (App. F*, pp. 198a-199a; anc a . , ‘ye 4 . dy . Rules Me2(a)(bd), Me3(a) and Me4% of the Mag- 20 3a-20+a); in accordance with these Rules, the Petitioner respectfully requested “that Th» 3 Ses D3 : Ray) ; Inited States District Court, set aside th call ef said hearings under the aforemen- , +ioned Rules for the reasons that (1) it is not_in compliance with said Rules; (2) there - = are no valid ‘Defendants’ Motions to Dis- ; $3) wi +) : a : miss’ filed with this Court of the above siderec during said hearings: (3) /even if there were/ such pending valid 'Defen- ¢ants' separate and several Motions to Dis- miss' . . . properly filed, said United States Magistrate could not conduct any such hearings on such /dispositive/ Motions to Dismiss without the consent cof all varties under the Federal Magistrates Act of 1979; 26 serve 'the best interest of Cn August 19, 1980 - despite the Fetition- er's said written "Obdjections To Magistrate's Calling of the ‘Hearings ...'" = said Mage istrate held these "hearings" on this date and proceeded, as he put it, “in confermity with 8 636(c) /sic/ ef said act /i.e. the objection dy the Trial Court. Said Magistrate (together with the Trial Court) was aware that, as stated above, the Fetitioner simed and filed (January 22, 1980) his “Refusal to Consent", and that = according to § 636(c) - * The cover sheet of the a belonging to the instant case bears th e following indica- tions "“Dispositive consent Refused"; this statement was added ter the ee filing of said “Ref fusal to Consent 27 jury civil matter and order. . » when spe- jally desimmed to exercise such jurisdiction by district court..." (App. F*. pp. 199a= 200a; App. G*, pp. 204a-205a). (Emphasis The magistrate conducted and termi- improperly and without Determination of Petitioner's Applicae- tion for Writ" (NR. 17) with the Seventh ak - CArs A 1 ; 7 Cireuit Court of Appeals; this was followed : Siting + mimi} 4 ; by the filing cf two similar pleadings, at the interval of a month, for the same pur- 12] oO a wo iw - (vo ' -* wo ). Nevertheless, on December 16, 1980, the Court of Appeals entered its ruling as follows: "It is ORDERED that the Petition for writ of mancanus §s DENIED. ~ cw Examina owledgec, ‘al se! ~~ ome una former wae the vi fA TA: ~~ ——~ . mace was 9 ' sattver “as .ne _, - - mecessa all fA, -~- to - a i oF “A O-dl Ww -« > aA w rps ; Ply eed ty Su Pp @ oz; AW , od ow P m4: Po ~ ow Pha && Wom perl 44erl i - PHY ome) Sent Poo © B 3S -rt LD ov ® + @ oe oe | | oa ot PPR AN 5: Oa ow “A Py, oN Oo aie 7 Pr, oS | Oo SS Pp Oo Oo = PmOo Po a) se Pet @ @ = os en oi Oo1y-~-1 ow 1 I vpn Ak OM be 1 @ ae) Su > - §% @oqm: gg, ) A650” Oe ‘ ~ ea = OS FO +? “+4 @ al ~ i 3 so OH + O 5 a + ie | N* Oo x pE~-*€ ve. stra i to Honore ressec adda epared in Report was pr ¢ = and Trial Court the That - titioner prayed: Invalid for - 'Repor decléere . -roe wee That 2. cated above; and ; ; ind: a~ee = reasons vie ~* Carne ~OUTT Trial . +ho wees with -~* et i a) ~ss made ose ~n" 4s Owing addi- as fal/ SA ' / S that the... /Petitioner's/ motion. for - - - - - aa entry of default and default judgment” oe aaron “4 , sd aay DENIED and /all three of the Defendants miss be GRANTED, except with regard to the . . fand/ that... /ne/ file an amended complaint limited to those claims in confor- * As stated above (Z/3, pe i41a) the that “the c k agairst /a group o befem ants, Administration and Faculty .. .." "Notion for Relief from Judgement” (NR. 32 pursuant to Rules 60(bd)(2)(4) and (6) and re- quested that the Trial Court grant him relief from judgment contained in its Crder of farch 3, 1981 by setting aside the latter (id., Dp» 1) for the reasons thoroughly pre- sented in said motion. On April 14, 1981, the Trial Court denied the Petitioner's said "Motion for Relie=l fron Judgment" without givine any reason for this “Motion for Determination of . .. /his/ Fntire Case..." (NR. 39); in it he moved that the Trial Court "examine the whole re- cord of the above en*itled cause and make determination of the /Petitioner's/ entire case, correct errors and overrule ail the Court's decisions-denials-orders stated in its Order of March 3, and April 14, 1981 (see App, FP, pp. 34a=-35a and App.E, p. 28a) and 33 . J . srover relief requested since /commencing “osurt's decisionsedenials and orders, stated : . eg SLY si i above, in particular the Court's order that said Motion, the Petitioner declared: “For the purpose of clarity, . . . /he/ considers it relevant to state here as follows: As... . in several of his pleadings (filed since Jof the Petitioner's/ .. .' as ordered by the Court's aforesaid Order entered March 3, \App. 7, pp. j4a-35a); such an amendment would strike a vital blow to the... /Peti«= tioner's/ whole action of which all claims * The Petitioner so informed the Trial Court as early as Cctober 1, 1979 through its legal Clerk, Marty Kus (see above p. 5). 34 are closely interr@lated and stem from the same civil conspiracy engaged in by all Defen- (see above, p.ll); the latter's said decision law does not permit or require the doing of an act which will result only in loss." (See Black's Law Dictionary (1979 ed.), p.951) It is pertinent to also state here that those claims to which the P oO ct i id ct | a oO Pe o sp | “ iF @o ba mm @o nm 43 oO cs | 1 plaint would be limited, according to the Trial Court's said Order (of March 3, 1951) are already amply presented in the Petitioner's Complaint. On November 24, 1981, the Trial Court en- tered its Order (App. D, p.26a) denying the Petitioner's aforesaid "Motion for Determina- tion of the... /Petitioner's/ Mmtire Case + « "3s this Motion was denied not after con- sidering the Petitioner's “entire case", as the latter requested, but only, as said Court stated, "/u/pon careful review of the /Peti- /for which/ .. . this Court finds insuffi- 35 cient grounds therein to reverse this Court's prior ruling (emphasis added)." (App. D, vp. 26a) it seems pertinent to point out that the Peti-e tioner's said Motion was denied with no follow ip = at that time, or ever - notifying the Fe- ioner that, "if he fails so to do /i.e. to amend his Complaint according to said Court's Order of March 3, 1981/, the /Petitioner's/ -? action shall stand dismissed with prejudice as -~-y t day". (Wedst's Federal Forms (1877), On November 25, 1981, Vincent Campiti, at- nz Defendants Administration and Faculty, filed with the Trial Court "Moe or Judgment On The Pleadings For Fail- ure To State A Claim Upon Which Relief Can fe Granted” /NR. 44); in it these Defendants “pur- quest the court to enter Judgment on the Pleadings for the moving defendants on the ground that... /the Petitioner/ has failed * Furthermore, there were several instances in the instant case in which the Trial Vourt, Honorable Allen Sharp, Judge, did not carry out its decision (see above footnote, p-.5) nor follow up on its Order (App. X, p.72a; see above, pp. 32-34) 36 upon im am e acla o stat - os ." These Defen “ _ , fF perciy ot pro ” “* 2 arty ma ead * ’ ; ings.. a” oA I - ~~ e pl fal, any tT on tN en > ~ - one - } on r Reversa Le) fr, morandu s " . a = d fil *For more detail i ines sa “1 oy Seventh amendments to the Constitution f th sees aa oes > ACen nited States /id., p.2/. In this Motion, the P 3+; . (4 7m Tas a} Cary retitioner prayed: "(1) That the /Trial/ Court reverse or amend its prior ruling contained in its Order of November 24, 1981 /App. D., pp.26a -27a/ after examining the... /Petitioner's/ entire case... .; (2) That - if... /the Trial/ Court decides to make an Order of de- nial of the... /Petitioner's/ ‘Motion For Reversal . ..' = the /Trial/ Court state in such Order that the latter is ‘of the opinion that such order /of denial/ involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation ....' as prescribed by 28 U.S.C. § 1292(b) /NR. 45, The Trial Court refused to mile on this Moe tion and to consider any of the alternative recuests made by the Petitioner. Cn December 7, 1981, the Trial Court entered its final Judement as follows: 38 "This action came on for (hearing) bee fore the Court, Honorable Allen Sharp, United States District Judge, presiding, and the issues having been duly (heard) and a decision having been duly rendered, it is Ordered and Adjudged that... /the Petitioner/ take nothing by his come plaint and this case is dismissed.” /App. 0, pp. S3a-54a/ It is pertinent to state here that = contrary to the Trial Court's allegations in its afore- said Judgment - the Fetitioner's case was dise missec without "this action... (coming) on for (hearing) before the Court /during which/ Honorable Allen Sharp, United States District Judge /would be/ presiding and /during which/ the issues /would/ have been duly (heard)... /and, therefore the Trial Court's said/ deci- sion by which (this case is dismissed)... /nas not/ been duly rendered ...." Besides, in its Order, entered also Decem- ber 7, 1961, the Trial Court declared that, "in Ae /cthe Petitioner's/ failure to amend (complaint), the Court hereby enters a final order of /its/ dismissal." /App. C, pp. 24a-25a/ It is equally pertinent to point out that the Trial Court entered its aforesaid Order of ne ~* ant/s/" A C & defen g which 5 ao F's $98 unlawful filin am fhe lance compl od es of sa a AUL the with cedure, nor Order, judgment and - - f From Felie t to tT pursuan idavi Aff an 40 the Petitioner filed aforesaid "Motion For Ree lief Prom Judgement And Order..." /App. 2/6/ timely and properly in accordance with "Genere- al Rules of Pleading” contained in Rule @(a), supra - the Trial Court simply declared in its final Order that, "This Court having carefully considered the record in this case, now DEVIE said Motion. SO ORDERED /App. 53, pp.22a= 23a/ . ‘ ‘ without giving any reason for its denial. REASONS FOR GRANTING THE PETITION "has so far departed from the accepted and u- cial proceedings... /as | oe sual course in jud well as/ so far sanctioned such a departure by . « « s/the/ lower court that, as to call from exercise of this /Supreme/ Court's power of supervision."* The Court of Appeals did so in sanctioning the Trial Court's decisions (es- pecially those contained in its Orders entered *Rule 17(a), Rules of the Supreme Court of the United States. 41 March 3, 1981 (App. F, pp.34a=-35a) and Decem- plicable decisions of this /Most Honorable/ °? ourt,"* notably Conley v. Gidson, 355 U.S. Furthermore, the Trial Court's and the curt of Appeals’ proceedings and the decisions of both in sum - having resulted in the depri- vation of the Petitioners'’s constitutional rights including those of freedom of exercise of religion, freedom of speech, the right to patition Government for a redress of grievances, right to property without due process of law, right of equal protection of laws, and es- pecially "right to jury determination,”** rep- resent "a gross miscarriage of justice." *#* *Rule 17(c), supra. **Rogers v. Missouri Pacific R. Co., 352 U.S. 500, 510 - citec by Stern, Robert L. and Eugene Gressman, Supreme Court Practice (1978), Pe 293. 362 U.S. 1993 357 U.S. 348 - Indeed the record shows that the management of the judicial administration in the instant case was performed by the Courts below not in away as to seek truth and justice in accor- dance with the provisions of Federal Rules of Civil Procedure "to secure the just, speedy and inexpensive determination of . .. /the Petitioner's/ action,” within the meaning of Rule 1 of the latter, but to the contrary, the Trial Court's action and the Court of Appeals’ action and sanction constituted involvement in systematic distortion of the truth and obstruc- tion of justice. In addition, there is a substantially large amount of money involved (38,931,600) as the Petitioner's claim of total pecuniary, com- pensatory and punitive, damages against all De- fendants. I. A. and 8. wi dec} of the Supreme Court of the United States. (1957), the Court held that 43 In appraising the sufficiency Of the complaint we follow of course, the as- cepted rule that a_complaint should not be dismissed for failure to state a claim unless it appears beyond a doubt the Plaintiff can prove no set of facts in support of his claim which would en- title him to relief... « o- Jt/ne Federal Rules of Civil Procedure do not require a claimant to set out in detail the facts upon which he bases his claim. To the contrary, all the fules require is "a_ short and Dees statement of the claim* that will give the defen- dant fair notice of what the plaintiff's claim is and the grounds upon which it rests... ... The Federal Rules reject the approach that pleading is a game of skill in which one misstep by counsel may be decisive to the outcome and ac- Cc th inciple at u 4 e adj j o facilitate a proper decision on the merits. Cf. Maty v. Grasselli Chemical Co., 303 U.S. 197." emphasis added. The sufficiency of the Petitioner's Com- plaint is clearly shown dy the Statement of the Case and several extended excerpts from it or the Petitioner's other pleadings’ (see Appendices Y, Z, Z/l, 2/2, pp. 73a-138a). Both courts below recognize explicitly that in his complaint, the Petitioner did definitely prove a “set of facts in support of his claim which *Rule 8(a)(2) would entitle him to relief... /and that he did/ give the defendant/s/ fair notice of what » « « Snis/ claim/s/ ... /are/ and the grounds upon which... /they/ (rest)." Conley v. Gidson, supra; the Court of Appeals recog- nized it by declaring: The district court... held that the plaintiff had fulfilled the requirements for filing suit under Title VII. Broadly construed, the complaint successfully i m4 VT 17 pleaded a pendant state claim for feanch of contract (emphasis added). (See. App. A, Del7a, and App. F, p. 34a) Therefore, both Courts below, based on their recognition that the Petitioner's "Complaint successfully pleaded... claim/s/" and this Court's decision in Conley v. Gibdson alone, must have been aware - because of this conflict - that the latter could not be dismissed and that the Trial Court’s decision to dismiss the Petitioner's Complaint represents an abuse of discretion and disregard for law, and the Court of Appeals' affirmation of the Trial Court's said decision “so far departed from the accept- ed and usual course of judicial proceedings » . « fand/ so far sanctioned such departure 45 by . . « /said/ lower court, as to call for an exercise of this Court's power of supervision." ae (Rule 17(a), sguvra.) This abuse of discretion and disregard for law by both Courts below is 519, at 520-521 (1972) in which it held that "The District Court erred in dismissin oy Oe (Petitioner's) pro se complaint without oP (eh him to present evidence on Ais claim es . /a/Viegations such as those asserted dy petitioner, however inart- fully pleaded, are sufficient to call for opportunity to offer supporting evidence... « «. » « « /W/e conclude that he is en- titled to an opportunity to offer proof. Gross misapprehension of the fact What follows will show that the Court of Appeals grossly misapprehended the facts rele- vent to the issues presented for review, based its decisions on such misapprehension of the facts and failed to adhere to proper procedure particularly in reaching its decision of March 1, 1983, "that the judgement of the said District Court in this cause... is hereby, 46 AFFIRMED, with costs, in accordance with the opinion of this Court entered this date /App. L, pp. 4+7a-42a/." What is presented in the Statemen* az the Case and that which follows below clearly show that this Court of Appeals' said opinion consists mostly of manifestly erroneous allegations contrary to the facts and inconsistent with themselves and the Court's other allegations. The Court of Appeals' opinion contains the following allegations: vriefs, the court notified the parties that it had tentavively concluded that oral argument would not be helpful to the court in this case.. ». «. /See App. A, footnote, pp. ia-2a) . o e . . Plaintiff applied for a writ of manda- mus in. an attempt to speed up the trial court's determination of this case in appeal No. 90-1541. That application was denied in an order dated December 16, 1980.. . ee Fite: PD. Sa-6a/ "After a preliminary examination of the ~m A. Validity of Defendant's Motions to Dismiss Plaintiff claims that he was entitled to a default judgment against all of the defendants for failing to file an answer Within twenty days, Plaintiff filed a mo- tion for default judgment on October 17, 1979 after the defendants had filed Rule 12 motions to dismiss on seprember co, and on vuctoocer - 3-11, pe2l 1976), cited by Richard Y. Holcomb, "Stan- dards of Review," in sac. B.2, Appellate Ad- vocacy = Source Book, American far Association, Paul Mare Sandler, Editor, 1980, p.7. 61 this Court, and that their proceedings and de- cisions, or lack of them, definitely resulted in a "gross miscarriage of justice"* and, for the Petitioner, "a denial of substantial jus- tice. "** At this point in this Petition, it becomes obvious that the management of the judicial administration was not performed by both of said Courts below in a way as to seek truth and justice in accordance with the provisions of Federal Rules of Civil Procedure "to secure the just, speedy and inexpensive determination of the... /Petitiorer'’s/ action, “within the meaning of Rule 1 of the latter, but ine stead they were involved in persistent distor- tion of the truth and obstruction of justice; it becomes so - particularly through the Trial Court's action and the Court of Appeals' ac- tion and sanction in - l. Granting Defendants' invalid Mo- *Thompson v. City of Louisville, supra, Pe ’ **#ABA Commissior on Standard Judicial Admini- stration, op. cite, De7-. 62 tions to Dismiss (see above, pp.l4-21, 51-52, 54-57; also App. 2/3 and 2/4, pp. 139a-15la). 2. In not entering default judgment sought (October 17, 1979) by the Peti- tioner against Defendants Administration and Faculty (see above pp.13-14, 21, 51- 52, S4=553 see also App. 2/3, 2/4, 2/5, pp.139a-l5la, 16la-163a); 3. In ordering (March 3, 1981, see App. F, pp. 34a-35a) that the Petitioner file an amended complaint (see above, pp. 34- 36, 59-60; see also App. 2/6, p.166); 4, In denying the Petitioner's "Mo- tion for Determination of the Plaintiff's Entire Case ...", filed November 24, 1981 (see above pp. 35-36); 5. In failing to rule upon the Peti- tioner's "Motion for Reversal of Amend- ment of the Court's Order of December 4, 1981" (see above, pp.37=-38; see also App. 2/6, pp.167a-168a); 6. In considering the Defendants' "Mo- tion for Judgment on the Pleadings for 63 ‘ to mo te ~~ ju Wu ju u UO oe iy hy | i ti wm j 12) et | i 0 . i?) io wo Ww { a '~ o> cn 4 ‘ ,] wD a ct (i "S J Oo j mw » wo oO w 1 J iD | ) te o wo ? 333 [Pueiald teas #6 | piaint), .. .a /Trial Court's/ final order : s se 7 - = 4 ¢ ismissal" (see App. C, pp. 24a=-25a) and in declaring in its judgement (App. 0, pp. - rh = Ord ary oy D h- Ww t J oo t t? j t Db ) Y i) llen Sharp, e presiding iD en duly (heard) en duly rendered, dged that... rg f[hIOlwlo ~- AlWIOletlo O " ." Cemphasis t ® OO|rRia this cas even though - contrary to this declaration - this action was dismissed without "(coming) on for (hearing) before the vlal/ Court /during whicn/:-: : /said/ Judge /would be/ presiding and /during which/ the issues would have been duly (heard) .. . /and therefore said/ decision /has not/ been duly ren- dered.” (8) In declaring, by the Court of Appeals, 64 its dise- abuse id oresal = nals a . . ”_ © eat °°*= ~ eee ee a> eah* oy — ee all anil Gealeu IN THE SVPRE-E COURT CF THE UNITED STATES Poe biedl ak eae laa! 7A = -_i + ANTH CNY CSTRIC, Fetitioner, ) rus A Sra .jtere a> em THE CORPORATIC Us Sa ef al om eee .’"%AnSt TARY:'S COLLEGE, NULARS ~. _ bowl an - - P| wAw.G, ~- AL. ’ mesnoncent. a — > : 5 3 _ 5 ss < Anthony Cstric, being duly sworn under ath, does hereby state that he is the Peti- CERTIORARI and the affirmations therein ar o true and correc* and the presentation of the statement of facts is made uvon the Petition- er's personal kmowlecge of said facts. Ae (36 fn al anthony Osdric, Petitioner, pro Subscribed and sworn to before me thi - “y commission expires: 66 IN THE SUPREME COURT OF THE UNITED STATES ANTHONY OSTRIC, Petitioner, Ve THE CORPORATION OF ST. MARY'S COLLEGE, NOTRE ) ) ) i E ) SERVICE \ / ) DAME, ET AL., Respondent. ) Anthony Ostric, being duly sworn upon his oath, states: 1. That he is the Petitioner, 2. That on the 2+th day of August, 1983, he delivered personally three copies of the fore- going PETITION FOR WRIT OF CERTIORARI, with the Affidavit attached to it to: R. Kent Rowe 900 St. Joseph Bank Bldg. South Bend, IN 46601 Vincent Campiti 222 West Jefferson Blvd. South Bend, IN 46601 and forwarded by First Class Mail, postage prepaid to: George 5. Huff, Jr. Deputy Attorney General State of Indiana 219 State House Ind 1 46204 : Y gsr ndianapolis, IN mR ci 1 — CB b- C. / j Anthony Ostric, Petitioner 67 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_0314%3A1. Public record. Not legal advice.