Petition for Writ of Certiorari — Whitmer v. John Hancock Mutual Life Insurance

2 — Supreme Court, U.S.

9-1984 ~ FILED

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} JUN 5S Ld

In The | JO3EPH F. BPANIOL, JR.

SUPREME COURT OF THE UNITED $TATES CESS

October Term, 1989 ' ‘a

FRANK L WHITMER AND JOAN P WHITMER,

Petitioners

V

JOHN HANCOCK MUTUAL LIFE INSURANCE CO.,

SKIDMORE, OWINGS AND MERRILL, SUDLER

AND CO., SUDLER MARLING, INC., TISHMAN

CONSTRUCTION CO., ALUMINUM COMPANY

OF AMERICA, ADMIRAL HEATING AND

VENTILATING, INC., R B HAYWARD CO.,

UNIVERSAL SHEET METAL CORP. d/b/a

UNIVERSAL-HAYWARD, CUPPLES PRODUCTS

CORPORATION, a DIVISION OF H H

ROBERTSON CO., H H ROBERTSON CO., 175

EAST DELAWARE PLACE HOMEOWNERS

ASSOCIATION, H S NACHMAN AND

ASSOCIATES, INC., ENVIRONMENTAL

SYSTEMS DESIGN, INC., L C KOHLMAN, INC.,

GENERAL PARKING CORPORATION, WILSON

& McILVAINE, CITY OF CHICAGO, and DOES !-

50 INCLUSIVE,

Respondents

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

Frank L Whitmer and Joan P Whitmer

American Citizens on their own behalf, Petitioners

221 Pardridge Place, DeKalb IL 60115, 815/758-7272

15 June 1990

LAWthority” June 1990

“ so

QUESTIONS PRESENTED

l. Whether a district court can rule on a tainted 28 USC

1404(a) venue motion that has been substantially

attacked by FRCP 11 sanctions and FRCP 12(f) strike

motions before ruling on the sanctions and strike

motion.

to

Whether an Administrative Law Judge's Social

Security Disability judgment is res judicata on the

federal district courts under 28 USC 1404(a) for

transfer purposes.

3. Whether a Federal District Court can suppress or

ignore uncontroverted medical affidavits and such

evidence in balancing under 28 USC 1404(a) to the

serious detriment of a party.

4. Whether a conflict between the circuits should

continue under 28 USC 1404(a) as the selection of to

appeal or mandamus, the conversion of a notice of

appeal to mandamus, and the finality doctrine reliefs.

5. Whether an unannounced and unwnitten District

policy on venue transfer under 28 USC 1404(a) is

impermissible, unconstitutional, and a violation of

due process.

6. Whether the United States Court of Appeals can act

on a motion to dismiss where a critical five pages

(statement of facts, statement of the questions,

Statement of reasons, including jumnisdictional

Statement) were stripped from the motion by the

defendants and the court was so informed. It was

insufficient to act upon.

10.

Whether the Court below erroneously applied the

decision in Jesko v United States, 713 F2d 565, 567

(10th Cir 1983), not having the necessary essential

facts before it. Of necessity, Cohen and Jesko and

the other cases cited are fact oriented.

Whether the Courts below are to push relentlessly

toward “moving the case” regardless of the

documented medical consequences to a party or pro

se, ignoring meaningful due process—and actually

bringing on more disruptions as the victim collapses.

Whether the Federal District Court violated the intent

of 28 USC 1292(b) or whether that act is

unconstitutional in that it makes no provision for

relief where a federal district judge has willfully

violated the rules, such as a suppression of essential

evidence, and then refuses to certify for appeal and

blocks any right to appeal

Whether a toxic tort plaintiff in a civil case is to be

subjected to the dangers that discovery by the

defendant puts the allege criminal in control of the

victim's life and health.

ee

LIST OF PARTIES

The parties are the same as those listed in the caption

of this petition.

The parties to the proceedings are the petitioners,

Frank L Whitmer and Joan P Whitmer, private citizens on

their own behalf, owners of a condominium at the John

Hancock Center in Chicago.

The respondents are companies, partnerships,

corporations, a municipality, a homeowners association and a

law firm.

TABLE OF CONTENTS

QUESTIONS PRESENTED

LIST OF PARTIES

TABLE OF CONTENTS

TABLE OF AUTHORITIES

OPINIONS BELOW

JURISDICTION

STATUTE INVOLVED

STATEMENT OF THE CASE

REASONS FOR GRANTING THE WRIT

CONCLUSION

APPENDIX:

Order of Court of Appeals

dated December 14, 1989

Order of Court of Appeals

dated December 14, 1989

Order of Court of Appeals dated January 16, 1990

denying Petition for Rehearing

Memorandum Opinion and Order of the

District Court dated October 2, 1989

Order of the District Court

dated October 26, 1989

ll

iV

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tro

D7-16

E17-19

TABLE OF AUTHORITIES

Cases:

Bank of Columbia v Sweeney

1 Pet 567, 579 19

Cobbledick v United States, 309 US 323, 328-329, 20

Cohen v Beneficial Industrial Loan Corp.

337 US 541 (1949) 17, 18, 19, 20, 21

Cone Memorial Hospital v Mercury Const.

\ 103 S Ct 927, 933 n6 (1983) 24

Coopers & Lybrand v Livesay

437 US 463, 468 (1978) 16

Corcoran v Ardra Ins Co Ltd

842 F2d 31, 35 (2nd Cir 1988) 24

Cushing v Laird

107 US 69 20

Higgins v United States

205 F2d 650 (CA 9th 1953) 17

Huie v Bowen, 13 Soc Sec Law Rep, 256,

788 F2d 698, 702 (11th Cir 1986) 16

International Business Machine

Corporation v Edelstein

526 F2d 37, 45 (1975) 14

Mercantile Natl'l Bank v Langdeau

371 US 555 (1963) 18

Oppenheimer Fund, Inc v Sanders

437 U S 340, 351 n 13 (1978) 16

Piper Aircraft Co v Reyno

454 US 235 (1981) 28

Redding & Co v Russwine Const Corp.,

417 F2d 721 (CA DC 1969) 18

Roberts v United States District Court

339 US 844 (1950) 18

Sterling Forest Associates Ltd v Barnett-Range

Corp., 840 F2d 249, 252 (4th Cir 1988) 24

Swift & Co Packers v Compania

Colombiana Del Caribe 339 US 684 (1950) 20

The Panaghia Kathariotisa

165 F2d 430 (3 Cir 1948) —

Thomas v Capital Sec Sev., Inc.

836 F 2d 866, 881 (Sth Cir 1988) 15

Touchstone v GB.Q. Corp.

596 F S 805, 810 (ED La 1984) 15

United States v River Rouge

269 US 411, 414 19

Van Dusen v Barrack

376 U S 612 (1964) 22

Statutes:

28 USC § 1254 pe

28 USC § 1291 16, 19, 21

28 USC § 1292(b) 21

28 USC § 1391 14

28 USC § 1404(a) 7, 12, 14, 18

USC § 1256 18

29 USC § 701 et eq

Rehabilitation Act of 1973 7, 8, 23

PL 93-516 8

Evarts Act: The Circuit Courts of Appea!s

Act of 1891, ch 517, 26 Stat. 826 22

vl

Other Authorities:

Blacks’s Law Dictionary 11

FRCP60(a) 12, 13, 18

V1l

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1989

FRANK L WHITMER AND JOAN P WHITMER,

Petitioners

Vv

JOHN HANCOCK MUTUAL LIFE INSURANCE CO.,

SKIDMORE, OWINGS AND MERRILL, SUDLER

AND CO., SUDLER MARLING, INC., TISHMAN

CONSTRUCTION CO., ALUMINUM COMPANY OF

AMERICA, ADMIRAL HEATING AND

VENTILATING, INC., R B HAYWARD CO.,

UNIVERSAL SHEET METAL CORP. d/b/a

UNIVERSAL-HAYWARD, CUPPLES PRODUCTS

CORPORATION, a DIVISION OF H H ROBERTSON

CO., H H ROBERTSON CO., 175 EAST DELAWARE

PLACE HOMEOWNERS ASSOCIATION, H S

NACHMAN AND ASSOCIATES, INC.,

ENVIRONMENTAL SYSTEMS DESIGN, INC., LC

KOHLMAN, INC., GENERAL PARKING

CORPORATION, WILSON & McILVAINE, CITY OF

CHICAGO, and DOES 1-50 INCLUSIVE,

Respondents

Petitioners Frank L and Joan P Whitmer respectfully ask

that a writ of certiorari issue to review the orders of the

United States Court of Appeals for the Seventh Circuit,

entered in the above entitled proceeding on December 14,

1989, rehearing denied January 16, 1990, and the orders of

the United States District Court for the Northern District of

Illinois entered on October 2, 1989 and October 26, 1989.

Those orders affirmed the transfer of this case between

district divisions, in which the court favored the defendants’

convenience instead of the health and life of the plaintiffs.

OPINIONS BELOW

The orders of the United States Court of Appeals for the

Seventh Circuit by Circuit Judges Harlington Wood Jr.,

Richard D Cudahy and Richard A Posner are not reported.

The orders of*December 14, 1989 and January 16, 1990 are

reproduced in the appendix hereto, as A, B, and C, infra.

The memorandum opinion and order of the United States

District Court for the Northern District of Illinois, Western

Division (Roszkowski, S J) and the denial of certification

have not been reported. The text is reproduced in the

appendix hereto as Appendix D and E, infra.

JURISDICTION

The jurisdiction of this Court to review the judgment of

the Seventh Circuit is invoked under 28 USC § 1254(1).

Petitioners brought this suit in the Northern District of

Illinois, Western Division, invoking federal junsdiction

under the venue statutes of RICO and civil rights, the

Constitution of the United States and 18 USC 1961, et seq.,

particularly 1964(a), (c), and 1965(a), (b), (c), (d); 42 USC §

1983 et seq., particularly 1885(3), and 28 USC § 1331, 1337,

1339, 1343, 1355, 1357, 1391 and 1395.

The petitioners live in the Western Division. The Venue

provisions of RICO provide for venue against any person in

any district in which he resides, is found, has an agent, or

transacts his affairs. The Court and the defendants finally

conceded that venue was proper in the Western Division. On

October 2, 1989 the Western Division denied the petitioners’

objections to the respondents’ motions for transfer of venue

within the district from Western to Eastern Division. The

district court refused to certify the order as appealable.

ee

7

A timely Motion to Extend Time for Filing Petition for

Rehearing/Reconsideration of December 14, 1989 Orders

Involving Substantial Constitutional Issues in Seventh Circuit

Appeals 89-34241 and 89-3478 was filed. The Court treated

it as a “motion to reconsider” and denied it January 16,

1990. However, petitioners Notice of Appeal had been

stripped by defendants of five critical pages.

On April 6, 1990 petitioners made a timely application to

Associate Justice John Paul Stevens for an extension of time

to file their petition for writ of certiorari. The Honorable

John Paul Stevens issued an order on April 13, 1990,

extending the time for filing a Petition for a Wnt of

Certiorari in this case to and including June 15, 1990.

(Number A-712.)

STATUTE INVOLVED

28 USC § 1254 Courts of appeals; certiorari; appeal;

certified questions

Cases in the courts of appeals may be reviewed by the

Supreme Court by the following methods:

(1) By writ of certiorari granted upon a petition of uny party

to any civil or criminal case, before or after rendition of

judgment or decree.

STATEMENT OF THE CASE

This case involves a transfe, of venue within a district from

one division to another, for the convenience of the defendants

and over the life and death health objections and affidavits of

the petitioners and their physicians.

Petitioners use the extended term “defendants” under the

concept of conspiracy, as petitioners have pled a continuing

conspiracy in their complaint.

Why Petitioners are pro se

Petitioners are non attorneys, litigating on their own

behalf—but not by choice. A recognized condominium

expert in Illinois represented and advised petitioners 11) the

investigation of the serious condominium, real estate, and

municipal law violations and prepared the initial draft

complaints in this complex case. He later took “of counsel”

with a law firm with a conflict of interest with the City case.

In the state trial court, the Whitmers were each abandoned

by counsel over their objections, without justifiable cause,

without their consent, and with extreme prejudice to their

cause of action as plaintiffs.

At no time did a court even question or was concerned

about the state of the client's case, the validity of counsel's

representations, or the effect on the case. Its only concern

was to summarily grant withdrawal. The procedures and

rules that exist and those necessary to protect the serious

Constitutional Rights to due process, equal protection, and

the right of access to the courts were ignored in violation of

the petitioners’ rights.

After over $100,000 of attorneys fees, there has been NO

discovery given to the petitioners in what is considered a

highly political case. This includes no discovery for them of

medical or toxic exposures which caused their life

threatening illnesses since the filing of their federal

complaint. Petitioners are obviously not hostile to paying

attorneys.

One attorney didn’t do any discovery in five years, another

did one interrogatory to the wrong defendant, and another

refused to proceed once plaintiff Joan P Whitmer’s

intervention of right was granted by the Illinois Appellate

Court. Each attorney was a respected member of the bar.

Their fundamental efforts were to force a settlement.

Plaintiffs had made clear they needed serious _health

information and correction of the building more than money.

In plaintiff Joan P Whitmer's intervention in the City of

Chicago case she did not actively seek damages.

ia aaa

Petitioners extremely diligent

Petitioners have been extremely diligent while ill, and

handicapped. They have never attempted to delay anything,

only asking that they be given meaningful due process.

At last count they made in mid 1989, petitioners have

separately and jointly filed some 240 motions, pleadings and

other papers, responded to another 177, been involved with

65 hearings with transcripts, and subject to 159 orders in

those three courts, bringing a total of 641.

Not frivolous or dilatory—a necessary 641 in 743 court

working days—or almost one motion, document, response,

hearing or order to be researched, drafted, written, published,

served and filed. An average of almost one court action each

working day. An impossibility for any pro se or even a

modest law firm.

In the last three years, the actual period of their pro se

appearances, petitioners have been separately and jointly in

three courts at the same time for all but five months.

Litigation History

Petitioners’ home at the John Hancock Center in Chicago,

Illinois turned into a nightmare which is the subject of this

lawsuit. si

On the complaint of petitioner Joan P Whitmer, in 1983

the City of Chicago! filed suit against the John Hancock

Mutual Life Insurance Company, Sudler & Company and

175 East Delaware Place Homeowners Association, who are

also defendants in this suit. The City suit charged violation

of the minimum mandatory health and safety requirements

necessary to protect the residents of this mixed-use one-

hundred story skyscraper.

After having filed the suit, the City of Chicago abandoned

any aggressive adversarial attempts to enforce the building

1 City of Chicago v John Hancock Mutual Life Insurance

Company, Sudler & Company and Homeowners Association, 83

M1 404279, Circuit Court of Cook County, Illinois, Municipal

Department, First District

and health safety codes. The defendants’ total defense was

that the City of Chicago had approved the construction plans

and violations and was estopped from enforcing its health

and safety ordinances.

But the housing court did finally order correction and the

defendants entered into agreed orders with the City to make

some changes in the monitoring and presumably the

operation of the building to alleviate the pollution. No

defendant has as yet been ordered to eliminate the pollution

created by the construction and operation of this structure.

Violations of the mandatory minimum health and safety

sections of the Chicago Building Code still continue.

A new problem is a United States Environmental

Protection Agency test report of November 11, 1989 showing

there is dangerous deteriorating and friable asbestos in the

apartments.

Petitioners federal complaint, filed in the United States

District Court, Northern District, Western Division

(Rockford, Illinois) is in part a timely refiling by petitioner

Frank L Whitmer of his voluntary dismissal of his state case

under Illinois Code of Civil Procedure § 2-1009.2 The

federal complaint alleges multiple counts including, but not

limited to personal injury and negligence, violation of the

Racketeer Influenced and Corrupt Organizations Act and

RICO conspiracy, claim against defendants under the civil

rights act 42 USC § 1983 and 1983 conspiracy, civil

conspiracy, fraud, fraudulent concealment, fraudulent

concealment of a cause of action, consumer fraud,

negligence, implied warranty, nuisance, trespass and

intentional infliction of emotional distress.

MEDICAL DISABILITY

OPPOSITION TO CHANGE OF VENUE

Social Security Administrative Law Judge's

te

82 CH 7453, Circuit Court of Cook County, Illinois, F Whitmer

v Hancock et al.

adjudication of total disability

Petitioners maintain that the instant the Magistrate found

and the defendants admitted that venue was proper in the

Western Division, the Social Security Administration's

Administrative Law Judge's adjudication was preclusive of

any consideration of defendants' motions for transfer of

venue for their “convenience” under 28 USC 1404(a)

because petitioner Frank L Whitmer was legally and is totally

disabled in that he can no longer tolerate the poilutants to,

from, and at the Eastern Division Court. He was ordered

totally disabled and continues to receive full benefits.

The federal district court order ignored petitioner's claim

of nght.

Petitioner Frank L Whitmer was found to be totally

disabled at a hearing (not an initial application) by a Social

Security Administration Administrative Law Judge effective

January 1, 1983. This determination was based upon

extensive documentation, including 22 exhibits, from the

Mayo Clinic, and a consulting examining physician for the

Social Security Administration.

Petitioner Frank L Whitmer has been diagnosed by such

reputable medical organizations and their specialized

physicians as the Mayo Clinic, Northwestern University

Medical, and the DeKalb Clinic.

Rehabilitation Act of 1973, 29 USC 701 et seq

Petitioner is diagnosed as hypertensive, with atrial disease,

arrhythmia, severe obstructive and central system sleep

apnea, peripheral neuropathy, and glucose

intolerance—diabetes mellitus. Each qualify as a handicap

under the provisions of the Rehabilitation Act of 1973. Each

is sufficient to meet total disability criteria without the toxic

exposures and consequent severe chemical susceptibility

disorder that he charges defendants also caused. Further

exposure would increase the above symptoms and reactions,

many of which have a hypoxic component.

Both Petitioners Frank L and Joan P Whitmer are

“handicapped persons” as defined by the Rehabilitation Act

of 1973, 29 USC 794, § 706(8)(B) and are entitled to the

protections of that Act in that they are not to be subjected to

discrimination and harm or denial of their right to access to a

reasonably healthful courtroom environment.

The transfer order ignored petitioners stated claim of right

of the protections of the Rehabilitation Act of 1973 in that

both petitioners qualify as handicapped and under the Act are

entitled to a pretrial and trial in an environment that will not

harm, further disable, or kill them.

The Act is also directed to the Judicial branch in that it is

the stated law of the land, involves both federal funds, and

the courts themselves are serviced by the General Services

Administration.

Thirty-Five million handicapped plus their families

The issues presented are of interest to far more than these

two pro se parties. Congress stated in PL 93-516 on

December 7, 1974 that there are seven million children and at

least twenty-eight million adults with mental or physical

handicaps. When family members are added it represents an

astounding figure. There is a growing number of at least

parties and witnesses that need these protections and

considerations as well as their families and other affected

people—in short, a large percentage of the public certainly

exceeding fifty million adults. This petition is propitious

because the Rehabilitation Act of 1973, the related Access

Acts and additional legislation has become the stated policy

of the United States, and its provisions have reasonably and

properly entered the Federal Courts.

Health

The City of Chicago has been and is recognized as a non-

attainment area by the United States Environmental

Protection Agency as to ambient pollutants, such as carbon

monoxide and ozone. It is unsafe for such risk groups as

listed on the preceding page.

The record contains a wealth of substantiation by

petitioners’ physicians and other professionals stating life

threatening harm for at least one of the petitioners if their

cause remains transferred from the Western Division,

Rockford, to the Eastern Division, Chicago

The Courts and defendants, by their transfer orders and

motions, argue over a few miles, while petitioners have’ been

plunged back into the very environment they deliberately fled

nine years ago for a safer rural environment in the country.

No defendant is inconvenienced in any way other than

some reasonable increase in the cost of litigation. In fact, if

the court will review the names of these corporations, they

will see they are of a size, stature and liquidity that they are

able to sacrifice some additional monies for the lives of these

two plaintiffs.

After having resided continuously in their condominium

unit in the Hancock Center for a period of several months,

petitioner Frank Whitmer began to experience symptoms of

illness which physicians initially were unable to relate to any

cause.

Approximately August 28, 1981, Frank Whitmer was

advised by his physician that his medical problems could be

in whole or in part caused by exposure to carbon monoxide

and exhaust fumes. Approximately October 27, 1981 Frank

Whitmer was advised by a specialist that he was suffering

from a permanent sensitivity to motor vehicle exhaust caused

by inadequate ventilation in his condominium and the

resulting continued exposure to inhalation of carbon

monoxide and other noxious by-products of motor vehicle

exhaust and other pollutants from the six floor enclosed

indoor parking garage on the lower floors of this multi-

purpose building, and other parts of the building. Such has

been confirmed by his experts. At the same time Joan

Whitmer had a similar severe hearing loss and was later

advised by her physician that he considered it due to the same

exposures.

9

ee

For these reasons, involving his health and his life, and

according to his physicians, petitioners filed this suit in the

Western Division instead of the Eastern Division where they

cannot occupy, but have paid for, their city condominium

since 1981.

Plaintiff found that when he followed the medical

instructions to avoid toxics by the Mayo Clinic and others, he

felt better and could function reasonably well. When he

didn't follow the medical instructions and was exposed, he

became seriously ill with a repetition eventually of the

cardiovascular, respiratory and other symptoms.

e “Avoid carbon monoxide exposure.” MD. Mayo Clinic,

May 17, 1984.

e “Unable to tolerate simple fumes” “not even travel back

and forth to work in a routine fashion because of his

exposure to carbon monoxide and other airborne

pollutants.” Finding of Social Security

Administrative Law Judge, July 16, 1984. It is

equally true today.

“medically contraindicated for this patient to travel into

the City of Chicago for any reason.” R C Filice,

MD., April 17, 1989.

@ “not travel to the Chicago area ... as any exposure would

be potentially dangerous, possibly fatal or totally

disabling.” William K Lee, MD., Cardiologist.

Internist, Chief, Coronary Care Unit, May 9, 1989.

e “not travel to Chicago and consciously try to avoid any

further exposure to toxic fumes...” Abraham N

Lotan, MD., Otolaryngologist, June 15, 1989.

®

“he must avoid all similar toxic exposures and to move out

of . . . the Chicago urban area.” Theron G Randolph,

MD., Allergist, June 17, 1989.

Plaintiff Joan P Whitmer has now become totally disabled.

She had an unexpected severe drop in hearing at the same

time Plaintiff Frank L Whitmer had his hearing loss and

10

tinnitus in their condominium apartment in the John Hancock

Center. Her speech discrimination is now a severe loss of

40% or more under the Social Security Administration rules

and is well documented by the Mayo Clinic, the

Northwestern Memorial Medical Center and Presbyterian St

Luke's Hospital.

Further toxic exposures would destroy her remaining

hearing.

“avoid further exposure to chemical pollution,

especially petrochemicals, auto exhaust...”

George E Shambaugh Jr., MD., Otologist-Allergist,

June 14, 1989.

Petitioners are ill, disabled, and are living on a small

pension social security and disability. They will soon be

completely broken in health, in money, and in their their faith

in justice.

de minimis

Defendants moved in the district court to transfer venue

within the district from Western to Eastern Division. The

district court (Stanley J Roszkowski) refused to rule on any

motions, insisting that venue first be determined. He

determined that the case involves an intradistrict transfer as

opposed to an interdistrict transfer, stating that either

division's legal mechanism could adequately try the case.

The judge transferred the cause of action to the Eastern

Division of the Northern District of Illinois, for the

“convenience of the defendants, stating:

“On balance, this Court has little difficulty in

concluding that the inconvenience, expense and |

hardship to defendants which would accompany a

trial of this case in Rockford, Illinois far outweighs

the de minimus (sic) inconvenience and hardship to

plaintiffs.”

Black's Law Dictionary, Sth Abridged edition says “De

minimis non curat lex. The law does not care for, or take

3 October 12, 1989 Memorandum Opinion and Order, page 7

11

notice of, very small or trifling matters. The law does not

concern itself about trifles or insignificant matters.”

: That the medical affidavits and documentation provided

the district court, the that injury to petitioners health,

physical, financial and emotional states, would be construed

as “very small, trifling or insignificant” is insulting.

Never at any time did the district court come to grips with

the medical facts of petitioners’ conditions. He ignored the

uncontroverted facts of the health of these plaintiffs and

belittled their physical illness with the phrase “de minimis

inconvenience.” This is a prejudicial, hostile, insulting

statement by a judge.

Balancing a doctrine of convenience against the

established fact of a party's survival completely misconstrues

the doctrine of forum non conveniens and 28 USC 1404(a).

Petitioners, who are in straitened financial circumstances, are

forced to pay the substantial additional costs.

DENIAL OF MEANINGFUL DUE PROCESS

TO AN ADJUDICATED AND LEGALLY DISABLED,

HANDICAPPED PRO SE

FRCP 60(a)

As the magistrate, P M Mahoney, in his report and

recommendation to transfer venue from Western Division to

Eastern Division had conspicuously omitted any mention of

petitioner Frank L Whitmer's Social Security Administrative

Law Judge's adjudicated total disability, or Dr Theron G

Randolph's affidavit of October 17, 1988 in careful

explanation of the acute illnesses and their effects

—petitioners commenced a careful search of the docket for

these items. Plaintiffs also found that a transcript of January

27, 1989 was missing. Therefore, petitioners filed a motion

for an emergency addition of these missing critical records on

August 1, 1989 under FRCP 60(a).

Petitioners stated that “This matter is urgent as a ruling on

intradistrict interdivisional venue is imminent.”

Petitioner Frank L Whitmer personally delivered the

copies to the Court Clerk, Sandra Lichner, and the judge's

copy to his law clerk, Steve Brody. Petitioner pointed out the

serious importance of the missing documents to each of them

asking their help in this administrative error.

Still not hearing from Judge Roszkowski, nor from the

Clerk about the decision on what procedure the Court would

follow, petitioners filed a supplement and memorandum in

support on August 30, 1989.

Judge Roszkowski then denied petitioners’ objections to

the transfer of venue for severe health reasons and ordered

their case transferred to Eastern Division. His elaborate and

inaccurate order never once mentioned any of the missing

documents, petitioner Frank L Whitmer's total disability or

plaintiffs’ handicaps.

Contrary to what he said, petitioners were never permitted

venue—or emergency health discovery—he had also refused

to rule on their motion to compel such discovery.

Petitioners then filed a motion and renewal of their FRCP

60(a) motion on October 18, 1989.

In fact, the court had done nothing about these critical

missing documents. On November 3, 1989, the judge's law

clerk telephoned petitioner Frank L Whitmer to ask which

documents were missing from the court file and telephoned

later stating that they had been found.

Obviously these critical medical documents were not used

or “balanced” as required, on petitioner Frank L Whitmer's

behalf. Clearly this was an abuse of judicial power and

discretion, certainly amounting to a direct suppression of

evidence.

Trial Court Controlling the Record

Judge Roszkowski constantly accused petitioners of

“papering” him. Petitioners suggested it took at least two

pages to counter a single lie by the defendants and that

stopping defendants’ prejudicial falsifications would solve the

probiem.

The judge then instructed that nothing was to be filed

without leave of court, and of course petitioners could not

press their objections fully as their cause, and their appeal

itself, was dependent upon the judge's good will and he

refused to listen. Jnternational Business Machine

Corporation v Edelstein, 526 F2d 37, 45 (1975) clearly

established that preventing the making of a record for

purposes of appeal was impermissible.

Unwritten policy

The trial judge's memorandum opinion and order also

States on page 9 that:

“This Court further adds that it has been a

longstanding reciprocal policy, albeit an unwritten

one, to transfer cases from the Western Division to

the Eastern Division, or the reverse, on balance when

handling all the proceedings in one or the other

division proves to be most convenient for all the

parties, witnesses and in the interest of justice and

does not conflict with some applicable venue statute

such as 28 USC § 1391.”

This action invites a death sentence for ill persons or toxic

tort victims like the petitioners, who purposely moved away

from the very area the court now requires them to return to in

order to prosecute their case. It is not only deadly but it is

very simply unconstitutional and neglects the RICO

provisions.

Plaintiffs documented Motions for

Sanctions and to strike

were never ruled on

The trial court has acted upon tainted venue motions based

upon false and misleading papers filed by defendants to

petitioners’ detriment.

Petitioners Frank L Whitmer and Joan P Whitmer have

pled that defendants’ Motions for Change of Venue for

Convenience under 28 USC § 1404(a) are so substantially

14

false that petitioners filed motions under Federal Rule of

Civil Procedure 11 Sanctions and Federal Rule of Civil

Procedure 12(f) Striking, for extreme prejudice.

One sanction motion alone dealing mainly with venue

raised some eighteen sanctionable points in twelve pages, and

over forty-eight paragraphs.

One of the sanctionable points included the statement that

plaintiffs were the only two people claiming injury, while

defendants already knew of—had been served with suii: ions

by, and had withdrawn the entire court file in another

personal injury case, 86 L 12567, Joyce Warner v John

Hancock Mutual Life Insurance Company, et al.

This was an intentional, and a direct lie.

The trial court has refused to recognize the violation of

Rules 11 or 12 as it was duty bound to do.

The orders of the District Court and the Court of Appeals

constitute abuses of discretion and are clearly erroneous as a

matter of law based on the admitted facts by petitioners and

the clearly false facts offered by the defendants.

As a result, petitioners filed a notice of unconstitutionality

of Federal Rule of Civil Procedure 11 for lack of equal

protection, which was entered by the district court on March

15, 1989.

Rule 11 requires a court to impose sanctions, they are

mandatory, but the trial court has refused to do so.

“Dismissal may be an appropriate remedy.” Touchstone v

G.B.Q. Corp., 596 F S 805, 810 (ED La 1984).

The Advisory Committee provided guidelines as to how it

expected discretion would be exercised by the district judge

in Rule 11:

“The time when sanctions are to be imposed rests in

the discretion of the trial judge . . . in the case of

motions at the time when the motion is decided or

Shortly thereafter.”

Sanctions should be imposed as closely as possible to the

time when the offending conduct occurred. See Thomas v

Capital Sec Sev., Inc., 836 F 2d 866, 881 (Sth Cir 1988).

15

The Fifth Circuit explained that a proper sanction assessed

at the time of the offense usually has some measure of

deterrent effect on subsequent abuses and resultant sanctions.

Petitioners have not had the help of such a deterrent effect.

REVIEW

Appeal

On October 12, 1989 joint petitioners filed their Notice of

Joint Appeal (of Right, by Permission, by Allowance, or by a

Petition for Mandamus). In presenting their statement of

reasons, petitioners pointed out that some circuits will treat

an appeal from an interlocutory order as a motion for leave to

file a petition for mandamus. This Circuit did not choose

this option. Others do. It was error and a conflict not to do

so.

Judge Stanley J Roszkowski had stated to plaintiffs

(petitioners) to “go ahead and appeal” but later denied

certification. On November 7, 1989 petitioners filed their

“Notice of Joint Appeal/Consolidation/Amendment to Joint

Appeal/or Mandamus” in the United States District Court for

the Northern District of Illinois, Eastern Division.

This order, with or without prejudice, is final and

appealable under 28 USC § 1291.

Discovery is available to ascertain facts relating to

jurisdiction and venue. Oppenheimer Fund, Inc v Sanders,

437 U S 340, 351 n 13 (1978). Contrary to his statement,

Judge Stanley J Roszkowski refused to rule on petitioners’

motion to compel.

Finality Doctrine Relief and

Cohen collateral order doctrine

The courts have used judge-made exceptions to relieve the

Finality Doctrine when it would be unfair to a party.

In Coopers & Lybrand v Livesay, 437 US 463, 468

(1978), the Court relying on Abney and MacDonald, stated:

s“Continuing by discussing the “death knell” doctrine,

appealability turns on the court's perception of that impact

16

in the individual case. Thus, if the court believes that the

plaintiff has adequate incentive to continue, the order is

considered interlocutory; but if the court concludes that

the ruling, as a practical matter, makes further litigation

improbable, it is considered an appealable final decision.”

(at 471.)

Obviously, petitioners’ case and its life or death health

consequences brings a new, and macabre accent to that

“death knell” discussion.

Under any concept of review, the transfer order under 28

USC 1404(a) is under the Cohen rule and the requirement of

finality must be given a “practical rather than a technical

construction.” Cohen v Beneficial Indus. Loan Corp., 337 U

S 541, 546 (1949).

“The Cohei doctrine allows appeals to be taken from

orders that (1) finally determine claims entirely collateral

to and separable from the substance of other claims in the

action, (2) require review because they present significant,

unsettled questions, and (3) cannot be _ reviewed

effectively once the case is finally decided.” Huie v

Bowen, 13 Soc Sec Law Rep, 256, 788 F2d 698, 702 (11th

Cir 1986).

The Cohen case is a prediction of the hopelessness of

these petitioners ever being heard, on appeal on the issue

presented here. If the case is tied to the Eastern Division,

these petitioners may not participate for the protection of

their lives. If an appeal is taken, this question of venue will

be moot. If petitioners cannot appeal here, they cannot

appeal ever.

The federal judiciary, in an attempt to reduce the burden

on appellate courts, has regularly invoked the final judgment

rule. This rule limits appeals to those from final decisions of

the district court. The court, however, has frequently found it

difficult to harmonize this concern with the desire to avoid

the hardship resulting from erroneous interlocutory orders.

The collateral order doctrine, which permits the immediate

17

appeal of a small class of interlocutory orders represents an

attempted resolution of this conflict. This doctrine, however,

has been inconsistently applied.

Further in reviewing state court judgments under 28 USC

§ 1256 the U S Supreme Court using Cohen's practical rather

than technical pragmatic approach found an order overruling

an objection to venue to be final under the particular

circumstances of the case. Mercantile Natl'l Bank v

Langdeau, 371 US 555 (1963).

The U S Supreme Court and the U S Courts of Appeals

have considered final and appealable similar financial,

health, and procedural questions.

An order denying a motion to proceed in forma pauperis

in the district court. Roberts v United States District Court,

339 US 844 (1950).

An order determining that an accused is incapable of

standing trial as a result of present insanity. Higgins v United

States, 205 F2d 650 (CA 9th 1953).

An order refusing stay of the execution of a nonappealable

order and simultaneously refusing to make the underlying

order appealable by issuing a certificate under FRCP 54(b) as

the court did similarily in this case. Redding & Co v

Russwine Const Corp., 417 F2d 721 (CA DC 1969).

The order is_ final determination of a claim of mght

“separable and collateral to” rights asserted in the action;

The order transferring venue for the convenience of the

defendants under 28 USC § 1404(a) is final in that the Social

Security Administrative Law Judge's decision declaring

plaintiff Frank L Whitmer to be totally disabled in that he can

no longer tolerate the City of Chicago pollution without

deadly harm, and that petitioners five main physicians and

other physicians have stated cumuiatively, in some twenty-

seven affidavits, letters, and reports specific harmful or

disabling reactions and even that each plaintiff will be further

injured, disabled, severely and even fatally.

18

ra

A ground for jurisdiction is the “collateral order

doctrine.” The exception to the final judgment rule was

recognized in 1949 in Cohen v Beneficial Industrial Loan

Corp., 337 US 541 (1949), 69 S Ct 1221, as follows:

“is obvious that if Congress had allowed appeals only

from those final judgments which terminate an action this

order would not be appealable.” “[t]his order of the

District Court did not make any step toward final

disposition of the merits of the case and will not be

merged in final judgment. When that time comes, it will

be too late effectively to review the present order and the

rights conferred by the statute, if it is applicable, will have

been lost, probably irreparably. ... the matters embraced

in the decision appealed from are not of such an

interlocutory nature as to affect, or to be affected by,

decision of the merits of this case.”

“This decision appears to fall in that small class which

finally determine claims of right separable from, and

collateral to, rights asserted in the action, too important to

be denied review and too independent of the cause itself to

require that appellate consideration be deferred until the

whole case is adjudicated. The Court has long given this

provision of the statute this practical rather than a

technical construction.” Bank of Columbia v Sweeney, |

Pet 567, 579; United States v River Rouge, 269 US 411,

414; Cobbledick v United States, 308 US 323, 328.

“The effect of the statute [28 USC § 1291] is to disallow

appeal from any decision which is tentative, informal or

incomplete. Appeal gives the upper court a power of

review, not one of intervention. So long as the matter

remains open, unfinished or inconclusive, there may be no

intrusion by appeal. But the District Court's action upon

this application was concluded and closed and its decision

final in that sense before the appeal was taken.”

“Nor does the statute permit appeals, even from fully

consummated decisions, where they are but steps towards

19

ne

final judgment in which they will merge. The purpose is

to combine in one review all stages of the proceeding that

effectively may be reviewed and corrected if and when

final judgment . . .”

“We hold this order appealable because it is a final

disposition of a claimed right which is not an ingredient of

the cause of action and does not require consideration with

_

“Cohen was followed by Swift & Co Packers v

Compania Colombiana Del Caribe.” Swift & Co Packers

v Compania Colombiana Del Caribe, 339 US 684 (1950),

688-689.”

“Appellate review of the order dissolving the attachment

at a later date would be an empty nite after the vessel had

been released and the restoration of the attachment only

theoretically possible. Cf. The Panaghia Kathariotisa, 165

F2d 430 (3 Cir 1948). Under these circumstances the

provision for appeals only from final decisions in 28 USC

§ 1291, should not be construed so as to deny effective

review ofa claim fairly severable from the context of a

larger litigious process. See Cobbledick v United States,

309 US 323, 328-329. The situation is quite different

where an attachment is upheld pending determination of

the principal claim. Such was Cushing v Laird, 107 US

69, which is urged on us. In such situation the rights of all

the parties can be adequately protected while the litigation

on the main claim proceeds.”

“Cohen and Swift & Co Packers gave rise to what is

termed the collateral order doctrine, or the offshoot rule,

or simply the Cohen rule. The effect of the rule is to make

final, and thus appealable under 28 USC § 1291, certain

orders that do not fully and finally determine the

controversy between the parties.

The district court's order conclusively determined the

disputed question of transfer and, in so doing, resolved an

important issue completely separate from the merits of the

20

—

action. Cohen, supra, 337 U S at 546. Therefore, the district

court's order is reviewable.

Certainly, also, this case presents significant unsettled

questions involving not only the petitioners but also the other

occupants of the John Hancock Center in Chicago.

Petitioners claims for the special uncontrovertable RICO

venue lies in their health, disability, handicaps, and life and

death—facts. Such venue considerations in no way deal with

the merit of any causes of action.

There is no effective way in which the district court's

order granting a transfer could be reviewed later. If

petitioner Frank L Whitmer survives—the question is moot.

If petitioner Frank L Whitiner does not survive-his case is

mooted. The law dictionary is surprisingly to the point, “no

longer presents a justiciable controversy because issues

involved have become academic or dead.”

Mandamus

Petitioners have attempted to appeal the lower court's

order twice through their notices of appeal stating this

conflict between the circuits, and that their notices of appeal

could be converted to a petition for mandamus if necessary.

The United States Court of Appeals for the Seventh Circuit

did not accept that procedure, and dismissed the appeals.

Certification

On petitioners’ appeal, the Seventh Circuit on December

14, 1989 entered an order directing that petitioners appeal be

dismissed because the district court's order was not

appealable as of right, pursuant to 28 USC § 1291, because

the order did not dispose of the case, nor was the order

appealable as a collateral order. The Seventh Circuit also

stated the district court's order was not appealable as an

interlocutory order because the district court denied

certification, which is required by 28 USC § 1292(b). The

court stated a petition for writ of mandamus was the

appropriate avenue for reviewing an order denying or

21

granting a motion for transfer before final judgment is

entered. (Other relief sought was also denied.)

Petitioners determined that their continuing physical and

health injury by the Federal District Courts required

proceeding under certiorari to this United States Supreme

Court before the actions of these other courts resulted in

petitioner's Frank L Whitmer's death.

REASONS FOR GRANTING THE WRIT

Certiorari

Congress passed the Evarts Act* providing for resolution

of intercircuit conflicts through Supreme Court review on

writ of certiorari. The leading commentators on the Supreme

Court's practice assert that uniformity of decision among the

courts of appeals was a primary purpose of the certiorari

jurisdiction. The Supreme Court has identified the existence

of a conflict among the circuits as an important consideration

in deciding whether to grant certiorari.°

Such a clear life or death question as that of these

petitioners should not require conflicts to help this Supreme

Court with fully aired issues before the Court is called upon

to decide them.

The Van Dusen reasoning appears to govern transferred

federal claim cases as well.6 Congress did not intend a

transfer under section 1404(a) to eliminate those “venue

privilege” advantages .7 Where trial in the forum selected by

plaintiff would impose a heavy burden on the defendant or

the court dismissal would be proper unless plaintiff could

offer “specific reasons of convenience supporting his

choice.” 8 Petitioners have claimed and support life or

death reasons.

The Circuit Courts of Appeals Act of 1891, ch 517, 26 Stat. 826

See Sup Ct R 10.1(a), originally 19.1(b), specifying conflict

between circuits as ground for grant of certiorari.

Van Dusen v Barrack, 376 U S 612 (1964)

7 See 376 US at 633-34

8 Piper Aircraft Co v Reyno, 454 US 235 (1981)

22

e The questions are “too important to be denied

review,” in the sense that they “present serious and unsettled

questions”;

e The preclusiveness of a legitimate disability

determination of a federal administrative court.

e The protections of the Rehabilitation Act.

e The right to Access to Justice and the Courts without

unnecessary risk of health or life, or the forced choice

between health and life—or justice.

This improper venue transfer is appealable because it

causes irreparable injury. The Federal District Court, in the

absence of certiorari will move this case to the irreparable (or

fatal) harm to these petitioners, when an appeal would be

useless.

This review cannot, in the nature of the questions that are

presented, await final judgment because when that time

comes, it will be too late to review the order and the nghts

will have been lost irreparably.

Petitioners have no other adequate means to secure the

desired relief, will be damaged or prejudiced in a way not

correctable in final appeal.

This means that petitioners upon transfer must either drop

their suit—or risk their lives.

Again, the issues are of interest to far more than these two

pro se parties. There are seven million children and at least

twenty-eight million adults with mental or _ physical

handicaps. When family members, parties, witnesses and

others are added it represents an astounding figure—in short,

a large percentage of the public, more than fifty million

adults. The Rehabilitation Act, the related Access Acts and

legislation is now the stated policy of the United States, and

have reasonably and properly entered the Federal Courts.

Petitioners are now disabled and handicapped and they

have found that they have had to fight for every necessary

23

entitlement—year after year in each court with constant

hostility and attack.

Conflict In The Circuits

A basis of the case is that there is a conflict in the circuits

regarding venue appeal and mandamus decisions that may

terminate litigation and thereby become utterly final in

reality.

There is a conflict in the circuits regarding Appeal and

Mandamus procedures and consequences.

Sterling Forest Associates Ltd v Barnett-Range Corp., 840

F2d 249, 252 (4th Cir 1988)

Cone Memorial Hospital v Mercury Const., 103 S Ct 927,

933 n6 (1983)

Corcoran v Ardra Ins Co Ltd., 842 F2d 31, 35 (2nd Cir 1988)

Petitioners filed their “Notice of Joint Appeal of Right, By

Permission, By Allowance, or by a Petition for Mandamus”

on October 12, 1989, stating: “some circuits will treat an

appeal from an unappealable interlocutory order as a motion

for leave to file a petition for mandamus.” There are many

examples of this, such as the recent case of Sterling Forest

Associates Ltd v Barnett-Range Corp., at 252 which cites

three circuits that do so—Third, Fourth and Ninth.

At a November 28, 1989 hearing, Federal District Court

Judge Nicholas J Bua? stated: (transcript page 5)

“The only relief you can get is by way of mandamus

* * * or they do it sua sponte up there. What you do

is appeal, and they say, ‘Well, it's not an appealable

order, but we don't like what the judge did downstairs,

and we now will invoke our supervisory powers, and

we'll mandamus.”

Hearing (January 24, 1990, page 6 Transcript):

9 Judge, United States District Court, Northern District of Illinois,

Eastern Division

os

“THE COURT: Mr. Whitmer, what I said was that

the last time the Seventh Circuit issued a petition for

writ of mandamus, it happened to go up in the guise

of an appeal, and they said, "No, it's not an appealabie

order, but based on our supervisory powers, we will

Sua sponte grant the relief by way of mandamus.” * *

* The case is just diametrically opposed to two other

Circuits, and had the plaintiff appealed that case to

the Supreme Court, they would have been mandated

to take it because there is a split in the Circuits.”

Considering Judge Bua's statements and the Court of

Appeals for the Seventh Circuit's denial of such action, there

is also a modest conflict within the circuit.

This case also involves toxic torts

Toxic torts are significantly different than other actions in

that the defendants totally control any and all information as

to the toxic exposures, their duration, and their intensity. It is

the very knowledge that plaintiffs need, and that defendants

deny to them. It is what community and worker “right to

know” acts are about.

It is far worse than a motor vehicle accident—for in that

case you know whether it was a motorbike, automobile, or a

heavy truck. The mass of the vehicle affects the injury

itself—and is known. In a toxic tort of this type one can

determine some of the toxics, but not the total toxic “soup,”

its composition, synergisms, and time dose responses.

We know that automobile exhaust gases and carbon

monoxide have been transmitted in this all electric building,

and that there were two electrical transformer explosions.

One in 1970, and another in 1980 involving PCB's and

dioxins that there is dangerous, deteriorating, friable, loose

asbestos in each apartment according to the 1989 U S

Environmental Protection Agency investigation, and that

encapsulated diazinon and other pesticides were used in

unventilated storage areas.

25

Se ae

Defendants' control of toxic data denies Plaintiffs access

to medical care

Denial of discovery by the defendants controls access to

proper medical treatment. Some physicians treat only

massive single exposures, while other physicians treat

chronic moderate or low level exposures. Even the

consequences and treatments can differ. If defendants’ denial

of information is successful, it results in a constitutional

violation of due process and misconduct constituting

obstruction of justice. Exactly what has happened

here—even to a destruction of evidence.

Plaintiffs have tried patiently since 1979 to discover what

has caused their injuries and continuing illnesses. That is

now some eleven years.

Meanwhile the defendants have had massive discovery of

plaintiffs' data and even of their consultants'-consultants.

No discovery by plaintiffs

Beginning with the state court cases and now in federal

court, petitioners have waited since 1982 for any health or

pollutant discovery. They also have not been allowed venue

discovery.

Further poisoning, injury, and threats

Petitioner Frank L Whitmer was also very seriously ill

during this period, having been dangerously and illegally

exposed to non-automotive exhaust fumes and carbon

monoxide levels violating all health standards (as high as 141

parts per million) in the John Hancock Center garage. He has

still not recovered. This occurred on May 17, 1989 while

taking physical samples under a motion to preserve evidence.

The readings were taken and recorded by the Certified

Industrial Hygienist doing the physical sampling.

Petitioner Frank L Whitmer was again seriously exposed

to one of the most dangerous poisons in our society—his

systems reacted severely—and since that date he has been

unable to regain his original base health readings even though

he has been prescribed a significant oxygen supplement of

26

4

five liters per minute. His cardiologist, Dr William K Lee,

has stated to the Federal District Court several times “any

exposure would be potentially dangerous; possibly fatal or

totally disabling.”

This United States Supreme Court can take judicial notice

that people such as petitioner Frank L Whitmer with

cardiovascular and respiratory conditions are one of the

specially protected classes under all of the Federal, State of

Illinois, and City of Chicago pollution standards. They are

advised to avoid any exposures exceeding the protective

minimums.

Special monitoring equipment indicates that in spite of his

Constant Positive Air Pressure “breathing machine,” with a

considerable five liter flow of oxygen, petitioner's blood

oxygen transport is seriously desaturating, and his apnea has

changed drastically since this last toxic exposure. If this

desaturation should continue or increase, his body systems

would collapse.

At the instructions of his cardiologist, petitioners made an

emergency appointment with the Mayo Clinic Sleep Clinic

and notified the Federal District Court of this crisis on March

14, 1990 by asking for a stay and rescheduling.

Instead of responding to the health emergency, the Federal

District Court set an answer by the defendants and then a

reply by the petitioners through April 10.

Petitioners notified the Federal District Court of their

extension of time by this United States Supreme Court to

petition for writ of certiorari but the trial court's only

response was to set a conflicting hearing by a magistrate.

Now it is mid-June, fully ninety days later that petitioner

Frank L Whitmer has been denied critical medical evaluation

and care.

Plaintiff should not be required to permit defendants he

charges with injuring him, to monitor and control his health

and treatment, particularly when common sense indicates that

the last exposure could have been intentional.

27

As petitioner Frank L Whitmer stated in open court on

May 16, 1989, defendants have threatened him in the past.

“if you want to keep your health, drop the suit.” Transcript,

page 14. Of course defendants deny any such statements.

Lawyers usually don't threaten publicly. A clear indication of

defendants’ attitude is their statement in a response, “/r is

clear that he either value the litigation more than he values

his health, or that his health problems truly do not

significantly impair his ability to devote his time to this

litigation.”

Quoting from another defendant's response of July 18,

1989, “the plaintiff voluntarily and unnecessarily exposed

himself to conditions which he claims make him ill.”

Defendant's attorney conveniently forget that defendant's

two “experts” were accompanied by their attorney

throughout, and that petitioner Frank L Whitmer had to fight

to get them to comply with the magistrate's decision to allow

sampling of the elevator emergency vestibules and asbestos.

The fumes were not from automobiles—but were from

non-automotive cleaning equipment. Also, on January 11,

1984 the transcript on page 5 quotes the lead attorney for

John Hancock Mutual Life Insurance Company, describing

the agreed new garage carbon monoxide monitoring levels

equipment, and turn on procedures”

“monitors will be in use from the alarm .. . thirty-five

parts per million When the alarm sounds . . . the fans will

then be turned on and the experience is the fans will quickly

bring the level down to just a few parts per million.”

Toxic discovery denial by defendants

Petitioners’ selection of venue, under the Racketeer

Influenced and Corrupt Organizations Act (RICO) offering

special venue provisions, was determined by their need to

avoid further pollutant exposures.

Petitioners' complaint itself detailed and defendants had

almost complete discovery of our and our physicians records.

Defendants were thereby well aware of our health needs.

28

When ordered to appear in Chancery Division of the

Circuit Court of Cook County in the predecessor state case

(82 CH 7453), petitioner Frank L Whitmer explained that he

and his physicians had insisted on toxic time and dose data.

The transcript of December 2, 1985 (pages 9-10) shows

the Court's response was:

The Court: The dollar amount is satisfactory. There are a lot

of other open items that you want included. One of them

is a declaration and an identify of what you've been

exposed to.

Mr Whitmer: Yes.

The Court: How would you know that it's accurate? I mean,

Say you get a statement. Would you accept their opinion

as to what you were exposed to?

Mr Whitmer: I think that there could be proper testing

samples taken too. We tried to stop a very rare cleaning

circumstance where in essence they were destroying

evidence, and I called it to Mr Ring's office's attention,

and he said he wouldn't even take it up with you.

The Court: See, that's a problem.

Mr Whitmer: Yes.

Transcript (pages 17-19) shows a defendants’ explanation :

Mr Berzock: Now, there is certain relief that is

appropriate to the lawsuit originally brought by the

ae

Mr Berzock: There's certain relief that might be

appropriate here.

Mr Whitmer: Yes.

Mr Berzock: The relief that's appropriate here turns out to

be money. The relief that is appropriate there turns

out to be various agreements and settlements on

construction and so on and so forth.

Petitioners contend that this petition for writ of certiorari

is a matter of their life or death and health.

On June 12, 1990 petitioners were given the word—no

more Stays in this case, going to move it.

Ninety days to do all of the 250 pages of twelve motions

to dismiss and for summary judgment, to obtain any

necessary discovery and to complete all medical treatment.

Apparently a civil pro se plaintiff has fewer rights than a

convicted criminal—and in this case the criminal is also put

in control of the victim's life.

Power of supervison

United States Supreme Court Rule 10(a) states:

“(a) When a United States court of appeals has rendered a

decision in conflict with the decision of another United

States court of appeals on the same matter; . . . or has so

far departed from the accepted and usual course of judicial

proceedings, or sanctioned such a departure by a lower

court, as to call for an exercise of this Court's power of

supervision.”

Petitioners ask this Court to exercise its power of

supervision and started the certiorari process with as long ago

as April 6. It isn't a very reassuring picture.

CONCLUSION

Petitioners ask that this Court issue its petition for a writ of

certiorari to the Court of Appeals for the Seventh Circuit.

Respectfully submitted,

Frank L Whitmer and Joan P Whitmer

American Citizens on their own behalf, Petitioners

221 Pardridge Place, DeKalb IL 60115, 815/758-7272

15 June 1990

30

APPENDIX: A-D

Order of Court of Appeals

dated December 14, 1989 Al-2

Order of Court of Appeals

dated December 14, 1989 B3-4

Order of Court of Appeals dated January 16, 1990

denying Petition for Rehearing C5-6

Memorandum Opinion and Order of the

District Court dated October 2, 1989 D7-16

Order of the District Court

dated October 26, 1989

APPENDIX A—I

United States Court of Appeals

For the Seventh Circuit.

Chicago, Illinois 60604

December 14, 1989

Before

Hon. HARLINGTON WOOD, JR., Circuit Judge

Hon. RICHARD D. CUDAHY, Circuit Judge

Hon. RICHARD A. POSNER, Circuit Judge

No. 89-3241

FRANK L. WHITMER

and JOAN P. WHITMER

Plaintiffs- Appellants

JOHN HANCOCK

MUTUAL LIFE

INSURANCE COMPANY,

et al

Defendants-Appellees

— — — —

Appeal from the

United States

District

Court for the

Northern District

of Illinois

Western Division

87 C 20306

Judge: Stanley J

Roszkowski

This matter comes before the court for its consideration

of the following documents:

APPENDIX A—2

i "MOTION TO DISMISS" filed herein on

November 1, 1989 by counsel for the appellees,

General Parking Corporation.

2 "CIRCUIT RULE 3(c) JURISDICTIONAL

STATEMENT" filed herein on November 13,

1989 by the pro se appellants.

On consideration thereof,

IT IS ORDERED that this appeal is DISMISSED.

Appellants seek to appeal from the district court's- order,

entered October 2, 1989, transferring their cause of action

to the Eastern Division of the Northern District of Illinois

from the Western Division. The district court's order is

not appealable as of right, pursuant to 28 U.S.C. sec.

1291, because the order does not dispose of the case, nor

is the order appealable as a collateral order. See, e.g.,

Jesko v United States, 713 F.2d 565, 567 (10th Cir.

1983). Further, the district court's order is not appealable

as an interlocutory order because the district court denied

certification which is required, pursuant to 28 U.S.C.. sec

1292(b). Instead, a petition for writ of mandamus is the

appropriate avenue for reviewing an order denying or

granting a motion for transfer before final judgment is

entered. See, e.g., Butterwick Co. v Will, 316 F.2d 111

(7th Cir. 1963). Appellants have not filed such a petition

with this court. Accordingly,

IT IS ORDERED that the MOTION TO

DISMISS is GRANTED and this appeal is hereby

DISMISSED.

IT IS FURTHER ORDERED that any other relief

sought by appellants in connection with this appeal is

hereby DENIED.

APPENDIX B—3

United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

December 14, 1989

(second of two orders)

Before

Hon. HARLINGTON WOOD, JR., Circuit Judge

Hon. RICHARD D. CUDAHY, Circuit Judge

Hon. RICHARD A. POSNER, Circuit Judge

No. 89-3478

FRANK L. WHITMER

and JOAN P. WHITMER

Plaintiffs- Appellants

Appeal from the

United States

District

Court for the

Northern District

of Illinois

Western Division

VS.

JOHN HANCOCK

— —— — ~— —— — — — —_— —— — — ——

MUTUAL LIFE

INSURANCE COMPANY, 87 C 20306

et al Judge: Stanley J

Defendants-Appellees Roszkowski

This matter comes before the court for its consideration

of the following documents:

APPENDIX B—4

l. "CIRCUIT RULE 3(c) JURISDICTIONAL

STATEMENT: filed herein on December 6, 1989

by the pro se appellants.

ya "MOTION TO CONSOLIDATE" filed herein on

December 6, 1989 by the pro se appellants.

On consideration thereof,

IT IS ORDERED that this appeal is DISMISSED

for lack of jurisdiction. Appellants seek review of the

district court's order, dated October 26, 1989, denying

certificate of an interlocutory appeal pursuant to 28

U.S.C. 1292(b). An order denying certification is not

appealable, In Re Master Key Antitrust Litigation, 528

F.2d 5,8, (2d Cir. 1975), nor is mandamus an appropriate

vehicle for review, Green v Occidental Petroleum Corp,

541 F2d 1335, 1338 (9th Cir. 1976). Therefore, we lack

jurisdiction to review the district court's order.

IT IS FURTHER ORDERED that MOTION TO

CONSOLIDATE IS DENIED.

APPENDIX C—5

United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

January 16, 1990

Before

Hon. HARLINGTON WOOL, JR., Circuit Judge

Hon. RICHARD D. CUDAHY, Circuit Judge

Hon. RICHARD A. POSNER, Circuit Judge

No. 89-3241

FRANK L. WHITMER

and JOAN P. WHITMER

Plaintiffs- Appellants

Appeal from the

United States

District

Court for the

Northern District

of Illinois

Western Division

VS.

JOHN HANCOCK

MUTUAL LIFE

INSURANCE COMPANY, 87 C 20306

et al Judge: Stanley J

Defendants-Appellees Roszkowski

APPENDIX C—6

This matter comes before the court for its consideration

of the MOTION TO EXTEND TIME FOR FILING

PETITION FOR REHEARING/RECONSIDERATION

OF DECEMBER 14, 1989 ORDERS INVOLVING

SUBSTANTIAL CONSTITUTIONAL ISSUES IN

APPEALS 89-3241 AND 89-3478, filed December 27,

1989, by appellants.

We construe appellants’ filing initially as a motion

to reconsider our orders dated December 14, 1989, in

which we dismissed both appeals for lack of jurisdiction.

After careful review of the relevant filings,

IT IS ORDERED that appellants’ motion to

reconsider is DENIED.

IT IS FURTHER ORDERED that appellants’

motion to stay the mandate is hereby DENIED.

IT IS FINALLY ORDERED that any other relief

sought in connection with this filing is DENIED. We

note that appellants may still file a petition for writ of

mandamus challenging the district court's denial of their

motion for transfer in this court.

APPENDIX D—7

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF [ILLINOIS

WESTERN DIVISION

FRANK L. WHITMER ) Appeal from the

and JOAN P. WHITMER _) United States

Plaintiffs-Appellants ) District

) Court for the

) Northern District

VS. ) of Illinois

) Western Division

)

JOHN HANCOCK )

MUTUAL LIFE )

INSURANCE COMPANY, ) 87 C 20306

et al ) Judge: Stanley J

Defendants-Appellees ) Roszkowski

MEMORANDUM OPINION AND ORDER

This action comes before the Court on plaintiff's

objections to the Magistrate's Report and

Recommendation dated April 12, 1989, transferring this

cause to the Eastern Division of the Northern District of

Illinois. For the reasons set forth in the opinion below

this Court adopts both the holding and the reasoning of

the Magistrate's Report and Recommendation with the

following additions and discussion.

: APPENDIX D—8

1. BACKGROUND

Plaintiffs have sued numerous defendants seeking

to recover damages due to the inadequate ventilation in

plaintiff's condominium apartment located in the John

Hancock Center in Chicago, Illinois: Plaintiffs claim that

the installation of the building's ventilation system was in

violation of the Building Code of the City of Chicago and

proximately caused plaintiffs’ health problems. Plaintiffs

further allege that the seventeen named defendants

conspired to conceal from them the inadequacy of the

building's ventilation system. Plaintiffs bring their action

under the Racketter (sic) Influenced and Corrupt

Organizations Act, 18 U.S.C. §§ 1961 1964, and 1965,

the Civil Rights Act, 42 U.S.C. § 1983, various

provisions of the United States Constitution, the Illinois

Constitution, Illinois law and the Municipal Code of the

City of Chicago. Plaintiffs allege that the defendants

have committed fraud, fraudulent concealment,

negligence, breach of implied warranty, nuisance,

trespass and intentional infliction emotional distress.

Plaintiffs currently reside in the City of DeKalb,

Illinois which is located in the Western Division of the

Northern District of [linois. The condominium

apartment and the John Hancock Building in which the

condominium is located are situated in Chicago, Illinois

in the Eastern Division of the Northern District of

Illinois.

Eleven of the seventeen named defendants are

Iilinois enterprises. All eleven of those [Illinois

enterprises have their principal place of business in

Chicago, Illinois in the Eastern Division. The City of

APPENDIX D—9

Chicago itself, an Illinois municipal corporation, is also a

named defendant. The five remaining defendants are

foreign corporation registered to do business in the State

of Illinois and therefore amendable to suit in any district

court in the State of Illinois pursuant to 28 U.S.C. §

1391(c).

Il. DISCUSSION

Rule 72(a) of the Federal Rules of Civil Procedure states

as follows:

(a) Nondispositive matters. A

Magistrate to whom a pretrial matter not

dispositive of a claim or defense of a party

is referred to hear and determine shall

promptly conduct such proceedings as are

required and when appropriate enter into

the record a written order setting forth the

disposition of the matter. The district

judge to whom the case is assigned shall

consider objections made by the parties,

provided they are served and filed with 10

days after the entry of the order, and shall

modify or set aside any portion of the

magistrate's order found to be clearly

erroneous or contrary to law.

Fed. R. Civ. P. 72(a) (emphasis added). Therefore, the

standard of review under which this Court operates in the

instant matter is whether the Magistrate's Report and

Recommendation of April 12, 1989 is "clearly erroneous

or contrary to law." This Court finds that the magistrate's

order is neither.

The applicable venue statute states as follows:

APPENDIX D—10

For the convenience of the parties and

witnesses, in the interest of justice, a

district court may transfer any civil action

to any other district or division where it

might have been brought.

28 U.S.C. § 1404(a). This statutory section sets up a two-

pronged test for determination of the appropriateness of

any transfer - - whether interdivisional or interdistrict.

First, the Court must determine whether the action could

have been brought in the division cr district where the

transferee court lies; second, the Court must determine

whether the factors set out in the statute have been

satisfied.

This court holds that the first prong of the § 1404

test is satisfied in this case. Plaintiffs could have properly

brought this action in either the Eastern Division or the

Western Division of the Northern District of Illinois.

Since all the named defendants either reside in the

Eastern District for venue purposes or are foreign

corporation amendable to suit in the Eastern Division,

venue would be proper in that division. Further, since all

plaintiffs reside in DeKalb, Illinois in the Western

Division, venue is likewise proper in this Court.

Therefore, venue is proper in both the transferor and the

transferee court as required under 28 U.S.C § 1404(a).

See Carpenter v Eticam, 644 F. Supp. 396, 397 (N.D. Ill.

1987).

In addition to venue being proper in the transferor

and transferee court, § 1404(a) sets out three factors

which must be weighed in determining the propriety of a

transfer pursuant to that statutory section: the

convenience of the parties; the convenience of the

witnesses; and the interest of justice. Each of these

aia ei ei

APPENDIX D—il1

factors must be weighed in _ determining _ the

appropriateness of a transfer - - and each of these factors

must be weighed in determining whether the magistrate’s

order was “clearly erroneous or contrary to law.”

A. Convenience of the Parties

It this cause of action remains in the Western

Division, the defendants will clearly be inconvenienced

as all of the defendants are either residents of the Eastern

Division for venue purposes or are foreign corporations

amenable to suit in any forum in the State of Illinois. In

addition, all of defendants’ respective counsel are from

Chicago, Illinois in the Eastern Division and the situs of

the occurrence of the alleged acts as in Chicago, Illinois

in the Eastern Division. The residency of the defendants

clearly mitigates in favor of the transfer.

Plaintiffs argue that transfer would severely

inconvenience them as plaintiff Frank L. Whitmer has a

medical condition which he contends effectively

precludes his full participation as pro se counsel should

the cause be transferred. In support of plaintiffs’

contention, however, plaintiffs have failed to produce any

affidavits or expert medical testimony which sufficiently

supports plaintiffs’ contention that he will be effectively

precluded from meaningful participation.! Defendants,

. 1 The Court notes that plaintiffs have provided the court with

two affidavits from Ors. Lee and Lotan, both of DeKalb, Illinois.

However, these affidavits were not provided to the Court in a timely

manner and, therefore, have not been weighed in the instant motion

to transfer venue. Some explanation of the procedural history

regarding this motion is warranted in explaining the decision not to

take plaintiffs’ affidavits into account. Footnote 1 continued next

page.

APPENDIX D—12

Footnote 1 continued:

On Apmil 12, 1989, Magistrate P. Michael Mahoney handed

down his Report and Recommendation, giving each party the

customary ten days to file any objections. On April 26, 1989,

plaintiff filed a motion to enlarge the time for filing his objections to

and including May 19, 1989. This motion was granted on April 26,

1989. On May 16, 1989, plaintiff again moved this Court to grant an

enlargement of time for filing objections under Fed. R. Civ. P.

6(b)(1). Defendants filed objections to this second enlargement of

time and a hearing was held on May 31, 1989. Pursuant to a minute

order, this Court granted plaintiffs’ motion for an extension up to and

including June 19, 1989. That minute order noted that if no

objections were filed by that time, the matter would be ruled upon

without benefit of briefing. On June 28, 1989, nine days after the

objections were supposed to have been filed with this Court, plaintiff

filed a motion for enlargement of time to file objections to and

including June 28, 1989. That motion was taken under advisement

by the Court following defendants’ objections and on June 29, 1989,

plaintiffs finally filed their objections to the Magistrate's Report and

Recommendation. Defendants timely filed their responses on July

19, 1989 and the matter was considered fully briefed and ready for

ruling. On July 13, 1989, plaintiff filed a motion for leave to file a

reply brief. At a hearing on July 18, 1989 this Court denied

plaintiffs’ motion to file a reply brief. Then, on July 21, 1989,

plaintiff filed, without leave of Court, the affidavits in question from

the two treating physicians, Drs. Lee and Lotan. Even taking into

account the fact that these plaintiffs are representing themselves pro

se, a party does not need to be an attorney to understand the meaning

of the phrase “no more extensions.” That was the clear message

from this Court both at the status hearing on May 31, 1989 and in the

minute order dated June 1, 1989. in addition, this Court made it clear

to plaintiffs that no more filings were necessary or warranted or

wanted following defendants’ reply brief. And then, just three days

after the Court's admonitions about filing, the plaintiffs filed their

doctors’ affidavits.

This time-line is even more incredible when juxtaposed

against the fact that at least one defendant's motion to transfer venue

was on file in this Court on March 15, 1988.

The Court further notes, however, that even if these two

affidavits were taken into account regarding the instant motion to

APPENDIX D—13

for their part, have pointed to a number of instances

where plaintiff has, in fact, traveled to Chicago for

various appearances and discovery matters. Plaintiffs’

failure to support their assertions with affidavits and/or

expert medical testimony comes despite the fact that this

case is over two years old and the fact that numerous and

lengthy extensions were granted plaintiffs in order to file

their objections to the Magistrate's Report and

Recommendation.2. Additionally, plaintiff currently

resides in DeKalb, [linois, a community situated almost

equidistant from Rockford, Illinois and Chicago, Illinois,

the respective sites of the federal courthouses for the

Western and Eastern Divisions. The inconvenience that a

few extra minutes of travel which my be occasioned by a

transfer to Chicago may cause is, in this Court's view, de

minimus.

On balance, this Court has little difficulty in

concluding that the inconvenience, expense and hardship

to defendants which would accompany a tnal of this case

in Rockford, Illinois far outweighs the de minimus

transfer venue, the result would be the same. The affidavits provided

to this Court by plaintiffs explain the mere possibility of some harm

due to some unknown agent which might be in the air either in the

Chicago area or in the Hancock building. Considering the amount of

time the plaintiffs have had to obtain discovery and prepare this

particular affidavit, the fact they they recite mere possibilities based

on medically unsubtantiated hypotheses leads this Court to accord

them minimal weight. Therefore, even if this Court had considered

the affidavits of Dr. Lee and Lotan in considering the magistrate's

report and recommendation transferring this case to the Eastern

Division, the result would have been the same - - the case should be

transferred.

2 See supra note 1 for a recitation of the procedural history of

the instant motion to transfer venue.

APPENDIX D—14

inconvenience and hardship to plaintiffs which would

accompany a transfer of this case to the Eastern Division.

B. Convenience of the Witnesses

Not only are all of the defendants residing in or

amendable to suit in the Eastern Division, all of the

defendants’ witnesses in this case are from Chicago. In

addition, the plaintiffs’ condominium and the John

Hancock Center, wherein the plaintiffs’ condominium

sits, are in Chicago. The Court notes that there are

twenty-nine attorneys listed as counsel for the various

defendants in this case. This Court assumes that

presumably, there will be witnesses presented by each of

seventeen defendants relating to their respective liability

in this action, and while the Court would not presume to

be accurately reflecting the parties’ intent prior to any

disclosure of how many witnesses or how long this trial

may take, suffice it to say that this Court believes that

over twenty-five witnesses could reasonably be expected

in trial of this matter.

Presumably, plaintiffs’ treating physicians for trial

purposes will be Drs. Lee and Lotan from DeKalb,

[Illinois and a treating physician from the Mayo Clinic in

Rochester, Minnesota. While it may not matter to the

doctor from the Mayo Clinic whether he must travel to

Rockford or to Chicago, logistically it will probably be

more convenient for that doctor to have the trial in

Chicago due to ease of transportation into Chicago. In

addition, as noted above, DeKalb is nearly equidistant

from Rockford and Chicago and any inconvenience

suffered by these witnesses would be negligible if at all.

Therefore, no consequential inconvenience will result to

APPENDIX D—15

plaintiffs’ witnesses if this cause is transferred to the

Eastern Division in Chicago.

C. The Interest of Justice

Because this case involves an intradistrict transfer

as opposed to an interdistrict transfer, the interest of

justice factor appears to be less relevant as there are no

conflict of law questions or issues relating to the forum

court's familiarity with the law or circumstances. Instead,

this Court believes that the first two factors discussed

above provide the relevant framework for a discussion of

the interest of justice.

So long as this case can be tried in the least

inconvenient and least expensive forum to the respective

parties, this Court believes that the interest of justice is

being served. Either division's legal mechanism could

adequately try this case - - however, because of the

factors discussed above, the Eastern Division provides

the most convenience and most logical forum for

resolution of this dispute.

This Court further adds that it has been a

longstanding reciprocal policy, albeit an unwritten one, to

transfer cases from the Western Division to the Eastern

Division, or the reverse, on balance when handling all the

proceedings in one or the other division proves to be most

convenient for all the parties, witnesses and in the interest

of justice, and does not conflict with some applicable

venue statute such as 28 U.S.C. § 1391.

APPENDIX D—16

ITI. CONCLUSION

For the foregoing reasons, this Court hereby

adopts both the holding and the reasoning of the

Magistrate's Report and Recommendation dated April 12,

1989 with the additions and discussions contained herein.

This cause is hereby transferred to the Eastern Division of

the Northern District of Illinois and all pending motions

and matters pertaining to this case must be brought before

the transferee court.

ENTER:

signed/

STANLEY J ROSZKOWSKI, JUDGE

UNITED STATES DISTRICT COURT

DATED: October 2, 1989

= eee =. —

APPENDIX E—17

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

WESTERN DIVISION

FRANK L. WHITMER ) Appeal from the

and JOAN P. WHITMER ss) United States

Plaintiffs-Appellants ) District

) Court for the

) Northern District

VS. ) of Illinois

) Western Division

)

JOHN HANCOCK )

MUTUAL LIFE )

INSURANCE COMPANY, ) 87 C 20306

et al ) Judge: Stanley J

Defendants-Appellees ) Roszkowsk1

ORDER

This cause comes before the Court upon plainuff's

motion to correct the record, plaintiffs motion for

certification of an interlocutory appeal, plaintiff's motion

for stay pending appeal and plainuffs oral motion

requesting a stay of the transfer of the court file to the

Eastern Division.

For the reasons set forth below, the plaintiff's

motion to correct the record is granted to the extent the

Clerk's office verified that the documents were file

stamped; plaintiffs motion for certification of an

APPENDIX E—18

interlocutory appeal is denied; plaintiff's motion for stay

pending appeal is denied; and plaintiffs oral motion to

stay transfer of the court file is denied.

DISCUSSION

The Court's order dated October 2, 1989,

transferring venue in this case to the Eastern Division of

the Northern District of Illinois is clearly a non-

appealable order. As such, this Court is not divested of

jurisdiction. See United States v Bastanipour, 697 F.2d

170, 173 (7th Cir. 1982).

Plaintiff represents that there are documents

which were, in fact, file stamped by the Clerk's office but

never included in the court file or on the docket sheet. To

the extent these representations are verified by the Clerk's

office, the motion is granted.

Plaintiffs motion fo certification of an

interlocutory appeal is denied as the plaintiff's have failed

to make the requisite showing pursuant to 28 U.S.C.

$1292(b). The statute allows for certification when the

district court concludes that the order "involves a

controlling question of law as to which there is

substantial ground for difference of opinion and that an

immediate appeal from that order may materially advance

the ultimate termination of the litigation...." It is this

Court's opinion that the venue question involved here

neither involves a controlling question of law nor will an

interlocutory appeal materially advance the ultimate

termination of this litigation. The resolution of the venue

issue involved here is discretionary with the trial court

and involves no question of law. Certification will only

APPENDIX E—19

hinder and delay the ultimate resolution of this case, not

materially advance such resolution.

This action has been transferred to the Eastern

Division and no interlocutory appeal has been certified

here. Pursuant to the language of 28 U.S.C. §1292(b),

there appears to be a presumption against granting a stay

unless otherwise ordered by the district court or the

appellate court. We see no reason to stay the proceedings

and, therefore, deny plaintiffs motion. Should the

interlocutory appeal be certified at some future time by

the transferee court, this court believes that the

application for stay would properly be brought before that

transferee court. With the transfer of the case necessarily

follows the transfer of the court file. Plaintiff's motion, is

therefore, denied.

CONCLUSION

For the reasons set forth in the Order above, this

Court grants plaintiffs’ motion to correct the record

insofar as the errors can be ascertained by the Clerk's

office. Further, this court denies plaintiffs’ motions for

certification of an interlocutory appeal, for stay pending

appeal and for a stay of the transfer of the court file to the

Easterr. Division.

ENTER:

signed/

STANLEY J ROSZKOWSKI, JUDGE

UNITED STATES DISTRICT COURT

DATED: October 26, 1989