Petition for Writ of Certiorari — Sinclair v. Boughton

IN THE | FEB 11 1974

Supreme Court of the United Stabes. cuca |

;

i

t

October Term, 1973

E

No. VW3-l 226 t

JAMES M. SINCLAIR, JR., f

Petitioner, é

VS.

Anna Roza BOUGHTON, sometimes known as ANNA ‘

Rosa SINCLAIR, i

Respondent.

PR OR MI SY

Petition for a Writ of Certiorari to the United States

Court of Appeals for the Sixth Circuit.

me

JAMES M. SINCLAIR, JR.,

521 Park Avenue,

Detroit, Michigan 48226,

Petitioner Pro Se.

Parker & Son, Inc., Law Printers, Los Angeles. Phone 724-6622

ae

ee ee > SRS eS

SUBJECT INDEX

Page

Citations to Opinions Below ............-..------------------ 1

I a isaiaiicsccedncreeeretniennemnneaiens 1

Question Presented for Review ..........---------------------- 2

Statement of the Facts of the Case -..................----- 2

Reason for Granting the Writ ................-.-.------------ 3

I nisi ceicensst cscs cece taemrtonenansnnvnene 5

INDEX TO APPENDIX

Opinion of the Sixth Circuit Court of Appeals

(Order) -.. sicicephcencaaceaeasttcctinasta App. p. 1

Opinion of the District Court (Order Dismissing

Complaind .........-------------------s--e--eceeeeeeeneeeeeeeeeenecees 2

Complaint (Declaratory Relief and Injunction) .. 5

TABLE OF AUTHORITIES CITED

Cases Page

American v. Ritholz, 101 F.2d 883 ................-......- 4

Barber v. Barber, 62 U.S. 582, 21 How. 582, 16

ees i = ee oe

Harrison v. Harrison, 214 F.2d 571 (1954) cert.

i SN nc eeuemainliie 4

Paudler v. Paudler, 210 F.2d 765 (1954) .......... +

Rapoport v. Rapoport, 273 F.Supp. 482 (1967) .. 4

Southard v. Southard, 305 F.2d 730 (1962) ........ 4

Woodmen v. O'Neill, 266 U.S. 292 ..................----++ +

Rules

Rules of the Supreme Court of United States, Rule

I io oe es acanereceanenancatinnavenebuioenansion 3

Statute

United States Code, Title 28, Sec. 1254(1) -......... 1

IN THE

Supreme Court of the United States

October Term, 1973

IG caitinvachoases

JAMES M. SINCLAIR, JR.,

Petitioner,

vs.

ANNA ROZA BOUGHTON, sometimes known as ANNA

Rosa SINCLAIR,

Respondent.

Petition for a Writ of Certiorari to the United States

Court of Appeals for the Sixth Circuit.

Petitioner James M. Sinclair, Jr., prays that a writ of

certiorari issue to review the judgment of the United

States Court of Appeals for the Sixth Circuit in the

above entitled case for the reason that the judgment is

in direct conflict with decisions in the Second, Fourth,

Fifth, and Ninth Circuits and in direct conflict with the

decision of this Court in Barber v. Barber, 62 U.S. 582,

21 How. 582, 16 L.Ed. 226.

Citations to Opinions Below.

The opinions below are unreported and are printed

infra in the Appendix.

Jurisdiction.

The judgment of the Court of Appeals was entered

November 21, 1973. The jurisdiction of this Court is

invoked under 28 U.S.C. §1254(1).

i

_ 1 MERU TAIT LIE RE PLR GTS IIOP ON MER NN TAIN SER NEN A NY ee

_

Question Presented for Review.

Does this Court’s decision in Barber v. Barber, 21

How. 582, still bind the Sixth Circuit by stare decisis

in holding that a domestic relations judgment of a

competent court may be enforced in equity in a Fed-

eral court under diversity jurisdiction?

Statement of the Facts of the Case.

Petitioner filed the action in the District Court for

declaratory relief to declare his money rights under a

judgment of a competent state court that he was not

married to respondent, and for an injunction to pre-

clude respondent from filing a fourth harassing lawsuit

against him. Jurisdiction was founded on diversity of

citizenship with the matter in controversy exceeding

the value of $36,000.00. The District Court dismissed

the complaint on its own motion just before respond-

ent’s counsel filed his appearance, the judge alleging

lack of a controversy and that the court could have no

jurisdiction of a “domestic” matter, despite the citation

with the complaint of Barber v. Barber, 21 How. 582.

Despite citation of the same case to the Court of Ap-

peals, it did, without brief. from the respondent or

oral argument, summarily affirm the judgment of the

District Court without any acknowledgement of said

premiere case of petitioner's entire appeal on the

grounds that there manifestly was no federal diversity

jurisdiction in such a so-called “domestic dispute”!

a on

REASON FOR GRANTING THE WRIT.

Petitioner respectfully submits that the judgment

of the Sixth Circuit Court of Appeals conflicts with the

decisions in the Second, Fourth, Fifth, and Ninth Cir-

cuits and the uncontradicted decision of this Court in

Barber v. Barber, 62 U.S. 582, 21 How. 582, 16 L.

Ed. 226, and that therefore the case is of substantial im-

portance enough under this Court’s Rule 19(1)(b) to

grant certiorari and hearing of argument (or summary

remand expressly for the Sixth Circuit to consider the

case in the light of this Court’s Barber decision and

the decisions of the other Circuits).

Barber upheld a federal court’s jurisdiction in grant-

ing (1) money equitable relief (2) based on diversity

(3) based on a domestic relations judgment of (4) a

competent state court.

This is just what this Sinclair case requests: (1)

equitable declaratory relief concerning respondent's

claim for over $30,000.00 (2) based on diversity of

citizenship (3) based on judgments of (4) com-

petent courts that Sinclair was never married to Bough-

ton, on “all fours”.

Of course federal courts have no jurisdiction of

“domestic disputes” where a state court should grant a

divorce. However once the competent state courts have

decreed that there is no longer any “domestic” relation-

ship, the parties should be like any strangers in claims

for money relief under diversity jurisdiction. Is there one

diversity jurisdiction for strangers, and no diversity

money jurisdiction for ex-husbands, nonhusbands, fath-

er and daughter, etc., all “ex-domestic” disputes or re-

lationships?

a

s

3

$.

t

TNH BOF A

a

The Fifth Circuit decided in Paudler v. Paudler,

210 F.2d 765, 766 (1954), that it had jurisdiction to

adjudicate the proper’: *izhts of the parties after di-

vorce: “jurisdiction of ise district court was sustained

on a former appeal, 185 F.2d 901” (1950), cert. den.

341 U.S. 920 (1951).

The Second Circuit stated in Southard v. Southard,

305 F.2d 730, 731 (1962), that “there is no reason

why a declaratory action should not prima facie lie to

determine the controverted status of the parties.”, after

first citing Barber.

Rapoport v. Rapoport, 273 F.Supp. 482, 483 (1967)

U.S.D.C. Nevada, relied on the Second Circuit rule for

jurisdiction, and the Ninth Circuit, 416 F.2d 41 (1969)

(cert. den. 397 U.S. 915), also cited the Second Cir-

cuit case on page 43, saying “jurisdiction thus grounded

is not lost simply because the judgment attacked is a

divorce decree.”

The Fourth Circuit in Harrison v. Harrison, 214 F.2d

571 (1954) cert. den. 348 U.S. 896, affirmed a declar-

atory judgment of marital status and to enforce ali-

mony payments under Barber v. Barber, 21 How. 582.

Petitioner will not here burden the Court with a full

exposition of the reason for his need for a federal

decree, and will say only that respondent has already

filed 3 claims against plaintiff in the courts of Michi-

gan and California, all of which were dismissed without

her recovering anything, after expense and bother to

plaintiff. Under Woodmen v. O'Neill, 266 U.S. 292;

American vy. Ritholz, 101 F.2d 883; etc.: a federal in-

junction is the only relief that will be effective for peti-

tioner.

—

Conclusion.

Petitioner therefore contends that certiorari should

be granted to resolve the conflict of the Sixth Circuit

opinion, or a summary reversal, or summary remand ex-

pressly for the Sixth Circuit to consider this case in the

light of this Court’s Barber decision and the decisions of

the other Circuits.

February 4, 1974.

Respectfully submitted,

JAMES M. SINCLAIR, JR.,

Petitioner Pro Se.

APPENDIX.

Order.

United States Court of Appeals, for the Sixth Cir-

cuit.

James M. Sinclair, Jr. Plaintiff-Appellant vs. Anna

Roza Boughton, Defendant-Appellee, No. 73-1786.

Filed: Nov. 21, 1973.

Before: EDWARDS, McCREE and MILLER, Circuit

Judcg-s.

This appeal is before a panel of this court pursuant

to Sixth Circuit Rule 3(e).

Appcllant’s complaint was dismissed by the District

Court, sua sponte. The complaint was based upon di-

versity of citizenship and manifestly involves a domestic

dispute between the parties of which federal courts

have no jurisdiction.

We affirm the judgment of dismissal upon the

ground that the issues are so unsubstantial as not to

need further argument. See Sixth Circuit Rule 8.

ENTERED BY ORDER OF THE COURT

/s/ James A. Higgins

Clerk

se te wl

a

Ra YB oN

Te a a ea

Pa sean pte!

AY

a on

Order Dismissing Complaint.

United States District Court, Eastern District of

Michigan, Southern Division.

James M. Sinclair, Jr., Plaintiff, v. Anna Roza

Boughton, sometimes known as Anna Rosa Sinclair,

Defendant. Civil Action No. 4-0113.

Plaintiff, JAMES M. SINCLAIR, JR., has filed a

complaint praying for injunctive and declaratory relief.

Jurisdiction is founded on diversity of citizenship. 20

U.S.C. §1332. The action grows out of a domestic

dispute between Plaintiff and Defendant. The relief

sought is “a judgment declaring that [Plaintiff] is free

from any liability whatsoever to the defendant and de-

claratory that it is just that defendant and her agents

be enjoined from pursuing any judicial proceedings

against the plaintiff for any cause without the prior

permission of this Court.” Plaintiff alleges that pre-

viously secured judgments of courts of the State of

Michigan and the Province of Ontario, Canada are a

bar to “any possible claims of the defendant” against

the Plaintiff. A justiciable controversy is alleged to

exist because of a “likelihood” that the Defendant will

bring an action against the Plaintiff.

A similarly worded complaint involving the same

parties was recently dismissed by Judge DeMascio for

failure to state a claim upon which relief could be

granted. Sinclair v. Boughton, Civil Action No. 39788

(E.D. Mich. March 27, 1973). That complaint also

sought “a permanent Federal injunction restraining the

RETIREE ES IE ES PS ISL I SSE TRI

=

defendant from pursuing any judicial proceedings”

against the Plaintiff. With regard to the allegations in

that complaint, Judge DeMascio noted that “it is not

suggested, nor is this court aware of any manner in

which this allegation could support a civil action under

the statutes of Michigan”.

The present complaint suffers the same infirmity and,

for the same reason, fails to state a claim upon which

relief can be granted.

Moreover, the “actual controversy” required for

cases wherein declaratory relief is sought under 28

U.S.C. §2001 is absent in this case. “A controversy, to

be justiciable, must be such that it can presently be

litigated and decided and not hypothetical, conjectural,

conditional or based upon the possibility of a factual

situation that may never develop.” Brown & Root, Inc.

v. Big Rock Corporation, 383 F.2d 662 (5th Cir.

1967). The judicial proceedings sought to be enjoined

here have not yet been filed, or even threatened, and

the complaint itself refers to them as “possible claims”.

Even if such claims were brought, it is apparent that

they would deal (just as this complaint deals) with

problems of domestic relations. It is well settled “that

federal courts will not accept jurisdiction in domestic

relations cases”. Gargallo v. Gargallo, 472 F.2d 1219,

1220 (6th Cir. 1973).

Plaintiff has made a “request”, appended to the com-

plaint, “that any order to dismiss the complaint ex-

pressly grant plaintiff the courtesy of the right to

an

amend”. Such a request is certainly anomalous and

reflects a misunderstanding of judicial remedies. “It

still remains incumbent upon a plaintiff coming into

this court and seeking its jurisdiction to set forth facts

upon which to grant his cause of action. [The court]

cannot decide this case on something that is going to

be amended next month.” Steins v. Chrysler Corpora-

tion, 57 LRRM 2327 (E.D. Mich. 1964).

Having found that Plaintiff's complaint fails to state

a claim upon which relief can be granted and fails to

allege facts constituting a justiciable controversy, this

court, acting sua sponte, orders that the complaint be,

and the same is hereby DISMISSED.

/s/ LAWRENCE GUBOW

Lawrence Gubow

U.S. District Judge

Dated: May 25, 1973.

—

Complaint.

Declaratory Relief and Injunctior.

United States District Court, for the Eastern Dis-

trict of Michigan, Southern Division.

James M. Sinclair, Jr., Plaintiff, vs. Anna Roza

Boughton, sometimes known as Anna Rosa Sinclair, De-

fendant. Civil Action, File No. 40113.

1. Plaintiff is a citizen of Michigan.

2. Defendant is not a citizen of Michigan.

3. Defendant is a citizen of California and/or

Canada and is a British subject.

4. An actual controversy of a justiciable nature

exists between plaintiff and defendant exceeding the

sum of $10,000.00, exclusive of costs and interest.

5. There never was a marital relationship between

the parties to be severed, and such is expressly stated

in the judgment dated February 17, 1964, incorporated

in this complaint by reference to the attached copy.

6. The defendant claims from the plaintiff sums

not clearly barred by the judgments incorporated in this

complaint by reference to the attached copies, and the

plaintiff is entitled to declaratory relief as to these sums,

as well as the claims she makes that he claims are

clearly barred by the judgments.

7. As of March 12, 1973, defendant claims from

the plaintiff the sum of $36,000.00; plus one-half of

whatever income that has come to plaintiff and will

come to him in the future since he came to Michigan in

1962; plus an open claim for the support of the defend-

ant.

s

”

|

|

Berner FRILL YORI NGI NSE AR BER oy MME MA

— we

8. Plaintiff alleges that he is in no way liable to

defendant.

9. Defendant has by counsel filed 3 claims against

plaintiff in the courts of Michigan and California, all of

which were dismissed without her recovering anything,

after expense and bother to plaintiff.

10. Defendant threatens to bring other such actions

and force plaintiff to defend them to avoid being held

to a default judgment superseding in Michigan his pres-

ent judgment, under full faith and credit and res judi-

cata. Defendant further threatens to institute proceed-

ings in whatever, jurisdiction plaintiff may inherit prop-

erty or own property. One estate in which plaintiff

inherited was attached by a creditor of one of the other

heirs. Plaintiff is in doubt how best to manage his af-

fairs under this threat and a declaratory judgment is

needed to guide him and plaintiff has no other ade-

quate remedy and it would be equitable and prevent a

multiplicity of actions bothering many States of the Un-

ion for this Ceurt to decide the conflicting claims and

issue its declaration that none of any possible claims

of the defendant are valid against the plaintiff, since

they are barred by fact, judgments, equity, and/or

limitations.

11. As an adventuress the defendant has carried

forth a wrongful scheme to secure money from the plain-

tiff, depending upon fraud, duress, perjury, and forgery.

Perjuries by the defendant are documented for the dates

of October 27, 1952, November 21, 1953, September

29, 1964, and March 21, 1967, among others. Docu-

ments were forged by the defendant in 1964 and at

some date subsequent to November 28, 1940. In an

official government proceeding defendant was on June

4, 1970, found to have given false information in an

BRERA

a i

official proceeding under penalty of perjury, which in-

formation she further corroborated in said first proceed-

ing by uttering a document of a governmental agency

which she had forged and falsely altered. Because of

the defendant’s amoral ability and disposition to com-

mit perjury and forgery, plaintiff has no adequate rem-

edy other than a permanent Federal injunction restrain-

ing the defendant from pursuing any judicial proceed-

ings, whatsoever or wherever against the plaintiff

contrary to the factual merited declaratory judgment of

the Court.

12. Defendant was employed at a salary in excess of

$400.00 per month and has the ability to earn even

more, and had $8,000.00 in the bank under her sole

control.

13. There exists a likelihood that the defendant

would bring an action to secure a default judgment

against plaintiff without serving notice thereof upon

plaintiff, possibly by means of a perjured affidavit

of service; or defendant may bring an action when

plaintiff is unable properly to defend same because of

illness, lack of funds, pressure of business, etc.

WHEREFORE pplantiff prays for a judgment de-

claring that he is free from any liability whatsoever to

the defendant and declaratory that it is just that de-

fendant and her agents be enjoined from pursuing any

judicial proceedings against the plaintiff for any cause

without the prior permission of this Court; and prays

that said injunction issue.

/s/ James M. Sinclair, Jr.

James M. Sinclair, Jr.

16833 Livernois

Detroit, Michigan 48221

4

4

>

4

3

4

ENTE ELIA

Ngee PAPE PE

er ak ant

PRY ET