Petition for Writ of Certiorari — Davidson v. Vivra Inc.

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Supreme Cour, ys

F LED >.

O4 S27 SEP 17 2004

OFFICE OF THE CLERK

No.

IN THE

Supreme Court of the Anited States

ROBERT M. DAVIDSON and

VANESSA E. KOMAR,

Petitioners

VIVRA INC,

MICHAEL J. MEEHAN,

QUARLES BRADY STREICH LANG LLP,

et al

Respondents

On Petition For Writ Of Certiorari

As to Two Final Judgments of the United States District Court

for the District of Arizona,

Presently In The United States Court of Appeals Ninth Circuit

PETITION FOR WRIT OF CERTIORARI

Before Judgement

ROBERT M. DAVIDSON

Petitioner Pro Se

1009 N. 4" Street, Ste. B

Longview, TX 75601 —s

903-758-1900

Preface

Pursuant to 28 U.S.C. Section 1651, 28 U.S.C. Section 1254, 28

U.S.C. Section 1291, 28 U.S.C. Section 2101(e), Fed.R.Civ. P. Rule 60

(b), and 62, and Supreme Court Rules 10-14, and 23, this petition seeks

review on writ of certiorari to the United States Supreme Court of two

final judgments of the U.S. District Court (District of Arizona). These

judgments each involve identical or closely related questions, which

draw in question the validity of Ariz. R. Civ. P., Rule 5.1 (A)(2)(B) and

(C), on the ground of being repugnant to the United States Constitution.

These judgments by the U.S. District Court are presently on appeal

(fully-briefed) to the 9th Circuit U.S. Court of Appeals (9th Circuit

Court of Appeals dockets 03-17342 and 04-15304). There is a long-

standing split of authority between the circuits regarding the right to

legal counsel in civil lawsuits which urges review by this Court.

Extraordinary circumstances exist which urge review by this Court.

Unless this Court restrains the State court proceeding and stays the

federal court dismissals pending appeal, the Petitioners will suffer

immediate and irreparable injury.

Questions Presented For Review

1.Is Ariz. R. Civ. P., Rule 5.1 (A)(2) (B) and (C) flagrantly and

patently violative of express constitutional provisions?

2.Is the Prescription Drug User Fee Act, as applied, repugnant to

the U.S. Constitution?

3.Should the State court proceeding be enjoined on federal

preemption grounds?

4.Did the U.S. District Court err when it dismissed CV-03-00110-

FRZ and CV-03-00580-FRZ under the abstention doctrine of

Younger v. Harris?

-ii-

PARTIES TO THE PROCEEDINGS IN THE UNITED STATES

DISTRICT COURT, DISTRICT OF ARIZONA

Petitioners

ROBERT M. DAVIDSON; and

VANESSA E. KOMAR

Respondents

VIVRA INC;

MICHAEL J. MEEHAN;

QUARLES BRADY STREICH LANG LLP;

VIVRA ASTHMA ALLERGY INC;

VIVRA ASTHMA ALLERGY CARE AMERICA OF ARIZONA PC;

MAGELLAN SPECIALTY HEALTH INC;

ALLIED SPECIALTY CARE SERVICES INC;

VIVRA HOLDINGS INC;

TEXAS PACIFIC GROUP INC;

GAMBRO HEALTHCARE INC;

DIALYSIS HOLDINGS INC;

HEALTH TECHNOLOGIES INC;

ALBANY MEDICAL COLLEGE;

JAY GROSSMAN;

EUDICE GROSSMAN;

THOMAS B. EDWARDS;

GAYLE F. PETRILLO;

CHARLES W. OTT;

TIMOTHY G WIGHTON;

JOHN W. STRACK;

LYNDA L. NESSINGER;

RICHARD M. HASSETT;

JAMES L. SUBLETT; and

LEANNE M. ZUMWALT

NOTICE TO CLERK OF THIS COURT:

It is the Petitioners’ belief that VIVRA INC, MAGELLAN

SPECIALTY HEALTH INC, and ALLIED SPECIALTY CARE

SERVICES INC, no longer have an interest in the outcome of the

petition because these defendants ONLY were dismissed from the

appeal by mandate of the 9th Circuit Court of Appeals.

EE:

- iii -

TABLE OF CON TENTS

QUESTIONS iia en

PARTIES TO THE Sect ee ii

TABLE OF TM Stacie fe ili

TABLE OF dita nS iv

CITATIONS To OPINIONS AND ORDERS BELOW... ]

STATEMENT OF Reteiiananl ee ]

RELEVANT CON STITUTIONAL PROVISIONS oo 2

STATEMENT OF Scala eer 2

ARGUMENT FOR ALLOWANCE OF ON soho 8

I. Ariz. R. Civ. P., Rule 5.1 is flagrantly and patently violative of express

constitutional iad its 9

II. The Prescription Drug User Fee Act, as applied, is repugnant to the

U.S. Constitution arate nn 17

III. The State court Proceeding should be enjoined on federal] preemption

FE ee ee 22

IV. The U.S. District Court dismissals under the Younger abstention

doctrine are Clearly nT tie antlcacascc eee ae te ae

eee . 30

APPENDIX

o 1¥.«

TABLE OF AUTHORITIES

CASES

Younger v. Harris, 401 U.S. 37 (1971)

Kugler v. Helfant, 421 U.S. 117 (1975)

Gibson v. Berryhill, 411 U.S. 564 (1973)

Huffman v. Pursue Ltd, 420 U.S. 592 (1975)

Whalen v. Roe, 423 U.S. 1313 (1975)

U.S. v. Sardone, 94 F.3d 1233 (1996)

Hedges v. Resolution Trust Corp., 32 F.3d 1360 (1994)

Mackey v. Montrym, 443 U.S. 1 (1979)

Davis v. Central Bank, 23 B.R. 773 (1982)

Hernandez v. Whiting, 881 F.2d 768 (1989)

Montgomery Elevator Co. v. Superior Court of the State

of Arizona, 135 Ariz. 432 (1983)

Arizona State Department of Public Welfare v. Barlow,

80 Ariz. 249 (1956)

Potashnick v. Port City Construction Company,

609 F.2d 1101 (1980)

Texas Catastrophic Property Insurance v. Morales,

975 F.2d 1178 (1992)

McCuin v. Texas Power & Light Co., 714 F.2d 1255 (1983) 10

City of Houston, Tex. v. Hill, 482 U.S. 451 (1987)

Mathews v. Eldridge, 96 S.Ct. 893 (1976)

Gale v. North Dakota Bd. Of Podiatric Medicine,

1997 ND 83 (1997)

Little v. Streater, 452 U.S. 1 (1981)

Wisconsin v. City of New York, 517 U.S. 1 (1996)

Snowden v. Hughes, 321 U.S. 1 (1944) 18

Heckler v. Chaney, 470 U.S. 821 (1985) a

Marshall v. Jerrico Inc, 446 U.S. 238 (1980) 21

New Orleans Pub. Serv. Inc v. Council of City of New Orleans, |

491 U.S. 350 (1989) 22 |

U.S. v. Lopez, 115 S.Ct. 1624 (1995) 22

Boyle v. United Technologies Corp., 487 U.S. 500 (1988) 22

Traughber v. Beauchane, 760 F.2d 673 (1985) 26

Champion International Corp. v. Brown, 731 F.2d 1406 (1984) 26

Miofsky v. Superior Court of the State of California,

703 F.2d 332 (1983) 26

Pennzoil Co. v. Texaco, 481 U.S. 1 (1987) 26

Lebbos v. Judges of Superior Court, 883 F.2d 810 (1989) 26

Dubinka v. Judges of Superior Court, 23 F.3d 218 (1994) 27

Moore v. Sims, 442 U.S. 315 (1979) 27

Reno Vv. American-Arab Anti-Discrimination Committee,

525 U.S. 471 (1999) 27

DeSpain v. Johnson, 731 F.2d 1171 (1984) 29

Apache East Inc. v. Means, 124 Ariz. 11 (1979) 29

LP. v. DeSanti, 653 F.2d 1080 (1981) 29

CONSTITUTION AND STATUTES

28 USC Section 1651 . 1

28 USC Section 1254 1

28 USC Section 1291 1

28 USC Section 1292 1

28 USC Section 1257 1

28 USC Section 2101 (e) 1

Fed. R. Civ. P., Rule 60 (b) 1

Fed. R. Civ. P., Rule 62 (c) 1,8

Prescription Drug User Fee Act 1,8,17,21-25

Food, Drug, and Cosmetic Act 22

Ariz. R. Civ. P.. Rule 5.1 (A)(2) (B) and (C) 4.8,9,11-13,15,16

U.S. Supreme Court Rules 10-14 and Rule 23 l

U.S. Const., Amend. V 2,21,22,27

U.S. Const., Amend VI 25

U.S. Const., Amend XTV 27

U.S. Const., Article I, Section 8 (3) 2 |

U.S. Const., Article I, Section 10(1) 2 |

18 USC Section 1964 (a) and (c) 425 |

18 USC Section 1962 (b), (c), and (d) 4

Fed. R. Civ. P., Rule 8 4,27

28 USC Section 1331 6

28 USC Section 1367 6

21 USC Section 379g —379h | 17

18 USC Section 1951 23

18 USC Section 1952 23

42 USC Section 1983 8,28,30

42 USC Section 1985 28

42 USC Section 1988 28

MISCELLANEOUS

Arizona Civil Rules Handbook, 2002 Edition,

by Daniel J. McAuliffe at page 85 12

“A Precarious Balancing Act — The Role of the FDA as Protector of

Public Health and Industry Wealth,” by Allison R. McCabe,

36 Suffolk U.L. Rev. 787 (2003) 20

CITATIONS TO OPINIONS AND ORDERS BELOW

1. Order, November 24. 2003, U.S. District Court, Arizona

District, Docket No. 56, Civil Case # CV-03-00110-FRZ

2. Order, February 2. 2004, U.S. District Court, Arizona District,

Docket No. 9, Civil Case # CV-03-00580-FRZ

3. Minute Entry, In Chambers Ruling, File Stamp Date: April

29, 2004, Pima County Superior Court, Case No. C333954

4. Memorandum Decision, Appeal Dismissed, February 27,

2003, Arizona Court of Appeals, Division Two, Case No. 2 CA-CV

2002-0051

5. Minute Entry of Arizona Supreme Court re: action taken

August 8, 2003; ORDERED: Petition for Review to Supreme Court

= DENIED. FURTHER ORDERED: Request for Attorneys’ Fees

[Appellees Grossman] = GRANTED, Arizona Supreme Court Case

No. CV-03-0148-PR

6. Certified Copy of 9th Circuit Mandate: case is dismissed as

to appellees Vivra Inc., Magellan Specialty Health Inc, and Allied

Specialty Care Services LLC f/k/a Allied Specialty Care Services Inc |

ONLY. U.S. District Court, Arizona District, Case No. CV-03-00110-

FRZ, Docket # 61 entered on April 16, 2004.

BASIS FOR JURISDICTION IN U.S. SUPREME COURT

This petition is filed under 28 U.S.C. Section 1651, 28 U.S.C.

Section 1254, 28 U.S.C. Section 1257, 28 U.S.C. Section 1291, 28

U.S.C. Section 1292, 28 U.S.C. Section 1257, 28 U.S.C. Section

2101(e), Fed. R. Civ. P. Rule 60 (b), 62 (c), and Supreme Court Rules

10-14, and 23.

Two final judgments sought to be reviewed were entered by the

US. District Court, District of Arizona, on November 24, 2003 (CV-

03-00110-FRZ), and on February 2, 2004 (CV-03-00580-FRZ). This

petition is filed under this Court’s Rule 10, Rule 11 and y Rk

Section 2101 (e).

The federal question as to whether the Prescription Drug User Fee

Act (“PDFUA”) is constitutionally invalid as applied is of imperative

public importance. The PDUFA has ongoing, direct, and substantial

affect upon public health, safety, and interstate commerce. This case

and controversy warrants deviation from normal appellate practice and

requires immediate determination by this Court.

Recent 9th Circuit decisions conflict with decisions of the 5th Circuit,

regarding the right to retained legal counsel in civil lawsuits, which —

provides a compelling reason for granting review on this writ of :

certiorari.

RELEVANT CONSTITUTIONAL PROVISIONS

The Fifth Amendment of the United States Constitution

provides: “Nor shall [any person] be deprived of life, liberty, or

property, without due process of law; nor shall private property be —

taken for public use, without just compensation”. :

The Sixth Amendment of the United States Constitution provides: “Jn

all criminal prosecutions, the accused shall enjoy the right...to have ©

the Assistance of Counsel for his defence”. |

The Fourteenth Amendment of the United States Constitution provides: ‘

“No state shall deprive any person of life, liberty, or property, without —

due process of law, nor deny to any person within its Jurisdiction the

equal protection of the laws”.

Article I, Section 10 (1) of the United States Constitution provides:

“No State... shall pass any... Law impairing the Obligation of

Contracts ”’.

Article I, Section 8 (3) of the United States Constitution provides: “The

Congress shall have the power to regulate commerce...among the

several states”.

PE yh NO Ne Sy ee

STATEMENT OF THE CASE

The State court proceeding began when Jay Grossman, M.D. and his

spouse Eudice Grossman (referred to collectively as “the Grossmans”)

filed a Complaint against Robert M. Davidson, M.D. and his spouse

Vanessa E. Komar, R.N. (referred to collectively as “the Davidsons”)

on July 2, 1999, in Pima County Superior Court (the “State court

proceeding”), alleging defamation and intentional infliction of emotional

distress. On October 13, 1999, Michael J. Meehan (“MJM”), then of

the law firm Meehan and Associates, entered into an attorney-client

relationship with the Davidsons in connection with the litigation initiated

on July 2, 1999. It was agreed by MJM that he would file compulsory

counterclaims of assault and battery (in the workplace) against the

Grossmans. It was further agreed that MJM would bring on behalf of

the Davidsons, such other legally-cognizable causes of action against

the Grossmans, as would be supported by discovery of the nucleus of

operative facts from which the state court proceeding arose. On April

28, 2000, the Davidsons counterclaimed with charges of assault and

battery.

The Davidsons retained the legal service of the Law Office of

Kenneth Joel Haber, P.C. on August 30, 2000, when it had become

clear to the Davidsons that they might be getting less than sound legal

advice (and less than vigorous legal representation) from their then

Counsel of Record in the State court proceeding (Michael J. Meehan,

who was then with the firm Meehan & Associates). Kenneth Haber

was retained to review the nucleus of operative facts that gave rise to

the State court proceeding, and to then opine legally as to whether the

Davidsons have (or at minimum, had) a viable federal civil RICO cause

of action. On November 20, 2000, Kenneth Haber provided a copy of

their “Prosecution Memorandum” to the Davidsons.

This Court may take judicial notice of the Prosecution Memorandum

of November 20, 2000, provided by Kenneth Haber to the Davidsons.

This is a document of readily verifiable authenticity which provides

this Court with prima facie evidence that the Grossmans’ filing of the

State court proceeding and MJM’s filing of the Motion to Withdraw as

counsel of record in the State court proceeding, were both motivated by

bad faith.

On February 1, 2001, MJM, then of the law firm Quarles & Brady

Streich Lang (“Q&BSL”), filed Notice of Change of Law Firm in the

State court proceeding. On December 17, 2001, four months before the |

scheduled trial date in the State court proceeding, MJM and Q&BSL |

filed Motion to Withdraw as Counsel of Record and Continue Trial in ©

the State court proceeding, citing Ariz. R. Civ. P. Rule 5.1 (A)(2)(B) as |

statutory authority for their motion to withdraw: On or about January ©

11, 2002, the Trial Court Ordered that attorney withdrawal and ©

continuance of the State court proceeding is granted. On or about ~

February 11, 2002, the Davidsons (proceeding pro se), filed an —

interlocutory appeal to the Arizona Court of Appeals citing deprivation —

of fundamental rights by the Trial Judge’s Order of January 11, 2002, |

including the rights of Due Process and Equal Protection under the 7

14th Amendment of the U.S. Constitution. :

So as to avoid lapsing of relevant statutes of limitations, the |

Davidsons (again proceeding pro se) filed Plaintiffs’ Original Complaint ©

with the U.S. District Court, Arizona District (CV-03-00110-FRZ) on ©

February 19, 2003, under 18 U.S.C. Section 1964 (c) for violations of |

18 U.S.C. Section 1962 (b), (c), and (d) and pendent state law claims, |

for conspiracy to defraud the Davidsons, study subjects, practice patients,

and the United States, against 22 named corporate and individual ©

defendants, alleging 21 counts. On April 30, 2003, the Davidsons filed 4

their First Amended Complaint against the same 22 named defendants, |

alleging 17 counts.

On June 6, 2003, defendants Grossman appeared and filed

“Defendants Jay and Eudice Grossman’s Motion to Dismiss Pursuant

to Rule 8, Federal Rules of Civil Procedure.”

On June 17, 2003, the case was stayed as to Vivra Inc, Magellan

Specialty Health Inc, Allied Specialty Care Services (referred to

collectively as the “Magellan defendants”) by the filing of the Magellan

defendants’ Notice of filing Chapter 11 Bankruptcy (Chapter 11 was

filed on March 11, 2003, in the U.S. Bankruptcy Court, Southern District

of New York).

On July 1, 2003, the U.S. District Court granted the Grossmans’

Motion to Dismiss Pursuant to Rule 8 based on the Court’s finding

“that the prolixity of the First Amended complaint renders the pleading

incomprehensible.” The Davidsons were granted leave to file a Second

Amended Complaint upon the lifting of the automatic stay in compliance

with the pleading requirements of the Federal Rules of Civil Procedure

and in accordance with the provisions of the court's Order. It was further

ordered that Defendants Vivra Inc, Magellan Specialty Health Inc, and

Allied specialty Care Services LLC shall file a Petition to Lift

Automatic Stay upon a final determination of the bankruptcy

proceedings. \t was further ordered that the Davidsons are granted leave

to file a Second Amended Complaint in compliance with the pleading

requirements of the Federal Rules of Civil Procedure on or before 30

days from the date of the filing of the Petition to Lift Automatic

Stay and to serve it upon Defendants in accordance with the Federal

Rules of Civil Procedure.

The Davidsons were absolutely prevented from filing a Second

Amended Complaint in the Federal court proceeding until 30 days after

the Magellan defendants filed a Petition to Lift the Automatic Stay.

Not only was the Magellan defendants’ petition not forth-coming, the

Automatic Stay was replaced by a permanent injunction after ‘their

Discharge Confirmation in U.S. Bankruptcy Court. Other than filing a

Motion for Preliminary Injunctive Relief to the U.S. District Court, the

Davidsons had no legal remedy which would allow them to ever file a

Second Amended Complaint in the federal court proceeding. Thus, the

Trial Judge’s Order of July 1, 2003, dismissing the federal court

proceeding without prejudice under FRCP Rule 8, had the same effect

as a dismissal with prejudice as to all of the defendants, yet it was not

appealable as a final judgment.

In a Motion for Injunctive Relief to the U.S. District Court on or

about October 21, 2003, the Davidsons asserted that the holdings of the

Arizona Court of Appeals in Memorandum Decision of February 27,

2003 and Arizona Supreme Court on August 8, 2003, in Denying the

Davidsons’ Petition for Review, caused irreparable injury to the

Davidsons. The Davidsons asked that the State court proceeding be

preliminarily stayed and that the interlocutory award of costs and

attorney’s fees awarded by the Arizona Court of Appeals and Supreme 7

court be stayed pending final adjudication of the Federal court 4

proceeding. On November 24, 2003, the district court dismissed the ©

case pursuant to Younger v. Harris, 401 U.S. 37 (1971), denied all other |

pending matters, and ordered that there be no further filings in the ©

federal case. On December 1, 2003, the Davidsons timely-filed Notice :

of Appeal. 3

The Davidsons filed Plaintiffs’ Original Complaint & Application —

for Injunctive Relief against Defendant Michael J. Meehan and =

Defendant Quarles & Brady Streich Lang on November 20, 2003, under |

28 U.S.C. Section 1331 and 28 U.S.C. Section 1367 for Breach of |

Fiduciary Duty, Professional Negligence, and Legal Malpractice. MJM =

and Q&BSL filed Motion to Dismiss on December 22, 2003. The |

Davidsons responded by filing Objection to Motion to Dismiss on ©

January 13, 2004. MJM and Q&BSL responded by filing Reply to

Objection to Motion to Dismiss on January 27, 2004. U.S. District |

Court Trial Judge Frank R. Zapata, the same trial judge who had |

previously dismissed the Davidsons’ federal cause of action (Davidson |

et al v. Vivra Inc, et al) under the Younger abstention doctrine, ordered |

and adjudged on February 2, 2004, that the Motion to Dismiss is Granted 4

in the Davidsons’ federal cause of action (Davidson et al v. Meehan et |

al), again citing the Younger abstention doctrine. The Davidsonstimely- |

filed Notice of Appeal on February 10, 2004.

The Davidsons assert that “the Federal Case (Davidson, et al v.

Vivra Inc, et al) is based upon the ‘same nucleus of operative facts’as |

the State Case”. The Davidsons sought to add additional RICO

counterclaims in the state court proceeding after the Trial Judge’s |

dismissal with prejudice (under Younger doctrine) of the federal court

proceedings, because these additional counterclaims “arose out of the |

conduct, transaction, or occurrence set forth or attempted to be set

forth in the original pleading.” The Davidsons’ counterclaims of assault |

and battery in the State court proceeding represent two of the Hobbs

Act violations alleged in the federal court proceeding. The Davidsons

have alleged that these Hobbs Act violations comprise part of the pattern

of racketeering activity in the federal court proceeding.

The State court proceeding is presently scheduled for trial on October

13, 2004. This Court may take judicial notice of Minute Order of April

29, 2004, in the State court proceeding. The Minute Entry of April 29,

2004, from the State court proceeding states, “To allow the extensive

proposed amendments to the answer and the counterclaim would greatly

prejudice the plaintiffs [ the Grossmans] given that the trial date is set

for October 13, 2004.” “Defendants’ [the Davidsons] motion to amend

their answer to add counterclaims and parties and defendants’ motion

to enlarge the time to comply with Rule 26.1 and to extend the discovery

deadline are hereby denied.”

Unsigned Minute Entries are not appealable under Arizona law. The

State court’s denial of the Davidsons’ motion to amend their answer to

add counterclaims and parties and defendants’ motion to enlarge the

time to comply with rule 26.1 and to extend the discovery deadline,

represents a total denial of a state forum in which to “pursue the issues

presented” and “raise constitutional challenges” and directly refutes

Trial Judge Frank R. Zapata’s underlying assumption, that the State

court proceeding provides the Davidsons with an adequate state forum

in which to pursue the issues presented.

The Davidsons exhausted all avenues for appellate review of their

federal constitutional injury within the Arizona state court system.

Neither the Arizona court of Appeals, nor the Arizona Supreme Court

reached the federal constitutional issues raised by the Davidsons on

appeal. With the filing of the Minute Entry of April 29, 2004, the

Davidsons have now been permanently denied a legal remedy for federal

constitutional injuries under color of Ariz. R. Civ. P. Rule 5.1 and the

Prescription Drug User Fee Act, in both the Federal court proceedings

and in the State court proceeding. The Davidsons now have no forum

whatsoever, either state or federal, in which to raise their federal

constitutional concerns. By inappropriately dismissing the Davidsons’

federal court proceedings under the Younger ‘abstention doctrine, the

Trial Judge (Frank R. Zapata) has wrought irreparable harm to the

Davidsons.

NUR ia san i i pe i ED NP a NE aR Re ec rea itis ig

ARGUMENT IN SUPPORT OF WRIT

There is no timely remedy available to the Petitioners [the Davidsons/],

either state or federal, for the federal constitutional deprivation

sustained in the ongoing state court proceeding under color of Arizona

Rule 5.1 and the Prescription Drug User Fee Act. The danger of

irreparable injury to the Davidsons is both great and immediate. Younger

v. Harris, 401 U.S. 37 (1971). The threat to the Petitioners’ federal -

rights is such that it cannot be eliminated before injunctive relief is

available against the pending state court proceeding. Extraordinary

circumstances render the state court incapable of fairly and fully

adjudicating the federal issues before it. Kugler v. Helfant, 421 U.S.

117 (1975).

The federal question as to whether the Prescription Drug User Fee

Act (“PDFUA”) is constitutionally invalid as applied is of imperative

public importance. The PDUFA has ongoing, direct, and substantial

affect upon public health, safety, and interstate commerce. This case

and controversy warrants deviation from normal appellate practice and

requires immediate determination by this Court.

Arizona is seeking to enforce a facially unconstitutional statute

(Arizona Rule 5.1). The Younger doctrine is inapplicable if the state

tribunal to which the federal claims would be presented is found by the

federal court to be incompetent by reason of bias to adjudicate the issue

pending before it. Gibson v. Berryhill, 411 U.S. 564 (1973). The

Younger doctrine allows intervention where the challenged statute is

flagrantly and patently violative of express constitutional prohibitions.

Huffman v. Pursue, Ltd., 420 U.S. 592 (1975).

An injunction to preserve the status quo during the pendency of the

Davidsons’ appeal can be issued when an appeal is taken from final

judgment denying an injunction under FRCP Rule 62 (c). The state

court proceeding should be emergently stayed pending appeal under

FRCP Rule 62 (c). The Davidsons’ federal cause of action sounds, in

substantial measure, on federal constitutional deprivations under 42

USC Section 1983, the “expressly authorized” exception to the anti-

injunction act.

The final judgments of the U.S. District Court dismissing the

Davidsons’ federal causes of action [in both federal court proceedings

CV-03-00110-FRZ and CV-03-00580-FRZ] under Younger doctrine

were clearly erroneous. The District Court's abstention judgments

should be emergently stayed pending appeal, because there is a strong

likelihood that the Davidsons will prevail on appeal, because there is a

strong showing that abstention will cause irreparable injury to the

Davidsons, and because abstention would result in harm to the public

interest.

Injunctive relief should be granted because it is likely that certiorari

will be granted and the judgments reversed. Extraordinary

circumstances provide compelling necessity for a stay (or other equitable

relief). Whalen v. Roe, 423 U.S. 1313 (1975). A balancing of the equities

favors the grant of a stay (or other equitable relief) pending certiorari.

I. Ariz R. Civ. P,, Rule 5.1 is flagrantly and patently violative of

express constitutional provisions

The Davidsons were denied federal constitutional rights by State

Action under color of Ariz. R. Civ. P., Rule 5.1 (A)(2)(B) and (C) in the

State court proceeding. Because ofa series of recent 9th Circuit appellate

cases, which base their holdings upon U.S. v. Sardone, 94 F.3d 1233

(1996) citing Hedges v. Resolution Trust Corp., 32 F.3d 1360 (1994),

the Davidsons fear that they will ultimately be forced to take their now

fully-briefed 9th Circuit Court of Appeals Cases [03-17342 and 04-

15304] to the U.S. Supreme Court. Such an interminable delay would

have devastating economic effect upon the Davidsons.

There is currently a long-standing split of authority between the

U.S. Circuit Courts of Appeals on the question of the right to legal

counsel in a civil lawsuit. This split of authority amongst the U.S.

Circuit Courts of Appeals urges this Court to review two final judgments

of the U.S. District Court, District of Arizona, in the closely related

federal cases CV-03-00110-FRZ and CV-03-005 80-FRZ. These

judgments involve identical or closely related questions, which draw

in question the validity of Ariz. R. Civ. P., Rule 5.1 (A)(2)(B) and (C),

on the ground of its being repugnant to the U.S. Constitution. The risk

of an erroneous deprivation by the State action in the State court |

proceeding is substantial. In Mackey v. Montrym, 443 U.S. 1 (1979), |

the U.S. Supreme Court stated that the only issue in cases of thistypeis §

“what process is due to protect against an erroneous deprivation of

that [property] interest.”

The 9th Circuit appears to currently abide by their holdings in U.S.

v. Sardone, 94 F.3d 1233 (1996) (“It is well-established that there is =

generally no Constitutional right to counsel in civil cases.”) citing ©

Hedges v. Resolution Trust Corp., 32 F.3d 1360 (1994), cert. denied, |

514 U.S. 1082 (1995). See also Davis v. Central Bank, 23 B.R. 773 F

(1982) (“There is no Constitutional right to counsel in a legal proceeding |

unless it is criminal or quasi-criminal in nature.”) and Hernandez v. ©

Whiting, 881 F.2d 768 (1989) (“A civil litigant, including an |

incarcerated prisoner, is presumed to have no Constitutional entitlement |

to court-ordered counsel unless his case carries the risk of affecting his |

physical liberty. ”).

There is some earlier case law, however, within the 9th Circuit which |

supports the right to retained counsel. See Montgomery Elevator Co. v. |

Superior Court of the State of Arizona, 135 Ariz. 432 (1983) (“The ©

right to representation is basic to system of justice and extends to every ©

facet of judicial process.”’). See also Arizona State Department of Public =

Welfare v. Barlow, 80 Ariz. 249 (1956) (“Representation of party by his §

duly constituted attorney is fundamental to administration of justice. ”).

The 5th Circuit case law, however, found in Potashnick v. Port City |

Construction Company, 609 F.2d 1101 (1980) (“A civil litigant has a

Constitutional right to retain hired counsel.”) runs counter to the

majority of the 9th Circuit holdings. So too do the Sth Circuit holdings |

found in Texas Catastrophic Property Insurance v. Morales, 975 F.2d |

1178 (1992) (“There is a Constitutionally-guaranteed right to retain §

hired counsel in civil matters under the due process clause of Fourteenth

Amendment.”’) and in McCuin v. Texas Power & Light Co., 714 F.2d

1255 (1983) (“Subject to certain limitations, right to counsel expressly §

guaranteed by the Sixth Amendment in criminal cases, is no less |

fundamental in civil cases and springs from both statutory authority

and from the constitutional right to due process of law.”).

The Trial Judge in the federal court proceeding [CV-03-00580-FRZ]

erred when he cites U.S. v. Sardone, 94 F.3d 1233 (1996) as authority

for his view that “there is generally no constitutional right to counsel

in civil cases.” The Trial Judge fails to distinguish between the right to

appointed counsel and the right to retained counsel in his sweeping

statement, “there is generally no constitutional right to counsel in civil

cases.” The federal constitutional right to retained legal counsel in an

ongoing civil proceeding was not a prospective property interest. It

was a presently-enjoyed property interest once the Davidsons entered

into a retainer agreement with Michael J. Meehan (Respondent).

The Davidsons were deprived of the presently-enjoyed benefit of

retained counsel in an ongoing civil proceeding without procedural due

process. The process that was due is, at minimum, a hearing. There

was no such hearing afforded the Davidsons. The opposing legal counsel

(Michael J. Meehan, Quarles Brady Streich & Lang LLP, and Bruce R.

Heurlin) simply agreed between themselves and with the Court under

color of Ariz. R. Civ. P., rule 5.1, and there was State Action. To say

that there is generally no constitutional right to retained counsel in civil

cases is a statement of such broad scope and sweep that it would

undermine many, if not all, of the basic foundations upon which our

legal system rests. The right to retained legal counsel is a basic personal

right which requires that courts exercise special solicitude under the

heightened (strict) scrutiny standard of review.

The Davidsons’ complaint against Michael J. Meehan (“MJM”) and

Quarles Brady Streich Lang (““Q&BSL”) is based on whether the State

has power to disenfranchise litigants from presently-enjoyed benefit of

retained legal representation in an ongoing civil proceeding, without

due process and equal protection guaranteed under the Fourteenth

Amendment. The Davidsons’ property interest in their retained legal

representation was a presently-enjoyed property interest at the time of

the Trial Judge’s Order granting attorney withdrawal. The Davidsons

have a legitimate claim to entitlement to their retained legal

representation in a civil proceeding. There was nothing permissive about

the Trial Judge’s Order. The Order was arbitrary and capricious. There

was no hearing or certification process afforded to the Davidsons.

The Davidsons did not voluntarily elect to proceed pro se. There

were forced by State Action to proceed pro se. The Davidsons did not

voluntarily elect to be stripped of their retained counsel of record.

Granting an attorney the right to withdraw without the clients’ consent

interferes with civil litigants’ Constitutional rights. The right to enjoy

property without unlawful deprivation is a personal right. There is no

real dichotomy between personal liberties and property rights. The right

to the presently-enjoyed benefit of retained legal representation in an

ongoing civil proceeding is a basic civil right. Arizona Rule 5.1 places

a meaningful burden on a fundamental personal right. The Davidsons’

challenge to the federal Constitutionality of Arizona Rule 5.1 rests on

procedural and substantive due process grounds, equal protection

grounds, takings clause grounds, and right to contract grounds. The

strict (heightened) scrutiny standard of review should apply.

The issue before this Court is not whether the Davidsons had the

opportunity to retain new legal counsel after the Trial Judge’s Order of

January 11, 2002, in the state court proceeding. The issue before this

Court is whether: (a) Q&BSL’s and MJM’s Motion to Withdraw (after

the action had been set for trial), (b) Grossmans’ Nonobjection to

Attorney Withdrawal, and (c) the Trial Judge’s Order for Attorney

Withdrawal (under Arizona Rule 5.1), provided the Davidsons with the

guarantees of due process, equal protection, right to contract, and

freedom from arbitrary Takings, found in the U.S. Constitution.

“There is now a relatively prevalent practice in the Arizona trial

court system, under color of Rule 5.1, Ariz. R. Civ. P., to which the

Superior Courts generally do not object, of submitting stipulations for

the substitution of counsel without the client's written endorsement.”

See page 85 of the Arizona Civil Rules Handbook, 2002 Edition, by

Daniel J. McAuliffe. Where state courts have regularly applied an

unambiguous statute, there is no need for a federal court to abstain from

determining the constitutionality of the statute until state appellate courts

have had an opportunity to construe it. City of Houston, Tex. v. Hill, 482

U.S. 451 (1987).

Ariz. R. Civ. P., Rule 5.1 (A)(2)(B) and (C), is facially

unconstitutional. It subrogates client’s rights to those of their attorney’s,

based upon a conclusive presumption of the trial judge. It creates a

constitutionally-impermissible unequal classification of clients and

attorneys. It provides none of the citizens of the State of Arizona with

constitutionally-guaranteed protections of presently-enjoyed property

and liberty interests in their retained legal counsel.

Every Arizona citizen is vulnerable to the same federal constitutional

deprivation, because clause (ii) of Ariz. R. Civ. P. Rule 5.1 (A)(2)(C) is

written as a disjunctive condition, that is it reads, [in pertinent part],

“..., or (ii) unless the court is satisfied for good cause shown that the

attorney should be permitted to withdraw.” This statutory construction

renders Ariz. R. Civ. P. Rule 5.1 to be “flagrantly and patently” violative

of express Constitutional protections. There is no hearing or certification

process afforded to clients to protect client’s rights. There is no protection

against the risk of error by the state. The consequence of error is

substantial.

It is doubtful that even “a remarkable job of plastic surgery upon

the face of the [statute]” could save it, for it nowhere makes a hearing

or certification process mandatory to protect client’s rights from

wrongful deprivation. Arizona Rule 5.1 is not reasonably susceptible

of a limiting construction that would avoid the constitutional question

posed in this case, because its language is plain and its meaning

unambiguous. City of Houston, Tex. V. Hill, 482 U.S. 451 (1987).

The enactment and statewide enforcement of Ariz. R. Civ. P. Rule

5.1 represents purposeful and invidious discrimination by the Arizona

court system in favor of attorney’s rights over client’s rights. The Arizona

court system is not capable of rendering an unbiased evaluation of the

federal constitutionality of Ariz. R. Civ. P. Rule 5.1. The fact that the

Arizona Court of Appeals dismissed the Davidsons’ appeal without

reaching the merits of the appeal, and the Arizona Supreme Court denied

the Davidsons’ Petition for Review [unpublished ruling], is entirely

consistent with the Davidsons’ assertion that the Arizona Court system

is institutionally biased. The Arizona Court system is either unwilling |

or unable to hold itself [Arizona Rule 5.1] to be unconstitutional. The §

Arizona court system is not a competent state forum in which to raise |

the Davidsons’ constitutional challenges.

There is a causal link between the Davidsons’ injury and the State’s |

action sufficient to support standing under Article III. Amongst the |

violations alleged in the Davidsons’ Complaint against MJM and |

Q&BSL is an unconstitutional deprivation of property [and liberty, equal |

protection, right to contract, and right to freedom from Takings]. The

State has exercised “coercive power” or provided such significant

encouragement that “the choice must in law be deemed to be that of the

State”. The Davidsons had a protectable, presently-enjoyed, property |

interest in their retained legal representation in the State court |

proceeding. The State actors deprived them of this property interest

without procedural fairness. The State did not provide the Davidsons

with either a pre-deprivation or a post-deprivation hearing. The State |

did not provide the Davidsons with an opportunity to signa certification §

stating that they had made suitable arrangements to be prepared for |

trial.

The Davidsons assert that their having an attorney under retainer for

more than 2 years [until 4 months before the scheduled trial date],

heightens their interest in receiving procedural safeguards to ensure |

that constitutionally-protected, presently-enjoyed, rights of liberty and |

property are not arbitrarily terminated by State action. :

The Davidsons were impermissibly deprived of liberty and property |

without procedural fairness. They were entitled to the expectancy that |

their presently enjoyed liberty and property rights would not be arbitrarily |

terminated by the Trial Court in the State court proceeding. The |

Davidsons were arbitrarily and impermissibly denied an opportunity to |

challenge the Trial Court’s Order of January 11, 2002, in violation of f

the procedural due process (fundamental fairness) guarantee under the |

Fourteenth Amendment. The Trial Court in the State court proceeding

summarily absolved MJM and Q&BSL of their contractual and

professional responsibility to their clients [the Davidsons] at the precise

moment of their clients’ greatest need, i.e., just before trial, under Rule

5.1 (A)(2)(B) and (C), Ariz. R. Civ. P.

The Davidsons assert that there is a Constitutionally- protected

property interest in retained legal counsel in civil lawsuits. The

Davidsons were irrevocably deprived of this property interest by State

action. There was no hearing or certification [by means of Davidsons’

signature] process, either before or after the Trial Judge’s Order. The

State wishes for the attorney withdrawal process to be as economical

and expeditious as possible, to avoid the necessity of a hearing or

certification process. This poses a significant conflict of interest for

the State.

In Mathews v. Eldridge, 96 S.Ct. 893 (1976), the Supreme Court

recognized that what process is due varies in relation to the interests at

stake and the nature of the governmental proceedings. The Court held

that notice and a trial-type hearing must be afforded before the State on

its own initiative may severe the bonds of parenthood. In the cases at

bar [CV-03-00110-FRZ and CV-03-00580-FRZ], however, the State’s

aim is not simply to influence the attorney-client relationship, but to

extinguish it. A termination of client’s rights is both total and irrevocable.

This forced dissolution of the attorney-client relationship should be

recognized as a punitive sanction by courts. Termination of client rights

by the State is a “unique kind of deprivation”. The State’s [Trial Judge’s

Order of January 11, 2002] action under color of Rule 5.1, “completely

and permanently terminated all rights and obligations” between

attorney and client.

Procedural norms are devised to ensure that justice may be done

in every case, and to protect litigants against unpredictable and

unchecked adverse governmental action. The State’s interest [pecuniary]

is in avoiding the cost and administrative inconvenience that might

accompany a right to retained counsel in a civil lawsuit. This Court

should hold that Rule 5.1, Ariz. R. Civ. P. is flagrantly and patently

unconstitutional. Under the 3 prongs of the Eldridge case, the private

interest in their property interest in retained counsel is weighty, the

procedure devised by the State [procedure by means of a hearing or

certification by client is non-existent under Rule 5.1] is fraught with ~

risks of error, and the countervailing governmental interest [solely —

pecuniary] is insubstantial. :

Classifications which impinge upon (jeopardize) the exercise ~

of a fundamental right are treated as presumptively invidious and subject

to heightened (strict) scrutiny.

Procedural due process alone will not prevent the state from —

wrongfully depriving the Davidsons of their retained legal counsel. The

Davidsons exclusion from their retained legal representation pursuant ~

to Arizona Rule 5.1 is patently arbitrary or discriminatory. Government ©

may not classify individuals as eligible or ineligible where the basis of —

classification is “arbitrary or discriminatory”. :

The Trial Court in the State court proceeding conclusively —

presumed that certain facts existed which permitted it to categorize the —

Davidsons into a class (clients), and thereby subject them to burdens —

not visited upon others (attorneys), in violation of the due process and —

equal protection guarantee under the 14th Amendment. The Trial Court’s

ruling (Order of January 11, 2002) effectively subrogated the Davidsons’ _

rights to those of their attorney’s (Q&BSL’s) by “classifying” Q&BSL’s :

statements as truthful without proof, i.e. a conclusive presumption, and 5

without providing the Davidsons an opportunity to challenge the —

truthfulness of Q&BSL’s statements. The State Court system of Arizona |

created a constitutionally-impermissible unequal “classification” of |

clients vis a vis their attorneys, when Rule 5.1 (A)(2)(B) and (C), Ariz. |

R. Civ. P., was enacted, which is at variance with the equal protection [|

clause of the 14th Amendment.

The Davidsons have not only established that Arizona Rule 5.1 §

and the state action complained of had a disproportionate or [

discriminatory impact, but also that the action was taken with intent to

discriminate, so as to permanently deny their clients a legal remedy for

the crimes alleged in the federal court proceedings and avoid their

contractual and professional responsibility to their clients, just 4

months before the scheduled trial date. See the Prosecution

Memorandum of November 20, 2000.

Il. The Prescription Drug User Fee Act, as applied, is

repugnant to the U.S. Constitution

There is a class of victims who have been intentionally (and/or

recklessly) endangered under color of the Prescription Drug User Fee

Act (abbreviated herein as the “PDUFA”) and deprived of 5th

Amendment Due Process and Equal Protection. The PDUFA was

originally enacted by Congress in 1992. It has since been reenacted

several times (as the PDUFA I, II, and III) and is presently found in 21

U.S.C. Sections 379g-379h. But for this intentional (and/or reckless)

endangerment, some members of this class have been hospitalized and

some have died. This class of victims (endangered and dead) presently

has no statutorily-defined advocate. Another class of victims have been

intentionally denied their intangible right to honest services and their

right to Sth Amendment due process and equal protection, under color

of the PDUFA. The Davidsons are members of this class. Robert

Davidson, M.D. was a specifically targeted victim, because as clinical

research subinvestigator, he was someone who might otherwise “blow

the whistle” on the illegal enterprise.

The State court proceeding should be emergently enjoined

because the wrongs permitted under color of the PDUFA are preempted

and subsumed by federal law. The wrongs permitted under color of

the PDUFA are capable of repetition yet evade review. The PDUFA, as

applied, is repugnant to the U.S. Constitution and should be declared

by this Court to be constitutionally invalid.

The Davidsons’ Article III standing, upon which they depend to

bring their federal cause of action in the Federal court proceeding at

bar, depends in part on injuries proximately caused by the defendants’

Federal Action under color of the PDUFA. Selective enforcement of

the PDUFA by officials of the FDA acting in their personal capacities

for personal financial gain has deprived the Davidsons of their intangible

right to honest services and 5th amendment right to due process and

equal protection. Selective enforcement, if based upon improper

motives, can violate equal protection. Gale v. North Dakota Bd. of

Podiatric Medicine, 1997 ND 83 (1997). A statute may be held

constitutionally invalid as applied, when it operates to deprive an :}

individual of a protected right. Little v. Streater, 452 U.S. 1 (1981). :

The Davidsons have provided evidence in the federal court proceeding

of a discriminatory design to favor one individual or class over another. |

Snowden v. Hughes, 321 U.S. 1 (1944).

The Davidsons have made a showing of clear and intentional

discrimination in the federal court proceeding. Strict scrutiny of a

classification under the PDUFA affecting a protected class is properly

invoked only where the plaintiff can show intentional discrimination

by the government. Wisconsin v. City of New York, 517 U.S. 1 (1996).

Clinical research subjects, inappropriately screened specialty practice

patients, clinical research coordinators, and clinical research

subinvestigators, are groups which are particularly vulnerable to

discriminatory treatment by officers of the FDA (acting in their personal

capacity for personal financial gain) under the PDUFA. The PDUFA |

provides corporate pharmaceutical research sponsors with a robust |

statutorily-sanctioned vehicle for bribery of FDA officials.

The application of the PDUFA to the Tucson, AZ FDA EIR of |

5/5-6/28/99 by the FDA was improperly motivated. See Sanjour v.

E.P.A., 56 F.3d 85 (1995). The application of the PDUFA to the Albany,

NY FDA EIR of 10/22-12/23/97 by the FDA was improperly motivated.

Officials of the FDA (acting in their personal capacities) were bribed

[into selectively applying the PDUFA] by Big Pharma representatives

(acting in their representative capacity), so as to facilitate “expedited”

review and market approval of their New Drug Applications (NDAs),

while the for-cause “investigations” of the clinical research misconduct

languished indefinitely. .

The FDA and Big Pharma are intertwined in a symbiotic

relationship as co-beneficiaries of the constitutionally impermissible

classification provided them under the PDUFA. Victims of this

classification include intentionally (and/or recklessly) endangered

clinical research subjects, specialty practice patients, clinical research

coordinators, and clinical research subinvestigators (such as Robert

Davidson, M.D.). FDA representatives (acting in their personal capacity)

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PHO RS ERTIES

and Big Pharma are joint participants in an ongoing “expedited” drug

approval enterprise under the PDUFA. As applied the PDUFA is

unconstitutional because its classification impinges upon the right to

due process and equal protection of the 5th Amendment.

Corporate pharmaceutical company (“Big Pharma”)

representatives are reasonably thought (by information and belief) to

have testified on Jay Grossman’s behalf (in the early 1990’s) in an

Albany, NY lawsuit between Jay Grossman and three physicians

(Richard Ball, M.D., David Shulan, M.D., and Scott Osur, M.D.),

wherein allegations of research fraud and violence were made against

Jay Grossman. Albany Medical College and representatives of the FDA

(acting in their personal capacities) are reasonably thought (by

information and belief) to have facilitated Jay Grossman’s relocation

from Albany, NY to Tucson, AZ during on ongoing FDA investigation

of Grossman’s clinical research conduct (in Albany, NY) in support of

New Drug Applications for several Big Pharma corporation research

sponsors in the early 1990’s. A “waiver” or “special dispensation” from

the usual FDA inspection protocols is known to have been granted to

Jay Grossman by FDA officials (acting in their personal capacities)

during the “relocation” of Jay Grossman’s clinical research practice

from Albany, NY to Tucson, AZ, in the early 1990’s.

Paragraph 2, page 1 of the FDA Tucson, AZ EIR of 5/5-6/28/99

states “This inspection report was delayed due to a PDUFA report.”

The Principal Investigator [Jay Grossman, M.D.] was_terminated for

cause on July 30, 1999, by Vivra Inc, yet paragraph 1, page 1, of the

FDA Tucson, AZ EIR of 7/6-7/10/00, states, “Review of records found

no deviations...”

For the FDA to ever find evidence of serious misconduct by Jay

Grossman, M.D. or Thomas Edwards, M.D., is to risk the FDA

eventually needing to revoke the FDA approvals which were “granted”

during the pendency of their “investigations”. It is for this reason that

there have, to date, not been any formal sanctions by the FDA against

Jay Grossman. To initiate formal sanctions against Jay Grossman would

necessitate the recall, and revocation of the NDA

approvals, of all of the drugs which have gained market approvals based

upon fraudulent and seriously flawed clinical research by Jay Grossman.

Jay Grossman, M.D. and Thomas Edwards, M.D. were well-known in

the industry as “high-enrollers”. Both Big Pharma and the FDA

regularly give special dispensations and waivers to “high-enrollers”.

Special dispensations and waivers were routinely granted to Jay

Grossman by Big Pharma and the FDA.

It is not by accident that the FDA routinely dissociates

inspections of clinical research facilities (the clinical investigators) from

that of the study drugs themselves (the data upon which market approvals

are granted). In this way, principal investigators can be terminated for

cause (as was the case with Jay Grossman, M.D.) or placed on an FDA

Restricted List (as was the case with Thomas Edwards, M.D.), while

the index New Drug Applications still proceed to obtain expedited

market approvals from the FDA (as was the case for one or more of the

index study drugs in the FDA’s “for cause” audit of the Vivra Tucson

facility on 5/5-6/28/99 and the FDA audit of the Albany facility on 10/

22-12/23/97). Thus, the linkage between the misconduct of clinical

investigators (Jay Grossman and Thomas Edwards), the fraudulent

clinical research study results, and the market approvals by the FDA

for the study drugs of the corporate sponsors (Big Pharma), was

concealed from the unknowing public and victims of the frauds

(intentional endangerments and denials of due process and equal

protection).

PDUFA, “priority review” of NDAs by the FDA has led to bad decisions.

There has been much debate about whether, as a result of the

Aprivilege, benefit, opportunity, or public advantage may not be granted

to some but withheld from others where the basis of classification and

difference in treatment is arbitrary or discriminatory. As applied, the

difference in treatment, under the PDUFA, is intentionally

discriminatory. This Court should declare the PDUFA to be

constitutionally invalid as applied, under the strict scrutiny standard of

review.

“A refusal to enforce that stems from a conflict of interest, that is the

result of a bribe, vindictiveness, retaliation, or that traces to personal

or other corrupt motives ought to be judicially remediable.” Heckler

v. Chaney, 470 U.S. 821 (1985). “Traditional principles of rationality

and fair process do offer ‘meaningful standards’ and ‘law to apply’ to

an agencies ‘decision not to act, and no presumption of unreviewability

should be allowed to trump these principles.” Marshall v. Jerrico Inc,

446 US. 238 (1980).

The Davidsons have not only established that the PDUFA and

the federal action complained of had a disproportionate or discriminatory

impact upon its victims, but also that the action was taken with intent

to discriminate for both personal and corporate financial gain. Corporate

pharmaceutical research sponsors have serially gained “expedited

review” and marketing approvals from the FDA by means of this

discriminatory scheme (the PDUFA). Clinical research investigators

and FDA officials acting in their personal capacities have been the

recipients of serial bribes from corporate pharmaceutical research

sponsors.

This Court should look to the effect (serial intentional and/or

reckless endangerments, deaths, Hobbs Act violations, and 5th

Amendment due process and equal protection deprivations) and not to

the form of the classification. Social and economic legislation that

impinges on fundamental rights (to life, liberty, and constitutional rights)

cannot be upheld against equal protection attack, even when the

legislative means are rationally related to a legitimate governmental

purpose.

A clear pattern emerges (serial, related, “expedited” marketing

approvals while “for cause” audits are intentionally stone-walled) from

the effect of federal action under the PDUFA, even when the governing

legislation appears neutral on its face. The PDUFA should be declared

by this Court to be constitutionally invalid as applied, under 5th

Amendment due process and equal protection. The doctrine of mootness

is inapplicable to the PDUFA, because the wrongs made possible under

the PDUFA are capable of repetition, yet evade review, under past,

present, and future Congressional enactments of the PDUFA. The ends

(expedited drug approvals) do not justify the means (intentional and/or

reckless endangerments, deaths, Hobbs Act violations, and 5th

Amendment due process and equal protection deprivations).

iil. The State Court proceeding should be enjoined on federal

preemption grounds

The direct, substantial, and ongoing effect upon interstate commerce

by the conspiracy of the defendants in CV-03-00110-FRZ warrants

federal preemption under the dormant Commerce Clause of the U.S.

Constitution [Article I, Section 8]. A preemption claim that is “facially

conclusive” should constitute an exception to Younger abstention. New

Orleans Pub. Serv. Inc v. Council of City of New Orleans, 491 U.S. 350

(1989). U.S. v. Lopez, 115 S.Ct. 1624 (1995).

The defendants in CV-03-00110-FRZ have effectively waived any

supposed “right” to a state court forum, by virtue of their having injected

themselves, their business, and their conduct, into the stream of interstate

commerce. See Opening Brief [9th Circuit docket #03-17342], page

25, lines 21-24. The Grossmans’ filing of the State court proceeding in

state court, in July of 1999, was a conscious attempt to avoid the very

real possibility of a federal court ever reaching the issues surrounding

their conduct in interstate commerce over the last decade, in both Albany,

NY and Tucson, AZ.

Where the interests at stake are “uniquely federal” in nature, pre-

emption of state law by federal common law is allowed. Boyle v. United

Technologies Corp., 487 U.S. 500 (1988). No less than the integrity of

the manner in which prescription drugs are approved for marketing in

this country is at issue in CV-03-00110-FRZ. See Opening Brief [9th

Circuit docket #03-17342], page 21, lines 12-18. Clinical research

studies with human subjects are typically conducted in an area of

complete federal preemption. See page 17, lines 1-2, Reply Brief [9th

Circuit docket # 03-17342]. In the case at bar, the defendants’ dealings

with the FDA are prompted by the FDCA (Food, Drug, and Cosmetic

Act) and the PDUFA (Prescription Drug User Fee Act), presently in its

3rd enactment by Congress. The Davidsons have alleged deprivation

of their right to due process and equal protection under the Fifth

Amendment of the U.S. Constitution by Federal Action under color of

the Prescription Drug User Fee Act. See Reply Brief [9th Circuit docket

#03-17342], page 17, lines 15-22.

FDA officials acting in their personal capacities and the Prescription

Drug User Fee Act, enactments I, II, and III (PDUFA I, II, and ITT) are

essential elements in this drug approval enterprise. Serial corporate

bribery by Big Pharma of the FDA (acting in their personal capacities)

under color of official right provided by the PDUFA I, II, and III, can be

likened to the gasoline which fuels the engine of this thoroughly corrupt

[drug approval] enterprise. See Opening Brief [9th Circuit docket #03-

17342], Page 24, lines 7-12.

Serial related Hobbs Act (18 USC Section 1951) and Travel Act 8

USC Section 1952) violations have been pleaded in the Federal court

proceeding. The fruit of the defendants’ misconduct in the Federal court

proceeding has resulted in approvals by the FDA of numerous New

Drug Applications for their corporate pharmaceutical sponsors, and

personal and corporate financial gain for the enterprise.

Without the predicate act violations, in a pattern of racketeering

activity, and overt acts of conspiracy found in the FDA Tucson, AZ EIR

[Establishment Inspection Report] of 5/5-6/28/99, a substantially delayed

and heavily redacted copy of which was finally obtained by [the

Davidsons] on or about February 20, 2001, by means of an FOI request,

[the Davidsons} did not know that a conspiracy existed. Page 13,

Paragraph 11, of the FDA Tucson, AZ EIR of 5/5-6/28/99 documents

an agreement to obstruct justice, overt acts of conspiracy to obstruct

justice, and provides the mens rea for obstruction of justice, attempt to

obstruct justice, and conspiracy to obstruct justice. See Davidsons’

First Amended Complaint, page 12, paragraph 35.

The success of the defendants’ ongoing conspiracy to conceal and

perpetuate schemes to serially defraud the plaintiffs, specialty practice

patients, clinical research subjects, and the United States, is reflected in

the FDA EIR at the “Vivra” Tucson facility on 7/6-10/00, a redacted

copy of which was obtained through FOI by the plaintiffs. Paragraph

1, Page 1 states: “This was a High Priority CDER User Fee NDA Pre-

Approval Study-Oriented Clinical Investigator Data Validation

Inspection assigned by HFD-46 to audit...under CP 7348.81]. Review

of records found no deviations and no FD-483 was issued.” The

Principal Investigator [Jay Grossman, M.D.] was terminated for cause

on July 30, 1999, by Vivra Inc, yet the FDA’s report on 7/10/2000 states

“Review of records found no deviations...” Thus, the FDA Tucson AZ

EIRs of 5/5-6/28/99 and 7/6-10/00 made no findings which in any way

deterred the Big Pharma corporate sponsors from proceeding under the

PDUFA II [now proceeding under the PDUFA III] to gain expedited

FDA “review” and market approval of their products.

Paragraph 2, Page 1 of the FDA Tucson, AZ EIR of 5/5-6/28/99

states “This inspection report was delayed due to a PDUFA report.” {

The PDUFA [Prescription Drug User Fee Act] status of at least one of f

the index clinical research studies inspected by the FDA at the Vivra f

- Tucson, AZ, 698 E. Wetmore Road facility in 1999 was 2 very substantial

cause of injury to the Davidsons. By delaying the publication of the }

FDA Tucson, AZ EIR of 5/5-6/28/99, the PDUFA II substantially delayed

the time at which the [Davidsons] could begin to seek a legal remedy }

against the defendants. This “delay” was intentional. “Expedited”

market approvals of New Drug Applications by the FDA took place

during this “delay” and during the pendency of the ostensibly ongoing

criminal investigation of [Jay Grossman’s] conduct by the Criminal

Division of the FDA. Time in the marketplace is literally worth billions §

to Big Pharma. See pages 3-5 and pages 12-16 of the Davidsons’ First §

Amended Complaint (U.S. District Court Case # CV-03-00110-FRZ).

An object of the ongoing conspiracy to defraud was [is] to gain

“expedited” market approvals [under color of the PDUFA], at the

expense of 5th Amendment Due Process and Equal Protection rights

[of the Davidsons and others}, for personal or corporate financial gain.

There is a recurring pattern of expedited market “approvals” of New

Drug Applications by the FDA, while both routine and “for cause”

investigations of clinical research establishments are selectively

“delayed” [intentionally “stone-walled”] under the auspices of the

PDUFA I and II (and now under the PDUFA III). This ongoing

conspiracy to defraud [the Davidsons], willfully and knowingly

endangers both clinical research subjects and the U.S. public who are

exposed to marketed drugs which may be unsafe. Deaths have occurred

by reason of this ongoing conspiracy to defraud. There is a very real

threat that more deaths and intentional (and/or reckless) endangerments

will occur by reason of this conspiracy under color of the PDUFA III

[and subsequent enactments of the PDUFA]. See the Davidsons’ First

Amended Complaint, pages 15-16, paragraphs 43-45.

IV. The U.S. District Court erred when it dismissed CV-03-

00110-FRZ and CV-03-00580-FRZ under the abstention doctrine

of Younger v. Harris

None of the requirements were met for Younger abstention in U.S.

District Court Cases CV-03-00110-FRZ and CV-03-00580-FRZ. A

proceeding is “pending” within the meaning of the Younger doctrine

until state appellate remedies are exhausted. Huffman v. Pursue, Ltd.,

420 US 592 (1975).

The Davidsons were compelled to file their Original Complaint in

CV-03-00110-FRZ on February 19, 2003, so as to avoid lapsing of the

relevant statute of limitations for bringing federal RICO actions under

18 USC Section 1964 (a) and (c), against Vivra Inc, et al.

Similarly, the Davidsons were compelled to file their Original

Complaint & Application for Injunctive Relief in CV-03-00580-FRZ

on November 20, 2003, so as to avoid lapsing of the relevant statute of

limitations for bringing legal malpractice actions against MJM and

Q&BSL.

The Davidsons exhausted all available state appellate remedies prior

to filing their Original Complaint & Application for Injunction Relief

in CV-03-00580-FRZ on November 20, 2003, and prior to filing their

Motion for Preliminary Injunctive Relief in CV-03-00110-FRZ on

October 21, 2003. The Arizona Supreme Court denied the Davidsons’

Petition for Review on August 8, 2003. Thus, there was no pending

state judicial proceeding at the time federal proceedings were initiated.

There has never been an ongoing state proceeding against MJM and

Q&BSL. The first Middlesex prong is lacking in both federal court

proceedings [CV-03-00110-FRZ and CV-03-00580-FRZ].

There are no important state interests implicated in the State court

proceeding. Younger abstention is proper only when the state asserts a

vital interest which is directly in issue in the underlying state proceeding.

A vital state interest is “implicated” in the state court proceeding when

the state interest is the subject matter of that proceeding. Traughber v.

Beauchane, 760 F.2d 673 (1985). A state cannot have a substantial

state interest in enforcing an invalid law. Champion International Corp.

v. Brown, 731 F.2d 1406 (1984). Private tort litigation does not implicate

state interests. Miofsky v. Superior Court of the State of California,

703 F.2d 332 (1983). The Davidsons’ concerns regarding the federal

constitutionality of Arizona Rule 5.1 and the Prescription Drug User

Fee Act are not substantial enough interference with Arizona’s

administrative and judicial processes to justify abstention. The second

Middlesex prong is lacking in both federal court proceedings [CV-03-

00110-FRZ and CV-03-00580-FRZ].

Arizona’s interest in forcing clients to yield their retained legal

counsel, after the action has been set for trial, in response to court’s

civil order, was not an important interest for purpose of Younger

abstention doctrine that required District Court to abstain from

interfering with enforcement of an Arizona order/judgment. There is

no important state interest in enforcing unconstitutional statute.

The Davidsons federal court proceedings are distinguished from the

fact pattern found in Pennzoil Co. v. Texaco, 481 U.S. 1 (1987), because

the Davidsons attempted to present their constitutional claims to the

Arizona courts. The Arizona constitution does not have an open-courts

provision similar to that of the Texas constitution. Where litigant has

attempted to present federal claims in related state court proceedings,

federal court should not assume that state procedures afford adequate

remedy, in absence of unambiguous authority to the contrary.

The Davidsons were barred from raising federal claims in the State

court proceeding. See Lebbos v. Judges of Superior Court, 883 F.2d

810 (1989). The Davidsons affirm that in the State court proceeding,

Arizona Court of Appeals [2CA-CV-2002-0051], and Arizona Supreme

Court [CV-03-0138-PR], they did not have an opportunity to raise their

federal claim in state court because they were procedurally barred from

raising such claims. Dubinka v. Judges of Superior Court, 23 F.3d 218

(1994). Younger abstention is not appropriate when state law imposes

procedural barriers to raising the constitutional claims in state court

proceedings. Moore v. Sims, 442 U.S. 415 (1979). Reno v. American-

Arab Anti-Discrimination Committee, 525 U.S. 471 (1999). The third

Middlesex prong is lacking in both federal court proceedings [CV-03-

00110-FRZ and CV-03-00580-F RZ].

None of the other abstention doctrines are even potentially-applicable

to the Davidsons’ federal court proceedings because there have never

been parallel duplicative state proceedings. A suit is “parallel” when

substantially the same parties are contemporaneously litigating

substantially the same issues in another forum. It is imminently clear

from the state court Minute Entry of April 29, 2004, that the present

likelihood that the state litigation will dispose of all claims preserited in

the federal case is completely nil.

The federal district court trial judge’s initial dismissal of CV-03-

00110-FRZ under Rule 8, on July 1, 2003, with leave to file a second

amended complaint, was the practical equivalent of a final judgment,

because the Magellan defendants’ Notice of Automatic Stay was replaced

by a permanent injunction, once their bankruptcy discharge was

confirmed. The Magellan defendants’ fraud upon the U.S. Bankruptcy

Court, by officers of the court (the Magellan defendants’ legal counsel),

was targeted at obtaining their Discharge confirmation. There was never

any intent by the Magellan defendants to file a Notice Lifting the Stay.

The U.S. Bankruptcy Court has ignored two prior motions by the

Davidsons to lift the automatic stay in CV-03-00110-FRZ, thereby

depriving them of Sth Amendment due process in the Magellan

defendants’ Chapter 11 proceeding.

The Notice of Automatic Stay and subsequent Permanent Injunction

[after their discharge confirmation was obtained by fraud upon the

U.S. Bankruptcy Court, Southern District of New York] by means of

the Chapter 11 filing by the Magellan defendants, actually prevented

the Davidsons from filing a Second Amended Complaint in the U.S.

District Court proceeding [CV-03-00110-FRZ]. The Davidsons were

prevented from adding civil rights counts to their federal complaint

under 42 USC Section 1983, Section 1985, and Section 1988. The

Davidsons were actually prevented in the federal court proceeding from

asserting the “expressly authorized” exception to the Anti-Injunction

Act provided by 42 USC Section 1983.

By inappropriately dismissing the federal court proceedings under

the abstention doctrine of Younger v. Harris, the federal Trial Judge has

wrought irreparable harm to the Davidsons. This irreparable harm is a

direct consequence of the federal court’s clearly erroneous abdication

under Younger of its responsibility for jurisdiction over the Davidsons’

federal cause of action.

The Davidsons are now forced to represent themselves pro se in the

State court proceeding, before a biased trial judge, with an irrevocably-

prejudiced case, without the previously-enjoyed benefit of retained legal

counsel, based solely upon a conclusive presumption of the trial judge.

The Minute Entry of April 29, 2004, is material to the question of

bias of the trial judge and competency of the state court proceeding.

The Memorandum Decision of the Arizona Court of Appeals on

February 27, 2003, and the Arizona Supreme Court’s denial of the

Davidsons’ Petition for Review on August 8, 2003, also go directly to

the competency of the state court proceeding and institutional bias of

the Arizona court system. The due process clause entitles a person to

an impartial and disinterested tribunal in both civil and criminal cases.

When the trial judge dismissed the federal court proceedings [CV-

03-00110-FRZ- and CV-03-00580-FRZ] under the abstention doctrine

of Younger v Harris, he stated that Davidsons have an adequate

opportunity to litigate any alleged federal claims in the ongoing state

court proceeding. This is clearly not true, particularly in light of the

State court Minute Entry of April 29, 2004. Comity goes too far if it

gives inadequate attention to federal interests. DeSpain v. Johnson,

731 F.2d 1171 (1984). The State court Minute Entry of April 29, 2004,

is not signed by the trial judge, and as such, is not an appealable final

judgment, under Arizona law. Apache East, Inc. v. Means, 124 Ariz. 11

(1979). This Minute Entry, makes it impossible for the Davidsons to

fairly pursue their constitutional claims in the ongoing state proceeding.

Since Arizona court rules did not permit raising the Rule 5.1

constitutional claim in the state court proceedings, Younger abstention

principles were not applicable to the federal court action seeking to

enjoin enforcement of an unconstitutional statute. The federal district

court judge’s dismissal of the federal court proceedings under the

Younger doctrine is therefore clearly erroneous and should be reversed.

The state court’s enforcement of the facially unconstitutional Arizona

Rule 5.1 is of such magnitude as to justify the federal court’s intervention

in state affairs and is sufficient to overcome general abstention principles.

JP. v DeSanti, 653 F.2d 1080 (1981). Zhe Davidsons now_have no

forum whatsoever, either state or federal in which to raise their federal

constitutional concerns.

The Prosecution Memorandum of November 20, 2000, provides this

Court with strong support for the Davidsons’ contention that they at no

time “slept on their rights”, or acted in any dilatory or improper motive

in either the state or the federal court proceedings. Intrinsic frauds by

Jay Grossman and others, are detailed in the Prosecution Memorandum.

By information and belief, Q&BSL and MJM knew the substance and

content of the “Prosecution Memorandum” before they filed their

Motion to Withdraw as counsel of record in the State court proceeding.

Yet, Q&BSL and MJM agreed [with each other] to continue to refuse

to bring Arizona fraud, Arizona RICO, and federal RICO actions, on

behalf of their then clients, the Davidsons, despite repeated requests by

the Davidsons to bring such actions. The object of their refusal was to

permanently deprive the Davidsons of a legal remedy for the injuries

wrought upon them by the Grossmans and others. Q&BSL and MJM

thus completely avoided their contractual and professional responsibility

to their clients after having “drained” them of over two years of attorney’s

fees and costs, just four months before the scheduled trial date.

There was not “good cause appearing therefore”, upon which to

base the State court’s Order of January 11, 2002, which Ordered that

attorney withdrawal is granted. By the totality of the circumstances,

information and belief, MJM and Q&BSL, conspired with each other,

as State Actors [including the Grossmans and the Trial Judge] to deprive

the Davidsons of their constitutionally-protected, presently-enjoyed,

property interest in retained legal counsel in an ongoing civil proceeding,

under color of Ariz. R. Civ. P. Rule 5.1. Claims for violations of 42

USC Section 1983 are “expressly authorized” exceptions to the Anti-

injunction Act.

Conclusion

Ariz. R. Civ. P., Rule 5.1 (A)(2)(B) and (C) should be declared

facially unconstitutional. The Prescription Drug User Fee Act should

be declared unconstitutional as applied. The federal court dismissals

under the Younger doctrine are clearly erroneous and should be

reversed. The federal court proceedings should be consolidated and

remanded for trial. The State court proceeding should be emergently

stayed under FRCP 62 (c) on federal constitutional and preemption

grounds. The requirement of a supersedeas bond should be waived.

iis

APPENDIX

APPENDIX A: Ariz. R. Civ. P., Rule 5.1 (A)(2) (B) and (C)....App. 1

APPENDIX B: Order, November 24, 2003, U.S. District Court, Arizona

District, Docket No. 56, Civil Case # CV-0300110FRZ............. App. 2

APPENDIX C: Order, February 2, 2004, U.S. District Court, Arizona

District, Docket No. 9, Civil Case # CV-03-00580-FRZ............ App. 6

APPENDIX D: Minute Entry, In Chambers Ruling, File Stamp Date:

April 29, 2004, Pima County Superior Court,

Case No. C333954 ..sccssscssssssssssssessencecnscecsesssenenscsnsnnsnsessssnenesaenss App. 11

APPENDIX E: Memorandum Decision, Appeal Dismissed, February

27, 2003, Arizona Court of Appeals, Division Two,

Case No. 2 CA-CV 2002-005 1.......:scsssssssseeeresresrsnessssressenennens App. 14

APPENDIX F: Order of Arizona Supreme Court re: action taken August

8, 2003; ORDERED: Petition for Review to Supreme Court = DENIED.

FURTHER ORDERED: Request for Attorneys’ Fees [Appellees

Grossman] = GRANTED, Arizona Supreme Court

Case No. CV-03-0148-PR.......:s:ssesssssssesesesscesersnnsssneensssseensnenneney App. 18

APPENDIX G: Copy of 9th Circuit ORDER: case is dismissed as to

appellees Vivra Inc, Magellan Specialty Health Inc, and Allied Specialty

Care Services LLC f/k/a Allied Specialty Care Services Inc ONLY. U.S.

District Court, Arizona Distzict, Case No. CV-03-00110-FRZ, Docket

#61 entered on April 16, 2004.........:scssesesseeereeseseteesensnenenneees App. 19

App. 1

APPENDIX A

Arizona Rules of Civil Procedure

Rule 5.1. Duties of Counsel

(A) Attorney of Record: Withdrawal and Substitution of Counsel.

(2) Withdrawal and Substitution. Except where provided otherwise

in any local rules pertaining to domestic relations cases, no attorney

shall be permitted to withdraw, or be substituted, as attorney of

record in any pending action except by formal written order of the

court, supported by written application setting forth the reasons

therefore together with the name, residence and telephone number of

the client, as follows:

(B) Where such application does not bear the written approval of the

client, it shall be made by motion and shall be served upon the client

and all other parties or their attorneys. The motion shall be

accompanied by a certificate of the attorney making the motion that

(i) the client has been notified in writing of the status of the case

including the dates and times of any court hearings or trial settings,

pending compliance with any existing court orders, and the

possibility of sanctions, or (ii) the client cannot be located or for

whatever other reason cannot be notified of the pendency of the

motion and the status of the case.

after an action has been set for trial, (1) unless there shall be endorsed

upon the application therefore either the signature of a substituting

attorney stating that such attorney is advised of the trial date and will

be prepared for trial, or the signature of the client stating that the

client is advised of the trial date and has made suitable arrangements

to be prepared for trial, or (11) unless the court is satisfied for good

cause shown that the attorney should be permitted to withdraw.

App. 2

APPENDIX B

__ FILED __ LODGED

___RECEIVED COPY

INOV 24 2003 |

CLERK US DISTRICT COURT

DISTRICT OF ARAZONA

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Robert M. Davidson, Vanessa E. Komar, ) No. CV03-

Plaintiffs ) 110 TUC FRZ

)

vs ) ORDER

)

Vivra Inc, et al., )

Defendant )

Before the Court for consideration is “Plaintiffs’ Motion for

Preliminary Injunctive Relief by this Court,” filed October 21, 2003.

Filed in response is “Defendants Jay and Eudice Grossman’s Opposition

to Plaintiffs’ Motion for Preliminary Injunctive Relief.”

Procedural History

Plaintiffs Robert M. Davidson and Vanessa E. Komar, proceeding

pro se, filed “Plaintiff's Original Complaint” on February 19, 2003,

against 22 named corporate and individual Defendants. The 191 page

original complaint alleged 21 counts.

On March 11, 2003, Plaintiffs filed a 144 page Rico Case Statement,

with several exhibits attached.

On April 30, 2003, Plaintiffs filed a 328 page First Amended

Complaint, against the same 22 named Defendants, alleging 17 separate

counts.

On June 6, 2003, Defendants Grossman appeared and filed

“Defendants Jay and Eudice Grossman’s Motion to Dismiss Pursuant

to Rule 8, Federal Rules of Civil Procedure.”

App. 3

On July 1, 2003, the Court granted Defendants Jay and Eudice

Grossman’s Motion to Dismiss Pursuant to Rule 8 based on the Court’s

finding “that the prolixity of the First Amended Complaint renders the

pleading incomprehensible.”

This matter was also stayed pursuant to the Notice of filing of

Bankruptcy Petition and of the Automatic Stay filed by Defendants Vivra,

Inc., Magellan Specialty Health, Inc. and Allied Special Care Services,

LIC.

Plaintiffs were granted leave to file a Second Amended Complaint

upon the lifting of the automatic stay in compliance with the pleading

requirements of the Federal Rules of Civil Procedure and in accordance

with the provisions of the Court’s Order, specifically Rule 8(a)(2), which

requires a complaint to include only “a short and plain statement of the

claim,” and Rule 9(b), which requires that “[I]n all averments of fraud

or mistake, the circumstances constituting fraud or mistake shall be

stated with particularity.”

Plaintiffs were warned that “[a]lthough the pleadins of pro se litigants

are construed liberally, pro se litigants are nevertheless bound by the

federal and local rules of procedure. See Ghazali v. Moran, 46 F.3d 52,

54 (9th Cir. 1995).”

Discussion

Although this cause of action is still under the automatic stay

provision pursuant to the filing of a bankruptcy provision, Plaintiffs

filed the present motion seeking injunctive relief.

There is no operative complaint before the Court.

Plaintiffs’ motion seeks “preliminary injunctive relief from this

Court in the form of:”

(a) an Order by this Court for a Stay of Pima County

Superior Court Case # 333954, pending final adjudication

of the federal cause of action (Case #03-111) from which it

arises,

(b) an Order by this Court for a Stay of the award of Costs

[$211.01] and Attorney’s Fees [$6,767.50] to the

Grossmans in Arizona Court of Appeals Case # 2 CA-CV

eee

App. 4

02-0051, pending final adjudication of the federal cause of action

(Case # 03-CV_110) from which it arises, and

and Attorney’s Fees [$1,710.00] to the Grossmans in Arizona .

Supreme Court Case #CV-03-0148-PR, pending final adjudication of

the federal cause of action (Case # 03-CV 110) from which it arises,

and

(d) an Order for any other relief this Court deems appropriate.

Plaintiffs base their argument in their motion for injunctive relief

on the following:

Plaintiffs (the Davidsons) will suffer irreparable injury if Pima

County Superior Court Case # 333954 proceeds to trial prior

to final judgment upon the merits of the federal cause of action

(Case # 03CV-110-TUC-FRZ) from which it arises. PIMA

County Superior Court Case # 333954 arises from the same

nucleus of operative facts alleged by the Davidsons in US

District Court Case #03CV100TUC alleged by the Davidsons

in US District Court Case # 03CV100TUC FRZ. There is a

distinct risk of issue preclusion or claim preclusion, if Pima

County Superior Court Case # 333954 proceeds to trial prior

to the final judgment upon the merits of O3CV-1 10-TUC-FRZ.

Although Plaintiffs’ initial filings were incomprehensible, it is

clear to the court that this action, in its entirety, must be dismissed

based on the doctrine of abstention which precludes federal court

interference with pending sate judicial proceedings. It is evident,

based on Plaintiffs’ admissions and requests for relief, as set forth in

their motion for preliminary injunction, that this action was filed in

federal court, on the premise of supplemental jurisdiction and federal

question, to circumvent the ongoing state court proceedings, an abuse

of federal judicial resources.

It is clear that this Court lacks jurisdiction over the matters

asserted in this federal action and the relief requested by Plaintiffs in

App. 5

their motion for injunctive relief. The Court need not address the

principles of judicial estoppel which also preclude the filing of this

action in federal court.

The Court thereby invokes the doctrine of abstention pursuant to

Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746 (1971), in which the

Supreme Court “espouse[d] a strong federal policy against federal-

court interference with pending state judicial proceedings.” H.C. v.

Koppel, 203 F.3d 610, 613 (9th Cir. 2000) (quoting Middlesex

County Ethics Committee v. Garden State Bar Ass’n., 457 U.S. 423,

431, 102 S.Ct. 2515, 2521 (1982)). “Absent extraordinary

circumstances, Younger abstention is required if the state proceedings

are (1) ongoing, (2) implicate important state interests, and (3)

provide the plaintiff an adequate opportunity to litigate federal

claims.” Id.

Plaintiffs have an adequate state forum in which to pursue the

issues presented.

Based on the foregoing,

IT IS HERBY ORDERED that this case is DISMISSED with all

parties to bear their own costs.

IT IS FURTHER ORDERED that all other pending matters are

DENIED as moot.

There shall be no further filings in this action.

DATED this 20th day of November, 2003.

/s FRANK R. ZAPATA

United States District Judge

App. 6

APPENDIX C

FILED __LODGED

___RECEIVED__COPY

FEB 2 2004

CLERK US DISTRICT COURT

DISTRICT OF ARIZONA

BY DEPUTY

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

)

Robert M. Davidson, Vanessa E. Komar,) No. CV 03-580 TUC FRZ

Plaintiffs, ORDER

VS.

Michael J. Meehan; Quarles & Brady

Streich Lang

Defendants

Nee Ne eee ee”

The present action commenced with the filing of Plaintiffs’ Original

Complaint & Application for Injunctive Relief against Defendants

Michael J. Meehan and Quarles & Brady Streich Lang. The pleading

alleges, inter alia that “[t}he Arizona state courts...have effectively

stripped the Davidsons of their former attorney of record... without Due

Process or Equal Protection, in violation of the Contract Clause, Takings

Clause, and 14th Amendment of the U.S. Constitution.”!

Plaintiffs’ claims appear to arise from a state court ruling granting a

motion to withdraw as attorney of record in state court proceedings,

filed by Defendant Meehan, who had been retained to represent in the

state court action. Plaintiffs’ complaint refers repeatedly to facts and

! Plaintiffs’ Original Complaint & Application for Injunctive Relief, Page 5,§ 24.

App. 7

allegations arising out of state court proceedings and a previously filed

district court action, which was dismissed on November 23, 2003, four

days after the filing of this action on November 20, 2003, in which

Plaintiffs had similarly moved for injunctive relief.

Defendants filed a Motion to Dismiss in response to Plaintiffs’

22, 2004, now before the Court for consideration.

Deferdants move the court to dismiss the present case based on their

contention that “there is no Constitutional right to counsel in civil case”

and, “...original subject matter jurisdiction for this case is not present.”

Defendants conclude that “[a]s a result, this Court cannot retain

supplemental jurisdiction over plaintiffs’ state law based claims and

thus, the entire case should be dismissed.”

Plaintiffs filed their Objection to Motion to Dismiss in response to

Defendants’ motion, contending that they “sought relief for this

irrevocable injury in their Motion for Preliminary Injunctive Relief in

U.S. District court Case 03CV-110 TUC-FRZ...presently on appeal to

the 9th Circuit Court of Appeals...”

Defendants’ motion to dismiss addresses Plaintiffs’ cause of action

on the merits of the claims asserted, arguing that Plaintiffs have failed

to allege the infringement of a constitutionally protected right,

specifically a constitutional right to counsel in a civil case, and therefore,

there is no basis for federal subject matter jurisdiction. The Court finds

however, that Plaintiffs’ cause of action has not been brought properly

before this Court.

The Court dismissed Plaintiffs’ previous action by Court order and

judgment, filed November 24, 2003, under the doctrine of abstention

pursuant to Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746 (1971), in

which Plaintiffs moved for injunctive relief, alleging:

Plaintiffs (the Davidsons) will suffer irreparable injury if Pima County

Superior Court Case # 333954 proceeds to trial prior to final judgment

upon the merits of the federal cause of action (Case # 03CV-110-TUC-

FRZ) from which it arises. PIMA County Superior Court Case # 333954

arises from the same nucleus of operative facts alleged by the

App. 8

Davidsons in US District Court Case # 03CV100TUC FRZ.

In dismissing the previous action, the Court found that

“[a]lthough Plaintiffs’ initial filings were incomprehensible, it is clear

to the Court that this action, in its entirety, must be dismissed based on

the doctrine of abstention which precludes federal court interference

with pending state judicial proceedings.”

The Court further held that “”[I]t is evident, based on Plaintiffs’

admissions and requests for relief, as set forth in their motion for

preliminary injunction, that this action was filed in federal court, on the

premise of supplemental jurisdiction and federal question, to circumvent

the ongoing state court proceedings, an abuse of federal judicial

resources.” The Court further explained that it “need not address the

principles of judicial estoppel which also preclude the filing of this

action in federal court” and that “[I]t is clear that this Court lacks

jurisdiction over the matters asserted in this federal action and the relief

requested by Plaintiffs in their motion for injunctive relief.”

The Court concluded that Plaintiffs have an adequate state forum in

which to pursue the issues presented. Plaintiffs filed a notice of appeal.

In the present action, Plaintiffs appear to be attempting to raise issues

arising from the same cause of action and events that originated in the

Arizona state courts. Plaintiffs’ Original Complaint & Application for

Injunctive Relief fails to comply with the requirements of Rule 8(a)(2),

which requires a complaint to include only “a short and plain statement

of the claim,” and Rule 9(b), which requires that “[I]n all averments of

fraud or mistake, the circumstances constituting fraud or mistake shall

be stated with particularity.” These requirements were set forth by Court

prder in thprevious action, CV 03-110 TUC FRZ, along with the

warning that “[although the pleadings of pro se litigants are construed

liberally, pro se litigants are nevertheless bound by the federal and

local rules of procedure.” See Ghazali v. Moran, 46 F.3d 52, 54 (9th

Cir, 1995). Plaintiffs’ Original Complaint & Application for

Injunctive Relief includes, but is not limited to, the following

allegations:

App. 9

Opposing counsel in Pima County Case 333954 inappropriately aligned

their interests with those of Mr Meehan and Q&BSL during the

Davidsons’ appellate action to the Arizona court of Appeals as is amply

demonstrated by their Answer Brief and Opposition to Petition for

Review. The possibility of a prior association between any of the counsel

of the firm Quarles & Brady LLP [in any state or federal jurisdiction]

and any of the named defendants [or their Counsel] in U.S. District

Court Case # 03CV-110-TUC-FRZ, is of grave concern to the

Davidsons. The Davidsons pray for this court to allow discovery on

this question. Such a question is readily subject to discovery, assuming

that any records documenting such an association have not been

destroyed. This is particularly relevant at this time because a number of

the named corporate defendants [Vivra Inc, Magellan Specialty Health

Inc, Allied Specialty Care Services Inc, and Health Technologies Inc]

in Case #03C V-110-TUC-FRZ are presently in the process of disposing

of their assets [and records?] in a Chapter 11 Bankruptcy proceeding

filed on March 11, 2003, in the U.S. Bankruptcy Court, Southern District

of New York [In Re: Magellan Health Services Inc, Case No. 03-40515

(PCB), Jointly Administered]. Case #03C V-110-TUC-FRZ is presently

stayed by the filing for Automatic Stay under the Bankruptcy Code.

As of the filing of this complaint, Mr. Meehan appears no longer to

be an associate of the law firm Quarles & Brady Steich Lang. According

to the State Bar of Arizona Member Finder, Mr. Meehan now works for

the law firm, The Law Offices of Michael J. Meehan, and he appears to

now no longer be an associate of Quarles 7 Brady Steich Lang. Thus,

Mr. Meehan is an attorney who has moved between law firms, frequently.

The plaintiffs will produce evidence at trial that this movement between

law firms [during Mr. Meehan’s attorney-client relationship with the

Davidsons] inured to detriment of his clients (the Davidsons) in Pima

County Case #333954, in more ways than one. This movement between

law firms was not part of the benefit bargained-for when the davidsons

retained Mr. Meehan as their legal counsel in Pima County Case

#333954.

? Plaintiffs’ Original Complaint & Application for Injunctive Relief,

939,40, 41.

App. 10

As evidence by Plaintiffs’ Exhibits in Support of Objection to

Motion to Dismiss, this case centers around the state court controver-

sies the Plaintiffs tried to raise in their previous federal action. The

Court again, finding that Plaintiffs have an adequate state forum in which

to pursue the issues presented, invokes the doctrine of abstention pur-

suant to Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746 (1971), which

“espouse[s] a strong federal policy against federal-court interference

with pending state judicial proceedings.” H.C. ex rel. Gordon v. Koppel,

203 F.3d610, 613 (9th Cir.2000) (quoting Middlesex County Ethics

Committee v. Garden State Bar Ass’n., 457 U.S. 423, 431, 102 S.Ct.

2515, 2521 (1982). The Court does not find extraodinary circumstances

to intercede in the ongoing state court proceedings in which Plaintiffs

have adequate opportunity to litigate any alleged federal claims. See Id.

Notwithstanding this finding, as Defendants assert, “it is well-

established that there is generally no constitutional right to counsel in

civil cases. “ United State v. Sardone, 94 F.3d 1233, 1236 (9th Cir 1996)

(citing Hedges v. Resolution Trust Corp., 32 F.3d 1360, 1363 (9th Cir.

1994) cert. denied, 514 U.S. 1082, 115 S.Ct. 1792 (1995)).

Based on the foregoing,

IT IS HEREBY ORDERED that this case is DISMISSED with all

parties to bear their own costs.

Judgment shall be entered accordingly.

DATED this 30th day of January, 2004.

/s FRANK R. ZAPATA

United States District Judge

App. 11

APPENDIX D FILED

PATRICIAA. NOLAN

CLERK, SUPERIOR CT

April 29, 2004 (11:27)

By: Kitty Vroman

ARIZONA SUPERIOR COURT, PIMA COUNTY

JUDGE: HON. JANE L. EIKLEBERY CASE NO. C-333954

COURT REPORTER: NONE DATE: April 29, 2004

JAY GROSSMAN and EUDICE GROSSMAN,

h/w,

Plaintiffs,

vs.

ROBERT MICHAEL DAVIDSON and VANESSA

DAVIDSON, a/k/a VANESSA E. KOMAR, h/w

Defendants

ROBERT MICHAEL DAVIDSON and VANESSA

E. KOMAR, h/w

Defendants/Counterclaimants,

Vv.

JAY GROSSMAN and EUDICE GROSSMAN,

h/w,

Plaintiffs/Counterdefendants.

MINUTE ENTRY

IN_ CHAMBERS RULINGS RE: DEFENDANTS” MOTION TO

AMEND DEFENDANTS’ ANS WER TOADD COUNTER CLAIMS

AND ADD PARTIES, PLAINTIFFS’ MOTION TO REQUIRE

DEFENDANTS TO PAY PLAINTIFFS FOR COSTS AND

ATTORNEYS’ FEES ASSESSED FOR FRIVOLOUS APPEALS,

DEFENDANTS’ MOTION TO ENLARGE TIME

App. 12

TO FILE RULE 26.1 DISCLOSURE STATEMENT AND

DEFENDANTS’ MOTION TO ENLARGE TIME FOR THE

DISCOVERY DEADLINE

The Court has reviewed all of the motions, oppositions and replies

submitted. The complaint in this action was filed on July 2, 1999.

The case is set for trial on October 13, 2004. On January 20, 2004,

the parties were ordered to comply with Rule 26.1 on or before

Friday, March 19, 2004. The discovery deadline was set for Friday,

April 30, 2004.

Kitty Vroman, Deputy Clerk

By George Hofmeister, J.A.A.

App. 13

MINUTE ENTRY mee

Page: 2 Date: April 29, 2004 Case No: C-333954

Defendants belatedly seek to unnecessarily enlarge the scope of

this action to inciude claims and parties, some, if not all, of which are

presently before the 9th Circuit Court of Appeals. Defendant Robert

Michael Davidson was advised of the trial date, the deadline for

complying with Rule 26.1 and the discovery deadline during the status

conference of January 20, 2004. The motion to enlarge the deadlines

during the status conference of January 20, 2004. The motion to enlarge

the deadlines was filed after the disclosure deadline. Defendants’

motions appear to be filed for purposes of delay and harassment. To

allow the extensive proposed amendments to the answer and the

counterclaim would greatly prejudice the plaintiffs given that the trial

date is set for October 13, 2004. This case has been pending for almost

five years and absent extraordinary and unforeseen circumstances, the

trial date will not be continued.

Defendants’ motion to amend their answer to add counterclaims and

parties and defendants’ motion to enlarge the time to comply with Rule

26.1 and to extend the discovery deadline are hereby denied.

Plaintiffs’ motion for sanctions is hereby denied at this time with leave

granted to refile the motion if warranted. Defendants are warned that

filing groundless motions, taking actions primarily for delay or

harassment, and attempts to unreasonably expand or delay the

proceeding may result in the imposition of sanctions including , but not

limited to, the striking of their counterclaim, the striking of their answer,

entering of a default against them, and an award of additional attorneys’

fees and costs to plaintiff.

Defendants delivered a copy of their disclosure statement to the Court.

Defendants are advised that disclosure statements are neither filed with

the clerk or copied to the court.

cc: Bruce Heurlin, KARP, HEURLIN & WEISS, P.C.

Robert Davidson & Vanessa Komar, P.O. Box 1785,

Kilgore, TX 75663-1785_..

sei Kitty Vroman, Deputy Clerk

By George Hofmeister, J.A.A

App. 14

APPENDIX E

IN THE COURT OF APPEALS

DIVISION TWO | FEB 27 2003

COURT OF APPEALS

JAY GROSSMAN and EUDICE tia

GROSSMAN, husband and wife, ) 2 CA-CV 2002-0051

Plaintiffs/Appellees, ‘ DEPARTMENT B

V. ) MEMORANDUM DECISION

) Not for Publication

ROBERT MICHAEL DAVIDSON, ?) Rule 28, Rules of Civil

Defendant/Appellant. ‘ Appellate Procedure

APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY

Cause No. 333954

Honorable Jane L. Eikleberry, Judge

APPEAL DISMISSED

Karp, Heurlin & Weiss, P.C.

By Bruce R. Heurlin Tucson

Attormeys for Plaintiffs/Appellees

Robert M. Davidson Kilgore, Texas

In Propria Persona

DRUKE, Presiding Judge

ql Jay and Eudice Grossman sued Robert and Vanessa Davidson

for defamation, slander, and other related counts. Four months before

trial, the Davidsons’ attorney moved to withdraw as counsel and to

continue the trial. The Davidsons did not respond to the motion and the

Grossmans had no objection to it. On January 11, 2002, the trial court

App. 15

entered an order granting the motion to withdraw and rescheduled the —

trial. On February 13, Robert Davidson filed a notice of appeal “from

the order made and entered in this action on the 11" day of January,

2002.” For the reasons that follow, we dismiss the appeal for lack of

jurisdiction.

q2 In a civil case, “the right to appeal is not absolute but exists

only by statute.” Southern Cal. Edison Co. v. Peabody W. Coal Co.,

194 Ariz. 47, 916, 977 P.2d 769, 916 (1999); see also Inre Pima County

Juvenile Action No. S-933, 135 Ariz. 278, 660 P.2d 1205 (1982)

(substantive right to appeal created only by constitution or statute). Civil

appeals are governed by A.R.S. § 12-2101, which limits this court’s

jurisdiction to those matters set forth in the statute. See Ariz. Const.

Art. VI, § 9;A.R.S. § 12-120.21; Truck Ins. Exch. V. State Compensation

Fund, 138 Ariz. 116, 117, 673 P.2d 314, 315 (App. 1983) (“[T]he right

to appeal and orders which are reviewable on appeal are strictly

statutory.”); Campbell v. Arnold, 121 Ariz. 370, 590 P.2d 909 (1979)

(court of appeals only has jurisdiction given by statute).

q3 The Grossmans point out that the order granting counsel’s

motion to withdraw does not come “within any of the categories of

appealable orders.” In response, Davidson asserts that this appeal comes

within § 12-2101(D), which permits an appeal “[f]rom any order

affecting a substantial right made in any action when the order in effect

determines the action and prevents judgement from which an appeal

might be taken.” He argues that “[t]he substantial rights in this appeal

are the Constitutionally-protected rights to Due Process, Equal

Protection, and right to Contract” and that “[t]he order appealed from,

in effect, determine[d] the action.” (Emphasis omitted.)

94 Although we might agree that the rights to which Davidson refers

are substantial, we cannot agree that the trial court’s order permitting

‘Both the notice of appeal and the opening brief state that Robert Davidson is

“representing” the defendants. He may represent himself, but because he is not an

attorney admitted to the practice of law, he cannot represent his wife. See

Haberkorn v. Sears, Roebuck & Co., 5 Ariz. App. 397, 427 P.2d 378 (1967)

App. 16

his counsel to withdraw determined the action that the Grossmans filed

against him. That “order did not finally dispose of the case, leaving no

question open for judicial determination.” Eaton v. Unified Sch. Dist.

No. 1 of Pima County, 122 Ariz. 391, 392, 595 P.2d 183, 184 (App.

1979). The order simply allowed Davidson’s attorney to withdraw his

reprentation and continued the date for a trial on the merits. The order

was, in fact, interlocutory, this is, “interim or temporary, not constituting

a final resolution of the whole controversy.” Black's Law Dictionary

819 (7" ed. 1999). And interlocutory orders are generally noappealable.

See Southern Cal Edison, 194 Ariz. 47, 916, 977 P.2d 769, 416

(legislature’s express listing in § 12-2101 of appealable judgements

and orders makes clear that “most interlocutory orders... are not

appealable”); Security Gen. Life Ins. Co. v. Superior Court, 149 Ariz.

332, 333, 718 P.2d 985, 986 (1986) (order disqualifying counsel from

representing party “is not a final order and in therefore not appealable”);

Riley, Hoggatt & Suagee, P.C. v. Riley, 165 Ariz. 138, 796 P.2d 940

(App. 1990) (order denying counsel’s motion to withdraw representation

not appealable); Eaton (§ 12-2101(d) does not permit appeal from

interlocutory order allowing case to proceed as class action).

Accordingly, we conclude that the trial court’s order allowing Davidson’s

counsel to withdraw is a nonappealable interlocutory order.

qs But even is we were to assume that the order is appealable,

because Davidson did not file his notice of appeal until February 13, it

was not filed within the thirty days required by Rule 9(a), Ariz. R. Civ.

App. P., 17B A.R.S. The relevant part of Rule 9(a) states that a “notice

of appeal... shall be filed with the clerk of the superior court not later

than 30 days after the entry of judgement from which the appeal is

taken.” Rule 2(d), Ariz. R. Civ. App. P., defines “[j Judgement” as “any

appealable order, weather denominated an order, a judgement, a decree,

or otherwise.” Thus, even if the order were appealable, we would still

lack jurisdiction to review it because Davidson failed to timley file the

notice of appeal. See Butler Products Co. v. Roush, 145 Ariz. 32, 32,

699 P.2d 906, 906 (App. 1984) (“Appellate courts do not have

jurisdiction to consider appeals which are not timely filed.”); Pina

App. 17

County No. S-933 (failure to file timely appeal deprives appealate court |

of jurisdiction).

16 For the forgoing reasons, we isisile for lack of jurisdiction

Davidson’s appeal from the trial court’s January 11 interlocutory order

granting his attorney’s motion to withdraw as counsel. We also grant

the Grossmans costs and attorney’s fees on appeal, finding, for the

reasons set forth in the answering brief, that Davidson filed a frivolous

appeal. Ariz. R. Civ. App. P. 25, 17B A.R.S. Costs and attorney’s fees

will be awarded to the Grossmans upon their compliance with Rule 21,

Ariz. R. Civ. App. P.

/s WILLIAM E. DRUKE, Presiding Judge

CONCURRING;

/s PHILIP G. ESPINOSA, Chief Judge

/s JOHN PELANDER, Judge

App. 18

APPENDIX F

SUPREME COURT OF ARIZONA

FILED

JAY GROSSMAN ) SEP 15 2003

and EDUICE GROSSMAN, ) conse witanade COT

husband and wife, Arizona Supreme Court

Plaintiff/A llee, No. CV-03-0148-PR

” cama cicanate ) Court of Appeals

; ) Division Two

ROBERT MICHAEL DAVIDSON ) No. 2 CA-CV 02-0051

Defendant/Appellant. sg se a Superior Court

) ORDER

On August 8, 2003, this Court issued a minute letter granting Attorneys’

Fees to Appelles Jay Grossman and Eudice Grossman. A “Plaintiffs-

Appellees’ Verified Itemized Statement of Costs and Attorney’s Fees”

was filed on August 22, 2002. Pursuant to Rule 21, Rules of Civil

Appellate Procedure and this Court’s minute letter of August 8, 2003,

and the Clerk having been authorized to tax costs and attorneys fees,

and no objection having been received from Appellant Robert Michael

Davidson.

ITIS ORDERED granting Appellees Jay Grossman and Eudice

Grossman attorney’s fees in the amount of One Thousand Seven

Hundred Ten and 00.100 Dollars ($1,710.00) and costs in the amount

of Eighty-Two and 00/100 Dollars ($82.00).

DATED this 15" day of September, 2003.

/s NOEL K. DESSAINT

Clerk of the Court

TO:

Bruce R. Heurlin, Karp Heurlin & Weiss PC

Robert Michael Davidson

App. 19

| FILED _ LODGED APPENDIX G FILED

| RECEIVED __ COPY APR 16 2004

APR 27 2004 CATHY A CATTERSON, CLERK

CLERK US DISTRICT COURT U.S. COURT OF APPEALS

DISTRICT OF ARIZONA DEPUTY aan

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 03-17342

ROBERT M. DAVIDSON

Plaintiff- Appellant, | b C. No. CV-03-00110-FRZ

te District of Arizona, Tucson

VIVRAINC.; ET AL.,

Defendants - Appellees. ORDER

The Parties have stipulated to the dismissal of this case under

the Federal Rule of Appellate Procedure 42(b). The case is dismissed

as to appellees Vivra, Inc. Magellan Specialty Health, Inc., and Allied

Specialty Care Services, LLC f/k/a Allied Specialty Care Serviced,

Inc. ONLY.

Costs shall be allocated pursuant to the terms of the

stipulation.

A certified copy of this order sent to the district court shall act

as and for the mandate of this court as to appellees Vivra, Inc.

Magellan Specialty Health, Inc., and Allied Specialty Care Services,

LLC f/k/a Allied Specialty Care Services, Inc. ONLY.

A TRUE COPY

rat Seas CATHY A. CATTERSON

CATHY A. CATTERSON CLERK OF COURT

ATTEST

Clerk of the Court APRIL 16 2004

/sLorela Bragado-Sevillena | BY:/sDonna Gilmore

Deputy Clerk DEPUTY CLERK

Ninth Circuit Rule 27-7/ Advisory Note

to Rule 27 and Ninth Circuit Rule 27-10

pro 4.12

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.