Opposition Brief — Jaffee v. Goodwin

Supreme Court of the United s

— +

ALLEN V. JAFFE,

Petitioner,

LISA SPICKLER GOODWIN, et al.,

Respondents.

+

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

+

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

WITH APPENDIX

+

David D. Hudgins

Counsel of Record

Robert E. Draim

HUDGINS LAW FIRM

515 King Street

Suite 400

Alexandria, Virginia 22314

(703) 739-3300

Counsel for Respondents

"THE LEX GROUP ¢ 1108 East Main Street @ Suite 1400 @ Richmond, VA 23219

(804) 644-4419 @ (800) 856-4419 @ Fax: (804) 644-3660 www.thelexgroup.com

TABLE OF CONTENTS

PAGE

Mims CIE PATER i aoasscscscicstscnsscseasvasncasasniasssececcoassstces iii

i ick cstscm acorn 1

8” IE ES eG a sssvsned

STATEMENT OF THE UNDERLYING

PROCEEDINGS AND THIS CASE .0.2...::0scscsososccccsssosssosseoesese.es 2

THE PETITION MISREPRESENTS ;

CRITICAL FACTS OF THES CASE .o.ciccsccccscscesesesosocoesscsveccosee. 14

REASONS FOR DENYING THE WRIT ........cccccscssseccsssseceeecees 18

I. Jaffe Waived Any Right to Appellate

Review by Failing to Respond to

Defendants’ Motions to Dismiss in the

oS, ee a 18

II. The District Court Correctly

Dismissed Jaffe’s Lawsuit for Lack of

Subject Matter Jurisdiction under the

Rooker-Feldman Doctrine...........ccccccccsesssseeeeseees 19

Ill. The District Court’s- Dismissal of

Jaffe’s Lawsuit Based on the Rooker-

Feldman Doctrine Does Not Conflict

with Any Decisions of Circuit Courts

OP SE i aiihisssinns pantie bbiciadini mr

IV. The Dismissal of Jaffe’s Lawsuit Is

Further Supported by the Obvious

Frivolousness of Jaffe’s Claims ............ccccc0000: 27

CONCLUSION ..<uisiicsiaiilieeaiaeieia Ma MR eS ioe a: 30

APPENDIX .........cisesiessipaspiaiaalaiaianiaetnn aman ia

ANS AN OT li [Al AN RES Ota

TABLE OF AUTHORITIES

PAGE(S)

CASES

Ariyoshi v. Robinson,

477 U.S. 902, 106 S. Ct. 3269,

SE TC ROMIOD seenecsacscsnentsesnsrsmiececiasicntsctisnsnnenoass 25

Berean Law Group, P.C. v. Cox,

259 Va. 622, 528 S.E.2d 106 (2000) ...........c.csecccecseseseses 23

Briscoe v. LaHue,

663 F.2d 713 (7th Cir. 1981) aff'd,

460 U.S. 325, 103 S. Ct. 1108,

I iaeescceninkenonincenmnencentasnaméspunsonsnin 27

Brown & Root, Incorporated v. Breckenridge,

Be Be I Ie, I) cn se ineiscannssnqcsnisccrencresorensore 20

Davis v. Hudgins,

896 F. Supp. 561 (E.D. Va. 1995) aff'd,

87 F.3d 1308 (4th Cir. 1996), cert. denied,

520 U.S. 1172, 117 S. Ct. 1440,

Be, RN ME IE ROT sictictesinvsinnaeescnsunecaqucacusscsorensscven 27

District of Columbia Court of Appeals v. Feldman,

460 U.S. 462, 103 S. Ct. 1303,

75 L. Ed. 2d. 206 (1983) ....-sseccsssssesssssseesessnsesesssnnessesssness 20

Farese v. Scherer,

Bt ee Be CURE Cr, BD) asa cnecesssssccsaicccncasssscensess 29

FOCUS v. Allegheny County Court of Common Pleas,

FI Coils SID iseseresnsncicransonnssnciannassnesionereric 24

iv

Gulla v. North Strabane Township,

BD FOG BGG COG Cae, TIF) on sanncssscccsnracassensasasassncee 23, 24

Haldane v. Chagnon,

Oe ee Pe CN, TI i cicsescccsscctaneressncaniicasnansuns 27

Hamilton v. Jamieson,

Se es EN, A CURA BA, BOF cccsicctncscniscnasntannenannnnsns 28

Hurdle v. Commonwealth of Virginia

Department of Environmental Quality,

227 F. Supp. 2d 549 (E.D. Va. 2002) aff'd,

53 Fed. Appx. 256,

2002 WL 31839353 (4th Cir. 2002), cert. denied,

.. US. __, 1245. Ce. 377,

Se Be UR: EE BF CI eitianistnccntncicaninciushaviibiobisaiiiannnsia 21

Johnson v. De Grandy,

912 U.S. 997, 114 S. Ct. 2647,

Bee is Be FP I itineistinsieasthensasasnnsnssnes 21, 25, 26

Kamilewiecz v. Bank of Boston Corp.,

100 F.3d 1348 (7th Cir. 1996), cert. denied,

920 U.S. 1204, 117 S. Ct. 1569,

Londono-Rivera v. Commonwealth of Virginia,

155 F. Supp. 2d 551 (E.D. Va. 2001) .........s..cssscscsoceseee 29

Moore v. Frazier,

320 F. SRD. SIB (D. Neb. 1970) .nccccsescccnsnssrsecsscnsneness 28

Myers v. Couchara,

S13 F. Sapp. 873 (E.D. Pa. 197OY.....<0ssscassssescocensscerssses 28

Phillips v. Singletary,

mE I EF CP. BITE) sissistscssinscsrnssnaisinstcnnasiinen 28

Plyler v. Moore,

129 F.3d 728 (4th Cir. 1997), cert. denied,

524 U.S. 945, 118 S. Ct. 2359,

PE Fc es BE FE COE ict disstainassnsictecdatiniasonasscs 20, 21

Pugliano v. Staziak,

231 F. Supp. 347 (W. D. Pa. 1964) aff'd, afd

POE TA FT GE I a nsca knit vsidaatistinadinsnsdsinssnsniar 28

Raitport v. Provident National Bank,

GOK F. SUN, Sk th BR DITO snccsnsscscviscssersnssoinssacsen 28

Robinson v. Ariyoshi, ots

FORE WE REE CPE is BOD scetcesiccicisnnsatniticenacinsnssastio 25

Simmons v. Poe,

47 F.3d 1370 (4th Cir. 1995) (bs ecatatsiisitanbinandinnsansniasicat

Southern California Edison Co. v. Lynch,

ST San FIR CPN. PIII cas scsnnsncesesctndsicanscesneunassisnonis 26

Steward v. Meeker,

SP ee GE, BIB ies tnsecsccnsnesntonsanonpinnenainsoce 27

Wagner v. Shird,

297 Va. 584, 514 S.E.2d 613 (1999)..............cccscscscsesseee 23

Waits v. McGowan,

tN Ae AEs BF scsacscnnnitinssnsnindvinntarnitnnniiasinse 27

STATUTES

a ha MUMIA ies alts niicslerdidicch ali acalesiineibaichanacan 2

a Sen: Se Pe vi netinschniesis eae nnichiasinstinsbinienibasdeitiistilistinds 11, 28

BRIEF IN OPPOSITION TO

PETITION FOR CERTIORARI

Respondents Lisa Spickler Goodwin, Esquire

("Goodwin"), John R. Walk, Esquire ("Walk"), and Hirschler

Fleischer, P.C. ("Hirschler Fleischer"), collectively the

"Hirschler Respondents", by counsel, respectfully submit

that Petitioner Allen V. Jaffe's ("Jaffe") Petition for Writ of

Certiorari should be denied, and that the Court should

decline to review this case.1

OPINIONS BELOW

The July 15, 2004 per curiam Opinion of the United

States Court of Appeals for the Fourth Circuit is set forth as

Appendix A hereto, inasmuch as the opinion set forth in

Jaffe's Appendix contains certain typographical error. The

Fourth Circuit's July 30, 2004 Order denying Jaffe's untimely

petition for rehearing en banc is set forth in Jaffe's Appendix

and reprinted as Appendix B hereto. The Fourth Circuit's

October 15, 2004 Order denying Jaffe's motion for

reconsideration of the Court's July 30, 2004 Order is not set

forth in Jaffe's Appendix, but is set forth as Appendix C

hereto.

Likewise, the District Court's January 7, 2004 Order

and Memorandum Opinion dismissing Jaffe's lawsuit are

not set forth in his original Appendix, but is set forth in

Jaffe's Supplemental Appendix and as Appendix D hereto.

The District Court's November 7, 2003 Order denying Jaffe's

motion for additional time to file responsive pleadings was

not included in Jaffe's Appendix or Supplemental

Appendix, but is set forth as Appendix E hereto.

1 The Hirschler Defendants previously filed Corporate Disclosure

Statements in the Court of Appeals for the Fourth Circuit. The

information contained in the Corporate Disclosure Statements remains

accurate. As noted therein, there is no parent corporation or any publicly

held company owning 10% or more interest in Hirschler Fleischer.

In addition to the opinions of the District Court and

the Fourth Circuit in this action, there have been a number

of orders and opinions in the previous six lawsuits brought

by Jaffe arising out of the same underlying events. Pertinent

orders and opinions from those actions are set forth in the

Appendix attached hereto.

JURISDICTION

The District Court lacked subject matter jurisdiction

to consider Jaffe's claims, for the reasons stated by the

District Court and the Fourth Circuit Court of Appeals. This

Court's jurisdiction to review (or decline to review). those

decisions, upon Jaffe's Petition for Writ of Certiorari, is set

forth in 28 U.S.C. § 1254(1).

STATEMENT OF THE

UNDERLYING PROCEEDINGS AND THIS CASE

Because the District Court dismissed the lawsuit in

the present case under the Rooker-Feldman doctrine,

following Jaffe's unsuccessful attempts to raise the same

claims in prior lawsuits, consideration of the Fourth

Circuit's affirmance of the District Court's decision requires

an appreciation of those underlying proceedings. Suffice it

to say that Jaffe's Statement of the Case fails to address

many critical facts concerning the underlying proceedings.?

See As discussed in the next section, Jaffe's Statement of the Case

also contains a number of affirmative misrepresentations of fact.

_ Indeed, before filing the instant case, Jaffe filed six

(6) lawsuits in connection with his dissatisfaction with a hair

removal treatment provided by Virginia PhotoTherapy,

LLC.3 All of those prior lawsuits were dismissed, and Jaffe's

attempts to appeal some of those decisions were all

unsuccessful. As noted below, this Court has denied Jaffe's

petition for certiorari in one of those prior cases.

Jaffe's first suit against Virginia PhotoTherapy

(CLO1-1543) was filed in the Circuit Court of Henrico

County, Virginia, on about September 13, 2001. In that suit,

Jaffe alleged (in a single count) a variety of claims including

breach of contract, breach of warranty, fraud and

negligence. Virginia PhotoTherapy filed a demurrer to

Jaffe's pleading.

While the demurrer to Jaffe's first lawsuit was

pending, Jaffe filed two (2) additional suits against Virginia

PhotoTherapy in the Henrico Circuit Court. The first was a

Bill of Complaint, CH01-1438, in which he sought to enjoin

Virginia PhotoTherapy from allegedly harming other

customers. Virginia PhotoTherapy demurred to Jaffe's

equity suit on the basis that Jaffe lacked standing to bring

suit on behalf of other customers. By Order dated March 8,

2002, attached hereto as Appendix F, the Court dismissed

Jaffe's equity suit for lack of standing.

Jaffe also filed a second Motion for Judgment, CL01-

2094, in which he attempted to assert a malpractice claim.

Virginia PhotoTherapy filed a Special Plea to the second

3 The gravamen of Jaffe's lawsuits was that the procedure

performed on his back was unsuccessful, and that his hair grew back. In

this regard, it might also be noted that Jaffe signed the following written

acknowledgement before receiving the hair removal treatment: "I

acknowledge that no guarantee or assurance has been given by anyone as

to the results that may be obtained." A copy of the written

acknowledgement was even attached as an exhibit to at least one of Jaffe's

motions for judgment in the underlying cases.

Motion for Judgment on the ground that it was duplicative

of Jaffe's first lawsuit, CL01-1543.

On April 9, 2002, the Circuit Court of Henrico

County conducted a hearing on the pending demurrers and

pleas in CL01-1543 and CL01-2094. The Court ruled that the

two law actions were duplicative, and Jaffe elected to

proceed on the later filed action, CL01-2094. Accordingly,

the Court entered an Order dismissing Jaffe's original

action, CL01-1543. The Order specifically recited that the

dismissal was with prejudice as to Jaffe's claims for breach

of contract, breach of warranty and fraud, and that it was _

without prejudice only as to Jaffe's malpractice claim

asserted in CL01-2094. A copy of the Order is attached

hereto as Appendix G. Jaffe did not note any appeal of that

Order.

The Henrico Circuit Court also entered an Order in

CL01-2094, denying Virginia PhotoTherapy's Special Plea on

the basis that the case was no longer duplicative after the

Court's dismissal of CL01-1543. A copy of that Order (dated

April 9, 2002) is attached hereto as Appendix H. This Order

also permitted amendment of Jaffe's Motion for Judgment in

CL01-2094.

Virginia PhotoTherapy then filed a Demurrer and

Special Plea to Jaffe's amended pleading in CL01-2094, on —

the basis that Jaffe failed to allege that the hair removal —

procedure had been improperly performed by Virginia

PhotoTherapy. Jaffe also asserted that PhotoTherapy's

advertisements had violated the Food, Drug and Cosmetic

Act. Virginia PhotoTherapy demurred to this allegation on

the ground that the FDA only regulates the manufacture

and sale of medical devices, not their use by physicians or

others, that Virginia's Board of Medicine had not chosen to

regulate hair removal or to treat hair removal as the practice

of medicine in Virginia, and that there was no private right

of action under the FDA.

On July 19, 2002, the Circuit Court heard Virginia

PhotoTherapy's Demurrer and Special Plea to Jaffe's

malpractice claim, CL01-2094. The Court agreed with

Virginia PhotoTherapy's arguments, and dismissed Jaffe's

lawsuit with prejudice. A copy of that Order (dated August

8, 2002), which Jaffe did not seek to appeal, is attached

hereto as Appendix I.

Undaunted, Jaffe tried to recast his claims in federal

court, filing a Complaint against Virginia PhotoTherapy, Dr.

Ronald Landess, Allie Thurston, Lumenis, Ltd., and

Lumenis, Inc. (the manufacturer of the hair removal

equipment) in Civil Action No. 3:02CV538 (E.D. Va.,

Richmond Division). On September 24, 2002, the Court

dismissed Jaffe's Complaint for lack of subject matter

jurisdiction: A copy of the Court's Order is attached hereto

as Appendix J.

Following dismissal of his federal court action, Jaffe

filed a pair of additional cases in Henrico Circuit Court. His

Motion for Judgment (erroneously entitled "Complaint"),

CL02-1730, against Virginia PhotoTherapy was a

restatement of his prior actions previously dismissed with

prejudice.

Jaffe also filed a separate lawsuit, CL02-1729, against

Dr. Landess, who is Virginia PhotoTherapy's sole member

and manager. Virginia PhotoTherapy filed a Special Plea in

each of the two cases, asserting that Jaffe's claims were

barred by the doctrine of res judicata.

A hearing was held in the Henrico Circuit Court on

January 24, 2003 in both lawsuits, i.e. CLO2-1729 and CL02-

1730. Several motions and pleas were pending at the time of

the January 24, 2003 hearing, including: Jaffe's motion to

disqualify Circuit Judge Hammond in both lawsuits; a plea

of res judicata by Virginia Phototherapy in CL02-1730; and a

plea of res judicata (based on privity with Virginia

PhotoTherapy) by Dr. Landess in CL02-1729.

Jaffe erroneously alleged in the present case that

- Judge Hammond's first ruling at the January 24, 2003

hearing was to recuse herself from both cases, i.e. CL02-1729

and CL02-1730. See Complaint, § 8 & Amended Complaint,

{ 10. Jaffe complained that Judge Hammond nevertheless

proceeded to rule on Virginia PhotoTherapy's res judicata

plea in CL02-1730, and dismissed that case with prejudice.

See Complaint, { 9 & Amended Complaint, { 11.

At the conclusion of the January 24, 2003 hearing,

Judge Hammond entered an order, attached hereto as

Appendix K, dismissing CL02-1730 as barred by res judicata

because the Motion for Judgment alleged the same facts and

claims that were raised in prior cases that had been

dismissed. Judge Hammond's order specifically recited that

Jaffe was present and objected to entry of the Order.‘

Jaffe falsely represents in his Petition at p. 3 that

Judge Hammond entered an Order at the conclusion of the

January 24, 2003 hearing "without Jaffe's knowledge." On

the contrary, Jaffe previously acknowledged in a signed

pleading that he was in fact present when Judge Hammond

entered that Order.5 Moreover, as noted above, Judge

Hammond's Order recited that Jaffe was present and

objected to entry of the Order.

Because Judge Hammond did recuse herself from

further involvement in CL02-1729, she did not make any

rulings or enter any orders in connection with the pending

dispositive motion in that case. Judge Hammond's rulings

4 The Order recited that "defendant [sic] was present and

objected." The notation contained an obvious typo, as Defendant

Goodwin endorsed the Order under the phrase "I ask for this", on behalf

of the defendant Virginia Phototherapy.

5 See Motion to Correct Clerical Omission in Previous Order,

attached as Exhibit D-15 to Jaffe's Complaint ("A motions hearing was

held on January 24, 2003, and an Order was entered by this Court in the

presence and over the objection of the plaintiff.") (emphasis added).

—

in the January 4, 2003 hearing were therefore consistent with

one another: she recused herself in CL02-1729, so she did

not rule on Dr. Landess's dispositive motion; and she did

not recuse herself in CL02-1730, so she was free to rule as

she did on Virginia PhotoTherapy's dispositive motion.

It should be noted here that Jaffe did not contend —

and there was no evidence -- that Judge Hammond had any

financial interest in the parties or any other conflict of

interest that precluded her involvement in any of Jaffe's

cases. Rather, Jaffe essentially alleged in his disqualification

motions that Judge Hammond was biased against him as

evidenced by the fact that she had ruled against him in the

past. While disagreeing that she was unfairly biased against

Jaffe, Judge Hammond essentially ruled that she would

allow another Judge of the Henrico Circuit Court to deal

with Jaffe after January 4, 2003. Under those circumstances,

Judge Hammond was not required to recuse herself from

either case. As a result, Judge Hammond was free to recuse

herself in one case (CL02-1729), while disposing of the other

case (CL02-1730) for which she was already prepared to

rule.

On about March 17, 2003, Jaffe filed a "Motion to

Correct Clerical Omission in Previous Order," essentially

arguing that the January 24, 2003 Order entered by Judge

Hammond failed to reflect that she had recused herself in

CL02-1730. Attached to Jaffe's motion was a sketch order

purporting to recite that Judge Hammond had recused

herself in CL02-1730 and that she then proceeded to dismiss

that case with prejudice.

A hearing was held on April 4, 2003, at which time

Judge Hammond refused to enter Jaffe's proposed order

which purported to reflect her recusal in CL02-1730. Instead,

Judge Hammond entered a "Final Order" on April 29, 2003,

attached hereto as Appendix L, which she drafted and

signed without endorsement of Jaffe or Defendants as

counsel for Virginia PhotoTherapy. The "Final Order" stated

that the January 24, 2003 Order "is amended to provide that

plaintiff's Motion for Recusal was granted; accordingly Case

No. CLO02-1729 [the lawsuit against Dr. Landess] was

transferred to another Judge of this Court." Id. Notably,

that Order did not amend Judge Hammond's prior

determination that CL02-1730 was dismissed with prejudice

on res judicata grounds.

On the same date as the hearing, i.e. April 4, 2003,

Judge Hammond entered an Order, attached hereto as

Appendix M, recusing herself from CL02-1729, ie. the

lawsuit against Dr. Landess. As noted, Judge Hammond

did not enter Jaffe's proposed Order recusing herself from

CL02-1730.

Likewise, Judge Hammond on April 4, 2003 refused

to sign Jaffe's proposed statement of facts, which purported

to reflect that Judge Hammond had recused herself in both

cases, 1.e. CL02-1729 and CLO02-1730. As a result of Judge

Hammond's refusal to enter Jaffe's proposed order in CL02-

1730, her refusal to sign his proposed statement of facts, and

her entry of a recusal order as to CL02-1729 only, Judge

Hammond repeatedly and consistently advised Jaffe that

she had not recused herself in CL02-1730.

On April 28, 2003, Jaffe submitted his petition for

appeal to, the Supreme Court of Virginia in CL02-1730. One

of Jaffe's arguments on appeal was that Judge Hammond

had committed reversible error when she dismissed the case

with prejudice after purportedly recusing herself. See

Excerpts from Petition for Appeal, including Assignment of

Error No. 6 on p. 11, attached hereto as Appendix N. The

Supreme Court of Virginia dismissed Jaffe's petition on June

25, 2003, by Order a “tached hereto as Appendix O.

Jaffe then sought reconsideration of the Court's

dismissal of his Petition. Notably, Jaffe's Petition for

Rehearing specifically complained that he had been denied

his constitutional rights upon entry of Judge Hammond's

order dismissing CL 02-1730. See Excerpts from Petition for

Rehearing, including p. 4 (".. the fact that [Judge

Hammond] presided after recusal serves as grounds for

appeal because the allowance of such a judgement [sic]

would clearly violate the Appellant's right to equal

protection and a fair hearing by. a neutral and detatched [sic]

judge under the 14th Ammendment [sic]."), attached hereto

as Appendix P. The Supreme Court of Virginia denied

Jaffe's Petition for Rehearing on September 12, 2003 by

Order attached hereto as Appendix Q.

Jaffe then filed a Petition for a Writ of Certiorari in

this Court. Jaffe's Petition in this Court specifically

complained that he had been denied his constitutional rights

upon entry of Judge Hammond's order dismissing CL 02-

1730 See Excerpts from Petition for a Writ of Certiorari,

including Question Presented No. 4 ("This court should

grant certiorari and decide the most fundamental issue of

fairness and impartiality guaranteed under the 14th [sic]

with regard to whether a lower court judge on motion to

disqualify for bias and prejudice, does in fact disqualify and

recuse themself [sic] from those matters to which recusal

had been sought then, should that judge be able to affect the

determination of those matters from which they are then

barred."), attached hereto as Appendix R.

Jaffe's Petition for Writ of Certiorari was denied by

this Court on February 23, 2004. A copy of the Court's

written denial is attached hereto as Appendix S.

Notably, Jaffe's petitions to the Supreme Court of

Virginia and this Court, which were both denied, involved

the same claims asserted in the Complaint and Amended

Complaint in this case, ie. that Judge Hammond had

entered a "fraudulent" order that failed to reflect her recusal

in CL02-1730, that Judge Hammond's actions deprived Jaffe

of his constitutional rights, etc.

10

With regard to the appeal of CL02-1730, Jaffe

unfairly attempts to cast Judge Hammond as a conniving

conspirator who deprived him of his right to an effective

appeal. Thus, Jaffe complains that Judge Hammond refused

to sign Jaffe's proposed statement of facts, and that the

Supreme Court of Virginia then denied Jaffe's petition for

appeal. However, Judge Hammond was under no obligation

to sign an inaccurate statement of facts, and the Supreme

Court of Virginia noted in its Order that Jaffe had not

submitted a transcript of the January 24, 2003 hearixg to

show he stated objections with reasonable certainty. The

Supreme Court of Virginia further held that Judge

Hammond did not have jurisdiction to enter the April 4,

2003 "Final Order" for the simple reason that the case was

already before the Supreme Court of Virginia on Jaffe's

appeal from the original dismissal order entered on January

24, 2003.

On September 17, 2003, Judge Gary A. Hicks of the

Henrico Circuit Court issued a letter opinion in CL02-1729,

i.e. the lawsuit against Dr. Landess. Judge Hicks ruled that

because Dr. Landess was in privity with Virginia

PhotoTherapy, Jaffe's claims against Dr. Landess were

barred by res judicata by virtue of the previous dismissal of

all claims against the company. A copy of Judge Hicks'

letter opinion is attached hereto as Appendix T. Judge

Hicks then entered a Final Order in CLO02-1729, dated

October 20, 2003, and attached hereto as Appendix U. Asa

result, CL02-1729 was dismissed with prejudice.

Jaffe filed a motion to vacate Judge Hicks' dismissal

order in CL02-1729. When Jaffe failed to appear at a hearing

noticed for argument on Jaffe's motion to vacate, Judge

Hicks entered an order on November 10, 2003, attached

hereto as Appendix V, denying Jaffe's motion and imposing

sanctions upon Jaffe. Judge Hicks’ order recited that Jaffe

“lacked a good faith basis for bringing this action," and that

"Jaffe lacked a good faith basis for continued prosecution of

11

this case" following Judge Hammond's dismissal of CL02-

1730 and the Supreme Court of Virginia's refusal to accept

Jaffe's appeal.

Ironically, Jaffe complains that Judge Hammond

failed to recuse herself from ruling on the motion to dismiss

in CL02-1730, yet when she did recuse herself from CL02-

1729 the replacement judge (Judge Hicks) not only

dismissed that case but also imposed sanctions on Jaffe. _

Jaffe filed a petition for appeal to the Supreme Court

of Virginia in CL02-1729. The Supreme Court of Virginia

denied Jaffe's petition on June 9, 2004 by Order attached

hereto as Appendix W. The Supreme Court of Wirginia then

denied Jaffe's motion for reconsideration on October 1, 2004,

by Order attached hereto as Appendix X.

On September 26, 2003, less than two weeks after the

Supreme Court of Virginia refused to accept Jaffe's appeal in

CL02-1730, and only nine days after Judge Hicks issued his

letter opinion dismissing Jaffe's last remaining lawsuit

(CL02-1729), Jaffe filed. his Complaint in this case. In

essence, Jaffe conterided in his original Complaint that the

Henrico Circuit Court's dismissal of CL02-1730 was the

product of a "conspiracy" actionable under 42 U.S.C. §

1985(2).

On October 17, 2003, prior to the deadline for the

Hirschler Defendants' responsive pleadings to the original

Complaint, Jaffe filed an Amended Complaint which added

Circuit Judge Hammond, Virginia PhotoTherapy and Dr.

Landess as additional named defendants. In addition to his

complaint concerning the Henrico Circuit Court's dismissal

of CL02-1730, Jaffe's amended pleading also complained

about the circumstances of that Court's rulings in connection

with CL01-1543 and CL01-2094.

12

On October 30, 2003, the Hirschler Defendants filed

their motion to dismiss Jaffe's Amended Complaint.

Pursuant to Local Rule 7(J) of the Eastern District of

Virginia, Jaffe was advised that any response to the motion

must be filed within twenty (20) days of the filing of the

Hirschler Defendants' motion, i.e. by November 19, 2003,

and that "[t]he Court could dismiss your action on the basis

of the moving party's papers if you do not file a response."6

On October 31, 2003, Jaffe filed three (3) motions, one

of which was a motion for an extension of time in which to

respond to the Defendants' motions to dismiss. In support

of his motion, Jaffe described himself as a "pro se plaintiff

working a full time job at night and then fighting for his

civil rights during the day...." Jaffe added that he was at that

time preparing his petition for certiorari to this Court in

CL02-1730. (As noted, Jaffe's petition was denied on

February 23, 2004).

On November 7, 2003, by Order attached hereto as

Appendix E, U.S. District Judge Payne denied Jaffe's motion

for additional time to file his response tc the Defendants'

motions to dismiss. Judge Payne ruled:

Having reviewed the Complaint and

the Amended Complaint filed by the

plaintiff, and having considered the plaintiff's

Motion for Extension of Time to File

Responsive Pleadings, and the responses

thereto, and finding that the plaintiff has

ample time in which to file any response, and

finding that any extension of time will merely

prolong what appears to be an action over

which this Court lacks subject matter

6 Similarly, Virginia PhotoTherapy and Dr. Landess filed their

motion to dismiss on October 30, 2003, providing Jaffe with the same

notice. Judge Hammond filed a motion to dismiss on November 10, 2003,

- also with the requisite notice pursuant to Local Rule 7().

-_:

jurisdiction, it is hereby ORDERED that, in

the interest of the justice and in the interest of

saving expense to the parties and in the

interest of judicial efficiency, the plaintiff's

Motion for Extension of Time to File

Responsive Pleadings is denied....

At the time of Judge Payne's November 7, 2003

Order, there still remained nearly two weeks before the

deadline for Jaffe's response to the Defendants' motions to

dismiss. Yet Jaffe failed to file any response to Defendants’

motions. As a result, Jaffe waived all objections to

Defendants’ motions and failed to preserve any grounds for

appeal.

On January 7, 2004, by Order attached hereto as

Appendix D, US. District Judge Payne granted the

Defendants' motions and dismissed the action, on the

ground that the Court lacked subject matter jurisdiction

under the Rooker-Feldman doctrine” Judge Payne

specifically found in the Order that "all claims asserted in

this action are inextricably intertwined with the cases

decided by the Circuit Court of Henrico County, review of

which was denied by the Supreme Court of Virginia..." Id.,

p. 1.

On February 5, 2004, Jaffe filed his Notice of Appeal

from the District Court's denial of Jaffe's motion for

extension of time and from Judge Payne's dismissal of Jaffe's

lawsuit. On July 15, 2004, the Court of Appeals for the

Fourth Circuit issued its unpublished per curiam decision,

attached hereto as Exhibit A, finding "no reversible error"

7 By subsequent Order, the District Court granted the Defendants'

Rule 11 motions for imposition of monetary and non-monetary sanctions

against Jaffe. The District Court has requested information from the

parties concerning the appropriate amount of monetary sanctions to be

imposed.

14

and affirming the District Court's rulings "for the reasons

stated by the district court."

Jaffe proceeded to file a motion for rehearing en banc,

which the Fourth Circuit denied as "untimely" by Order

dated July 30, 2004 (attached hereto as Appendix B). Jaffe

then filed a motion for reconsideration of the Fourth's

Circuit's July 30, 2004 Order, which the Fourth Circuit

denied by Order dated October 15, 2004 (attached hereto as

Appendix C). Jaffe filed his Petition for a Writ of Certiorari

by mail on November 5, 2004.

THE PETITION MISREPRESENTS

CRITICAL FACTS OF THIS CASE.

Jaffe's Statement of the Case contains numerous

misrepresentations of fact, including the following:

Paragraph1: Although not germane to _ this

Petition, it bears noting that Judge Hammond rejected Jaffe's

argument that Virginia Phototherapy's hair removal

treatment was subject to FDA regulation and further

rejected Jaffe's argument that he had any private right of

action against Virginia Phototherapy. Indeed, as noted by

Virginia Phototherapy, the Food and Drug Administration

(FDA) regulates the interstate sale of "medical devices" but

has no jurisdiction over medical procedures which are left to

state medical boards. Since Jaffe did not allege any

misleading advertising in connection with the sale of any

device, FDA approval of Virginia Phototherapy's

advertising was irrelevant.? Likewise, the Virginia Board of

8 jatfe's reprint of the Fourth Circuit's per curiam opinion in the

appendix to his Petition contains certain typographical errors, so the

opinion is set forth inthe appendix attached to this Opposition.

9 Jaffe complained that Virginia Phototherapy advertised the

procedure as "permanent hair removal", whereas FDA approval for the

Epuiight device used by Virginia Phototherapy specified "permanent hair

reduction."

15

Medicine did not regulate hair removal as a medical

procedure.

Paragraph 2: As discussed above, Henrico Circuit

Judge Hammond did not recuse herself "from all matters

involving the plaintiff Jaffe", as Jaffe erroneously states.

Rather, Judge Hammond recused herself in CL 02-1729,

while ruling on the defendant's dispositive motion in CL 02-

1730. The Supreme Court of Virginia then refused Jaffe's

petitions tor appeal in both ef those cases, and this Court

denied Jaffe's petition for certiorari in CL 02-1730.

Paragraph 3: Henrico Circuit Judge Hammond did

not have "the ministerial duties" of remanding the related

cases before her for hearing dy a new judge...", as Jaffe

erroneously states. As noted, Judge Hammond recused

herself in CL 02-1730, but she was free to rule as she did in

CL 02-1730. Moreover,fudge Hammond's decision to

dismiss CL 02-1730 was not "improper", as Jaffe erroneously

states. Rather, it is a final order which Jaffe cannot attack,

especially now that the Supreme Court of Virginia has

refused Jaffe's petition for appeal, and now that this Court

has denied Jaffe's petition for certiorari.

Paragraph 4: Again, Henrico Circuit Judge

Hammond did not make any "improper post-recusal

rulings", as Jaffe erroneously states.

Paragraph 5: The Hirschler Defendants did not

"intentionally and knowingly submit an incorrect order to

the court," as Jaffe erroneously states. Rather, the order

(Appendix F hereto) accurately reflected Henrico Circuit

Judge Hammond's decision to dismiss CL. 02-1730. Judge

Hammond entered the order, and Jaffe's subsequent

attempts to appeal Judge Hammond's decision to the

Supreme Court of Virginia and this Court were

unsuccessful. Moreover, as noted above, the order was not

entered "without Jaffe's knowledge", as Jaffe erroneously

states. With respect to Jaffe's statement that he was not sent

16

a copy of the order as entered, there is no such requirement

under Virginia practice, and in any event Jaffe knew about

the order because he was there when it was entered and he

filed a petition to appeal its entry.

Paragraph 6: The Defendants did not owe Jaffe any

"apology", and the Defendants never admitted that they

"knew the order was incorrect," as Jaffe erroneously states.

Moreover, Jaffe sought "corrections" which (if adopted)

would have misrepresented Henrico Circuit Judge

Hammond's rulings with respect to CL 02-1730.

Accordingly, none of the Defendants were under any

obligation to adopt Jaffe's corrections. Judge Hammond

correctly refused to "correct" the record to reflect that she

had recused herself in CL 02-1730, and Jaffe's attempts to

appeal Judge Hammond's decision to the Supreme Court of

Virginia and this Court were unsuccessful. Moreover, it

bears noting that in the present case Judge Hammond

denied virtually all of Jaffe's factual allegations concerning

the events.

Paragraph 7: Henrico Circuit Judge Hammond's

January 23, 2003 Order was not "deceitful and deliberately

deficient", as Jaffe erroneously and disparagingly states.

Likewise, the Defendants did not engage in any "further

deceitful actions under color of state law", or thwart Jaffe's

due process rights, as Jaffe states. On the contrary, Jaffe has

completely abused his right to bring grievances in the

courts, by filing no fewer than seven frivolous lawsuits

which have all been dismissed. Indeed, it is Jaffe who has

trampled on the rights of everyone with whom he has

crossed paths during the course of his vindictive and

unending litigation.

. Paragraph 8: Henrico Circuit Judge Hammond was

not required to sign Jaffe's mis-statement of facts. In any

event, the Supreme Court of Virginia denied Jaffe's petition

for appeal in CL 02-1730 for failure to submit a transcript or

17

written statement of facts, and this Court denied Jaffe's

petition for certiorari.

Paragraph 9: Jaffe's petition for appeal in CL 02-

1730 was indeed denied by the Supreme Court of Virginia,

which then denied Jaffe's petition for rehearing.

Paragraph 10: Jaffe's lawsuit in this case cannot be

characterized as a means "to seek a remedy for the

violations of his right to due process guaranteed under the

Constitution..." Rather, it was a vindictive attempt to harass

Virginia PhotoTherapy and Dr. Landess, whom Jaffe had

unsuccessfully sued on numerous occasions, as well as their

counsel and even a presiding state court judge.

Paragraph 11: Jaffe's observation that the litigation

was "concluded" upon this Court's denial of his petition for

certiorari in CL 02-1730 is curious. While the litigation

should have been "concluded" long ago, i.e. with the dismissal

of Jaffe's first lawsuit, he has filed seven lawsuits and refuses

to accept -- or respect -- the finality of any court decision.

Paragraph 12: Jaffe's lawsuit in the present case was

by no means an "independent, enforceable Constitutional

due process claim which is distinct from the state court

judgment," as Jaffe erroneously states. Nor did this lawsuit

allege any "prior injuries by officers of the court and their

accomplices, under color of state law ...." Likewise, Jaffe

erroneously states that his suit "is not inextricably

intertwined, and does not seek to set aside the state court

judgment."

Paragraph 13: The District Court's application of the

Rooker-Feldman doctrine was not "erroneous".

ao

18

REASONS FOR DENYING THE WRIT

As demonstrated below, there is no compelling

reason for this Court to grant a writ of certiorari in this case.

The District Court correctly dismissed Jaffe's lawsuit under

the Rooker-Feldman doctrine, and the Fourth Circuit correctly

affirmed that decision. Neither decision conflicts with a

decision by this Court, or with a decision of another United

States court of appeals. Moreover, both the District Court

decision and the Fourth Circuit decision at issue are

unpublished. The cases on which Jaffe relies are readily

distinguishable. In addition, Jaffe is attempting to raise new

arguments on appeal, which (in any event) are misguided

and unavailing.

I. Jaffe Waived Any Right to Appellate Review by

Failing to Respond to Defendants’ Motions to

Dismiss in the District Court.

As a preliminary matter, it should be noted that Jaffe

failed to submit any Tesponse to Defendants' motions to

dismiss, despite receiving multiple admonitions pursuant to

Local Rule 7(J) of the Eastern District of Virginia. Those

admonitions included the fact that "[t]he Court could

dismiss your action on the basis of the moving party's

papers if you do not file a response." Because Jaffe failed to

respond to the Defendants' motions, he should be deemed

to have waived any right to appellate review of the District

Court's dismissal of this action, or of the Fourth Circuit's

affirmance of that decision.10

10 Jaffe previously complained on appeal to the Fourth Circuit that

the District Court had not granted his request for additional time in

which to respond to the Defendants' motions to dismiss. However, Jaffe's

Petition for Writ of Certiorari omits any such argument, which is

therefore waived. In any event, the District Court did not abuse its

discretion in denying Jaffe's motion for additional time. Indeed, Jaffe was

already afforded the benefit of additional time as a pro se litigant pursuant

to Local Rule 7(J) of the Eastern District of Virginia, and Jaffe failed to

offer any good cause for his motion seeking still more time. The District

19

II. The District Court Correctly Dismissed Jaffe's

Lawsuit for Lack of Subject Matter Jurisdiction

under the Rooker-Feldman Doctrine.

Jaffe's original Complaint represented a frivolous

attempt by an unrelenting pro se litigant to assert a "civil

rights" cause of action against the attorneys who had

successfully represented their clients in six duplicative

lawsuits previously filed by Jaffe in the state and federal

courts of Virginia, in connection with Jaffe's dissatisfaction

with a hair removal treatment. Jaffe's Amended Complaint

also named as defendants a state court judge (Hon.

Catherine C. Hammond), as well as the Hirschler

Defendants' clients (Virginia PhotoTherapy, LLC and Dr.

Landess).

All of Jaffe's state court lawsuits have been

dismissed with prejudice, and a previous federal court

lawsuit was dismissed for lack of subject matter jurisdiction.

What's more, Jaffe has never been at all successful in any

attempt to appeal any of those adverse decisions. The

Supreme Court of Virginia has refused to accept an appeal

of two of those lawsuits, and this Court has refused to grant

Jaffe's petition for certiorari in one of the suits. Indeed, the

Supreme Court of Virginia and this Court refused to

entertain any appeal despite Jaffe's arguments that Judge

Hammond committed error by deciding a dispositive

motion after purportedly indicating she would recuse

herself, that she committed error by refusing to adopt Jaffe's

statement of facts reflecting the purported "recusal", and

that she committed error by entering a subsequent order

without providing it as entered "nunc pro _tunc."

Furthermore, Jaffe has even been sanctioned by the District

Court below and by the Henrico Circuit Court for his

frivolous filings.

Court correctly ruled that "plaintiff has ample time in which to file any

response, and ... any extension of time will merely prolong what appears

to be an action over which this Court lacks subject matter jurisdiction..."

20

In effect, Jaffe was complaining in this case that the

Hirschler Defendants and their clients conspired to violate

Jaffe's civil rights by tendering a proposed order, which

Judge Hammond entered but which Jaffe insists did not

accurately reflect the judge's earlier oral ruling that she

would recuse herself from the case. As the District Court

correctly held, Jaffe's claims are barred by the Rooker-

Feldman doctrine, because they are inextricably intertwined

with the final decisions of the Henrico Circuit Court. In fact,

the underlying premise for Jaffe's lawsuit was that Judge

Hammond committed error when she dismissed Jaffe's case

after purportedly indicating she would recuse herself, and

Jaffe sought damages as a result of Judge Hammond's

"incorrect" order.

The District Court did not have subject matter

jurisdiction with respect to any cause of action purportedly

asserted in Jaffe's Complaint or Amended Complaint, and

the lawsuit was Properly dismissed. "The Rooker-Feldman

doctrine provides that 'a United States District Court has no

authority to review final judgments of a state court in

judicial proceedings." Brown & Root Incorporated _v.

Breckenridge, 211 F.3d 194, 198 (4th Cir. 2000), quoting

District of Columbia Court of Appeals v. Feldman, 460 U.S.

462, 482, 103 S. Ct. 1303, 75 L. Ed. 2d 206 (1983).

"[Jurisdiction to review such decisions lies exclusively with

Superior state courts and, ultimately, the United States

Supreme Court." Id., quoting Plyler v. Moore, 129 F.3d 728,

731 (4th Cir. 1997), cert. denied, 524 US. 945, 118 S. Ct. 2359,

141 L. Ed. 2d 727 (1998). :

Moreover, the Rooker-Feldman doctrine "bars not only

direct review of issues actually decided by the state court,

but also consideration of those claims which are

‘inextricably intertwined’ with state court decisions." Id.

The Fourth Circuit has recognized that "[t]he ‘inextricably

intertwined’ prong of the doctrine bars a claim that was not

actually decided by the state court but where ‘success on the

21

federal claim depends upon a determination that the state

court wrongly decided the issues before it." Id., quoting

Plyler v. Moore, 129 F.3d at 731.

The rationale for the Rooker-Feldman doctrine is that a

party losing in state court should be "barred from seeking

what in substance would be ‘appellate review of the state

judgment in a United States district court, based on the

losing party's claim that the state judgment itself violates the

loser's federal rights." Johnson v. De Grandy, 512 U.S. 997,

1005-06, 114 S. Ct. 2647, 129 L. Ed. 2d 775 (1994).

The federal courts have often applied the Rooker-

Feldman doctrine so as to refuse to assert jurisdiction over

civil rights claims that amount to an indirect attack upon the

prior decisions of a state court in the litigation to which the

plaintiff was a losing party. See, eg. Hurdle v.

Commonwealth of Virginia Department of Environmental

Quality, 227 F. Supp. 2d 549, 556-59 (E.D. Va. 2002) (per

Payne, J.) (dismissing plaintiff's civil rights claims as barred

by the Rooker-Feldman doctrine), aff'd, 53 Fed. Appx. 256,

2002 WL 31839353 (4th Cir. 2002), cert. denied, _ US. __

124 S. Ct. 327, 157 L. Ed. 2d 147 (2003).

In the present case, Jaffe's claims against the

Defendants were “inextricably intertwined" with the state

court litigation before the Henrico Circuit Court and the

Supreme Court of Virginia. Jaffe's lawsuit was an attack

upon Judge Hammond's dismissal of CL02-1730 after she

purportedly indicated that she would recuse herself from

the case, as well as an attack on her earlier rulings in CL01-

1543 and CL01-2094. Indeed, Jaffe could not prevail in his

claims against any of the Defendants without showing that

the Henrico Circuit Court erroneously dismissed his state

court lawsuits, and that the Supreme Court of Virginia

erroneously declined to accept his appeal. Jaffe's claims

were therefore barred by the Rooker-Feldman doctrine.

22

Notably, Jaffe nowhere mentions CL01-1543 or

CL01-2094 in his Petition. He therefore appears to concede

that the District Court properly dismissed his claims relating

to those cases as barred by the Rooker-Feldman doctrine.

Jaffe insists in his Petition that the Rooker-Feldman

doctrine is inapplicable to his claims concerning CL02-1730,

but all of the operative facts cited by Jaffe in his Petition

relate directly to the Henrico Circuit Court proceedings and

Judge Hammond's orders. For example, Jaffe complains that

Judge Hammond made “improper rulings" by dismissing

CL 02-1730 (Petition, P. 3), that Judge Hammond made

"improper post-recusal tulings" (id.), that the order

submitted by the Hirschler Defendants and entered by

Judge Hammond was "an incorrect order" (id.), that the

order was "deceitful and deliberately deficient" (id., p. 4),

and that Judge Hammond violated the Rules of the Supreme

Court of Virginia by refusing to sign Jaffe's proposed

statement of facts (id.). In fact, Jaffe concludes that the

reason he lost his appeal before the Supreme Court of

Virginia was that Judge Hammond entered the "improper",

"deceitful" and "deliberately deficient order" without

properly correcting it by a subsequent order. Id.

It was also abundantly clear from Jaffe's pleadings

that he sought federal court review of the state court

proceedings. Indeed, Jaffe alleged in paragraph 23 of his

Amended Complaint that he was injured "as a proximate

result of the aforementioned malicious, fraudulent and false

rendering of a fraudulent court order and the ongoing

conspiracy to perpetrate that fraud..."

Jaffe insists that he does not attack any of the state

court judgments, but only Judge Hammond's "ministerial

acts" which deprived him of his constitutional rights to

litigate his claims. Essentially, Jaffe contends that Judge

Hammond's judgment consisted of her oral Statements at

the January 24, 2003 hearing, and that her subsequent

written orders were merely "ministerial". However, the

23

Supreme Court of Virginia has held that "[i]t is the well-

established law of this Commonwealth that a circuit court

speaks only though its written orders." Berean Law Group,

P.C. v. Cox, 259 Va. 622, 626, 528 S.E.2d 108 (2000). See also

Wagner v. Shird, 257 Va. 584, 588, 514 S.E.2d 613 (1999). Asa

result, Judge Hammond's written orders were not merely

"ministerial" actions documenting an earlier adjudication.

Rather, those written orders constituted the dispositive

rulings which Jaffe seeks to overturn.

Ill. The District Court's Dismissal of Jaffe's Lawsuit

Based on the Rooker-Feldman Doctrine Does Not

Conflict with Any Decisions of Circuit Courts or

this Court.

' Contrary to Jaffe's arguments, the dismissal of his

claims under the Rooker-Feldman doctrine does not conflict

with any decisions from other circuits or from this Court. In

addition to misconstruing the cases cited in his Petition,

Jaffe is attempting to raise arguments that he never raised in

the District Court or the Fourth Circuit.

For example, Jaffe's citation to the Third Circuit's

decision in Gulla v. North Strabane Township, 146 F.3d 168

(3d Cir. 1998), is entirely misplaced. In that case, the

plaintiffs had initially brought a state court action seeking to

appeal the township's approval of subdivision of land

adjacent to the plaintiffs' property. The state court held that

under Pennsylvania law the plaintiffs lacked standing to

challenge the subdivision approval, and the court dismissed

the plaintiffs' action. The plaintiffs then brought suit in

federal court for various alleged constitution claims arising

out of the alleged taking or interference with their property

rights. The District Court dismissed the plaintiffs' claims

urder the Rooker-Feldman doctrine, and a divided Third

Circuit reversed the District Court. The Third Circuit

emphasized that the state court action had been dismissed

24

only for lack of Standing, and that the plaintiffs’

constitutional claims had not been at issue in the state court

proceedings. :

Whether or not the Gulla decision was a correct

application of the Rooker-Feldman doctrine is immaterial.

(The decision was 2-1, with a dissenting opinion that the

federal claims were barred by the Rooker-Feldman doctrine).

Suffice it to say that Jaffe's state court suits, including CL 02-

1730, were not dismissed for lack of Standing. Rather, CL

02-1730 was dismissed with prejudice on res judicata

grounds. In addition, the specific complaint raised by Jaffe

in the present action, iz. that Henrico Circuit Judge

Hammond entered an "improper" order after purportedly

recusing herself from the case, was raised by Jaffe in his

unsuccessful attempts to appeal from that order to the

Supreme Court of Virginia and to this Court.

Jaffe's citation to FOCUS v. Allechen County Court

of Common Pleas. 75 F.3d 834 (3d Cir. 1996), is similarly

misplaced. In that case, the Third Circuit held that the

Rooker-Feldman doctrine did not preclude a citizens’

advocacy group and two of its members from raising

constitutional challenges to state court gag orders that had

been entered in a child custody case to which the plainiiffs

were not parties. The advocacy group had unsuccessfully

attempted to intervene in the state court proceedings, and

its constitutional claims were not addressed by the state

court. Notably, the Court in FOCUS held that "Rooker-

Feldman applies only when in order to grant the federal

plaintiff the relief sought, the federal court must determine

that the state court judgment was erroneously entered or

must take action that would render that judgment

ineffectual." Id. at 840. ‘That is exactly what Jaffe was

_ Seeking in the lawsuit that he filed in the District Court, i.e. a

determination that Judge Hammond's dismissal order in CL

02-1730 was "incorrect". Moreover, Jaffe was a party in CL

02-1730 (and the other cases, and he specifically raised the

25

issue, albeit unsuccessfully, whether Henrico Circuit Judge

Hammond had exceeded her authority by entering a

dismissal in that case.

Jaffe's citation to Robinson v. Ariyoshi, 753 F.2d 1468

(9th Cir. 1985), is not only misplaced but also fails to note

that the Ninth Circuit's decision was vacated by Order of

this Court. See Ariyoshi v. Robinson, 477 U.S. 902, 106 S. Ct.

3269, 91 L. Ed. 2d 560 (1986) (granting certiorari and

vacating Ninth Circuit decision). In any event, the Ninth

Circuit's discussion of the Rooker-Feldman doctrine does not

conflict with the application of that doctrine in the present

case. In Robinson, the Ninth Circuit held that Rooker-

Feldman did not preclude a federal court challenge to

threatened interference with the plaintiffs’ irrigation water

rights, where the Hawaii Supreme Court specifically

declined to address the plaintiffs' constitutional challenges.

In the present case, by contrast, the state courts did

not "refuse" to entertain Jaffe's constitutional challenges and

thereby defer to the federal courts for adjudication of such

issues. Rather, Jaffe's challenges to the dismissal of CL 02-

1730 were rejected by Judge Hammond, and the Supreme

Court of Virginia declined to consider any appeal because

Jaffe had not adequately preserved the record on appeal.

Notably, this Court denied Jaffe's Petition for Writ of

Certiorari in CL 02-1730, thereby refusing to entertain Jaffe's

constitutional challenges to Judge Hammond's actions in that

case.

Jaffe's citation to Johnson v. DeGrandy, 512 U.S. 997,

114 S. Ct. 2647, 129 L. Ed. 2d 777 (1994), is also misplaced.

In Johnson, this Court held that an action brought by the

United States seeking to challenge a Florida legislative

districting plan was not precluded by the Rooker-Feldman

doctrine, where the United States was not a party to a prior

court action involving the plan. The Court held that the

United States therefore "was in no position to ask this Court

to review the state court's judgment and has not directly

es 26

attacked it in this proceeding." Id., 512 US. at 1006. Here,

by contrast, Jaffe was a party to CL 02-1730 and did in fact

ask the Circuit Court, the Supreme Court of Virginia and

this Court to review Judge Hammond's decision to dismiss

the case after purportedly indicating her recusal.

Likewise, in Southern California Edison Co. _v.

Lynch, 307 F.3d 794 (9th Cir. 2002), also cited by Jaffe, the

Court held that Rooker-Feldman did not apply where the

federal court plaintiff had not been a party to the underlying

State court action.

Notably, this Court has not ruled that there must be

complete mutuality of parties in order for the Rooker-

Feléman doctrine to apply. Indeed, it would undermine the

policy of that doctrine to permit a federal court plaintiff to

avoid its application merely by adding as defendants

several persons who were not involved in the state court

proceedings. In any event, the parties to the present action

include the defendants in the underlying litigation, i.e.

Virginia PhotoTherapy and Dr. Landess, together with their

counsel and Judge Hammond.

Jaffe also cites to the dissenting opinion in

Kamilewiecz v. Bank of Boston Corp., 100 F.3d 1348 (7th Cir.

1996), cert. denied, 520 U.S. 1204, 117 S. Ct. 1569, 137 L. Ed.

2d 714 (1997), although Jaffe's discussion erroneously

implies that he is citing to the majority opinion. In fact, the

Seventh Circuit in that case denied a petition for rehearing of

a decision which applied the Rooker-Feldman doctrine. The

Sevenih Circuit therefore let stand an earlier decision

affirming the dismissal of a federal court action brought by

the former plaintiffs in a state class action against the former

State court defendants and their counsel. See Kamilewiecz -

_ Y. Bank of Boston Corp., 92 F.3d 506 (7th Cir. 1996).

27

Accordingly, there is no conflict in the authority of

this Court and the circuits as to the proper application of

Rooker-Feldman doctrine to Jaffe's frivolous attack upon a

final state court order.

IV. The Dismissal of Jaffe's Lawsuit Is Further

Supported by the Obvious Frivolousness of Jaffe's

Claims. :

As a result of its rulings, the District Court was not

required to consider other grounds for the Defendants’

motions to dismiss, and the Fourth Circuit on appeal

affirmed the dismissal based on the Rooker-Feldman doctrine.

However, there were many additional grounds on which

Jaffe's lawsuit was subject to dismissal, and they can be

summarized briefly as follows.

First, as a matter of law, Jaffe could not state any

claim whatsoever, under federal civil rights law or

otherwise, arising out of an adversary's tender of a

proposed order during the course of state court litigation.

Indeed, the federal courts have routinely dismissed civil

rights claims against attorneys and others involved in the

plaintiffs' prior unsuccessful litigation. Davis v. Hudgi

896 F. Supp. 561 (E.D. Va. 1995) (dismissing civil rights

claims against attorneys and others, and awarding Rule 11

sanctions against pro se plaintiff), aff'd, 87 F.3d 1308 (4th Cir.

1996), cert. denied, 520 U.S. 1172, 117 S. Ct. 1440, 137 L. Ed.

2d 546 (1997). See also Briscoe v. LaHue, 663 F.2d 713 (7th

Cir. 1981) (affirming dismissal of civil rights claims against

former criminal defense counsel, prosecutors, trial judges,

witnesses and court reporters), aff'd, 460 U.S. 325, 103 S. Ct.

1108, 75 L. Ed. 2d 96 (1983); Waits v. McGowan, 516 F.2d 203

(3rd Cir. 1975) (affirming dismissal of civil rights claims

against public defender, prosecutor, state judges and state

investigatory); Steward v. Meeker, 459 F.2d 669 (3rd Cir.

1972) (affirming dismissal of civil rights claims by prisoner

against former counsel); Haldane v. Chagnon, 345 F.2d 601

(9th Cir. 1965) (dismissing civil rights claims by litigant

a a a

28

against judges, attorney and baliff); Raitport v. Provident

National Bank, 451 F. Supp. 522 (E.D. Pa. 1978) (dismissing

civil rights claims against, inter alia, counsel for plaintiff's

creditors); Hamilton v. Jamieson, 355 F. Supp. 290 (E.D. Pa.

1973) (dismissing civil rights claims against judges,

prosecutors and defense attorneys) Phillips v. Singletary,

350 F. Supp. 297 (D.S.C. 1972) (dismissing civil rights claims

against former criminal defense counsel and others); Myers

v. Couchara, 313 F. Supp. 873 (E.D. Pa. 1970) (denying

plaintiff's petition to prosecute civil rights action against his

privately retained counsel in forma pauperis); Moore v.

Frazier, 316 F. Supp. 318, 320 (D. Neb. 1970) (dismissing civil

rights action against former criminal defense attorney and

others); Jemzura v. Belden, supra (dismissing civil rights

claim against state officials and attorneys by unsuccessful

litigant in marital litigation); Pugliano v. Staziak, 231 F.

Supp. 347 (W.D. Pa. 1964) (dismissing civil rights action

under Sections 1983 and 1985 brought against prosecuting

attorney and plaintiff's prior criminal defense attorney),

aff'd, 345 F.2d 797 (3rd Cir.1965).

Second, 42 U.S.C. § 1985(2) was the only statutory

provision cited by Jaffe as the basis for asserting federal

court jurisdiction and a cause of action against any of the

Defendants in this case. Jaffe failed to allege any facts

suggesting a conspiracy to deny Jaffe's equal protection of

the law, as envisioned by Section 1985(2). See Simmons v.

Poe, 47 F.3d 1370, 1377 (4th Cir. 1995) (noting that the Court

has “rarely, if ever, found that a plaintiff has set forth

sufficient facts to establish a Section 1985 conspiracy," and

that Section 1985 claims have been rejected "whenever the

purported conspiracy is alleged in a merely conclusory

_ manner, in the absence of supporting facts.").

29

Third, Defendants cannot be sued civilly for past

litigation-related acts, especially where the prior courts

issued final orders without any award of sanctions.

Defendants enjoy immunity from the type of litigation-

related complaints lodged by Jaffe. See Farese v. Scherer,

342 F.3d 1223, 1232 (11th Cir. 2003).

Fourth, any objections to entry of an order, and any

complaint as to an adverse counsel's conduct, can only be

raised in a timely manner and in the court that entered the

offending order.

Fifth, as noted above, it is well established in

Virginia law that a court acts only through its written

orders. Jaffe could not be heard to complain that Judge

Hammond orally recused herself before entering a written ~

order dismissing one of his lawsuits. In any event, Jaffe

failed to allege any facts establishing that Judge Hammond

was required to recuse herself, so there would be no basis on

which Jaffe could challenge the Judge's dismissal of his

lawsuit even if the Judge had orally indicated an intent to

recuse herself.

Sixth, Jaffe's claims in this case are themselves

barred by the doctrines of res judicata and collateral estoppel.

See Londono-Rivera v. Commonwealth of Virginia, 155 F.

Supp.2d 551, 565 (E.D. Va. 2001) (per Payne;+-) (dismissing

claims as barred by collateral estoppel).

Seventh, Jaffe failed to allege that he suffered any

injury, i.e. that his lawsuit in CL02-1730 would not have

been dismissed on res judicata grounds and that he would

have then obtained a money judgment in his lawsuit against

Virginia PhotoTherapy, but for the alleged conduct of the

Defendants. Indeed, as noted above, Jaffe's suit in CL 02-

1729 was dismissed on res judicata grounds by a judge other

than Judge Hammond, and the judge in that case actually

sanctioned Jaffe for filing that case.

30

CONCLUSION

For the foregoing reasons, the Hirschler Respondents

respectfully request that the Petition for Writ of Certiorari be

denied.

LISA SPICKLER GOODWIN, ESQUIRE

JOHN R. WALK, ESQUIRE

HIRSCHLER FLEISCHER, P.C.

David D. Hudgins, Esquire

Robert E. Draim, Esquire

HUDGINS LAW FIRM

515 King Street, Suite 400

Alexandria, Virginia 22314

(703) 739-3300

(703) 739-3700 (facsimile)

ia

TABLE OF CONTENTS

Appendix to Petition

Page

Opinion of

The United States Court of Appeals

for the Fourth Circuit

errtered July 15, 2004...............ccsusecsesssesnsescsssessssseee A-1

Order of

The United States Court of Appeals

for the Fourth Circuit

Re: Denying Petition for Rehearing En Banc

I I I rhea treicnssasnnaseisinnsintonsnnsennnnn B-1

Order of

The United States Court of Appeals

for the Fourth Circuit

Re: Denying Motion for Reconsideration of Rehearing

entered October 15, 2004..........sccssesesseereseesenneneneees C-1

Order of

The United States District Court

for the Eastern District of Virginia

Richmond Division

Re: Denying Plaintiff's Motion to Present All

Arguments on Motions and Special Pleas and

Granting Defendants’ Motions to Dismiss

entered January 7, 2004 ........scsesessesecereeeeseneneeneneeneees D-1

Order of

The United States District Court

for the Eastern District of Virginia

Richmond Division

Re: Denying Plaintiff's Motion for Extension of Time

entered November 7, 2008 .........sssscssesssssssesseseeeeees E-1

iia

Order of

The Circuit Court

for the County of Henrico

Re: Dismissing Matter with Prejudice

(Allen V. Jaffe v. Virginia Phototherapy, L.L.C.)

erubereds Dials ©, TIUR os. sinicnsnssrscosensenscecserevesaneonseresi F-1

Order of

The Circuit Court

_ for the County of Henrico

Re: Granting Plaintiff's Motion for

Leave to Amend

(Allen V. Jaffe v. Virginia Phototherapy, L.L.C.)

ervbered Agpedl 9, BIE .sccscsssceccssconsenscssenissoncesessncsesees G-1

Order of

The Circuit Court

for the County of Henrico

Re: Sustaining Defendant’s Demurrer and

Dismissing Action with Prejudice

(Allen V. Jaffe v. Virginia Phototherapy, L.L.C.)

exvbored April 9, ZIUZ ......cscccccssccscossescnsnesssessesensnececs H-1

Order of

The Circuit Court

for the County of Henrico

Re: Sustaining Defendant’s Demurrer and

Dismissing Action with Prejudice

(Allen V. Jaffe v. Virginia Phototherapy, L.L.C.)

entered August 8, 2002 ..........ssscssscssssssssesseecereesesees I-1

iiia

Final Order of

The United States District Court

for the Eastern District of Virginia

Re: Dismissing Matter for Lack of

Subject Matter Jurisdiction

(Allen V. Jaffe v. Lumenis, LTD.,; et al.)

entered September 24, 2002 .........:-sssssssesseeees

Order of

The Circuit Court for the

County of Henrico

Re: Sustaining Defendant's Special Plea and

Denying Defendant's Motion for Sanctions

(Allen V. Jaffe v. Virginia Phototherapy, L.L.C.)

entered January 24, 2003 .........scsseeeseeeneees

Final Order of

The Circuit Court of the

County of Henrico

Re: Plaintiff's Motion to Reconsider

Was Timely Filed

(Allen V. Jaffe v. Virginia Phototherapy, L.L.C.)

entered April 29, 2003.........sscsesessesesssrssessees

Order of

The Circuit Court for the

County of Henrico

Re: Granting Plaintiff's Motion to

Disqualify Judge Hammond

(Allen V. Jaffe v. Dr. Ronald Mark Landess, DPM)

entered April 4, 2003.........:scsscececsssesseeressssnsensensens

Excerpts of Plaintiff's Petition for Appeal to

The Supreme Court of Virginia at Richmond

dated April 28, 2003..........ssisseessssessessessessesenseneenees

iva

Order of

The Supreme Court of Virginia

Re: Dismissing Petition for Appeal

(Allen V. Jaffe v. Virginia Phototherapy, L.L.C.)

CRUE OE JONG TS, TI a accsscisitsistcssinescaisnc, cc

Excerpts of Plaintiff’s Petition for Rehearing to

The Supreme Court of Virginia at Richmond

We Pe

Order of

The Supreme Court of Virginia

Re: Denying Petition for Rehearing

(Allen V. Jaffe v. Virginia Phototherapy, L.L.C.)

entered September 12, 2003......-ccsescccececeoseecs...

Excerpts of Petitioner's

Petition for Writ of Certiorari to

The Supreme Court of the United States

filed October 13, 2006 o.oo. scccsssssscicacescee oc

Order Letter of

The Supreme Court of the United States

Re: Denying Petition for Writ of Certiorari

(Allen V. Jaffe v. Virginia Phototherapy, L.L.C.)

entered February 23, 2004..0..0...ccccsscsssscsssesosese.

Order Letter to

Counsel from

The Honorable Gary A. Hicks

Re: Denying Motion for Sanctions

(Allen V. Jaffe v. Ronald Mark Landess, DPM)

entered September 17, 2003 ..0.......cecccsssssesscssees

Final Order of

The Circuit Court of

Henrico County

Re: Dismissing Case with Prejudice

(Allen V. Jaffe v. Ronald Mark Landess, DPM)

entered October 20, 2003 .......ccccscccsssssscsssssccecsccccsees U-1

Order of

The Circuit Court of

Henrico County

Re: Imposing Sanctions

(Allen V. Jaffe v. Ronald Mark Landess, DPM)

entered November 10, 20038 ............ssccsssssssscesseeeeeees V-1

Order of

The Supreme Court of Virginia

Re: Refusing Petition for Appeal

(Allen V. Jaffe v. Ronald Mark Landess, DPM)

entered Jume 9, 2004........cscscsesereeeeeeeneeseneseerecens W-1

Order of

The Supreme Court of Virginia

Re: Denying Petition for Rehearing

(Allen V. Jaffe v. Ronald Mark Landess, DPM)

entered October 1, 2004.........cscscseseeeseeeeneteneenseseees X-1

App. A-1

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 04-1163

ALLEN V. JAFFE,

Plaintiff - Appellant,

versus

LISA SPICKLER GOODWIN, Attorney; JOHN R.

WALK, Attorney; HIRSCHLER, FLEISCHER.

WEINBERG, COX AND ALLEN, P.C., a professional

corporation; VIRGINIA PHOTOTHERAPY, L.L.C.;

RONALD MARK LANDESS, Doctor, DPM;

CATHERINE HAMMOND, Judge,

Defendants - Appellees.

[ENTERED: JULY 15, 2004]

Appeal from the United States district Court for the

Eastern District of Virginia, at Richmond. Robert E.

Payne, District Judge. (CA-03-799)

Submitted: June 30, 2004 Decided: July 15, 2004

Before MOTZ, SHEDD, and DUNCAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

App. A-2

Allen V. Jaffe, Appellant Pro Se. Robert Emery Draim,

David Drake Hudgins, HUDGINS LAW FIRM,

Alexandria, Virginia, Charles Frederick Witthoefft,

HIRSCHLER, FLEISCHER, Richmond, Virginia; James

Walker Hopper, OFFICE OF THE ATTORNEY

GENERAL OF VIRGINIA, Richmond, Virginia, for

Appellees.

Unpublished opinions are not binding precedent in this

circuit. See Local Rule 36(c).

PER CURIAM:

Allen V. Jaffe appeals the district court’s orders

denying his motion for extension of time to file

responsive pleadings and dismissing his complaint for

lack of subject matter jurisdiction. We have reviewed

the record and find no reversible error. Accordingly,

we affirm for the reasons stated by the district court.

See Jaffe v. Goodwin, No. CA-03-799 (E.D. Va. Nov. 7,

2003; Jan. 7, 2004). Although we decline to impose

sanctions on Jaffe for pursuing this appeal at this time,

we caution that further frivolous or malicious filings

before this court or in the district court could result in

sanctions. We express no opinion as to the motion for

sanctions "under Fed. R. Civ. P. 1] pending in the

district court. Accordingly, we deny all Appellees'

motions for sanctions. We further grant Appellees"

motions to strike "Appellant's Answer to Appellees'

Reply Brief in Support of Rule 35 Motion for

Sanctions." We dispense with oral argument because

the facts and legal contentions are adequately

_ Presented in the materials before the court and

argument would not aid the decisional process.

AFFIRMED

-

App. B-1

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

FILED

July 30, 2004

No. 04-1163

CA-03-799

ALLEN V. JAFFE

Plaintiff - Appellant

V.

LISA SPICKLER GOODWIN, Attorney; JOHN R.

WALK, Attorney; HIRSCHLER, FLEISCHER,

WEINBERG, COX AND ALLEN, P.C., a professional

corporation; VIRGINIA PHOTOTHERAPY, L.L.C.;

RONALD MARK LANDESS, Doctor, DPM;

CATHERINE HAMMOND, Judge

Defendants - Appellees

[ENTERED: JULY 30, 2004]

ORDER

The appellant has filed an untimely petition for

rehearing en banc. This Court strictly enforces the time

limits for filing petitions for rehearing en banc.

The Court denies the petition for rehearing en

banc as untimely filed.

For the Court - By Direction

/s/ Patricia S. Connor

CLERK

App. C-1

UNITED STATES COURT OF APPEALS FOR THE

FOURTH CIRCUIT

FILED

October 15, 2004

No. 04-1163

CA-03-799

ALLEN V. JAFFE

Plaintiff - Appellant

LISA SPICKLER SOODWIN, Attorney; JOHN R.

WALK, Attorney; HIRSCHLER, FLEISCHER,

WEINBERG, COX AND ALLEN, P.C., a professional

corporation; VIRGINIA PHOTOTHERAPY, L.L.C:;

RONALD MARK _LANDESS, Doctor, DPM;

CATHERINE HAMMOND, Judge

Defendants - Appellees

[ENTERED: OCTOBER 15, 2004]

ORDER

The appellant has filed a motion for

reconsideration of the order denying his petition for

rehearing and suggestion for rehearing en banc.

The Court denies the motion for reconsideration.

For the Court,

Ls/ Patricia S. Connor

CLERK |

App. D-1

—

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

- Richmond Division

ALLEN V. JAFFE,

Plaintiff,

Vv. Civil Action No. 3:03cv799

LISA SPICKLER GOODWIN; JOHN R. WALK;

HIRSCHLER FLEISHER; VIRGINIA

PHOTOTHERAPY, L.L.C; DR. RONALD MARK

LANDESS; and JUDGE CATHERINE HAMMOND,

Defendants.

[ENTERED: JANUARY 7, 2004]

ORDER

Having reviewed the Complaint and the

Amended Complaint herein, and the Motions to

Dismiss the Amended Complaint filed by ll

defendants, and having reviewed the plaintiff's Motion

To Present All Arguments On Motions And Special

Pleas In Writing, and the responses thereto, and it

appearing from the record that all claims asserted in

this action are inextricably intertwined with the cases

decided by the Circuit Court of Henrico County,

review of which was denied by the Supreme Court of

Virginia, it is hereby ORDERED that the Motion to

Dismiss this action is granted because the Court lacks

subject matter jurisdiction herein under the Rooker-

App. D-2

Feldman doctrine. District of Columbia Court of

Appeals v. Feldman, 460 US. 462, 482 (1983); Rooker v.

Fidelity Trust Co., 263 US. 413 (1923); Hurdle v.

Commonwealth of Virginia __ Department __ of

Environmental Quality, 227 F. Supp.2d 549, (E.D. Va.

2002). The action is DISMISSED without prejudice to

any appeal currently pending in the state court system

or from the decisions of the Supreme Court of Virginia.

In view of the decision to grant the Motions to

Dismiss this action, it is hereby ORDERED that the

plaintiff's Motion To Present All Arguments On

Motions And Special Pleas In Writing is denied as

moot.

It is further ORDERED that the facts and legal

contentions are adequately presented in the materials

before the Court and oral argument would not aid the

decisional process.

The Initial Pretrial Conference set for January 22,

2004 is cancelled as no longer necessary.

This Order may be appealed by the plaintiff.

Any appeal from this decision must be taken by filing a

written notice of appeal with the Clerk of the Court

within thirty (30) days of the date of entry hereof.

Failure to file a timely notice of appeal may result in

the loss of the right to appeal.

Nothing herein _ shall foreclose further

prosecution of the pending motions under Fed. R. Civ.

P. 11 as to which the requisite safe harbor letters

previously have been issued to the plaintiff by the

App. D-3

defendants. Therefore, the Court shall retain

jurisdiction for the purpose of adjudicating such

motions.

The Clerk is directed to send a copy of this

Order to the plaintiff and to counsel for the defendants.

It is so ORDERED.

Ls/

United States District Judge

Richmond, Virginia

Date: January 7, 2004

App. E-1

IN THE UNITED STATES DISTRICT COURT OF

VIRGINIA

Richmond Division

ALLEN V. JAFFE,

Plaintiff,

v. Civil Action No. 3:03cv799

HIRSCHLER FLEISHER; VIRGINIA

Defendants.

[ENTERED: N OVEMBER 7, 2003]

ORDER

Having reviewed the Complaint and the

Amended Complaint filed by the plaintiff, and having

considered the plaintiff's Motion For Extension Of

Time To File Responsive Pleadings, and the responses

thereto, and finding that the plaintiff has ample time in

which to file any response, and finding that any

extension of\time will merely prolong what appears to

be an action over which this Court lacks subject matter

jurisdiction, it is hereby ORDERED that, in the interest

of the justice and in the interest of saving expense to

the parties and in the interest of judicial efficiency, the

plaintiff's Motion For Extension Of Time To File

Responsive Pleadings is denied.

App. E-2

It is further ORDERED that the facts and legal

contentions are adequately presented in the materials

before the Court and oral argument would not aid the

decisional process.

The Clerk is directed to send a copy of this

Order to the plaintiff and to counsel for the defendants.

It is so ORDERED.

/s/

United States District Judge

Richmond, Virginia

Date: November 7, 2003

VIRGINIA:

IN THE CIRCUIT COURT FOR THE

COUNTY OF HENRICO

ALLEN VALENTINO JAFFE,

Plaintiff.

v. Case No. CH01-1438

VIRGINIA PHOTOTHERAPY, Lic,

Defendant.

[ENTERED: MARCH 8, 2002]

ORDER

This day came defendant Virginia Phototherapy,

L.L.C., by counsel, and plaintiff Allen V. Jaffee, pro se,

and argued defendant's Demurrer herein:

It appearing to the Court from plaintiffs

allegations that he does not allege he is presently a

patient of defendant or that he is in any way in

jeopardy of imminent irreparable harm: and

It appearing to the Court that plaintiff has no

standing to seek an injunction on behalf of third

persons who are not parties to this action:

It hereby ORDERED that this matter be

dismissed with prejudice.

Date: 3/8/02

Judge

I ask for this:

/s/ John R. Walk

John R. Walk (VSB No. 19697)

HIRSCHLER FLEISCHER

701 East Byrd Street (23219)

Post Office Box 500

Richmond, Virginia 23218-0500

Phone: (804) 771-9519

Fax: (804) 644-0957

Counsel for Virginia PhotoTherapy, L.L.C.

Seen and Objected to:

/s/ Alten Valentino Jaffe

Allen Valentino Jaffe

App. F-2

App. G-1

VIRGINIA:

IN THE CIRCUIT COURT FOR THE

COUNTY OF HENRICO

ALLEN VALENTINO JAFFE,

Plaintiff,

V Case No. CL01-2094

VIRGINIA PHOT OTHERAPY, L.L.C -

Defendant.

[ENTERED: APRIL 9, 2002]

ORDER

This day came the parties and argued the Special

Plea filed by defendant Virginia PhotoTherapy, L.L.C.

and the Motion for Leave to Amend filed by plaintiff.

_ Allen V. Jaffe in this matter:

Based upon the Order entered this day dismissing

the matter styled Jaffe v. Virginia PhotoTherapy., L.L.C,

No. CL01-1543, there are no longer duplicative matters

pending before the Court; accordingly, it is hereby

ORDERED that defendant's Special Plea is denied;

It appearing to the Court that it would be in the

interests of justice to do so, it is further ORDERED that

Plaintiffs Motion for Leave to Amend is granted; that

plaintiffs Amended Motion for Judgment dated March 1,

2002, previously tendered to the Clerk, shall be

considered "Filed" as of the date of this Order; and that

Ro

App. G-2

defendant shall plead in response thereto within twenty-

one (21) days of the date of this Order:

It appearing that plaintiff has already filed

numerous amendments without obtaining leave of

Court, it is ORDERED that no further amendments of

plaintiffs claim will be permitted by the Court: and

Defendant's Special Plea having been denied, it

his hereby ORDERED that defendant's motion for

sanctions be denied.

ENTER: 4/9/02

/s/

JUDGE

I Ask for This:

/s/ John R. Walk

John R. Walk (VSB No. 19697)

HIRSCHLER FLEISCHER

701 East Byrd Street (23219)

Post Office Box 500

Richmond, Virginia 23218-0500

Phone: (804) 771-9519

Fax: (804) 644-0957

Counsel for Virginia PhotoTherapy, |

Seen and Objected to:

/s/ Allen Valentino Jaffe

Allen Valentino Jaffe, pro se

1309 Old Buckingham Drive, Apt. 2C

Midlothian, Virginia 23113

App. H-1

VIRGINIA:

IN THE CIRCUIT COURT FOR HENRICO COUNTY

ALLEN VALENTINO JAFFE,

\

Plaintiff,

V. | Case No. CL01-1543

VIRGINIA PHOTOTHERAPY, L.L.C.,

[ENTERED: APRIL 9, 2002]

ORDER

This day came the parties and argued the

Demurrer filed by defendant Virginia PhotoTherapy,

LLC; ;

It appearing to the Court that the Motion for

Judgment herein fails to reasonably apprise defendant

of the true nature of plaintiffs claim as required by Rule

1:4(d) of the Rules of the Supreme Court of Virginia; and

It appearing to the Court that plaintiff has filed

another action against defendant arising from the same

subject matter as this action (No. CL01-2094), and upon

the representation by plaintiff that he wishes to proceed

on the Amended Motion for Judgment dated March 1,

2002 tendered to the Clerk in that action;

It is hereby ORDERED that defendant's

Demurrer be sustained and that this action be dismissed,

said dismissal to be with prejudice to any claims for

App. H-2

breach of contract, breach of warranty or for fraud, but

without prejudice to plaintiffs right to proceed on the

claim for medical malpractice set forth in the

Amended Motion for Judgment in Case No. CLO01-

2094,

ENTER: 4/9/02

[s/

JUDGE

I Ask for This:

/s/ John R. Walk

John R. Walk (VSB No. 19697)

HIRSCHLER FLEISCHER

701 East BYRD Street (23219)

Post Office Box 500

Richmond. Virginia 23218-0500

Phone: (804) 771-9519

Fax: (804) 644-0957

Counsel for Virginia PhotoTherapy, L.L.C.

Seen and Objected to:

/s/ Allen Valentino Jaffe

Allen Valentino Jaffe, pro se

1309 Old Buckingham Drive, Apt. 2C

Midlothian, Virginia 23113

App. I-1

VIRGINIA:

IN THE CIRCUIT COURT FOR THE

COUNTY OF HENRICO

ALLEN VALENTINO JAFFE,

Plaintiff,

V. Case No. CL01-2094

VIRGINIA PHOTOTHERAPY, L.L.C.,

Defendant.

[ENTERED: AUGUST 8, 2002]

ORDER

This day came the parties and argued the

Demurrer and Special Plea filed by defendant Virginia

PhotoTherapy, L.L.C. in this matter;

It appearing to the Court that the Motion for

Judgment does not state a cause of action and fails to

state facts upon which the relief demanded can be

granted;

It is hereby ORDERED that defendant's

Demurrer be sustained and that this action be

dismissed, said dismissal to be with prejudice.

Based on the foregoing, defendant's Special Plea

is denied.

App. I-2

The objections of plaintiff, Allen V. Jaffe, to the

Court's rulings are hereby noted.

ENTER: 8/8/02

Ls/

JUDGE

I Ask for This:

/s/ Lisa S. Goodwin

John R. Walk (VSB No. 19697)

Lisa Spickler Goodwin (VSB No. 37804)

HIRSCHLER FLEISCHER

701 East Byrd Street (23219)

Post Office Box 500

Richmond, Virginia 23218-0500

Phone: (804) 771-9519

Fax: (804) 644-0957

Counsel for Virginia PhotoTherapy, L.L.C.

Seen and Objected to:

/s/ Allen Valentino Jaffe

Allen Valentino Jaffe, pro se

1309 Old Buckingham Drive, Apt. 2C

Midlothian, Virginia 23113

App. J-1

IN THE UNITED STATES DISTRICT COURT FOR

THE EASTERN DISTRICT OF VIRGINIA

Richmond Division

ALLEN V. J.AFFE.

Plaintiff,

Vv.

LUMENIS, LTD., et al.,

Defendants.

Civil Action Number 3:02CV538

[ENTERED: SEPTEMBER 24, 2002]

FINAL ORDER

This matter is before the Court on the

Complaint filed by the plaintiff on July 29, 2002, the

pending motions to dismiss, plaintiff's motion to

present arguments in writing, and the other pending

motions. First, finding that oral argument would not

aid the decisional process, the Court GRANTS the

plaintiff's motion to present arguments in writing.

The Complaint alleges diversity jurisdiction

pursuant to Title 2S U.S.C. § 1332(a). Plaintiff alleges

that “Plaintiff resides in Virginia, and not all

defendants reside there." Federal courts are courts of .

limited jurisdiction. Title 28 U.S.C. § 1330 et seq. sets

forth the various ways in which a federal court may

have jurisdiction over an action. Most actions filed in

App. J-2

federal court are brought under either 28 U.S.C. §

1331, which applies if there is federal question

jurisdiction, where the matter arises "under the

Constitution, laws, or treaties of the United States," or

under 28 U.S.C. § 1332, which applies only if (1) there

is complete diversity of citizenship between the

plaintiff and the defendants and (2) the amount in

controversy exceeds $75.000.

There is no federal question jurisdiction in this

case. The plaintiff does not state a federal claim.

Accordingly, there is no jurisdiction pursuant to 25

U.S.C. § 1331.

In addition, there is not complete diversity

between the plaintiff and the various defendants. In

Wisconsin Department of Corrections v. Schact, 524

U.S. 381, 388 (1998), the Court held that "[a] case falls

within the federal district court's ‘original’ diversity

'jurisdiction' only if diversity of citizenship among the

parties is complete, i.e., only if there is no plaintiff and

no defendant who are citizens of the same State."

Further, "[t]he presence of the nondiverse party

automatically destroys original jurisdiction: No party

need assert the defect. No party can waive the defect,

or consent to jurisdiction. No court can ignore the

defect; rather, a court, noticing the defect, must raise

the matter on its own." Id. at 389 (citations omitted).

Therefore, based on the Court's review of the

Complaint, the Court FINDS that there is not complete

diversity so there is no jurisdiction pursuant to 28

U.S.C. § 1332. Accordingly, the Court GRANTS the

defendants' motions to dismiss, pursuant to Rule

12(b)(1).

App. J-3

Given the Court's lack of subject matter

jurisdiction, the Court DENIES plaintiffs motions for

default judgment and to quash the motions to dismiss.

However, the Court notes that because the defendants

timely filed and served their motions to dismiss, no

defendant would have been in default had this Court

had subject matter jurisdiction. In addition, plaintiff's

motions to overrule the defendants' objections to

plaintiffs various discovery requests and to compel

responses to his discover requests are DENIED as

MOOT, given the Court's lack of jurisdiction.

For these reasons, this matter is DISMISSED

FOR LACK OF SUBJECT MATTER JURISDICTION.

It is so ORDERED.

The Clerk is DIRECTED to send a copy of this

Order to the plaintiff who is proceeding pro se and to

all counsel of record.

Plaintiff is advised that he has the right to

appeal the decision of the Court. Should he wish to do

so, written notice of appeal must be filed with the

Clerk of'the Court within thirty (30) days of the date of

entry hereof. Failure to file a timely notice of appeal

may result in the loss of the right to appeal.

SEP 24 2002

DATE

Ls/

SENIOR UNITED STATES DISTRICT JUDGE

App. K-1

VIRGINIA:

IN THE CIRCUIT COURT FOR THE

COUNTY OF HENRICO

ALLEN V. JAFFE,

Plaintiff.

v. é Case No. CL02-1730

VIRGINIA PHOTOTHERAPY, L.L.C.,

Defendant.

[ENTERED: JANUARY 24, 2003]

ORDER

This day came the parties and argued the

Special Plea and Motion for Sanctions filed by

defendant Virginia PhotoTherapy, L.L.C., in this

matter;

It appearing to the Court that the Order

entered on April 9, 2001 dismissing the matter

styled Jaffe v. Virginia PhotoTherapy, L.L.C., No.

CL01-1543, dismissed with prejudice any claims for

breach of contract, breach of warranty or for fraud;

and the Order entered on August S. 2002 dismissing

the matter styled Jaffe v. Virginia PhotoTherapv,

L.L.C., No. CL01-2094, dismissed with prejudice the

claim for medical malpractice, and

App. K-2

It appearing to the Court that the Motion for

Judgment herein is barred by the doctrine of res

judicata because it is based on identical facts, states

identical claims and/or claims chat could have been

raised in the prior cases, is by and against identical

parties, and seeks monetary damages;

It is hereby ORDERED that defendant's

Special Plea be sustained and that this action be

dismissed, said dismissal to be with prejudice.

It is hereby ORDERED that defendant's

Motion for Sanctions be denied.

Defendant was present and objected.

ENTER: 1/24/03

Ls/

JUDGE

I Ask for This:

/s/ Lisa S. Goodwin

John R. Walk (VSB No. 19697)

Lisa Spickler Goodwin (VSB No. 37804)

HIRSCHLER FLEISCHER

701 East Byrd Street (23219)

Post Office Box 500

Richmond, Virginia 23218-0500

Phone: (804) 771-9519

Fax: (804) 644-0957

Counsel for Virginia PhotoTherapy, L.L.C.

App. K-3

Seen and Objected to:

Allen Valentino Jaffe, pro se

3211 Fox Chase Drive

Midlothian, Virginia 23112 |

App. L-1

VIRGINIA:

IN THE CIRCUIT COURT OF THE

COUNTY OF HENRICO

ALLEN V. JAFFE,

PLAINTIFF,

V. CASE NUMBER CL02-1730-00

VIRGINIA PHOTOTHERAPY, L.L.C.,

DEFENDANT.

[ENTERED: APRIL 29, 2003]

FINAL ORDER

On April 4, 2003, came the plaintiff, pro se, and

the defendant, by counsel, on the papers formerly read

and on cross-motions, and the case was argued.

Whereupon it is ORDERED that

No Statement of Facts is certified because this

case was dismissed with prejudice on a special plea of

res judicata.

The Order entered January 24, 2003 is amended,

over defendant's objection that twenty-one days have

expired. The Order is amended to provide that

plaintiff's Motion for Recusal was _ granted;

accordingly Case Number CLO02-1729-00 was

transferred to another Judge of this Court. The

amendment is ordered because the Order entered

January 24, 2003 was prepared by the defendant, did

App. L-2

not include the Court's oral ruling granting the Motion

for Recusal, was not endorsed by plaintiff, and did not

provide for the Clerk to sent a copy of the Order to

plaintiff, who, in fact did not receive the Order within

the twenty-one days of its entry. Accordingly

plaintiff's Motion to Reconsider was timely filed. Rule

19.

The Clerk is directed to forward a copy of this

Order to the plaintiff, Allen V. Jaffe, 3211 Fox Chase

Drive, Midlothian, Virginia 23112, and to Lisa

Goodwin, Esquire, counsel for the defendant at

Hirschler Fleischer, Post Office Box 500, Richmond,

Virginia 23218-0500.

ENTER: APRIL 29, 2003

/s/

Judge

App. M-1

VIRGINIA:

IN THE CIRCUIT COURT FOR THE

COUNTY OF HENRICO

ALLEN V. JAFFE,

PLAINTIFF,

V. | CASE NO. CL CLO2-1729

DR. RONALD MARK LANDESS, DPM

DEFENDANT,

[ENTERED: APRIL 4, 2003]

ORDER

On Jan 9, 2003

PLAINTIFF ALLEN V. JAFFE FILED A MOTION TO

DISQUALIFY JUDGE HAMMOND, PURSUANT TO

PART 6, SECTION III, CANON 3(C) OF THE RULES

OF THE SUPREME COURT OF VIRGINIA. ON

CONSIDERATION OF THE EVIDENCE AND THE

FACTS AND CIRCUMSTANCES OF THIS CASE,

IT IS ORDERED THAT PLAINTIFF'S MOTION IS

GRANTED, AND THIS ACTION WILL BE REFERRED

TO THE CHIEF JUDGE OF THIS CIRCUIT FOR

REASSIGNMENT TO A SUBSFIFUE-TRIAL JUDGE.

ENTER: 4/4/03

App. M-2

/s/

JUDGE HAMMOND

I ASK FOR THIS:

/s/_ ALLEN V. JAFFE

ALLEN V. JAFFE, PRO SE

3211 FOX CHASE DRIVE

MIDLOTHIAN, VIRGINIA 23112

PHONE: 804-744-2383

SEEN AND OBJECTED TO:

/s/ Lisa S. Goodwin

LISA SICKLER GOODWIN (VSB NO. 37804)

ATTORNEY FOR DEFENDANT

701 EAST BYRD STREET

RICHMOND, VIRGINIA 23219

PHONE: 804-771-9519

App. N-1

IN THE

SUPREME COURT OF VIRGINIA

AT RICHMOND

RECORD NO.

ALLEN V. JAFFE,

PLAINTIFE/APPELLANT

V.

VIRGINIA PHOTOTHERAPY, L.L.C.,

DEFENDANT/APPELLEE

ON PETITION FOR APPEAL FROM THE

CIRCUIT COURT OF HENRICO COUNTY

HONORABLE CATHERINE HAMMOND, JUDGE

PETITION FOR APPEAL

ALLEN V. JAFFE, PRO SE

3211 FOX CHASE DRIVE

MIDLOTHIAN, VIRGINIA 23112

PHONE: 804-744-2383

FAX: 804-744-2383

App. N-2

IN THE

SUPREME COURT OF VIRGINIA

AT RICHMOND

RECORD NO. CL02001730-00

ALLEN V. JAFFE,

PLAINTIFEF/APPELLANT

V.

VIRGINIA PHOTOTHERAPY, L.L.C.,

DEFENDANT/APPELLEE

PETITION FOR APPEAL

TO THE HONORABLE JUSTICES OF THE

SUPREME COURT OF VIRGINIA:

ALLEN V. JAFFE, APPELLANT, PRO SE

(PLAINTIFF, PRO SE, IN THE TRIAL COURT) IS

AGGRIEVED BY A FINAL DECREE OF THE

CIRCUIT COURT OF HENRICO COUNTY,

ENTERED JANUARY 24, 2003, SUSTAINING A

PLEA OF RES JUDICATA AND DISMISSING THIS

MATTER.

ASSIGNMENT OF ERROR

THE TRIAL COURT ERRED IN DISMISSING

THE PLAINTIFF'S CLAIM ON THE GROUND

THAT IT WAS RES JUDICATA BECAUSE:

App. N-3

1. THE PREVIOUS ACTIONS ASSERTED

AS BARS, WHICH WERE TRIED BY THE SAME

JUDGE WERE BASED ON PREJUDICE AND BIAS

AND NOT ON THE MERITS OF THOSE CASES.

THAT PREJUDICE AND BIAS AGAINST THE

PLAINTIFF TAINTED THE RULINGS AND

AFFECTED THE OUTCOMES OF THE HEARINGS

AND RESULTED IN DISMISSALS SO THAT THE

PLAINTIFF WAS DENIED A FAIR TRIAL AND A

PROPER FINAL DECREE ON THE MERITS OF

THOSE CASES; AND AS A CONSEQUENCE,

THOSE IMPROPER AND TAINTED DISMISSALS

TO WHICH HE OBJECTED, IN THE PREVIOUS

CASES DID NOT CONSTITUTE FINAL AND FAIR

JUDGEMENTS ON THE MERITS’ AND

THEREFORE CANNOT BE USED TO SUPPORT A

CLAIM OF RES JUDICATA.

2. THE DEFENSE OF RES JUDICATA

HAS THE BURDEN OF PROVING BY A

PREPONDERANCE OF THE EVIDENCE THAT AN

ISSUE WAS PREVIOUSLY RAISED AND DECIDED

IN AN APPROPRIATE COURT IN A PRIOR CAUSE

OF ACTION (FODI’S V. RUTHERFORD, 26 VA.

APP. 466, 449, 495 S.E. 2D 503, 505 (1998)(WORRIE V.

BOZE, 198 VA. 533, 538, 95 S.E. 2D 192, 197 (1956);

COMMONWEALTH EX. REL. GRAY V. JOHNSON,

7 VA. APP. 614, 618, 376 S.E. 2D 787, 789 (1989). BUT

NO SUCH BURDEN WAS MET.

3. THE DEFENSE OF RES JUDICATA

MUST PROVE THE IDENTITY OF: {1) THE

REMEDIES SOUGHT: (2) THE IDENTITY OF THE

CAUSES OF ACTION; (3) THE IDENTITIES OF

PARTIES; AND (4) THE IDENTITY OF THE

App. N-4

QUALITY OF THE PERSONS FOR OR AGAINST

WHOM THE CLAIM IS MADE (HIGHSMITH V.

COMMONWEALTH, 25 VA. APP. AT 440, 489 S.E.

2D AT 241) DEFENSE HAS FAILED TO MEET

THAT BURDEN BECAUSE THERE IS NEITHER AN

IDENTITY OF THE REMEDIES SOUGHT NOR AN

IDENTITY OF THE CAUSES OF ACTION

(WRIGHT, 232 VA. AT 222, 349 S.E. 2D AT 128), NOR

AN IDENTITY OF THE QUALITY OF THE

PERSONS FOR OR AGAINST WHOM THE CLAIM

IS MADE.

4. IT IS WELL SETTLED THAT RES

JUDICATA MAY NOT BE TAKEN ADVANTAGE

OR BY DEMURRER WHERE THE PLEADING

DEMURRED TO DOES NOT SHOW ON ITS FACE

THE EXISTENCE OF THE MATTERS RELIED ON

TO SUPPORT THE APPLICATION OF THE

DOCTRINE (MARTIN V. MARTIN, 167 VA. 206, 211,

212, 188 S.E. 148, 150)(30 AM. JUR., JUDGMENTS,

SEC. 264, P. 989; 50 C.J.S., JUDGEMENTS, SEC 824,

PP, 393, 394, 395, AND CASES CITED). THIS IS SO

BECAUSE A DEMURRER STANDS OR FALLS BY

WHAT APPEARS ON THE FACT OF THE

PLEADING AT WHICH IT IS AIMED. AND SO

RESORT CANNOT BE HAD TO ANOTHER

PLEADING FOR THE PURPOSE OF SUPPORTING

THE DEMURRER (6 MICHIE’S JURISPRUDENCE,

VA. AND W. VA., DEMURRERS, SEC. 26, P. 24,

AND CASES THERE CITED), AND YET VIRGINIA

PHOTOTHERAPY, L.L.C., TOOK ADVANTAGE OF

DEMURRER TO SUPPORT THE APPLICATION OF

RES JUDICATA OVER PLAINTIFF'S OBJECTIONS.

App. N-5

~ 3 THE FACT THAT THE PREVIOUS

ACTIONS HAD BEEN TRIED IN THE SAME

COURT BY THE SAME JUDGE DID NOT

DISPENSE WITH THE NECESSITY OF PROOF OF

THE RECORDS IN THE PREVIOUS ACTIONS. TO

SUSTAIN A CLAIM OF RES JUDICATA THE

COURT WILL NOT TAKE JUDICIAL NOTICE OF

THE RECORD IN THE FIRST SUIT (30 AM. JUR.,

JUDGEMENTS, SEC. 273, P. 993; 50 CJ.S.,

JUDGEMENTS, SEC. 836, P. 404.) IT IS

APPROPRIATE TO POINT OUT THAT

ORDINARILY TO SUSTAIN THE ALLEGATION

OF RES JUDICATA, THE WHOLE RECORD OF

THE FORMER PROCEEDING MUST BE PUT IN

EVIDENCE (SEE FREEMAN ON JUDGEMENTS,

STH ED., SEC. 1030, PP. 2147, 2148; JONES’

COMMENTARIES ON EVIDENCE, 2D ED., SEC.

1886, P. 3514; 30 AM. JUR., JUDGEMENTS, SEC. 274,

P. 993; 50 C.J.S., JUDGEMENTS, SEC. 843-C. P. 417).

GENERALLY, ONLY AN INSPECTION OF THE

ENTIRE RECORD IN THE FIRST ACTIONS WILL

DISCLOSE WHETHER THE IDENTICAL ISSUES IN

CONTROVERSY IN THE PENDING SUIT WAS

SETTLED IN THOSE PREVIOUS LITIGATIONS.

IN THIS MATTER, NO RECORDS, EVIDENCE OR

TESTIMONY WERE PRESENTED OR HEARD

DURING THE MOTIONS HEARINGS’ THE

ALLEGATION AND THEREFORE THE CLAIM OR

RES JUDICATA COULD NOT AND SHOULD NOT

HAVE BEEN SUSTAINED.

MIATA OP EIS A EET NE AE LALA Regs AB AN

App. N-6

6. JUDGE HAMMOND, AFTER

GRANTING PLAINTIFF'S MOTION TO

DISQUALIFY FOR PREJUDICE AND

SUBSEQUENTLY RECUSING HERSELF; OVER

PLAINTIFF'S OBjECTIONS, SUSTAINED THE

DEFENSE PLEA OF RES JUDICATA AND

DISMISSED THE CASE AND OVER PLAINTIFF'S

OBJECTIONS.

.. AS A CONSEQUENCE IT WAS ERROR FOR

JUDGE HAMMOND TO HAVE SUSTAINED THE

PLEA OF RES JUDICATA AND DISMISSING THE

MATTER AFTER RECUSING HERSELF.

CONCLUSION

FOR THE FOREGOING REASONS THE

SPECIAL PLEA OF RES JUDICATA CANNOT BE

SUSTAINED, AND THE DECISION BY THE

CIRCUIT COURT AND SPECIFICALLY JUDGE

HAMMOND, SUSTAINING SAID PLEA OF RES

JUDICATA SHOULD NOT BE ALLOWED TO

STAND.

THE PLAINTIFF PRAYS THAT THE DECREE OF

THE CIRCUIT COURT BE REVERSED AND THE

CASE REMANDED WITH DIRECTION THAT IT

BE REINSTATED ON THE DOCKET OF THE

ORIGINAL COURT FOR TRIAL ON ITS MERITS IF

THE PARTIES BE SO ADVISED.

App. N-7

RESPECTFULLY SUBMITTED,

ALLEN V. JAFFE

Ls/

PRO SE

ALLEN V. JAFFE

3211 FOX CHASE DRIVE

MIDLOTHIAN, VIRGINIA 23112

PHONE 804-744-2383 FAX 804-744-2383

++ +

App. O-1

VIRGINIA:

In the Supreme Court of Virginia held at the

Supreme Court Building in the City of Richmond on

Wednesday the 25 day of June, 2003.

Allen V. Jaffe,

Appellant,

against Record No. 030874

Circuit Court No. CL02-1730-00

Virginia Phototherapy, L.L.C.,

Appellee.

From the Circuit Court of Henrico County

[ENTERED: JUNE 25, 2003]

Upon review of the record in this case and

consideration of the amended petition for appeal and

the brief in opposition, the Court is of opinion the

petition for appeal should be dismissed under Rule

5:ll(c). In part, the appellee states in the brief in

opposition, "[T]he arguments being asserted as error in

the Petition for Appeal were not raised below."

Therefore, a transcript or written statement of facts is

necessary to determine whether the appellant stated

objections with reasonable certainty at the time of the

ruling as required by Rule 5:25. |

App. O-2

On May 22, 2003, the appellee filed a motion to

dismiss the petition for appeal in this Court. Because

the Court dismisses the petition for appeal under Rule

9:11(c), the motion to dismiss is moot.

On May 28, 2003, the appellant filed a motion to

exclude the appellee's brief in opposition. On further

consideration whereof, the Court denies the motion.

Furthermore, the record indicates that the circuit

court entered an order, dated January 24, 2003,

dismissing the case with prejudice. The appellant filed

a notice of appeal in the circuit court on February 7,

2003, and a petition for appeal in this Court on April

21, 2003. Therefore, the appeal was docketed in this

Court, and the circuit court was without jurisdiction to

enter the order dated April 29, 2003. See Code § 8.01-

428(B).

For the reasons stated above, the petition for

appeal is dismissed.

A Copy,

Teste: —

David B. Beach, Clerk

Ls/

Deputy Clerk

App. P-1

IN THE

SUPREME COURT OF VIRGINIA

AT RICHMOND

| RECORD NO. 030874

ALLEN V. JAFFE

PLAINTIFF/ APPELLANT

V.

VIRGINIA PHOTOTHERAPY, L.L.C.

DEFENDANT,APPELLEE

PETITION FOR REHEARING

ALLEN V. JAGGE, PRO SE

3211 FOX CHASE DRIVE

MIDLOTHIAN, VIRGINIA 23112

PHONE: 804-744-2383

PRO SE

App. P-2

+ + % oe

-- AND THE FACT THAT SHE PRESIDED AFTER

RECUSAL SERVES AS GROUNDS FOR APPEAL

BECAUSE THE ALLOWANCE OF SUCH A

JUDGMENT WOULD CLEARLY VIOLATE THE

APPELLANT’S RIGHT TO EQUAL PROTECTION

AND A FAIR HEARING BY A NEUTRAL AND

DETACHED JUDGE UNDER’ THE 14TH

AMMENDMENT.

WITH REGARD TO THE CLAIM THAT THE

OTHER OBJECTIONS COULD NOT BE

SUBSTANCTIATED BECAUSE OF THE LACK OF

TRANSCRIPTS OR A WRITTEN STATEMENT OF

FACTS, THE APPELLANT SHOULD NOT BE

MADE TO SUFFER FOR THE FAULTS OF THE

COURT...

+ + +

CONTRARY TO THIS COURT’S OPINION

THAT THE CIRCUIT COURT WAS WITHOUT

JURISDICTION TO ENTER THE ORDER TO

CORRECT NUNC RO TUNC DATED APRIL a9,

2003, THE APPELLANT DISAGREES AND STATES

THAT SUCH AN ORDER TO CORRECT NUN PRO

TUNC WAS WELL WITHIN THE CIRCUIT

COURT’S POWERS IN ORDER TO CORRECT THE

FRAUDULENT AND ERRONEOUS ORDER

WHICH WAS SUBMITTED TO THE COURT BY

THE DEFENDANT/APPELLEE COUNSEL AS

OFFICERS OF THE COURT.

App. P-3

THE VERBAL ORDER ISSUED BY JUDGE

HAMMOND _ SPECIFICALLY DISQUALIFIED

HERSELF FROM THE MATTERS OF CL02-1729

AND CL02-1730 UPON PLAINTIFF'S WRITTEN

MOTION TO DISQUALIFY FOR PREJUDICE AND

BIAS. THE ORDER AS PREPARED BY THE

DEFENSE COUNSEL INTENTIONALLY

OMMITTED THE RECUSAL ORDER WHICH WAS

CONSIDERED CENTRAL TO THIS APPELLANT’S

APPEAL(MARKED APPELLANT'S #2).

+ + +

.. TO FURTHER SUPPORT THE

ALLEGATION THAT THE FRAUDULENT ORDER

WAS ABSOLUTELY INTENTIONAL, THE

DEFENSE COUNSEL HAVING BEEN APPRISED

OF THE INCORRECT ORDER WHICH THEY

SUBMITTED, INSTEAD OF AGREEING TO THE

MISTAKES AND APPOLIGIZING, AND

AGREEING TO THE CORRECTIONS, THEY

OBJECTED UNDER THE 21 DAY PROVISION OF

RULE 1:1, UPON WHICH THE JUDGE

OVERRULED THEM. EVEN TO THE END THE

DEFENSE COUNSEL CONSPIRED TO DEFRAUD

THE PLAINTIFF/APPELLANT OF HIS RIGHT TO A

FAIR TRIAL AND APPEAL UNDER THE 14'H

AMMENDMENT. AT ANY RATE THE JUDGE

GRANTED THE MOTION TO CORRECT THE

ORDER NUNC PRO TUNC TO INCLUDE HER

ORDER OF RECUSAL ON JANUARY 24,

2003(MARKED APPELLANT’S EXHIBIT #3). THE

JUDGE FINALLY SIGNED THE ORDER TO

CORRECT NUNC PRO TUNC ON APRIL 29, 2003.

App. P-4

THE JUDGE WAS _ WITHIN HER

JURISDICTION TO CORRECT THE

FRAUDULENTLY PREPARED AND ERRONEOUS

ORDER, NUNC PRO TUNC, TO JANUARY 24, 2003,

THE DATE WHEN THE ORDER WAS

ORIGINALLY ISSUE, ...

+ +

CONCLUSION

THIS PRO SE APPELLANT MAINTAINS

THAT THE DISMISSAL ORDER WAS WRONG

AND DEPRIVES THIS APPELLANT THE RIGHTS

AND PROTECTIONS GUARANTEED UNDER THE

1471 AMMENDMENT AND THEREFORE SUCH

DISMISSAL WAS WRONG AND

UNCONSTITUTIONAL, FOR ALL THE REASONS

PREVIOUSLY PRESENTED IN HIS BRIEFS, AND

DOES NOT INTEND BY FOCUSING ON THESE

ISSUES TO LIMIT OR ABANDON ANY OF THOSE

CONTENTIONS. APPELLANT ALLEN V. JAFFE

ASKS THAT THIS COURT REVERSE ITS

JUDGEMENT, OR MODIFY ITS DECISION TO

CORRECT OR ADDRESS THESE POINTS TO

FACILITATE THE REVIEW OF THIS CASE BY THE

SUPREME COURT OF THE UNITED STATES

UNDER WRIT OF CERTIORARI.

App. P-5

RESPECTFULLY SUBMITTED,

ALLEN V. JAFFE

Ls/

PRO SE

ALLEN V. JAFFE

3211 FOX CHASE DRIVE

MIDLOTHIAN, VIRGINIA 23112

PHONE 804-744-2383

App. Q-1

VIRGINIA:

In the Supreme Court of Virginia held at the

Supreme Court Building in the City of Richmond on Friday

the 12th day of September, 2003.

Allen V. Jaffe,

Appellant,

against Record No. 030874

Circuit Court No. CL02-1730-00

Virginia Phototherapy, L.L.C.,

Appellee.

[ENTERED: SEPTEMBER 12, 2003]

Upon a Petition for Rehearing

On consideration of the petition of the appellant

to set aside the judgment rendered herein on the 25th

day of June, 2003 and grant a rehearing thereof, the

prayer of the said petition is denied.

A Copy,

Teste:

Ls/

Clerk

App. R-1

No. 03-

In The

SUPREME COURT OF THE UNITED STATES

ALLEN V. JAFFE,

Petitioner,

v.

VRIGINIA PHOTOTHERAPY, L.L.C.,

Respondent.

ON PETITION FOR A WRIT OF CENTIORARI TO

SUPREME asbar os VIRGINIA,

CITY OF RICHMOND

PETITION FOR A WRIT OF CERTIORARI

ALLEN V. JAFFE, pro se

3211 Fox Chase Drive

Midlothian, VA 23112

(804) 744-8381

App. R-2

QUESTIONS PRESENTED

1. This court should grant certiorari to clear

up confusion as to whether during a motions hearing

the courts must consider whether the party asserting

Res Judicata must present evidence to prove by a

preponderance that the issues asserted as bars were

Previously raised so as to assure fair and impartial

hearing guaranteed under the 14th amendment.

y This court should grant certiorari and

decide whether on plea of Res Judicata, the courts must

consider whether a lower court jucge in a current

action may simply take judicial notice of the record in

Previous actions and dispense with the necessity of

Proof of record of those previous actions in which that

same judge presided, in determining the outcome of

the current matter before.

3. This court should grant certiorari to

decide whether the court must consider whether the

dismissal of a matter for lack of jurisdiction under the

Virginia Medical Malpractice Act may serve as a bar

under Res Judicata to future actions.

t This court should grant certiorari and

decide the most fundamental issue of fairness and

impartiality guaranteed under the 14th with regard to

whether a lower court judge on motion to disqualify

for bias and prejudice, does in fact disqualify and

recuse themselves from those matters to which recusal

had been sought then, should that judge be able to

affect the determinations of those matters from which

they are then barred.

App. R-3

5. This court should grant certiorari and

decide whether on a petition for appeal, a higher court

should consider an appellant’s submitted statement of

facts, in lieu of transcripts, when all the requirements

necessary for admission of that statement of facts have

been satisfied, but for the lower court judge’s refusal to

sign, or amend and sign such statement for admission

when such a refusal serves to defeat the appellant's

right of appeal.

6. This court should grant certiorari and

decide whether in denying an appeal, the court should

have considered an order correcting Nunc Pro Tunc, a

previous fraudulent order, as being Nunc Pro Tunc to

the date of the original final order so as not to affect an

appellant's right of appeal with regard to the determination

of appellate jurisdiction and filing time requirements.

+ + +

5. A lower court judge upon recusal

pursuant to a motion to disqualify for bias and

prejudice may not be able to affect the determinations

of those actions from which disqualification and

recusal have been granted.

As a general matter, the courts have almost

uniformly held that a trial judge who has recused

herself “should take no other action in the case except

the necessary ministerial acts to have the case

transferred to another judge.” El Fendix de Puerto Rico

v. The M/Y Johanny, 36 F.3d 136 at 141 (15 Cir. 1994). 13

a Charles A. Wright, Arthur R. Miller & Edward H.

App. R-4

Cooper, Federal Practice and Procedure § 3550, at 629

(2d 1984); see also Moody v. Simmons, 858 F.2d 137, 143

(3d Cir. 1988); Arnold v. Eastern Airlines, Inc., 712 £.2d

899, 904 (4 Cir. 1983); In Re Cement Antitrust Litigation,

673 F.2d 1020, 1025 (9% Cir. 1982); Rohrbach v. AT&T

Nassau Metals Corp., 915 F. Supp. 712, & N.5 (M.D. Pa.

1996); Whitehead v. Neveda Commission on Judicial

Procedure, 920 P.2d 491, 502-03 (Nev. 1996).

Surely it would be improper for a judge to

decide the issues of a case in which he or she had

recused themselves if this decision viciated the

litigant’s constitutional right to be heard by a neutral

and detached judge or it undermined the publics

confidence in the impartiality of the judicial process.

See Liljeberg v. Health Services Acquisition Corp., 486 U.S.

847, 858 N.7 & 861, 108 S. Ct. 2194, 2201 N.7. 100 L. Ed.

2d 855 (1988) (noting that a judge is called upon to take

the steps necessary to maintain public confidence in the

impartiality of the judiciary); Ward v. Monroeville, 409

US. 57, 62, 93 S. Ct. 80, 84, 34 L. Ed. 2d 267 (1972)

(stating that due process guarantees litigants a neutral

and detached judge.)

As a consequence it was error for the judge to

have affected the outcome of this matter under appeal

by sustaining the plea of Res Judicata and dismissing

the action. In light of the foregoing, the appellant was

denied his right to equal protection and a fair trial.

6. On a petition for appeal from a circuit

court motions hearing, absent a transcript, the

appellate court should consider an appellant's

statement of facts when all the requirement for

App. R-5

admission have been satisfied, but for the judge's

refusal to sign or amend and sign the statement for

admission.

The admission of the statement of facts is

necessary to an accurate and complete history of the

proceedings in the trial court and the appellant should

not be made to suffer for the faults of the court.

+ + +

if A lower court has no jurisdiction to issue

final orders in a matter once that matter has been

noticed foe appeal; except that an incorrect or

fraudulent order may be corrected at any time by a

-motion and order to correct nunc pro tunc to the

original date of the corrected order.

The judge while prohibited from issuing any

final orders related to a matter noticed for appeal, was

within her jurisdiction to correct Nunc Pro Tunc, the

fraudulently prepared and erroneous order submitted

by the defendant's counsel by order Nunc Pro Tunc to

the date when the order was originally issued and

signed.

The Supreme Court of Virginia improperly

rejected the relevance of equal protection principles in

denying legitimacy of the appellant's motion and order

to correct Nunc Pro Tunc and in so doing served to

defeat his right of appeal.

App. R-6

CONCLUSION

For the reasons set forth above, the Petition for a

Writ of Certiorari should be granted. And this matter

returned to the lower court for trial on the merits of the

cause.

Respectfully submitted,

ALLEN V. JAFFE, pro se

3211 Fox Chase Drive

Midlothian, VA 23112

(804) 744-8381

App. S-1

Supreme Court of the United States

Office of the Clerk

Washington, DC 20543-0001

William K. Suter

Clerk of the Court

(202) 479-8011

February 23, 2004

Mr. John R. Walk

Hirschler Fleischer

P.O. Box 500

Richmond, VA 23218-0500

Re: Allen V. Jaffe

v. Virginia Phototherapy, L.L.C.

No. 03-868

Dear Mr. Walk:

The Court today entered the following order in

the above entitled case:

The petition for a writ of certiorari is denied.

Sincerely,

/s/ _ William K. Suter

William K. Suter, Clerk

App. T-1

COMMONWEALTH OF VIRGINIA

FOURTEENTH JUDICIAL CIRCUIT

George F. Tidey Government Complex

Judge 4301 E. Parham Road

L.A. Harris, Jr. Richmond, VA 23273-7032

Judge

Catherine C. Hammond Telephone: (804) 501-5834

Judge Fascimile: (804) 501-5505

Gary A. Hicks

Judge

CIRCUIT COURT OF HENRICO COUNTY

17 September 2003

Allen V. Jaffe

301 Fox Chase Drive

Midlothian, VA 23112

Plaintiff

John R. Walk

Hirschler Fleischer

701 East Byrd Street

P.O. Box 500

Richmond, VA 23218

Counsel for Defendant

Re: Jaffe v. Landess

Civil Case No. CL02-1729

App. T-2

Dear Mr. Jaffe and Mr. Walk:

This matter comes before the Court pursuant to

Ronald Mark Landess', DPM ("Landess") Special Plea

and Motion for Sanctions as well as Allen V. Jaffe's

("Jaffe") Motion to Disallow Defendant's Discovery

Requests and Motion for a Protective Order. Following

the hearing on August 22, 2003, the Court permitted

the parties an opportunity to submit written

memoranda, which has been received.

Upon consideration of the arguments of the

parties, a review of the record, and the memoranda of

the parties, the Court does hereby grant the Special

Plea of Landess. Res judicata precludes parties from

litigating a claim for which a court has already entered

a final judgment on the merits. State Water Control

Board v. Smithfield Foods, Inc., 261 Va. 209, 214 (2001).

In order to prove res judicata, a party must "establish

identity of the remedies sought, identity of the cause of

action, identity of the parties, and identity of the

qualify of the persons for or against whom the claim is

made." Id. (quoting Balbir Brar Assoc. v. Consolidated

Trading and Servs. Corp., 252 Va. 341 (1996). The Court

finds that all of the prongs for res judicata have been

met and, therefore, the action is barred.

Moreover, the Court does deny the Motion for

Sanctions by Landess.

In light of the foregoing rulings, the Court does

not need to address the merits of Jaffe's Motion to

Disallow Defendant's Discovery Requests and Motion

for a Protective Order.

App. T-3

Mr. Walk is to prepare an Order consistent with

the rulings of the Court and forward the same to Mr.

Jaffe as that either or both parties may note their

exceptions or objections. Mr. Walk is to have the Order

returned to the Court on or before: Thursday, October

22, 2003.

Thanking you, I am

Very truly yours,

ls/ Gary A. Hicks

Gary A. Hicks

Judge

App. U-1

VIRGINIA:

IN THE CIRCUIT COURT OF HENRICO COUNTY.

ALLEN V. JAFFE,

Plaintiff,

Vv. 3 Case No. CL02-1729

RONALD MARK LANDESS, DPM,

.Defendant.

[ENTERED: OCTOBER 20, 2003]

FINAL ORDER

On August 22, 2003, came plaintiff Allen V.

Jaffe, pro se, and defendant Ronald M. Landess, by

counsel, on the Special Plea, Motion for Sanctions, and

Motion to Compel and for Sanctions filed by defendant

Ronald M. Landess and on the Motion to Disallow

Defendant's Request for Admissions and Motion for

Protective Order of plaintiff Allen V. Jaffe, all of which

were duly noticed for hearing;

It appearing from a review of a certified copy of

the Court's file introduced into evidence in this

proceeding that plaintiff Allen V. Jaffe has previously

filed an action styled Jaffe v. Virginia PhotoTherapv.

LLC, No. CL01-1543, that such action was dismissed

with prejudice by Order dated April 9, 2002, and that

Jaffe failed to appeal such decision; and

App. U-2

It appearing from a review of a certified copy of

the Court's file introduced into evidence in this

proceeding that plaintiff Allen V. Jaffe has previously

filed an action styled Jaffe v. Virginia PhotoTherapv.

LLC, No. CH01-1438, that such action was dismissed

with prejudice by Order dated March 8, 2002, and that

Jaffe failed to appeal such decision; and

It appearing from a review of a certified copy of

the Court's file introduced into evidence in this

proceeding that plaintiff Allen V. Jaffe has previously

filed an action styled Jaffe v. Virginia PhotoTherapy,

LLC. No. CL01-2094, that such action was dismissed

with prejudice by Order dated August 8, 2002, and that

Jaffe failed to appeal such decision; and

It appearing from a review of a certified copy of

the Court's file introduced into evidence in this

proceeding that plaintiff Allen V. Jaffe has previously

filed an action styled Jaffe v. Virginia PhotoTherapv,

LLC, No. CL02-1730; that such action was dismissed

with prejudice by Order dated January 24, 2003 an the

basis that the claims and causes of action asserted

therein were barred by the doctrine of res judicata by

virtue of the final adjudications referred to above; that

Jaffe attempted to appeal such decision to the Virginia

Supreme Court; and that by Order dated June 25, 2003,

the Virginia Supreme Court denied his Petition for.

Appeal and by Order dated September 12, 2003 denied

his Petition for Rehearing; and

In connection with this ruling, the Court

receives into evidence the certified copy of the Virginia

Supreme Court's September 12, 2003 Order denying

App. U-3

Jaffe's Petition for Rehearing and dismissing his appeal

of No. CL02-1730; and

- It appearing to the Court that all of the above

referenced actions arose from the same hair removal

treatments provided by Virginia PhotoTherapy, LLC

which form the basis of the subject action; and

It appearing to the Court from the Stipulation of

the parties introduced into evidence in this proceeding

and the exhibits thereto that at all times relevant to this

action defendant Ronald M. Landess has been the sole

member and manager of Virginia PhotoTherapy, LLC;

and

It appearing to the Court from a review of the

allegations of the Complaint herein that each of the

claims and causes of action asserted against defendant

Ronald M. Landess have been previously asserted

against Virginia PhotoTherapy, LLC, in one or more of

the above-referenced actions; and

It appearing to the Court based upon all of the

foregoing that defendant Ronald M. Landess is in

privity with Virginia PhotoTherapy, LLC for purposes

of the Court's consideration of the defendant's Special

Plea of res judicata herein; and

It appearing to the Court that each of the

elements of res judicata has been proven by defendant

Ronald M. Landess;

App. U-4

Upon consideration of the foregoing findings

and the authorities cited by defendant in memoranda

in support of his Special Plea, and for the reasons

stated in the Court's opinion letter dated September 17,

2003, it is hereby ORDERED that the defendant's

Special Plea be sustained and that this action be

DISMISSED WITH PREJUDICE; and that

Defendant's Motion to Compel and for

Sanctions pursuant to Rule 4:12(c) and Motion for

Sanctions pursuant to Virginia Code § 8.01-271.1 be

DENIED; and that

Plaintiffs Motion to Disallow Defendant's

Request for Admissions and Motion for Protective

Order be DENIED.

There being no further motions or matters

requiring consideration by the Court, this matter shall

be placed by the Clerk among the ended cases.

ENTER: 10/20/03

Ls/

Judge

I Ask For This As to Ruling on Special Plea; Objected to

As to Denial of Motion to Compel and for Sanctions

and Motion for Sanctions:

/s/ John R. Walk

John R. Walk (VSB No. 19697)

HIRSCHLER FLEISCHER

701 East Byrd Street seu

Post Office Box 500

Richmond, Virginia 23218-0500

Phone: (804) 771-9519

Fax: (804) 644-0957

Counsel for Ronald M. Landess, DPM

I Ask For This As to Denial of Motion to Compel and

for Sanctions and Motion for Sanctions; Objected to As

to Ruling on Special Plea, Motion to Disallow

Defendant's Request for Admissions and Motion for

Protective Order:

Allen V. Jaffe, pro se

3211 Fox Chase Drive

Midlothian, Virginia 23112

App. V-1

VIRGINIA:

IN THE CIRCUIT COURT OF HENRICO COUNTY

ALLEN V. JAFFE,

Plaintiff,

Vv. Case No. CL02-1729

RONALD MARK LANDESS, DPM,

Defendant.

[ENTERED: NOVEMBER 10, 2003]

ORDER IMPOSING SANCTIONS

This day came defendant Ronald M. Landess, by

counsel, and moved for sanctions against plaintiff

Allen V. Jaffe;

As set forth more fully in the Court's Final Order

dated October 20, 2003, prior to filing this action, Jaffe

had filed four (4) previous actions against Virginia

PhotoTherapy, LLC, all arising from the same hair

removal treatments which form the basis of this action

and all of which had been adjudicated adverse to Jaffe.

The Court finds that Jaffe lacked a good faith basis for

bringing this action;

li addition, simultaneously with filing this

action, Jaffe filed another case against Virginia

PhotoTherapy, LLC, No. CL02-1730. This action had

been dismissed by this Court by Order dated January

24, 2003 and Jaffe's Petition for Appeal had been

App. V-2

rejected by the Virginia Supreme Court by Order dated

June 25, 2003. The Court finds that Jaffe lacked a good

faith basis for continued prosecution of this case after

entry of the foregoing Orders;

In response to the.filing of this action, Landess

filed a Special Plea asserting the defense of res judicata

and on August 8. 2003, filed his Memorandum in

Support of Special Plea in which he set forth authorities

which compel the conclusion that this matter was

barred by res judicata. Jaffe failed at the hearing of this

matter to present any contrary authority or to

distinguish the authorities cited by Landess and, after

being given leave to file a post-hearing memorandum,

failed in either of his post-hearing memoranda to cite

any contrary authority or to distinguish the authorities

cited by Landess. The Court finds that Jaffe lacked any

good faith basis for his continued prosecution of this

matter after receipt of the Memorandum in Support of

Special Plea;

- In connection with the preparation for hearing

of this matter, Landess propounded a Request for

Admissions to Jaffe which sought merely his admission

as to the authenticity of pleadings and Orders entered

in his prior actions against Virginia PhotoTherapy,

LLC. Jaffe refused to admit the authenticity of these

documents without any good faith basis for doing so.

This caused substantial inconvenience to the Clerk of

this Court and the Clerk of the Virginia Supreme Court

and expense to Landess in preparing and producing

certified copies of these Court records at the hearing of

this matter;

App. V-3

The Court issued its opinion by letter dated

September 17, 2003 in which it sustained Landess'

Special Plea of res judicata and instructed the parties to

submit a sketch Order in accordance with the Court's

rulings. Counsel for Landess timely prepared a sketch

Order and submitted same to Jaffe for comment

and/or endorsement. Jaffe failed and refused to

endorse the Order or to offer any comments to it,

necessitating the scheduling of a hearing for

presentation of the sketch Order. N otwithstanding that

the hearing was duly noticed for October 20, 2003, Jaffe

failed to appear. The Court finds that Jaffe lacked any

good faith basis for refusing to endorse the sketch

Order or for failing to appear at the hearing which was

necessitated by his failure to endorse the sketch Order;

After entry of the Final Order at the hearing

noticed for that purpose on October 20, 2003 at which

Jaffe failed to appear, Jaffe filed a Motion to Vacate said

Order. In this Motion to Vacate, Jaffe does not raise

any new matter; rather he merely reasserts arguments

previously considered and rejected by this Court. Jaffe

initiated the hearing for November 10, 2003 and

noticed counsel for Landess to be present whereupon

counsel for Landess brought on the Motion for

Sanctions. The Court finds that Jaffe lacked any good

faith basis for filing the Motion to Vacate or bringing it

on for hearing;

Upon the basis of the foregoing findings, the

Court amends its Final Order dated October 20, 2003 to

delete its denial of Landess' Motion for Sanctions and

Motion to Compel and for Sanctions and hereby

awards sanctions pursuant to Virginia Code § 8.01-

App. V-4

271.1 and Rule 4:12(c) against plaintiff Allen V. Jaffe in

the amount of $350.00 plus court reporter fees.

Judgment shall be entered in favor of defendant

Ronald M. Landess in such amount including

judgment interest from the date of this Order until

payment is made. Jaffe's: Motion to Vacate said Final

Order is denied. In all other respects, the Final Order

entered on October 20, 2003 is affirmed and shall be the

final judgment of this Court.

ENTER: November 10, 2003

/s/

JUDGE

LAskFerFthis—Objected to as to Amount.

/s/ John R. Walk

John R. Walk (VSB No. 19697)

-HIRSCHLER FLEISCHER

701 East Byrd Street (23219)

Post Office Box 500

Richmond, Virginia 23218-0500

Phone: (804) 771-9519

Fax: (804) 644-0957

Seen and Objected to:

/s/ Allen V. Jaffe

Allen V. Jane, pro se

3211 Fox Chase Drive

Midlothian, Virginia 23112

App. W-1

VIRGINIA:

In the Supreme Court of Virginia held at the

Supreme Court Building in the City of Richmond on

Wednesday the 9th day of June, 2004.

Allen v. Jaffe,

Appellant,

against Record No. 040297

Circuit court No. CL02-1729

Ronald Mark Landess, DPM,

Appellee.

[ENTERED: JUNE 9, 2004]

From the Circuit Court of Henrico County

Upon review of the record in this case and

consideration of the argument submitted in support of

and in opposition to the granting of an appeal, the

Court is of opinion there is no reversible error in the

judgment complained of. Accordingly, the Court

refuses the petition for appeal.

A Copy,

Teste:

Patricia H. Krueger, Clerk

By: /s/

Deputy Clerk

App. X-1

VIRGINIA:

In the Supreme Court of Virginia held at the

Supreme Court Building in the City of Richmond on Friday

the 1st day of October, 2004.

Allen V. Jaffe,

Appellant,

against Record No. 040297

Circuit Court No. CL02-1729

Ronald Mark Landess, DPM,

Appellee.

[ENTERED: OCTOBER 1, 2004]

Upon a Petition for Rehearing

On consideration of the petition of the appellant

to set aside the judgment rendered herein on the 9th

day of June, 2004 and gvant a rehearing thereof, the

prayer of the said petition is denied.

A Copy,

Teste:

/s/

Clerk