# Opposition Brief — Jaffee v. Goodwin

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386003_1551%3A3

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2005
- **Citation:** 543 U.S. 1054

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386003_1551%3A3. Public record. Not legal advice.