# Petition for Writ of Certiorari — Pace v. Mortgage Investors, Inc.

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1999
- **Citation:** 528 U.S. 816

## Text

Supreme Court, U.S
FILED

/ 981890 FEB 16 09,

OFFICE OF THE CLERK
In The

Supreme Court of the United States

October Term 1998

OCIE L. PACE SR., LARRY D. SIMPSON, RUBY J. PACE

Petitioners
(Pro se litigants)
VS.
MORTGAGE INVESTORS, INC.
Respondents

On Petition for Writ of Certiorari
United States Court of Appeals for the Eleventh Circuit

PETITION FOR WRIT OF CERTIORARI

OCIE L. PACE, SR.
LARRY D. SIMPSON
RUBY J. PACE
5100 Main St.
Booker Hgts
Mulga, Ala 35118
Ph. (205) 781-3446

(1.)

(3.)

(4.)

(5.)

QUESTIONS PRESENTED
Where Respondents, Mortgage Investors, has through the filing of
their complaint, in Ala. Circuit Court, clearly has violated the State
of Ala. Procedural Laws. (set by statue) can and does the 30
(thirty) day rule apply, where Respondents has violated and not
complied with State Law? Never invoking the Statue, nor

establishing jurisdiction of the Court.

Whether the U.S. Court of Appeals errored in deciding that said
Appeals Court, did not have jurisdiction over said matter, where
there are federal/ and Constitutional questions to be resolved?
Issues that can stand alone and cannot be resolved in State Court,

creating a Pendent Jurisdiction (See U.S. Title 28§ 1376).

Whether the case Stage Door Development, Inc. v Broadcast
music, Inc. 698 So. 2nd 787 Ala. Civ. App. 1997, is

unconstitutional on its face?

Can a party having a proprietary interest, have the right, to
negotiate and confirm a contract but not have the right to defend

said contract?

Can a party loose it’s property rights, because they are not apart of

a specific bar association?

li
(6.) Can a judicial system (state), arbitrarily allow a party to defend it’s

property rights in one court, but not in another court? Due to the

ruling of Stage Door Development, Inc. v Broadcasi Music, Inc.

(7.) Can Respondents obtain legal possession of property, listed on
their complaint, where Petitioners nor Respondents have no legal

interest therein?

(8.) Can and does the 30 day rule apply, where respondents has

committed fraud against petitioners.

il

LIST OF PARTIES

All parties do not appear in the caption of the case on the cover page. A
list of all parties to the proceeding in the court whose judgement is the

subject of this petition is as follows:

(1.) Frank Galloway III
11 Oak Street
Birmingham, AL 35213

(2.) James W. Davis
1211 28th Street So.
Birmingham, AL 35205

(3.) Phil Corley
1211 28th Street So.
Birmingham, AL 35205

(4.) Alan C. Keith
3525 Lorna Ridge Drive, Suite 110
Birmingham, AL 35216

iv

TABLE OF CONTENTS

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Index to Appendices

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(3.)

~~ TABLE OF AUTHORITIES
CASES CITED

Alabama Rules of Civil Procedure (12-11-30) Karrh v Crawford
Inc., 468 So. 2nd 175 (Ala. Civ. App. 1985)

Stage Door Development, Inc. v Broadcast Music, Inc. 698 So.
2nd 787 Civ. App. 1997

Ala. Rules of Civil Procedure (12-11-31)

l
OPINIONS BELOW

Petitioners respectfully prays that a writ of certiorari issue to review the
judgement below:

For cases from federal courts:

The opinion of the United States Court of Appeals appears at Appendix A.
to the petition and is published.

The opinion of the United States District Court appears at Appendix B. to
the petition and is published.

The opinion of the United States District Court for reconsideration, appears
at Appendix C, to the petition and is published.

The Statue of the Ala. Rule of Civil Procedure § 12-11-30 appears at
Appendix D. to the petition.

The case Stage Door Development, Inc. v Broadcast Music, Inc. appears at
Appendix E. to the petition.

The Statute of Ala. Rule of Civil Procedure 12-11-31 appears at Appendix

F. to the petition.

2
STATEMENT OF THE JURISDICTION

The Judgement of the Eleventh Circuit was entered on January 26, 1999.

This Court has jurisdictions under 28 U.S.C. § 1254 (1).

Jurisdiction of the Eleventh Circuit was proper pursuant to the Removal

Statute 1446 C, Truth and Lending Act, and Title U.S.C. 28 § 1367 Supple-

mental Jurisdiction (Pendent).
CONSTITUTIONAL PROVISIONS AND STATUTES

FEDERAL

(1.) Truth and Lending Act. Title 15-1601; Title 15-1641 Sec., 15-1692
Subchapter V. Debt Collection Practices; 15-1692 and Title 28-
1441 note 119.

(2.) 14th Amendment of the U.S. Constitution.

(3.) Supplemental Jurisdiction Title U.S.C. 28 § 1367

STATE

(1.) Ala. Rules of Civil Procedure (12-1'1-30).

3
(2.) Ala. Rules of Civil Procedure (12-11-31).

STATEMENT OF THE CASE

The fundamental questions is whether the 30 day rule (pursuant to 28
U.S.C. 1446 (b)), regarding a removal request by Petitioners. Can the 30
day rule apply, where Respondents hav~ violated, and not complied with

the State of Alabama Court filing procedure laws. Never invoking the

Statute, nor establishing jurisdiction of the State Circuit Court, and whether
the U.S. Court of Appeals Eleventh Circuit, did not have jurisdiction,
where there are federal and constitutional questions, (The case Stage Door
Development and Truth and lending violation), to be resolved, that cannot
be adjudicated in State Court, thus creating a “Pendent” jurisdiction.
Congress cites here a special remand problem, that can arise, involving the

doctrine of Supplemental Jurisdiction (Pendent)

REASONS FOR GRANTING THE WRIT

Petitioner believes that the Writ of Certiorari should be granted for the

following reasons:

(1.) Not granting the Writ shall result in irreparable harm to Petitioner

(2.) Not granting the Writ shall result in unjust enrichment for Respon-

dent. Where Respondents has clearly violated the Truth and

(3.)

(4.)

(5.)

(6.)

(7.)

4

Lending Laws, and has committed fraud against said Petitioners.

Legitimate Federal and Constitutional issues, that cannot legally be

adjudicated in State Court, shall not be abjudicated.

The denial shall result in Petitioners being denied Due Process and

Equal Protection under the law.

A ruling that tends to be unconstitutional on its face (Stage Door
Development, Inc. v Broadcast Music, Inc.) shall be allowed to

stand.

The Stage Door Development case, shall have a chilling affect on

contractual relations, and shall interfere with Interstate Commerce.
The doctrine of Pendent jurisdiction, set by congress, shall not be
considered by said court, where the 30 day rule, as determined by

congress, should be set aside.

CONCLUSION

The Petitioners for a Writ of Ceriorari should be granted.

Respectfully Submitted,

5
(1. LHe

Ocie L. Pace
Ws | an at
r

Larry D. Si pson

OAM
Ruby J. Pa y

6
APPENDIX A.

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

No. 98-6465

MORTGAGE INVESTORS, INC.,
. Plaintiff - Appellee
versus

RUBY J. PACE
Defendent - Appellant

Appeal from the United States District

Court for the Northern District of Alabama
Before T. Joflat, Edmondson and Dubina, Circuit Judges, by the Court

This appeal is Dismissed for lack of jurisdiction. The district
court’s May 29, 1998, remand order was based upon the district court’s
determination that “this action was removed in excess of 30 days after the
defendants received a copy of the complaint.” Accordingly, the order is not
reviewable by appeal or otherwise. See 28 U.S.C. § 1447 (d); Things
Remembered, Inc. v. Petrarca, 516 U.S.C. 124, 124, 116 S. Ct. 494, 495,
133 L. Ed. 2nd. 461 (1995), Thermtron Products, Inc. v. Hermansdofer,
423 U.S.C. 336, 96, S. Ct. 584, 46 L. Ed. 2nd. 542 (1976); Ariail Drug Co.,
Inc. v. Recomm International Display, Inc., 122 F. 3d. 930, 933, (11th Cir.
1997)

:
APPENDIX B

In the United States District Court for the
Northern District of Alabama

Southern Division

Mortgage Investors, Inc.
Plaintiff Civil Action No. 98-G-1200-S

Vv

Booker Heights Development Entered May 29, 1998
Corp., Inc., Ruby J. Pace

Defendent

el

Remand Order

A review of the state court pleadings indicates that this action was removed
in excess of 30 days after defendants receive a copy of the complaint. The
motions to dismiss filed in state court by the defendants on February 19,
1999. demonstrate that the defendants had received a copy of the com-
plaint. Accordingly, the action is due to be remanded pursuant to 28 U.S.C.
§ 1446 (b). See Michettie Pipe Stringing v. Murphy Bros., 125 F.3d 1396,
1398 (11th Cir. 1997) (Thirty-day removal period begins to run when
defendant actually receives a copy of filed initial pleading by any means).
Therefore, it is ordered, adjudged and decreed that this action be and it

hereby is remanded to the state court from which it was removed.

8

Done and Ordered this 29th day of May 1998.

(s) me A Lay Cun Sr:

United States District Judge

J. Foy Guin, Jr.
Done and Ordered this 24th day of June 1998

9
APPENDIX C.

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

Mortgage Investors, Inc.
Plaintiff Civil Action No. 98-G-1200-S
Vv

Booker Heights Development Entered June 29, 1998
Corp., Inc., Ruby J. Pace

Defendant

i a ee a ee a ee

Order

This cause is before the court upon the motion of defendants to
reconsider remand. Having considered the motion and applicable law, the
court is of the opinion that it lacks jurisdiction to recgnsider its remand
order. (See First Union National Bank v Hall, 123 F. 3d 1374, 1377-78
(11th Cir. 1993) and cases cited therein) Accordingly, it is ordered, ad-
judged and decreed that the material attached to defendants’ motion
(including a pleading denominated “complaint”), the defendants’ answer
[Doc. #71], the defendants’ motion to stay all proceeding [Doc #8], and the
pleading style “Re: Request to stay all proceedings [Doc #9], he and they

hereby are stricken; the action having been remanded prior to the filing of

10

those pleadings and those pleading having been filed on behalf of a corpo-
ration without legal counsel. It is

Further Ordered that Ocie L. Pace, Larry D. Simpson, and Ruby J.
Pace be and they hereby are Enjoined from filing any further pleadings on
behalf of Booker Heights Development Corp., Inc. in Civil Action No. 98-
G-1200-S.

This action has been remanded and jurisdiction is exclusively with

the state court in Civil Action No. 97-454. The Clerk is directed to deliver a
copy of this to the Circuit Court of Jefferson County, Bessemer Divisions,

Done and Ordered this 24th day of June 1998

ks Pay Guiry Sr.

United States District Judge
J. Foy Guin, Jr.

1]

APPENDIX D.
Article 2
Jurisdiction

§ 12-11-30

(1.) Civil-The circuit court shall have exclusive original jurisdiction of
all civil actions in which the matter in controversy exceeds ten thousand
dollars ($10,000), exclusive of interest and costs, and shall exercise origi-
nal jurisdiction concurrent with district court in all civil action in which the
matter in controversy exceeds one thousands five hundred dollars ($1,500),

exclusive of interest and costs.

Amount in Controversy determined by amount asked for in complaint -
The amount in controversy for the purposes of determining whether a case
can be brought in Circuit Court is determined by the amount asked in the
complaint. Karrh v Crawford - Sturgeons Ins., Inc., 468 So. 2nd 175 (Ala.
Civ. App. 1985)

12
APPENDIX E.

Cite as 698 So. 2nd. 787 (Ala. Civ. 1999)
Stage Door Development, Inc.
V
Broadcast Music, Inc.
2960378
Court of Civil Appeals of Alabama
May 23, 1997

Following proceedings in the Dale Circuit Court, Charles L.
Woods, Jr., sole stockholder of closely held corporation, who was not
licensed to practice law, sought permission to represent appellant corpora-
tion on appeal. Although the Court of Civil Appeals denied request, stock-
holder filed brief on behalf of corporation. The Court of Civil Appeals,
Crawley, J. held that appeal would be dismissed because Court, in essence,
received no brief from appellant.

Appeal dismissed.

Robertson, P.J. filed dissenting opinion.

(1.) Attorney and Client 11 (2.1)
One who is not attorney may not appear as advocate on behalf of

corporation, even one he wholly owns, without engaging in unauthorized

practice of law. Code 1975, § 34-3-6 (b)(1).

13
APPENDIX F.

12-11-31 Equitable jurisdiction

(a) The district court shall, exercise exclusive jurisdiction over all civil
actions in which the matter in controversy, exclusive of interest and costs,
does not exceed $1,500. These actions shall be processed according to
uniform rules of (simplified civil) procedures as may be promulgated by

the Supreme Court.

(b) A party including an individual, partnership, or corporation, may
appear in cases on the small claims docket of district court with or without
representation by an attorney, the person representing the partnership shall
be a partner or employee of the partnership, and provided further, that if a
corporation appears without representation by an attorney, the person
representing the corporation shall be an officer or full-time employee of the

corporation.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386005_0874%3A1. Public record. Not legal advice.