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

Ann

041687 JUN 13 2093

OFFICE OF THE CLEnit

IN THE

SUPREME COURT OF THE UNITED STATES

ROBERT M. DAVIDSON and

VANESSA E. KOMAR,

Petitioners

v.

VIVRA INC,

MICHAEL J. MEEHAN,

QUARLES BRADY STREICH LANG LLP,

et al

Respondents

On Petition For Writ Of Certiorari

As to Two Final Judgments of the Ninth Circuit

United States Court of Appeals

PETITION FOR WRIT OF CERTIORARI

ROBERT M. DAVIDSON

Petitioner Pro Se

1009 N. 4" Street, Ste. B

Longview, TX 75601

903-758-1900

i

Preface

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

28 U.S.C. Section 1257, 28 U.S.C. Section 2101(c), and Supreme

Court Rules 10, 12-14, this petition seeks review _on writ of

certiorari to the United States Supreme Court of two final

judgments of the U.S. Court of Appeals Ninth Circuit. These

judgments each draw in question the validity of Rule 5.1 of the

Arizona Rules of Civil Procedure on the ground of being

unconstitutional on its face or as applied. There is a long-

standing split of authority between the circuits regarding the

right to legal counsel in civil lawsuits which urges review by

this Court. Extraordinary circumstances exist which urge

review by this Court. The Petitioners have suffered irreparable

injury.

Questions Presented For Review

1. Should Davidsons’ request for compensatory damages have

precluded dismissal under Younger doctrine?

bo

Was dismissal inappropriate because Davidsons’ allegations

stated a constitutional claim against their privately-

retained attorney and his law firm?

3 Were Davidsons precluded from raising federal law claims

in the state forum?

4. Did withdrawal of counsel in the State Action deprive

Davidsons-of federal constitutional rights?

5. Does the “extraordinary circumstances” exception to

Younger abstention apply?

6. Is Rule 5.1 of the Arizona Rules of Civil Procedure

unconstitutional on its face or as applied to Davidsons?

-l1-

PARTIES TO THE PROCEEDINGS IN THE UNITED STATES

DISTRICT COURT, DISTRICT OF ARIZONA

Petitioners

ROBERT M. DAVIDSON; and

VANESSA E. KOMAR

Respondents

VIVRA INC;

MICHAEL J. MEEHAN;

QUARLES BRADY STREICH LANG LLP;

VIVRA ASTHMA ALLERGY INC;

VIVRA ASTHMA ALLERGY CARE AMERICA

OF ARIZONA PC;

MAGELLAN SPECIALTY HEALTH INC;

ALLIED SPECIALTY CARE SERVICES INC;

VIVRA HOLDINGS INC;

TEXAS PACIFIC GROUP INC;

GAMBRO HEALTHCARE INC;

DIALYSIS HOLDINGS INC;

I-HEALTH TECHNOLOGIES INC;

ALBANY MEDICAL COLLEGE;

JAY GROSSMAN;

EUDICE GROSSMAN;

THOMAS B. EDWARDS;

GAYLE F. PETRILLO;

CHARLES W. OTT;

TIMOTHY G. WIGHTON;

JOHN W. STRACK;

LYNDA L. NESSINGER;

RICHARD M. HASSETT;

JAMES L. SUBLETT; and

LEANNE M. ZUMWALT

NOTICE TO CLERK OF THIS COURT:

It is the Petitioners’ belief that VIVRA INC, MAGELLAN

SPECIALTY HEALTH INC, and ALLIED SPECIALTY CARE

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

the Petition because these defendants ONLY were dismissed

from the appeal by mandate of the 9“ Circuit Court of

Appeals.

ee ee en 7

TABLE OF CONTENTS

GERPPERUSNUED WMRMEEIBOE UES cecccccssteccnsssscncscsscocscsersnnssscceccaseoscns i

PARTIES TO THE PROCEEDING. ..................cccccccccccccoceees ii

I iil

EE TEE. HUEP IRENE TEEN uchsccacnssssnckccpeuscescdostsieiecencasenses iv

RRS Sa a nee EP ER Vv

CITATIONS TO OPINIONS AND ORDERS Ee l

STATEMENT OF JURISDICTION .......................cccccccccceeeeee 1

RELEVANT CONSTITUTIONAL PROVISIONS ........00000....... 2

ge ge ES keene 2

ARGUMENT FOR ALLOWANCE OF WRIT ........................ 7

I. Davidsons’ request for compensatory damages

should have precluded dismissal under Younger

TIN hhindiakdnaebebahasebuhdiindnembadeeeiarabuatebsabasesnecsblitieies 7

Il. Dismissal was inappropriate because Davidsons’

allegations stated a constitutional claim

against their privately-retained attorney

a oe 8

III. Davidsons were precluded from raising federal

law claims in the state forum ...................cccccccsceeceees 15

IV. Withdrawal of counsel in the State Action

deprived Davidsons of federal constitutional

ESSE IRE RCE ua sR eo a ee 20

IV. The “extraordinary circumstances” exception

to Younger abstention applies .................ccccecceceeee 22

V. Rule 5.1 of the Arizona Rules of Civil

Procedure is unconstitutional on its face or as

IIE OLN AER TTPTOE TS 23

I ihc kn dire a sla ondniesiacraaalaabainnibseaadambabacs: 29

REE Oe a a ta App.1

-IV-

TABLE OF AUTHORITIES

CASES

Younger v. Harris, 401 U.S. 37 (1971) 5,20

Gilbertson v Albright, 381 F.3d 965 8

Canatella v. California, 404 F.3d 1106 - 8

Pugliano v. Staziak, 231 F. Supp. 347 10

Briley v. State of Cal., 564 F.2d 849 10,11,13

Minns v. Paul, 542 F.2d 899 11

Carruth v. Geddes, 443 F. Supp. 1295 13

Fidelity Natl. Title Co. v. Intercounty

Natl. Title Co.,310 F.3d 537 13

Parratt v. Taylor, 101 S.Ct. 1908 13

Whiting v. Lacara, 187 F.3d 317 14

Richardson-Merrell Inc. v. Koller,

105 S.Ct. 2757 14

Lebbos v. Judges of Superior Court,

883 F.2d 810 19

Dubinka v. Judges of Superior Court,

23 F.3d 218 20

Martin-Marietta Corp. v. Bendix Corp.,

690 F.2d 558 22

Thomas v. Fiedler, 700 ¥. Supp. 1527 22

U.S. v. Sardone, 94 F.3d 1233 23

Hedges v.Resolution Trust Corp., :

32 F.3d 1360 . 23 4

City of Houston, Tex. v. Hill,

482 U.S. 451 (1987) 25

ee

-]V-

CONSTITUTION AND STATUTES

28 USC Section 1254 1

28 USC Section 1651 | 1

28 USC Section 1257 1

28 USC Section 2101 (c) 1

28 USC Section 1257 1

28 USC Section 2101 (e) 1

18 USC Section 1964 (a) and (c) , 3,8

18 USC Section 1962 (b), (c), and (d) 3

18 USC Section 1951 19

28 USC Section 1331 5

28 USC Section 1367 5

Fed. R. Civ. P., Rule 8 4,5

Prescription Drug User Fee Act 6,17-20,23

Ariz. R. Civ. P., Rule 5.1 3,7,9-11,14,16,21-30

Ariz. R. Civ. P., Rule 13, 15, 19 16

U.S. Supreme Court Rules 10, 12-14 1

U.S. Const., Amend. V 21,24

-iv-

U.S. Const., Amend VI 21,24 ~

U.S. Const., Amend XIV 21,24

U.S. Const., Article I, Section 8 @ 2

U.S. Const., Article I, Section 10 (1) 21,24

18 USC Section 1964 (a) and (c) 8

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

42 USC Section 1983, 1985, 1988 8,11,14,22 |

MISCELLANEOUS |

Arizona Civil Rules Handbook, 2002 Edition, 26

by Daniel J. McAuliffe, at page 85

15 Am. Jur 2“ Civil Rights Section 72,

Richard B. Gallagher, et al. 9

44 A.L.R. Fed. 547, Ethel R. Alston 10

36 A.L.R. Fed. 594, at pg 18 , Catherine

R. Lazuran 14

-V-

APPENDIX

APPENDIX A: Final Judgment and Memorandum Decision

of April 4, 2005, from Ninth Circuit U.S. Court of Appeals

PE Ferenc ctsancccncncnvnsindtinsctsinstatnnintnniniasenstnitnniiascnitnainn App. 1

APPENDIX B: Final Judgment and Memorandum Decision

of April 4, 2005, from Ninth Circuit U.S. Court of Appeals

Pe cnncccncnéecncnccnssecnisesmssnsemnssenpniniepensestsctnimntenibies App. 4

APPENDIX C: Final Judgment of November 26, 2004, from

Pima County Superior Court, Case No.C333954.......... App. 7

APPENDIX D: Mandate of Arizona Court of Appeals of

November 26, 2003, (# 2 CA-CV 2002-0051)................. App. 9

APPENDIX E: Ariz. R. Civ. P., Rule 5.1 (A)(2)

Sy ANTI TITIES sstcsictcsscinlpsendeeeseiitlociesidieeaieesdnieainstasuiabaipagntnicpiieniaiidd App. 10

APPENDIX F: Order, November 24, 2003, U.S. District

Court, Arizona District, Docket No. 56, Civil Case

PE et inc ceenscensedesensssnestanensiscpiccsiohmsapsniacenes App. 11

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

Arizona District, Docket No. 9, Civil Case

Be rcninninaninsisenttneeidindnitiamaistiieaiedinmaintiiand App.15

APPENDIX H: Minute Entry, In Chambers Ruling, File

Stamp Date: April 29, 2004, Pima County Superior Court,

Case No. C333954............ cciaisavdeicnehnenaeneeianiiiecant App. 20

APPENDIX I: Memorandum Decision, Appeal Dismissed,

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

CD Re, Fe CAT Ser i niccnscncesesunsntntonssecencenvasonvensnns App. 23

APPENDIX J: Order, Arizona Supreme Court re: action

taken August 8, 2003; ORDERED: Petition for Review to

Supreme Court = DENIED. FURTHER ORDERED: Request

for Attorneys’ Fees [Appellees Grossman] = GRANTED,

Arizona Supreme Court Case No. CV-03-0148-PR...... App. 27

APPENDIX K: Copy of 9“ Circuit ORDER: case is dismissed

as to appellees Vivra Inc, Magellan Specialty Health Inc, and

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

I IOS SID Ge ccnesicenctnicccsnntcsanttcniesstentenesnstnets App. 28

l

CITATIONS TO OPINIONS AND ORDERS BELOW

1. Final Judgment and Memorandum Decision of April 4, 2005,

from Ninth Circuit U.S. Court of Appeals (# 03-17342)

2. Final Judgment and Memorandum Decision of April 4, 2005,

from Ninth Circuit U.S. Court of Appeals (# 04-15304)

3. Final Judgment of November 26, 2004, from Pima County

Superior Court, Case No. C333954

4. Mandate of Arizona Court of Appeals of November 26, 2003

(# 2 CA-CV 2002-0051)

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

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

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

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

7. Minute Entry Order , April 29, 2004, In Chambers Ruling,

Pima County Superior Court, Case No. C333954

8. Memorandum Decision, Appeal Dismissed, February. 27,

2003, Arizona Court of Appeals, Division Two,

Case No. 2 CA-CV 2002-0051

9. Min En rder of Arizona Supreme Court re: action

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

Court = DENIED. FURTHER ORDERED: Request for Attorneys’

- Fees [Appellees Grossman] = GRANTED, Arizona Supreme Court

Case No. CV-03-0148-PR

10. Certified Copy of 9" Circuit Mandate: case is dismissed as to

appellees Vivra Inc, Magellan Specialty Health Inc, and Allied

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

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

00110-FRZ, Docket # 61 entered on April 16, 2004. ©

I D NIN U. ME T

This petition is filed under 28 U S.C. Section 1254, 28 U.S.C.

Section 1651, 28 U.S.C. Section 1257, 28 U.S.C. Section 2101(c),

and Supreme Court Rules 10, 12-14.

Two final judgments sought to be reviewed were entered by the

U.S. Court of Appeals, Ninth Circuit, on April 4, 2005, (03-17342),

and on April 4, 2005, (04-15304). This petition is filed under this

Court’s Rule 10 and 28 U.S.C. Section 2101 (c).

RELEVANT CONSTITUTIONAL PROVISIONS

The Fifth Amendment of the United States Constitution provides:

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

2

without due process of law; nor shall private property be taken for

public use, without just compensation”.

The Sixth Amendment of the United States Constitution provides:

“In all criminal prosecutions, the accused shall enjoy the righi...to

have the Assistance of Counsel for his defense”.

The Fourteenth Amendment of the United States Constitution

provides: “No state shall deprive any person of life, liberty, or

property, without due process of law, nor deny to any person within

its jurisdiction the equal protection of the laws”.

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

provides:“No State... shall pass any... Law impairing the

Obligation of Contracts”.

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

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

the several states”.

STATEMENT OF THE CASE

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

and his spouse Eudice Grossman (referred to collectively as “the

Grossmans’”) filed a Complaint against Robert M. Davidson, M.D.

and his spouse Vanessa E. Komar, R.N. (referred to collectively as

“the Davidsons”) on July 2, 1999, in Pima County Superior Court

(the “State court proceeding”), alleging defamation and

intentional infliction of emotional distress. On October 13, 1999,

Michael J. Meehan (“MJM”), then of the law firm Meehan and

Associates, entered into an attorney-client relationship with the

Davidsons in connection with the litigation initiated on July 2,

1999. It was agreed by MJM that he would file compulsory

counterclaims of assault and battery (in the workplace) against

the Grossmans. It was further agreed that MJM would bring on

behalf of the Davidsons, such other legally-cognizable causes of

action against the Grossmans, as would be supported by discovery

of the nucleus of operative facts from which the state court

proceeding arose. On April 28,2000, the Davidsons counterclaimed

with charges of assault and battery.

Davidsons retained the legal service of the Law Office of

Kenneth Joel Haber, P.C. on August 30, 2000, to review the

nucleus of operative facts that gave rise to the State court

proceeding, and to opine legally as to whether the Davidsons have

(or at minimum, had) a viable federal civil RICO cause of action.

3

On November 20, 2000, Kenneth Haber provided a copy of their

“Prosecution Memorandum” to the Davidsons.

This Court may take judicial notice of the Prosecution

Memorandum of November 290, 2000, provided by Kenneth Haber

to the Davidsons. This is a document of readily verifiable

authenticity which provides this Court with prima facie evidence

that the Grossmans’ filing of the State court proceeding and

MJM’s filing of the Motion to Withdraw as counsel of record in the

State court proceeding, were both motivated by bad faith. See

Motion for Judicial Notice of Prosecution Memorandum, on June

11, 2004, in Ninth Circuit Case 04-15304.

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

Brady Streich Lang (“QBSL”), filed Notice of Change of Law Firm

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

before the scheduled trial date in the State court proceeding, MJM

and QBSL filed Motion to Withdraw as Counsel of Record and

Continue Trial in the State court proceeding, citing Ariz. R. Civ.

P. Rule 5.1 (A)(2) (B) as statutory authority for their motion to

withdraw. On or about January 11, 2002, the Trial Court Ordered

that attorney withdrawal and continuance of the State court

proceeding is granted. On or about February 11, 2002, the

Davidsons (proceeding pro se), filed an interlocutory appeal to the

Arizona Court of Appeals citing deprivation of fundamental rights

by the Trial Judge’s Order of January 11, 2002, including the

rights of Due Process and Equal Protection under the 14”

Amendment of the U.S. Constitution.

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

Davidsons (again proceeding pro se) filed Plaintiffs’ Original

Complaint with the U.S. District Court, Arizona District, on

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

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

claims, for conspiracy to defraud the Davidsons, study subjects,

practice patients, and the United States, against 22 named

corporate and individual defendants, alleging 21 counts. On April

30, 2003, the Davidsons filed their First Amended Complaint

against the same 22 named defendants, alleging 17 counts.

On June 6, 2003, defendants Grossman appeared and filed

“Defendants Jay and Eudice Grossman’s Motion to Dismiss

Pursuant to Rule 8, Federal Rules of Civil Procedure.”

kes aha ae Bb ach ty ee

4

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

Magellan Specialty Health Inc, Allied Specialty Care Services

(referred to collectively as the “Magellan defendants”) by the filing

of the Magellan defendants’ Notice of filing Chapter 11

Bankruptcy (Chapter 11 was filed on March 11, 2003, in the U.S.

Bankruptcy Court, Southern District of New York).

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

Grossmans’ Motion to Dismiss Pursuant to Rule 8 based on the

Court’s finding “that the prolixity of the First Amended complaint

renders the pleading incomprehensible.” The Davidsons were

granted leave to file a Second Amended Complaint upon the lifting

of the automatic stay in compliance with the pleading

requirements of the Federal Rules of Civil Procedure and in

accordance with the provisions of the court’s Order. It was

further ordered that Defendants Vivra Inc, Magellan Specialty

Health Inc, and Allied specialty Care Services LLC shall file a

Petition to Lift Automatic Stay upon a final determination of

the bankruptcy proceedings. It was further ordered that the

Davidsons are granted leave to file a Second Amended Complaint

in compliance with the pleading requirements of the Federal

Rules of Civil Procedure on or before 30 days from the date of

the filing of the Petition to Lift Automatic Stay and to serve

it upon defendants in accordance with the Federal Rules of Civil

Procedure.

The Davidsons were absolutely prevented from filing a Second

Amended Complaint in the Federal court proceeding until 30 days

after the Magellan defendants filed a Petition to Lift the

Automatic Stay. Not only was the Magellan defendants’ petition

not forth-coming, the Automatic Stay was replaced by a

permanent injunction after their Discharge Confirmation in U.S.

Bankruptcy Court. Other than filing a Motion for Preliminary

Injunctive Relief to the U.S. District Court, the Davidsons had no

legal remedy which would allow them to ever file a Second

Amended. Complaint in the federal court proceeding. The Trial

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

proceeding without prejudice under FRCP Rule 8, had the same

effect as a dismissal with prejudice as to all of the defendants, yet

it was not appealable as a final judgment.

5

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

or about October 21, 2003, the Davidsons asserted that the

holdings of the Arizona Court of Appeals in Memorandum

Decision of February 27, 2003 and Arizona Supreme Court on

August 8, 2003, in Denying the Davidsons’ Petition for Review,

caused irreparable injury to the Davidsons. Davidsons asked that

the State court proceeding be preliminarily stayed and that the

interlocutory award of costs and attorney’s fees awarded by the

Arizona Court of Appeals and Supreme court be stayed pending

final adjudication of the Federal court proceeding. On November

24, 2003, the district court dismissed the case pursuant to

Younger v. Harris, 401 U.S. 37 (1971), denied all other pending

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

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

Notice of Appeal.

Davidsons filed Plaintiffs’ Original Complaint & Application

for Injunctive Reiief against Defendant Michael J. Meehan and

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

under 28 U.S.C. Section 1331 and 28 U.S.C. Section 1367 for

Breach of Fiduciary Duty, Professional Negligence, and Legal

Malpractice. MJM and QBSL filed Motion to Dismiss on

December 22, 2003. Davidsons responded by filing Objection to

Motion to Dismiss on January 13, 2004. MJM and QBSL

responded by filing Reply to Objection to Motion to Dismiss on

January 27, 2004. U.S. District Court Trial Judge Frank R.

Zapata, the same trial judge who had previously dismissed the

Davidsons’ federal cause of action (Davidson et al v. Vivra Inc, et

al) under the Younger abstention doctrine, ordered and adjudged

on February 2, 2004, that the Motion to Dismiss is Granted in

Davidsons’ federal cause of action (Davidson et al v. Meehan et al),

again citing the Younger abstention doctrine. Davidsons timely-

filed Notice of Appeal on February 10, 2004.

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

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

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

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

dismissal with prejudice (under Younger doctrine) of the federal

court proceedings, because these additional counterclaims “arose

out of the conduct, transaction, or occurrence set forth or attempted

i Eth Sip AERA AEB PRA:

EW AAR AS ied ila AEA aha MN la ons

6

to be set forth in the original pleading.” Davidsons’ counterclaims

of assault and battery in the State court proceeding represent two

of the Hobbs Act violations alleged in the federal court proceeding.

Davidsons have alleged that these Hobbs Act violations comprise

part of the patt of _r teering activity in the federal court

proceeding.

Unsigned Minute Entry Orders are not appealable under

Arizona law. The State court’s denial of Davidsons’ motion to

amend their answer to add counterclaims and parties and

defendants’ motion to enlarge the time to comply with rule 26.1

and to extend the discovery deadline, represents a total denial of a

state forum in which to “pursue the issues presented” and “raise

constitutional challenges” and directly refutes Trial Judge Frank

R. Zapata’s underlying assumption, that the State court

proceeding provides Davidsons with an adequate state forum: in

which to pursue the issues presented.

Neither the Arizona court of Appeals, nor the Arizona

Supreme Court reached the federal Constitutional issues

concerning Arizona Rule 5.1 raised by Davidsons on interlocutory

appeal. See Appendix I and J to this Petition. With the filing of

the Minute Entry Order of April 29, 2004, Davidsons have now

been denied a legal remedy in the state trial court for federal

Constitutional injuries under color of Arizona Rule 5.1 and the

Prescription Drug User Fee Act, in both the Federal court

proceedings and in the State court proceeding. See Appendix H to

this Petition. Short of starting over, and filing a new, standalone

complaint in the state trial court, which would be highly

inefficient, Davidsons now have no forum whatsoever, either state

or federal, in which to timely raise their federal Constitutional

concerns. Res judicata, collateral estoppel, and statutes of

limitations, are now very relevant considerations, since there are

presently final judgments in the state trial court, federal district

court, and U.S. Court of Appeals. By inappropriately dismissing

Davidsons’ federal court proceedings under the Younger

abstention doctrine, the Trial Judge (Frank R. Zapata) has

wrought irreparable harm (constitutional deprivation and actual

damages) to the Davidsons. See Appendix F and G.

-

ARGUMENT IN SUPPORT OF WRIT

There was no timely remedy available to the Petitioners [the

Davidsons], either state or federal, for federal constitutional

deprivation sustained under color of Arizona Rule 5.1 and the

Prescription Drug User Fee Act. Davidsons have sustained

irreparable injury (actual damages) by reason of the willful

misconduct of the federal court defendants, acting in concert. The

“extraordinary circumstances” exception to Younger abstention

applies. See Appendix C and D to this Petition.

The federal question as to whether the Prescription Drug User

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

imperative public importance. The PDUFA has ongoing, direct,

and substantial affect upon public health, safety, and interstate

commerce. Application of the PDUFA to Davidsons, by concerted

action of the Federal Actors, was motivated by invidiously

discriminatory animus. See Davidsons’ Petition for Writ of

Certiorari before Judgment (U.S. Supreme Court Case 04-537,

cert. denied) filed on September 17, 2004.

Arizona regularly enforces a facially unconstitutional statute

(Arizona Rule 5.1). Application of Arizona Rule 5.1 to Davidsons,

by concerted action of the State Actors, was motivated by

invidiously discriminatory animus. The Younger doctrine allows

intervention where the challenged statute is flagrantly and

patently violative of express constitutional prohibitions.

Davidsons’ federal cause of action sounds, in substantial

measure, on federal constitutional deprivations under 42 USC

Section 1983, Section 1985, and Section 1988, the “expressly

authorized” exception to the anti-injunction act. The final

judgments of the U.S. District Court dismissing the Davidsons’

federal causes of action [in both federal court proceedings CV-03-

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

clearly erroneous.

) & Davidsons’ uest for compensato amages should

have luded dismi under Younger doctrine

Davidsons requested compensatory and punitive damages in

their Original Complaint to the U.S. District Court against MJM

and QBSL. Davidsons also requested compensatory and punitive

damages in their Original and First Amended Complaint to the

U.S. District Court against Vivra Inc, et al. In both federal court

Te ee ee ee TE Se Le eee er ee ea

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a teats -

8

proceedings, Davidsons’ request for compensatory damages

precludes dismissal under the Younger doctrine for the reasons

found in Gilbertson v. Albright, 381 F.3d 965. (“The principle that

Younger abstention precludes, but does not délay, federal litigation

applies when discretionary relief is at issue, but not when damages

are; when damages are at issue, and comity dictates, courts should

defer, rather than dismiss.”) Davidsons claim actual damages

under 18 USC Section 1964 (a) and (c). Davidsons claim actual

damages under 42 USC Section 1983, Section 1985, and Section

1988. Davidsons’ claim for damages distinguishes their cause of

action from that found in Canatella v. California, 404 F.3d 1106.

See Appendix C and D to this Petition.

II. Dismissal _was inappropriate because Davidsons’

allegations stated a constitutional claim against their

privately-retained attorney and his law firm

Davidsons have stated a claim for federal constitutional

deprivation under color of law by MJM, QBSL, the Trial Judge,

and the Grossmans, acting in concert, in the state court

proceeding, under 42 USC Section 1983, 1985, and 1988. Three

situations, in which the act of an ostensibly private person or

entity can be regarded as an act under color of state law, have

been described by courts as those in which (1) the actor in its

conduct exercises powers and performs functions which are

normally executed by the state; (2) the actor in its conduct is

coerced or significantly encouraged by the state, such that the

actor can be deemed a representative of the state; and (3) a

sufficiently close nexus exists between the challenged action and

the state to prove that the action should be regarded as that of the

state. See 15 Am. Jur. 2d Civil Rights Section 72.

The State of Arizona, by its enactment and regular

enforcement of Rule 5.1, Ariz. R. Civ. P., has “intertwined itself in

the very activity [attorney withdrawal] which caused the

Davidsons’ injury.” The Trial Judge Ordered the grant of attorney

withdrawal under color of Arizona Rule 5.1. MJM’s and QBSL’s

Motion to Withdraw cited Rule 5.1 as authority for their motion.

There is an extremely close nexus between the state [the Arizona

Trial Court system] and the challenged action of the regulated

entity [MJM and QBSL]. The action of the latter may be fairly

treated as that of the state itself. The State has insinuated itself

9

into a position of interdependence with MJM and QBSL so that it

is a joint participant in the enterprise. ‘

The Davidsons’ due process rights were violated because the

statutory scheme [rule 5.1] afforded no hearing at all. The

attorney withdrawal was ordered by the Court after motion by

MJM and QBSL [officers of the court], exercising their discretion

in a way encouraged by state law, under color of Rule 5.1. The

attorney withdrawal was ordered by the Court, after motion by

MJM and QBSL [officers of the court] citing authority under rule

5.1 and nonobjection by opposing legal counsel [Karp, Heurlin &

Weiss]. Opposing counsel actually drafted the Trial Judge’s Order.

The Order of the Trial Judge bears the letterhead of opposing

counsel. The Davidsons were the real parties in interest to

attorney withdrawal, not the Grossmans. Both QBSL and MJM

and opposing legal counsel already knew that the Trial Judge

would Order Attorney Withdrawal. Both QBSL/MJM and

opposing legal counsel were so confident of this assertion that

opposing counsel actually drafted the Trial Judge’s Order,

effectively making QBSL, opposing counsel, and the Trial Judge,

state actors, all acting pursuant to Rule 5.1. QBSL’s and MJM’s

Motion to Withdraw was very much a self-fulfilling [pre-ordained]

prophecy, culminated by the Trial Judge’s signature on the

previously written Order [by opposing counsel] and encouraged

and enabled by Rule 5.1, Ariz. R. Civ. P.

There is a causal link between the Davidsons’ injury and the

State’s Action sufficient to support standing under Article III.

The State has exercised “coercive power” or provided such

significant encouragement that “the choice must in law be deemed

to be that of the State.” The State disenfranchised the Davidsons

from their [retained] legal representation without affording

appropriate procedural protections.

There is such a close nexus between the State and the

challenged action that seemingly private behavior may be fairly

treated as that of the State itself. Under the joint participant

theory, governmental body [the Arizona Trial Court system] and

private party [MJM and QBSL] were intertwined in symbiotic

relationship. Relevant facts show pervasive entwinement between

government [Arizona Trial Court system] and ostensibly private

10

organization |[MJM and QBSL] to point of largely overlapping

identity.

State participation in a nominally private activity can result

in a characterization of that activity as “state action” for purposes

of 42 USC Section 1983. Private actors may align themselves so

closely with either state action or state actors that the undertow

pulls them inexorably into the grasp of Section 1983. There is

liability of private parties who conspire with immune officials in

federal civil rights action under 42 USC Section 1983. See 44

A.L.R. Fed. 547.

In Pugliano v. Staziak, 231 F.Supp. 347, the court stated

that, “unless the attorney wronged the [criminal] defendant in

furtherance of a conspiracy participated in by persons acting under

color of state law, the court declared, it would not have jurisdiction

of any suit against him.” MJM and QBSL were not just private

individuals for the purposes of 42 USC Section 1983. They

conspired with each other, the Trial Judge, and the Grossmans, to

deprive the Davidsons of the presently-enjoyed benefit of their

retained legal counsel, just 4 months before the scheduled trial

date, under color of Arizona Rule 5.1.

“There are actions of purported judicial character that a

judge, even when exercising general jurisdiction, is not empowered

to take.” See Briley v. State of Cal., 564 F.2d 849. If we were to

say that jurisdiction existed in order to deprive the Davidsons [or

any other Arizona citizens] of their retained legal counsel without

adherence to the requirements of due process and equal protection

mandated by the Fourteenth Amendment of the USS.

Constitution, we would be sanctioning judicial tyranny from the

bench.

Davidsons’ federal action states a substantial claim a_ substantial claim

r 42 e 1 1 nd 19 ause it seeks

to i ices a deprivation of federal statutory rights secured

by the Constitution and laws of the United States.

Davidsons’ claim of “extraordinary circumstances” is not

rooted only in the claimed Constitutional violation. The Davidsons

have sustained actual damages and irreparable harm. See

Appendix C and D to this Petition. The Constitutional dimension

of the error claimed does not, by itself, constitute an exception to

the application of Younger abstention. The deprivation

11

occurred as the result of some established state procedure

under Arizona Rule 5.1. There was State Action. MJM, QBSL,

Trial Judge, and Grossmans, were all State Actors, who conspired

to deprive the maging of their presently-enjoyed liberty and

property interest in retained legal counsel in the state court

proceeding. Sesbtunet sineneie nak Sihiete beieenes in their

retained legal counsel was not accorded a “legal guarantee

of present enjoyment” under State law.

Davidsons have suffered deprivation of property interest

without due process of law. Davidsons assert invidious

iscrimi 8 I

Davidsons have alleged that MJM and QBSL caused willful i injury

to their clients (the Davidsons) and acted out of malice and bad

motive. Actionable deprivations must be based on “misuse of

power, possessed by virtue of State law and made possible only

because the wrongdoer is clothed with the authority of state law.”

A taking with intent (or reckless disregard) of a claimant’s

property by a State agent violates Due Process clause of

Fourteenth Amendment and is actionable under 42 USC

Section 1983.

In Briley v. State of Cal., the plaintiffs did not assert the

state involvement necessary to transform the private acts of the

hospital and doctors into state action covered by Section 1983. In

the case at bar, however, however, the Davidsons did assert the

state involvement necessary to transform the private acts of MJM,

QBSL, the Trial Judge, and the Grossmans, into state action

covered by Section 1983.

In Minns v. Paul, 542 F.2d 899, the court pointed out that

no facts were alleged in the instant case to indicate that the court-

appointed attorney had exceeded the scope of his function or that

he had intentionally “disregarded” the state prisoner’s rights. In

the Davidsons’ case at bar, however, the Davidsons have alleged

facts to indicate that MJM and QBSL, exceeded the scope of their

function and intentionally “disregarded” the Davidsons’ rights.

Davidsons have alleged facts to indicate that MJM

and QBSL iciousl ned ir_client. d

the trial court so as to be relieved of their professional and

legal responsibility to the Davidsons after “draining” them

of over two years of attorney’s fees and costs, and falsely

sh sts hic spall sal

"ki poh tes.

12

attributed their motion to withdraw as counsel of record to

ethical considerations, when in fact their actual motive

was to conceal their prior knowledge of the substance and

content of the Prosecution Memorandum. The motion to

withdraw was _ intended to permanently deprive the

Davidsons of a legal remedy for the injuries wrought upon

them by the Grossmans and others, acting in concert, and

permanently deprive the Davidsons of their substantial

financial investment in their retained legal counsel (over

two years of a ’s fees and costs

The malicious abandonment took place just 4 months before

the scheduled trial date. At no time during or prior to the “gap

interval”, the interval between the Motion to Withdraw and the

Order granting withdrawal, did the Davidsons have a duty to

retain new legal counsel or, in the alternative, to appear pro se in

the state court proceeding. The Davidsons did not terminate the

attorney-client contractual relationship with MJM and QBSL,

either expressly or by their conduct.

Davidsons have alleged that MJM’s and QBSL’s

conduct was intentionally harmful to the Davidsons, or

otherwise deliberately inconsistent with their obligations to

the Davidsons, so as to be a voluntary excursion outside the

scope of their duties. Liability may attach to MJM, QBSL,

the trial judge, and the Grossmans, under 42 USC Section

1983, 1985, and 1988, when the acts complained of are done

outside the scope of their duty. The Davidsons have established

actual damages as part of their claim. :

The Ninth Circuit broadly construes the scope of judicial

immunity from liability. The Ninth Circuit holdings in the cases

cited in Briley v. State of Cal. are not dispositive here and they are

inapplicable to case at bar. A lawyer and law firm who maliciously

abandon and slander their clients, under color of law, acting in

concert with the trial judge and opposing legal counsel, should be

an exception to the doctrine of judicial immunity. Liability

attaches to MJM, QBSL, the Trial Judge, and Grossmans,

under 42 USC Section 1983, 1985, and 1988, because the acts

complained of were done outside the scope of their duty. See

Carruth v. Geddes, 443 F. Supp. 1295.

13

“A lawyer engaged in strategic conduct forfeits any right to

withdraw.” “One form of strategic behavior is waiting until the

client is over a barrel and then springing a demand for payment.”

MJM and QBSL agreed to strategic conduct against their then

clients prior to filing their Motion to Withdraw. See Fidelity Natl.

Title Co. v. Intercounty Natl. Title Co., 310 F.3d 537. In Fidelity

National Title Insurance Co, v. Intercounty Title, the Court of

Appeals held that denial of attorney’s motion to withdraw was

ym As a matter of coolant ain. julian ro pone

an order disqualifying counsel should turn entirely on client’s

interest. Similarly, a decision to appeal an order granting

withdrawal of counsel should turn entirely on client’s interest. No

conclusive presumption as to “good cause” should be afforded the

withdrawing counsel. Notice and a hearing are required to satisfy

the Fourteenth Amendment procedural due process rights of the

client.

Some kind of hearing is required at some time before the

State finally deprives a person of his property or liberty interest.

See Parratt v. Taylor, 101 S.Ct. 1908. 42 USC Section 1983

affords a “civil remedy” for deprivations of federally protected

rights caused by persons acting under color of state law without

any express requirement of a particular state of mind. The

Prosecution Memorandum provides prima facie evidence that the

Grossmans’ filing of the State court proceeding and MJM’s and

QBSL’s filing of the Motion to Withdraw as counsel of record in

the State court proceeding, were both motivated by bad faith (evil

intent). See Motion for Judicial Notice of Prosecution

Memorandum, on June 11, 2004, in Ninth Circuit Case 04-15304.

For the purposes of 42 USC Section 1983, an attorney does

not act under color of state law “when performing a lawyer's

traditional functions” as counsel to defendant in a [criminal]

ee See 36 A.L.R. Fed. 594, at page 18. ee

14

act “on behalf of the clients [Davidsons] in the historical

and traditional manner”. MJM and QBSL clothed their Motion

to Withdraw with the authority of State law (Arizona Rule 5.1),

and the trial judge and opposing legal counsel for Grossmans,

agreed that MJM and QBSL should be granted withdrawal.

In Whiting v. Lacara, 187 F.3d 317, the collateral order

doctrine permits appeal from an order denying leave to withdraw

as counsel. In the case at bar, however, the same reasoning under

the collateral order doctrine permits appeal from an order

granting leave to withdraw as counsel. An order granting

withdrawal “affects the clients forced to proceed without the

presently-enjoyed benefit of their retained legal counsel in a civil

proceeding.” The injury to the clients [the Davidsons] is

irreparable. Now that a “final” judgment has been entered by the

Trial Judge in the state court proceeding, the harm to clients [the

Davidsons] is complete, and it is doubtful that relief can be

obtained on appeal. A litigant’s right to retain an attorney of

choice can be protected on review of final judgment if appellate

courts are willing when necessary to set aside verdicts, even when

they result from lengthy civil proceedings. See Richardson-Merrell

Inc v. Koller, 105 S.Ct. 2757 at pages 15-16.

Davidsons detrimentally relied upon the _ intentional

misrepresentation found in a letter of January 15, 2001, from

MJM to the Davidsons, which states, “J do not expect this [his

change in law firm] to affect or impair in any way my ability to

continue effective representation for you.” MJM and QBSL

maliciously breached their contractual and fiduciary relationship

with the Davidsons in their Motion to Withdraw. In their Motion

to Withdraw, MJM and QBSL maliciously abandoned and

slandered the Davidsons and defrauded the Trial Court.

If it can be shown on appeal of a final judgment on the

merits of a case that a party was prejudiced by the denial of a

disqualification motion, there would be a remedy in a reversal and

a new trial. Similarly, the Davidsons argue that if it can be shown

on the appeal of a final judgment on the merits of a case that a

party was prejudiced by the granting of an attorney withdrawal

motion, there would be a remedy in a reversal and a new trial.

However, the “final” Judgment in the case at bar never reached

15

the merits of Davidsons’ case, much less reaching their

Constitutional concerns.

Default Judgment ordered in favor of the Grossmans for

$7,849,031.27 (plus interest at 10% per annum) firmly establishes

that the Order of January 11, 2002, granting attorney withdrawal

prejudiced the Davidsons’ cause of action. This default judgment

also struck the Davidsons’ counterclaims in the state court

proceeding, without r i ri t nd

to Withdraw represents malicious abandonment pal slander of

their clients (the Davidsons), breach of contract, breach of

fiduciary duty, and fraud upon the court.

III. Davidsons w 1 raisi f law

claims in the state forum

The Minute Entry Order of April 29, 2004, makes a mockery of

Arizona Rules 13, 15, and 19, whose purpose is to encourage

permitting pleadings to be amended so as to facilitate the efficient

and effective resolution of an entire controversy. While a request

for leave to amend is one addressed to the discretion of the trial

court, the policy of the Rule favors the liberal allowance of requests

to amend. Arizona Rule 13 permits the addition of counterclaims

which either matured or were acquired by the pleader after

serving a pleading. The purpose of Arizona Rule 19 is to insure

the joinder of all interested parties in a single action and avoid a

multiplicity of litigation.

Minute Entry Order of April 29, 2004, made it impossible for

the Davidsons to fairly pursue their Constitutional claims in the

ongoing state proceeding, and conclusively and with finality

determined the respective rights of the parties to the State court

proceeding. The Minute Entry of April 29, 2004, is tantamount to

denying the Davidsons the right to argue and prove pattern of

misconduct and conspiracy in the State court proceeding.

16

November 9, 2004. These Minute Entries, along with the

Order of January 11, 2002 (which ordered the withdrawal

of the Davidsons’ retained counsel of record under Arizona

Rule 5.1 ctively dictated the outcome of the state court

proceeding.These_ three rulings, conclusively and _ with

finality determined the respective rights of the parties to

the State court proceeding.

In the entire state court proceeding, there are no rulings by

this trial judge which favored the Davidsons. Bias of this trial

judge against the Davidsons, specifically, and against RICO

actions, in general, is firmly established by these three state court

rulings, which clearly favored the Grossmans and the federal

court defendants in the Davidsons’ federal cause of action. This

trial judge made no effort whatsoever at impartiality. These

rulings employed artful use of the phrases “for the purposes of

harassment and delay” and “frivolous motions” [phrases borrowed

directly from the Grossmans’ legal counsel] so as justify denial of

the Davidsons’ Motion to Amend Defendants’ Answer, to Add

Counterclaims, and Add Parties.

This Court should recognize the significance of the Minute

Entry of April 29, 2004. This ruling was intended to prevent any of

Grossmans’ co-conspirators in the federal court proceeding from

being impleaded as parties in the State court proceeding. This

ruling was intended to prevent the Davidsons from ever raising

their concerns regarding the federal Constitutionality of the

PDUFA before an Arizona court. The Arizona trial court has

proven itself to be an incompetent forum in which to raise the

Davidsons’ concerns regarding the federal Constitutionality of the

PDUFA.

The Minute Entry Order of April 29, 2004, denying the

Davidsons’ Motion to Amend Defendants’ Answer, to add

Counterclaims, and add Parties, greatly prejudiced the

Davidsons, by denying Davidsons the right to argue and prove

pattern of misconduct and conspiracy in the State court

proceeding. This ruling effectively sounded a “death knell” over

the proceeding. The trial judge might just as well have entered

default at the same time. Instead, she waited until Davidsons

filed an Emergency Motion to Stay the Proceedings. She then

entered default (and sanctions) against Davidsons, and struck the

17

counterclaims, in her Minute Entry Order of November 9, 2004.

Arguably, the trial judge should have recused herself after the

Minute Entry Order of January 11, 2002. The appearance of

impropriety from the case record is undeniable. The Amended

Judgment (nunc pro tunc) and Second Amended Judgment (nunc

pro tunc) have an even greater appearance of impropriety.

Davidsons’ Motion to Amend Defendants’ Answer, to add

Counterclaims, and add Parties, was timely-filed, in good faith

reliance upon the Minute Entry Order of January 23, 2004. This

Court is referred to the Minute Entry of January 23, 2004, in the

State court proceeding for clear evidence of a “bait and switch” by

the State court trial judge. The Davidsons were advised by the

State court per Telephonic Status Conference and Minute Entry of

January 23, 2004, that they may move to add additional claims

under Rule 15 (a), and additional parties under Rule 19 (a),

because of recent developments in the United States District court.

The Davidsons detrimentally relied upon the state trial judge’s

statement on January 23, 2004, “It is ordered that the defendant

shall file any motions to amend the defendant’s answer, to add a

counter-claim, or to add parties, on or before Friday, February 27,

2004.” See the Davidsons’ Amended Answer to First Amended

Complaint and Counterclaims, and Motion to Amend Defendants’

Answer, to add Counterclaims, and add Parties, both of which

were timely-filed on February 27, 2004, in the State court

proceeding. See Appellees’ SER in Ninth Circuit Case 03-17342,

Tab 20, at pages 448-485.

The interlocutory award of attorney’s fees and costs to the

Grossmans on May 26, 2004, (under Mandate of the Arizona

Court of Appeals), caused further irreparable injury to Davidsons’

business and property in the State court proceeding.

Davidsons had no dilatory motive or bad faith when they

moved the Trial Court to amend their answer and counterclaim to

add both parties and claims. It is inexplicable why the Trial Judge

denied the Davidsons’ Motion to Amend. This denial represents a

complete denial of a State forum in which to raise the Davidsons’

federal Constitutional concern as to the PDUFA. The State court’s

ruling of April 29, 2004, is why the PDUFA is not presently at bar

in the State court proceeding. The PDUFA was very much a part

of the Davidsons’ Amended Answer to First Amended Complain

and Counterclaims. Because of the Minute Entry Order of April

18

29, 2004, the PDUFA will never be raised in any state court

proceeding against any of the defendants in the Federal court

proceeding. Thus, the Davidsons and other victims have been

permanently denied a remedy in the Arizona State court system

for federal Constitutional injury under color of the PDUFA, by

any of the defendants in the Federal court proceeding.

Davidsons sought to add additional RICO counterclaims in the

state court proceeding after the Trial Judge’s dismissal with

prejudice (under Younger doctrine) of the federal court

proceedings, because these additional counterclaims “arose out of

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

set forth in the original pleading.” Davidsons’ counterclaims of

assault and battery in the workplace by Jay Grossman upon

Robert Davidson on May i1, 1999, in the State court proceeding,

represent two of the Hobbs Act (18 USC Section 1951) violations

alleged in the Federal court proceeding. Davidsons alleged that

these Hobbs Act violations comprise part of the pattern of

racketeering activity in both the federal and state court

proceedings.

Davidsons’ Motion to Amend Defendants’ Answer, to add

Counterclaims, and add Parties, timely-filed on February 27,

2004, in the State court proceeding, was not “filed for the purpose

of delay and harassment”. Granting the motion would not

prejudice the Grossmans, because the Grossmans_ were

codefendants in the Federal court proceeding, and Davidsons’

Amended Answer _to First Amended Complaint _and

Counterclaims, added substantially fewer counterclaims and

impleaded substantially fewer parties than were previously present

in the Federal court proceeding. Davidsons’ Amended Answer to

First Amended Complaint and Counterclaims sought to include

only parties and claims that were already parties and claims in

the Federal court proceeding. Two of the new parties (Charles W.

Ott and Vivra Holdings Inc) readily signed waiver of service of

summons in the State court proceeding.

Without the predicate act violations, in a pattern of

racketeering activity, and overt acts of conspiracy found in the

FDA Tucson, AZ, EIR of 5/5-6/28/99, a substantially delayed and

heavily redacted copy of which was finally obtained by the

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

request, the Davidsons did not know that a conspiracy existed.

19

Page 13, Paragraph 11, of this report documents an agreement

between Gayle F. Petrillo (the Vivra Tucson Practice Manager)

and Jay Grossman to obstruct justice, overt acts of conspiracy to

obstruct justice, and conspiracy to obstruct justice. This document

provides the mens rea for criminal obstruction of justice at Page

13, Paragraph 11. Gayle F. Petrillo was the third new party

sought to be impleaded.

The Trial Judge’s Minute Entry Order of April 29, 2004,

denying the Davidsons’ Motion to Amend Defendants’ Answer, to

add Counterclaims, and add Parties, greatly prejudiced the

Davidsons, by denying Davidsons the right to argue and prove

pattern of misconduct and conspiracy in the State court

proceeding. This ruling was intended to prevent the Davidsons

from ever raising their concerns regarding the federal

Constitutionality of the PDUFA before an Arizona court. The

Arizona trial court has proven itself to be an incompetent

forum in which to raise the Davidsons’ concerns regarding

the federal Constitutionality of the PDUFA.

Davidsons were barred from raising federal claims in the State

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

F.2d 810 (1989). Davidsons affirm that in the State court

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

Arizona Supreme Court [CV-03-0138-PR], they did not have an

opportunity to raise their federal claim because they were

procedurally barred from raising such claims. Dubinka v. Judges

of Superior Court, 23 F.3d 218 (1994). Younger abstention is not

appropriate when state law imposes procedural barriers to raising

the constitutional claims in state court proceedings. The third

Middlesex prong is lacking in both federal district court

proceedings.

Davidsons have been forced to represent themselves pro se in

the State court proceeding, before a biased trial judge, with an

irrevocably-prejudiced case, without the previously-enjoyed

benefit of retained legal counsel, based solely upon a conclusive

presumption of the trial judge. :

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

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

proceeding. The Memorandum Decision of the Arizona Court of

Appeals on February 27, 2003, and the Arizona Supreme Court’s

20

denial of Davidsons’ Petition for Review on August 8, 2003, also go

directly to the competency of the state court proceeding and

institutional bias of the Arizona court system. The due process

clause entitles a person to an impartial and disinterested tribunal

in both civil and criminal cases. See Appendix H, I, and J.

When the trial judge dismissed the federal court proceedings

{[CV-03-00110-FRZ- and CV-03-00580-FRZ] under the abstention

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

adequate opportunity to litigate any alleged federal claims in the

ongoing state court proceeding. This _is clearly not true,

particularly in light of the State court Minute Entry of April 29,

2004. This Minute Entry, makes it impossible for Davidsons to

fairly pursue their constitutional claims in the ongoing state

proceeding. Since Arizona court rules did not permit raising the

Rule 5.1 constitutional claim in the state court proceedings,

Younger abstention principles were not applicable to the federal

court action seeking to enjoin enforcement of the unconstitutional

statute.

IV. Withdrawal of counsel in the State Action deprived

Davidsons of federal constitutional rights

Withdrawal of counsel in the State Action deprived

Davidsons of federal constitutional right to due process, equal

protection, right to contract, and right to freedom from arbitrary

takings, secured by the Fifth, Sixth, and Fourteenth

Amendments, and Article I, Section 10 (1). Davidsons were denied

federal constitutional rights by State Action under color of

Arizona Rule 5.1 in the State court proceeding. Davidsons were

denied their right to due process and equal protection under the

14" Amendment, right to contract, and right to freedom from

arbitrary takings, under color of Arizona Rule 5.1, and there was

State Action by State Actors, acting in concert.

Davidsons have suffered deprivation of property interest

without due process of law. Davidsons assert invidious

discrimination purpose when Arizona Rule 5.1 was enacted.

Davidsons have alleged that MJM and QBSL caused willful injury

to their clients (the Davidsons) and acted willfully, out of malice,

and with bad motive. Actionable deprivations must be based on

“misuse of power, possessed by virtue of State law and made

possible only because the wrongdoer is clothed with the authority

21

of state law.” A taking with intent (or reckless disregard) of a

claimant’s property by a State agent violates Due Process clause

of Fourteenth Amendment and is actionable under 42 USC

Section 1983.

The Trial Judge’s Order suddenly and arbitrarily deprived

Davidsons of their legal representation, less than four months

before the scheduled trial date. The trial court’s Order suddenly

and arbitrarily deprived Davidsons of their considerable financial

investment in their retained legal representation (almost three

years of legal fees). The trial court’s Order suddenly and

arbitrarily deprived Davidsons of freedom from having to find

alternate legal representation, on very short notice, without

access to the case file, or else have to represent themselves, pro se.

In one swift stroke, the trial court absolved MJM and QBSL from

their contractual and professional responsibility to their clients

(the Davidsons), irreparably prejudiced Davidsons’ case, and

denied Davidsons their presently-enjoyed expectancy interest in

liberty, property, and equal protection under law, in violation of

the Fourteenth Amendment of the U.S. Constitution.

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

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

that attorney withdrawal is granted. By the totality of the

circumstances, information and belief, MJM and QBSL conspired

with the Trial Judge and opposing legal counsel, as State Actors,

to deprive Davidsons of their presently-enjoyed, property interest

in retained legal counsel in an ongoing civil proceeding, under

color of Arizona Rule 5.1.

V. The “extraordinary circumstances” exception to

Younger abstention applies

“Extraordinary circumstances” exception to Younger

abstention has been found where parties were deprived of an

adequate opportunity to raise and have timely decided federal

issues in state court proceedings. See Martin-Marietta Corp. v

Bendix Corp, 690 F.2d 558. “Extraordinary circumstances”

exception to Younger abstention has been found where parties

were deprived of a full and fair opportunity to litigate their

constitutional objections. See Thomas v Fiedler, 700 F. Supp.

1527. Arizona Rule 5.1 is “blatantly and flagrantly” violative of

express Constitutional protections. Withdrawal of- Davidsons’

22

counsel in the State Action deprived Davidsons of federal

constitutional rights. Minute Entry Order of April 29, 2004,

deprived Davidsons of an adequate opportunity to raise and have

timely decided federal issues as to the PDUFA in state court

proceedings. Minute Entry Order of April 29, 2004, deprived

Davidsons of a full and fair opportunity to litigate their

constitutional objections as to the PDUFA.

The state court proceeding should have been stayed by

Davidsons’ Emergency Motion to Stay the Proceedings, submitted

on September 21, 2004. Minute Entry Order of November 9, 2004,

in the State court proceeding, not only denied Davidsons’ motion

for stay, but also actually entered default (and sanctions), and

struck Davidsons’ counterclaims, all without ever reaching

Davidsons’ federal Constitutional concerns or the merits of

the State case.

Davidsons have alleged actual damages and extraordinary

circumstances, wherein the withdrawal of their retained counsel

in the State Action, deprived Davidsons of federal Constitutional

rights. Davidsons have alleged more than the Constitutional

dimension of the clear error claimed in the State court proceeding.

“Extraordinary circumstances” in the _ federal court

proceedings to permit federal intervention, include a [prosecution]

undertaken in bad faith (see Prosecution Memorandum), a

[prosecution] under a flagrantly unconstitutional statute

(Arizona Rule 5.1), and irreparable injury (actual damages).

MJM’s and QBSL’s motion to withdraw as counsel of record

(December 17, 2001), when viewed against the backdrop of the

Prosecution Memorandum (November 20, 2000) provides prima

facie evidence of actual malice and willful misconduct by the

attorney (MJM) and his law firm (QBSL) towards his clients

(Davidsons). Exceptions for bad faith, harassment, and

extraordinary circumstances, allow a federal court to decline to

apply Younger abstention even if all requirements for such

abstention are met in a particular case. Davidsons, however,

provided persuasive arguments, in their briefs and motions to the

Ninth Circuit U.S. Court of Appeals, that not all of the

requirements for abstention were met in the federal court

proceedings.

cpt 9 a al 2 a

23

VI. Rule 5.1 of the Arizona Rules of Civil Procedure is

unconstitutional on its face or as applied to the Davidsons

Withdrawal of counsel in the State Action deprived

Davidsons of federal constitutional right to due process, equal

protection, right to contract, and right to freedom from arbitrary

takings, secured by the Fifth, Sixth, and Fourteenth

Amendments, and Article I, Section 10 (1).

Davidsons were denied federal constitutional rights by State

Action under color of Arizona Rule 5.1 in the State court

proceeding. A series of recent 9th Circuit appellate cases, which

base their holdings upon U.S. v. Sardone, 94 F.3d 1233 (1996)

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

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

cases.” There is currently a long-standing split of authority

between the U.S. Circuit Courts of Appeals on the question of the

right to legal counsel in a civil lawsuit. This split of authority

amongst the U.S. Circuit Courts of Appeals urges this Court to

review two final judgments of the U.S. District Court, District of

Arizona, in the closely related federal cases CV-03-00110-FRZ and

CV-03-00580-FRZ. These judgments involve identical or closely

related questions, which draw into question the Constitutionality

of Arizona Rule 5.1. The risk of an erroneous deprivation by the

State action in the state court proceeding is substantial.

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

FRZ] erred when he cites U.S. v. Sardone, as authority for his

view that “there is generally no constitutional right to counsel in

civil cases.” He fails to distinguish between the right to appointed

counsel and the right to retained counsel. The federal

constitutional right to retained legal counsel in an ongoing civil

proceeding was not a prospective property interest. It was a

presently-enjoyed property interest once Davidsons entered into a

retainer agreement with Michael J. Meehan (Respondent).

Davidsons were deprived of the presently-enjoyed benefit of

retained counsel in an ongoing civil proceeding without procedural

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

There was no such hearing afforded Davidsons. The opposing

legal counsel (MJM, QBSL, and Bruce Heurlin) simply agreed

between themselves and with the Court under color of Arizona

Rule 5.1, and there was State Action. To say that there is

24

generally no constitutional right to retained counsel in civil cases

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

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

our legal system rests. The right to retained legal counsel is a

basic personal right which requires that courts exercise special

solicitude under the heightened (strict) scrutiny standard of

review.

Davidsons’ complaint against MJM and QBSL is based on

whether the State has power to disenfranchise litigants from

presently-enjoyed benefit of retained legal representation in an

ongoing civil proceeding, without due process and equal protection

guaranteed under the Fourteenth Amendment. Davidsons’

property interest in their retained legal representation was a

presently-enjoyed property interest at the time of the Trial

Judge’s Order granting attorney withdrawal. Davidsons have a

legitimate claim to entitlement to their retained legal

representation in a civil proceeding. There was nothing

permissive about the Trial Judge’s Order. The Order was

arbitrary and capricious. There was no hearing or certification

process afforded to the Davidsons.

Davidsons did not voluntarily elect to proceed pro se. They

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

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

Granting an attorney the right to withdraw without the clients’

consent interferes with civil litigants’ Constitutional rights. The

right to enjoy property without unlawful deprivation is a personal

right. There is no real dichotomy between personal liberties and

property rights. The right to the presently-enjoyed benefit of

retained legal representation in an ongoing civil proceeding is a

basic civil right. Arizona Rule 5.1 places a meaningful burden on a

fundamental personal right. Davidsons’ challenge to the

federal Constitutionality of Arizona Rule 5.1 rests on

procedural and substantive due process grounds, equal

protection grounds, takings clause grounds, and right to

contract grounds. The strict (heightened) scrutiny standard

of revie ld ly.

The issue before this Court is not whether the Davidsons had

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

Order of January 11, 2002. The issue before this Court is whether:

ccna secant eine

25

(a) QBSL’s and MJM’s Motion to Withdraw (after the action

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

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

Withdrawal (under Arizona Rule 5.1), provided the Davidsons

with the guarantees of due process, equal protection, right to

contract, and freedom from arbitrary Takings, found in the U.S.

Constitution.

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

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

Superior Courts generally do not object, of submitting stipulations

for the substitution of counsel without the client’ ritten

endorsement.” See page 85 of the Arizona Civil Rules Handbook,

2002 Edition, by Daniel J. McAuliffe. _Where state courts have

regularly applied an unambiguous statute, there is no need

for_a_ federal court to abstain from determining the

constitutionality of the statute until state appellate courts

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

uv. Hill, 482 U.S. 451 (1987).

MJM’s and QBSL’s contractual and professional duty to the

Davidsons did not end with their Motion to Withdraw as counsel

of record on December 18, 2001, just 4 months before the

scheduled trial date. There was no communication by MJM and

QBSL to the Davidsons of their intent to withdraw as counsel of

record, prior to filing the Motion to Withdraw as counsel of record.

MJM and QBSL were never given permission by the Davidsons to

withdraw. There was no endorsement upon the Motion to

Withdraw, either by signature of substituting attorney or by

signature of the clients. The Davidsons never waived their right to

appeal the trial judge’s signed ruling on January 11, 2002, which

ordered attorney withdrawal. There was no hearing afforded to

the Davidsons as to the Motion to Withdraw, either pre- or post-

deprivation. While the Grossmans were parties in interest to the

Motion to Withdraw, the Davidsons were the real parties in

interest to the Motion to Withdraw.

It is an oxymoron for the State court trial judge to base the

ruling of January 11, 2002, on the fact that the Davidsons did not

file an objection to the Motion to Withdraw. This ruling presumes

that the Davidsons had no objection to their legal counsel’s

withdrawal, which is simply not true. The trial judge’s seriously

26

flawed reasoning also presumes that the Davidsons suddenly

acquired an obligation to retain new legal counsel, or else appear

in the trial court pro se, simply because of the Motion to

Withdraw. If an objective observer follows this flawed reasoning

to its logical conclusion, an attorney’s contractual and professional

responsibility to act in their client’s behalf as their retained legal

counsel in any State court proceeding, can be immediately shifted

from attorney to client, without the clients’ written endorsement,

simply by filing a Motion to Withdraw, even after the action is set

for trial, under color of Arizona Rule 5.1.

After MJM changed law firms (he joined the law firm of QBSL

during his representation of the Davidsons in the State court

proceeding), he stated in writing in a letter of January 15, 2001,

from MJM to the Davidsons, “J do not expect this [his change in

law firm] to affect or impair in any way my ability to continue

effective representation for you.” MJM and QBSL abandoned their

clients (the Davidsons) with their Motion to Withdraw, just four

months before the scheduled trial date, under color of Arizona

Rule 5.1.

It is an oxymoron to say that the Davidsons failed to object to

the Motion to Withdraw, during the interval of time (“the gap

period”) between the Motion to Withdraw and the Order granting

attorney withdrawal. As their retained legal counsel in the State

“court proceeding, MJM and QBSL were still under contractual

and professional duty to the Davidsons during the gap period.

With their Motion to Withdraw, MJM and QBSL ceased providing

the Davidsons with legal representation (effective or otherwise),

under color of Arizona Rule 5.1.

Arizona Rule 5.1 is facially unconstitutional. It subrogates

client’s rights to those of their attorney’s, based upon a conclusive

presumption of the trial judge. It creates a constitutionally-

impermissible unequal classification of clients and attorneys. It

provides none of the citizens of the State of Arizona with

constitutionally-guaranteed protections of presently-enjoyed

property and liberty interests in their retained legal counsel.

Every Arizona citizen is vulnerable to the same federal

constitutional deprivation, because clause (ii) of Ariz. R. Civ. P.

Rule 5.1 (A)(2)(C) is written as a disjunctive condition, that is it

reads, [in pertinent part], “..., or (ii) unless the court is satisfied

for good cause shown that the attorney should be permitted to

27

withdraw.” This statutory construction renders Ariz. R. Civ. P.

Rule 5.1 to be “flagrantly and patently” violative of express

Constitutional protections. There is no hearing or certification

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

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

of error is substantial.

The enactment and statewide enforcement of Arizona Rule 5.1

represents purposeful and invidious discrimination by the Arizona

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

Arizona court system is not capable of rendering an unbiased

evaluation of the federal constitutionality of Arizona Rule 5.1.

The fact that the Arizona Court of Appeals dismissed the

Davidsons’ appeal without reaching the merits of the appeal, and

the Arizona Supreme Court denied the Davidsons’ Petition for

Review [unpublished ruling], is entirely consistent with the

Davidsons’ assertion that the Arizona Court system is

institutionally biased. The Arizona Court system is either

unwilling or unable to hold itself [Arizona Rule 5.1] to be

unconstitutional. The Arizona court system is not a competent

state forum in which to raise the Davidsons’ constitutional

challenges.

There is a causal link between the Davidsons’ injury and the

State’s action sufficient to support standing under Article III.

Amongst the violations alleged in the Davidsons’ Complaint

against MJM and QBSL is an unconstitutional deprivation of

property [and liberty, equal protection, right to contract, and right

to freedom from Takings]. The State has exercised “coercive

power” or provided such significant encouragement that “the

choice must in law be deemed to be that of the State”. The

Davidsons had a protectable, presently-enjoyed, property interest

in their retained legal representation in the State court

proceeding. The State actors deprived them of this property

interest without procedural fairness. The State did not provide

the Davidsons with either a pre-deprivation or a post-deprivation

hearing. The State did not provide the Davidsons with an

opportunity to sign a certification stating that they had made

suitable arrangements to be prepared for trial.

Davidsons assert that their having an attorney under retainer

for more than 2 years [until 4 months before the scheduled trial

date], heightens their interest in receiving procedural safeguards

28

to ensure that constitutionally-protected, presently-enjoyed, rights

of liberty and property are not arbitrarily terminated by State

action.

Davidsons were impermissibly deprived of liberty and property

without procedural fairness. They were entitled to the expectancy

that their presently enjoyed liberty and property rights would not

be arbitrarily terminated by the Trial Court in the State court

proceeding. The Davidsons were arbitrarily and impermissibly

denied an opportunity to challenge the Trial Court’s Order of

January 11, 2002, in violation of the procedural due process

(fundamental fairness) guarantee under the Fourteenth

Amendment. The Trial Court in the State court proceeding

summarily absolved MJM and QBSL of their contractual and

professional responsibility to their clients [the Davidsons] at the

precise moment of their clients’ greatest need, i.e., just before

trial, under Arizona Rule 5.1.

Under the 3 prongs of the Eldridge case, the private interest in

their property interest in retained counsel is weighty, the

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

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

with risks of error, and the countervailing governmental interest

[solely pecuniary] is insubstantial.

In the cases at bar, the State’s aim is not simply to influence

the attorney-client relationship, but to extinguish it. A

termination of client’s rights is both total and irrevocable. This

forced dissolution of the attorney-client relationship should be

recognized as a punitive sanction by courts. Termination of client

rights by the State is e “unique kind of deprivation”. The State’s

[Trial Judge’s Order of January 11, 2002) action under color of

Rule 5.1, “completely and permanently terminated all rights and

obligations” between attorney and client.

The Trial Court conclusively presumed that certain facts

existed which permitted it to categorize the Davidsons into a class

(clients), and thereby subject them to burdens not visited upon

others (attorneys), in violation of the due process and equal

protection guarantee under the 14° Amendment. The Trial

Court’s ruling (Order of January 11, 2002) effectively subrogated

the Davidsons’ rights to those of their attorney’s (QBSL’s) by

“classifying” QBSL’s statements as truthful without proof, i.e. a

conclusive presumption, and without providing the Davidsons an

29

opportunity to challenge the truthfulness of QBSL’s statements.

The State Court system of Arizona created a constitutionally-

impermissible unequal “classification” of clients vis a vis their

attorneys, when Arizona Rule 5.1 was enacted, which is at

variance with the equal protection clause of the 14° Amendment.

Davidsons have not only established that Arizona Rule 5.1 and

the state action complained of had a disproportionate or

discriminatory impact, but also that the action was taken with

intent to discriminate, so as to permanently deny their clients a

legal remedy for the crimes alleged in the federal court proceedings

and avoid their contractual and _ professional responsibility to

their clients, just 4 months before the scheduled trial date.

CONCLUSION

Petitioners’ request for compensatory damages should have

precluded dismissal under Younger doctrine. Dismissal was

inappropriate because Petitioners’ allegations stated a

constitutional claim against their privately-retained attorney and

his law firm. Petitioners were precluded from raising federal law

claims in the state forum. The withdrawal of counsel in the state

Action deprived Petitioners of federal constitutional rights. The

“extraordinary circumstances” exception to Younger abstention

applies. Rule 5.1 of the Arizona rules of Civil Procedure should be

declared unconstitutional on its face or as applied to Petitioners.

The federal court dismissals should be reversed, consolidated, and

remanded for trial.

ante

App. 1

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ZFILED . __LODGED

__RECEIVED _ COPY

MAY 4, 2004

CLERK US DISTRICT COURT

DISTRICT OF ARIZONA

DEPUTY

ROBERT M. DAVIDSON; et al.,| No. 03-17342

Plaintiffs - Appellants, D.C. No. CV-03-00110-FRZ

v.

JUDGEMENT

VIVRA INC., et al.,

Defendants - Appellees.

Appeal from the United States District Court for the

District of Arizona (Tucson).

This case came on to be heard on the Transcript of the

Record from the United States District Court for the District

of Arizona (Tucson) and was duly submitted.

On consideration whereof, it is now here ordered and

adjudged by this Court, that the judgement of the said district

Court in this cause be, and hereby is AFFIRMED.

Filed and entered Monday, April 4, 2005

A TRUE COPY

CATHY A CATTERSON

Clerk of Court

ATTEST

APR 26 2005

by “S/S. Wall

DEPUTY Clerk

ES > ———-——=- A SS SP"

App. 2

FILED

APR 04 2005

CATHY A. CATTERSON CLERK

U.S.COURT OF APPEALS

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROBERT M. DAVIDSON; et al., | No. 03-17342

Plaintiffs-Appellants,

v.

VIVRA INC-.; et al.,

Defendants-Appellees

D.C. No. CV03-00110-FRZ

MEMORANDUM*

Appeal from the United States District Court

for the District of Arizona

Frank R. Zapata, District Judge, Presiding

Submitted March 23, 2005**

Before: B. FLETCHER, TROTT, and PAEZ, Circuit Judges.

Robert M. Davidson appeals pro se the districts court’s

judgement dismission his action pursuant the Younger absten-

tion doctrine. We have jurisdiction under 28 U.S.C. § 1291. After

de novo review, Baffert v. Calif. Horse Racing Bd., 332F.3d 613,

617 (9th Cir. 2003), we affirm.

* This disposition is not appropriate for publication and my not be

cited to or by the courts of this circuit except as provided by Ninth circuit Rule

36-3.

** The panel unanimously finds this case suitable for decision with-

out oral argument. See Fed. R. App. P. 34(a)(2).

App. 3

Davidson requested that the district court stay the on-

going proceedings in Grossman v. Davidson, Pima County Su-

perior Court Case No. C-333954 (the “State Action”). Thus,

there is “no doubt” that the federal injunctive relief would in-

terfere directly with those proceedings. ”Baffert, 332 F.3d at

617 (Younger abstention proper where party sought to enjoin

state administrative proceedings).

Contrary to davidson’s contention, Younger abstention

is not limited to criminal proceedings. See Columbia Basin

Apartment Ass’n v. City of Pasco, 268 F.3d 791, 799 (9th Cir.

2001) (“The Younger principle applies to civil proceedings...in

which important state interests are involved.”). Davidson’s

allegation that the Arizona statutory scheme regarding the

withdrawal of couisel is unconstitutional is sufficiently impor-

tant to invoke Younger abstention. Furthermore, there is no

support for Davidson’ contention that he was precluded from

raising federal law claims in the state forum. See Am. Consumer

Publ’g Ass’n, Inc. v. Margosian, 349 F.3d 1122, 1127 (9th Cir.

2003) (“Federal courts presume that a state court is competent

to determine issues of federal law, even if those issues involve

federal constitutional claims.”). Finally, Davidson contends that

the withdrawal of counsel in State action deprived him of his

federal constitutional rights and that the “extraordinary cir-

cumstances” exception to Younger abstention therefore applies.

This contention lacks merit. See Baffert, 332 F.3d at 621 (“[T]he

constitutional dimension of the error claimed does not, by

itself, constitute an exception to the application of Younger

abstention.”).

Davidson’s remaining contentions are similarly

unpersuasive.

We deny all pending motions.

AFFIRMED. A TRUE COPY

CATHY A.

CATTERSON

Clerk of Court

ATTEST

APR 26 2005

by: “/S S. Wall

Deputy Clerk

App. 4

___ FILED ____ LODGED

___ RECEIVED _ COPY

MAY2 2005

CLERK U.S. DISTRICT COURT

DISTRICT OF ARIZONA

BY, DEPUTY

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Ree a

¥ sane -ppemants, —_| D.C. No. CV-03-00580-FRZ

MICHEL J. MEEHAN; et al.,

Defendants-Appellens. JUDGEMENT

Appeal from the United States District Court for the

District of Arizona (Tucson).

This cause came on to be heard on the Transcript of the

Record from the United States District Court for the District

of Arizona (Tucson) and was duly submitted.

On consideration whereof, it is now here ordered and

adjudged by this Court, that the judgement of the said District

Court in this cause be, and hereby is

AFFIRMED.

Filed and entered Monday, April 04, 2005.

A TRUE COPY

CATHY A. CATTERSON

Clerk of Court

ATTEST

APR 26 2005

by: “/S S. Wall

Deputy Clerk

_—_— °°

App. 5

FILED

APRIL 04 2005

CATHY A. CATTERSON, CLERK

U.S. COURT OF APPEALS

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 04-15304

Plaintiffs-Appellants,

v.

Defendants-Appellees. ce

Appeal from the United States District Court

for the District of Arizona

Frank R. Zapata, District Judge, Presiding

Submitted March 23, 2005**

Before: B. FLETCHER, TROTT, and PAEZ, Circuit Judges

Robert M. Davidson and his spouse Vanessa Komar

appeal pro se the district court’s judgement dismissing their

action in which they alleged constitutional violations and vari-

ous state-law claims against their former attorney and his law

firm. We have jurisdiction under 28 U.S.C. § 1291. We review

de novo whether Younger abstention applies. Baffert v. Calif.

Horse Racing Bd., 332 F.3d 613, 617 (9th Cir. 2003). We affirm.

* This disposition is not appropriate for publication and may not be cited to or

by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.

** This panel unanimously finds this case suitable for decision without oral

argument. See Fed. R. App. P. 34(a)(2).

App. 6

Although appellant’s request for compensatory damages

may preclude dismissal under Younger abstention, see

Gilbertson v. Albright, 381 F. 3d 965, 968 (9th Cir. 2004)(en banc),

we may affirm dismissal on any ground supported by the record,

see Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004).

Dismissal was appropriate because appellants’ allegations fail

to state constitutional claim against their privately-retained

attorney and his law firm. See Briley v. State of Cal., 564 F.2d

849, 855 (9th Cir. 1977) (“We have repeatedly held that a pri-

vately-retained attorney does not act under color of state law

for purposes of actions brought under the Civil Rights Act.”)

Appellants’ remaining contentions lack merit.

We deny all pending motions.

AFFIRMED.

A TRUE COPY

CATHY A. CATTERSON

Clerk of Court

ATTEST

APR 26 2005

by:

Deputy Clerk

:

App. 7

COPY

inion NOV 26 2004

THE LAW FIRM OF PATRICIA A. NOLAND

L : 4

KARP, HEURLIN & WEISS, P.C. CLERK, SUPERIOR COUR

3060 NORTH SWAN ROAD, SUITE 100

TUCSON, ARIZONA 85712-1225

TEL (520) 325-4200

FAX (520) 325-4224

Bruce R. Heurlin, PCC# 25508

Attorneys for Jay Grossman and Eudice Grossman

IN THE SUPERIOR COURT OF THE STATE OF ARIZONA

IN AND FOR THE COUNTY OF PIMA

JAY GROSSMAN and EUDICE GROSSMAN No. 333954

husband and wife, maT JUDGEMENT

Plaintiffs,

ve. (Judge Jane

ROBERT MICHAEL DAVIDSON and L. Eikleberry)

VANESSA DAVIDSON,

a.k.a. VANESSA E. KOMAR,

husband and wife,

Defendants. ~

ROBERT MICHAEL DAVIDSON and

VANESSAKOMAR,

Defendants/Counterclaimants,

vs.

JAY GROSSMAN and EUDICE GROSSMAN,

Plaintiffs/Counterdefendants.

Pursuant to Court’s November 9, 2004 Minute Entry and

the November 23, 2004, hearing and good cause appearing,

Judgement is entered on all Counts of the First Amended Com-

plaint and on the Counterclaim in favor of Jay Grossman and

Eudice Grossman (Plaintiffs), husband and wife, and against

both Robert Michael Davidson and Vanessa Davidson, also

known as Vanessa E. Komar, (Defendants), husband and wife,

individually, jointly, and severally and as to their marital com-

munity.

The Court finds as fact that as to all Counts of the First

Amended Complaint and as to frivolous pleadings filed by the

Plaintiffs in this action that Defendants acted willfully and

App. 8

Damages are awwarded in favor of Plaintiffs and against

Defendants as follows:

Z.

PO >

Intentional Interference with Contract:

a. Sale of Medical Practice/Stock Purchase and Sale

Agreement $2,493,921.00

b. Loss of Salary $3,261,699.00

Intentional Defamation, Slander, and Slander Per Se,

Damage to Professional and Personal Reputation

$1,035,111.00

Intentional Abuse of Process $--------------- . and

Intentional Infliction of Emotional Distress $500,000.00

Punitive Damages $500,000.00

Sanctions:

a. Reimbursement of costs and attorneys’ fees

$58,300.27

b. Sanctions in addition to the above $ ---0---.

Judgement is so ordered in favor of Plaintiffs and against

Defendants in the total amount of $7,849,031.27.

The total amount of this judgement shall earn interest

at the legal rate of 10% per annum from the date of this Judge-

ment until paid in full.

DATED November 24,2004.

Jane L. Eikleberry

JANE L. EIKLEBERRY

Judge, Pima County Superior Court

App. 9

FILED BY CLERK

| NOV 26 2003}

COURT OF APPEALS

APPENDIX D DIVISION TWO

COURT OF APPEALS

STATE OF ARIZONA

DIVISION TWO

MANDATE

2 CA-CV 2002-0051

Department B

Pima Count

Cause No. 333954

RE: GROSSMAN v. DAVIDSON

To: The Superior Court of Pima County and the Hon. Jane

L. Eikleberry, Judge, in relation to Cause No. 333954.

This cause was brought before Division Two of the Ari-

zona Court of Appeals in the manner prescribed by law. This

court rendered its Memorandum Decision and it was filed on

February 27, 2003.

No Motion for Reconsideration was filed and the time

for filing such has expired.

A Petition for Review was filed and DENIED by Order

of the Arizona Supreme Court.

PLAINTIFFS/APPELLEES are granted attorney’s fees

on appeal in the amount of Six Thousand Seven Hundred Sixty-

Seven and 50/100 Dollars ($6,767.50) and granted costs on ap-

peal in the amount of Two Hundred Eleven and 01/100 Dollars

($211.01) by the Arizona Court of Appeals, Division Two.

NOW THEREFORE, YOU ARE COMMANDED to con-

duct such proceedings as required to comply with the Memo-

randum Decision of this Court, a copy of which is attached

Hereto.

I, Jeffry P. Handler, Clerk of the Court of Appeals, Divi-

sion Two, hereby certify the attachment to be a full and accu-

rate copy of the Memorandum Decision filed in this cause on

February 27, 2003.

IN WITNESS WEREOF, I hereunto set my hand and

affix the official seal of the Arizona Court of Appeals, Division

Two, on November 26, 2003.

Jeffrey P. Handler

Clerk of the Court

App. 10

APPENDIX E

Arizona Rules of Civil Procedure

Rule 5.1. Duties of Counsel

(A) Attorney of Record: Withdrawal and Substitution of

Counsel.

(2) Withdrawal and Substitution. Except where provided

otherwise in any local rules pertaining to domestic relations

cases, no attorney shall be permitted to withdraw, or be

substituted, as attorney of record in any pending action except

by formal written order of the court, supported by written

application setting forth the reasons therefore together with

the name, residence and telephone number of the client, as

follows:

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

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

upon the client and all other parties or their attorneys. The

motion shall be accompanied by a certificate of the attorney

making the motion that (i) the client has been notified in

writing of the status of the case including the dates and times

of any court hearings or trial settings, pending compliance with

any existing court orders, and the possibility of sanctions, or

(ii) the client cannot be located or for whatever other reason

cannot be notified of the pendency of the motion and the status

of the case.

(C) No attorney shall be permitted to withdraw as attorney of

record after an action has been set for trial, (i) unless there

shall be endorsed upon the application therefore either the

signature of a substituting attorney stating that such attorney

is advised of the trial date and will be prepared for trial, or

the signature of the client stating that the client is advised of

the trial date and has made suitable arrangements to be

prepared for trial, or (ii) unless the court is satisfied for good

cause shown that the attorney should be permitted to

withdraw.

App. 11

APPENDIX F

"FILED ___ LODGED

| _RECEIVED__ COPY

NOV 24 2003

CLERK US DISTRICT COURT

DISTRICT OF ARAZONA

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

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

Plaintiffs 110 TUC FRZ

ORDER

vs

Vivra Inc, et al.,

Defendant

6

-

Before the Court for consideration is “Plaintiffs’ Motion for

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

2003. Filed in response is “Defendants Jay and Eudice

Grossman's Opposition to Plaintiffs’ Motion for Preliminary

Injunctive Relief.”

Procedural History

Plaintiffs Robert M. Davidson and Vanessa E. Komar,

proceeding pro se, filed “Plaintiffs Original Complaint” on

February 19, 2003, against 22 named corporate and individual

Defendants. The 191 page original complaint alleged 21 counts.

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

Statement, with several exhibits attached.

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

Complaint, against the same 22 named Defendants, alleging

17 separate counts.

~ On June 6, 2003, Defendants Grossman appeared and filed

“Defendants Jay and Eudice Grossman’s Motion to Dismiss

Pursuant to Rule 8, Federal Rules of Civil Procedure.”

App. 12

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

Eudice Grossman’s Motion to Dismiss Pursuant to Rule 8

based on the Court’s finding “that the prolixity of the First

Amended Complaint renders the pleading incomprehensible.”

This matter was also stayed pursuant to the Notice of filing

of Bankruptcy Petition and of the Automatic Stay filed by

Defendants Vivra, Inc., Magellan Specialty Health, Inc. and

Allied Special Care Services, LLC.

Plaintiffs were granted leave to file a Second Amended

Complaint upon the lifting of the automatic stay in compliance

with the pleading requirements of the Federal Rules of Civil

Procedure and in accordance with the provisions of the Court’s

Order, specifically Rule 8(a)(2), which requires a complaint to

include only “a short and plain statement of the claim,” and

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

mistake, the circumstances constituting fraud or mistake shall

be stated with particularity.”

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

se litigants are construed liberally, pro se litigants are

nevertheless bound by the federal and local rules of procedure.

See Ghazali v. Moran, 46 F.3d 52, 54 (9th Cir. 1995).”

Discussion

Although this cause of action is still under the automatic

stay provision pursuant to the filing of a bankruptcy provision,

Plaintiffs filed the present motion seeking injunctive relief.

There is no operative complaint before the Court.

Plaintiffs’ motion seeks “preliminary injunctive relief from

this Court in the form of:”

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

Superior Court Case # 333954, pending final adjudication

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

it arises,

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

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

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

App. 13

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

(Case # 03-CV 110) from which it arises, and

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

[$82.00] and Attorney’s Fees [$1,710.00] to the Grossmans in

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

adjudication of the federal cause of action (Case # 03-CV 110)

from which it arises, and

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

Plaintiffs base their argument in their motion for injunctive

relief on the following:

Plaintiffs (the Davidsons) will suffer irreparable injury

if Pima County Superior Court Case # 333954 proceeds

to trial prior to final judgment upon the merits of the

federal cause of action (Case # 03CV-110-TUC-FRZ) from

which it arises. PIMA County Superior Court Case #

333954 arises from the same nucleus of operative facts

alleged by the Davidsons in US District Court Case

#03CV100TUC alleged by the Davidsons in US District

Court Case # 03CV100TUC FRZ. There is a distinct

risk of issue preclusion or claim preclusion, if Pima

County Superior Court Case # 333954 proceeds to trial

prior to the final judgment upon the merits of 03CV-

110-TUC-FRZ.

Although Plaintiffs’ initial filings were

incomprehensible, it is clear to the court that this action, in its

entirety, must be dismissed based on the doctrine of abstention

which precludes federal court interference with pending sate

judicial proceedings. It is evident, based on Plaintiffs’

admissions and requests for relief, as set forth in their motion

for preliminary injunction, that this action was filed in federal

court, on the premise of supplemental jurisdiction and federal

question, to circumvent the ongoing state court proceedings,

an abuse of federal judicial resources.

It is clear that this Court lacks jurisdiction over the

matters asserted in this federal action and the relief requested

App. 14

by Plaintiffs in their motion for injunctive relief. The Court

need not address the principles of judicial estoppel which

also preclude the filing of this action in federal court.

The Court thereby invokes the doctrine of abstention

pursuant to Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746 (1971),

in which the Supreme Court “espouse[d] a strong federal policy

against federal-court interference with pending state judicial

proceedings.” H.C. v. Koppel, 203 F.3d 610, 613 (9th Cir. 2000)

(quoting Middlesex County Ethics Committee v. Garden State

Bar Ass’n., 457 U.S. 423, 431, 102 S.Ct. 2515, 2521 (1982)).

“Absent extraordinary circumstances, Younger abstention is

required if the state proceedings are (1) ongoing, (2) implicate

important state interests, and (3) provide the plaintiff an

adequate opportunity to litigate federal claims.” Id.

Plaintiffs have an adequate state forum in which to pursue

the issues presented.

Based on the foregoing,

IT IS HERBY ORDERED that this case is DISMISSED with

all parties to bear their own costs.

IT IS FURTHER ORDERED that all other pending matters

are DENIED as moot.

There shall be no further filings in this action.

DATED this 20th day of November, 2003.

/s FRANK R. ZAPATA

United States District Judge

App. 15

APPENDIX G

' ___FILED __LODGED

___RECEIVED ___COPY

FEB 2 2004

CLERK US DISTRICT COURT

DISTRICT OF ARIZONA

BY DEPUTY

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

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

TUC FRZ ORDER

Plaintiffs, - |

vs. )

)

Michael J. Meehan; Quarles & Brady _)

Streich Lang )

)

Defendants )

)

The present action commenced with the filing of Plaintiffs’

Original Complaint & Application for Injunctive Relief against

Defendants Michael J. Meehan and Quarles & Brady Streich

Lang. The pleading alleges, inter alia that “[t]he Arizona state

courts...have effectively stripped the Davidsons of their former

attorney of record...without Due Process or Equal Protection,

in violation of the Contract Clause, Takings Clause, and 14th

Amendment of the U.S. Constitution.”

Plaintiffs’ claims appear to arise from a state court ruling

granting a motion to withdraw as attorney of record in state

court proceedings, filed by Defendant Meehan, who had been

retained to represent in the state court action. Plaintiffs’

complaint refers repeatedly to facts and allegations arising

' Plaintiffs’ Original Complaint & Application for Injunctive Relief, Page 5,4 24.

App. 16

out of state court proceedings and a previously filed district

court action, which was dismissed on November 23, 2003, four

days after the filing of this action on November 20, 2003, in

which Plaintiffs had similarly moved for injunctive relief.

Defendants filed a Motion to Dismiss in response to

Plaintiffs’ Original Complaint & Application for Injunctive

Relief on December 22, 2004, now before the Court for

consideration.

Defendants move the court to dismiss the present case

based on their contention that “there is no Constitutional right

to counsel in civil case” and, “...original subject matter

jurisdiction for this case is not present.” Defendants conclude

that “[a]s a result, this Court cannot retain supplemental

jurisdiction over plaintiffs’ state law based claims and thus,

the entire case should be dismissed.”

Plaintiffs filed their Objection to Motion to Dismiss in

response to Defendants’ motion, contending that they “sought

relief for this irrevocable injury in their Motion for Preliminary

Injunctive Relief in U.S. District court Case 03CV-110 TUC-

FRZ...presently on appeal to the 9th Circ :it Court of

Appeals...”

Defendants’ motion to dismiss addresses Plaintiffs’

cause of action on the merits of the claims asserted, arguing

that Plaintiffs have failed to allege the infringement of a

constitutionally protected right, specifically a constitutional

right to counsel in a civil case, and therefore, there is no basis

for federal subject matter jurisdiction. The Court finds however,

that Plaintiffs’ cause of action has not been brought properly

before this Court.

The Court dismissed Plaintiffs’ previous action by Court

order and judgment, filed November 24, 2003, under the

doctrine of abstention pursuant to Younger v. Harris, 401 U.S.

37, 91 S.Ct. 746 (1971), in which Plaintiffs moved for injunctive

relief, alleging: Plaintiffs (the Davidsons) will suffer

irreparable injury if Pima County Superior Court Case # 333954

proceeds to trial prior to final judgment upon the merits of the

federal cause of action (Case # 03CV-110-TUC-FRZ) from which

it arises. PIMA County Superior Court Case # 333954 arises

App. 17

from the same nucleus of operative facts alleged by the

Davidsons in US District Court Case # 03CV100TUC FRZ.

In dismissing the previous action, the Court found that

“fallthough Plaintiffs’ initial filings were incomprehensible, it

is clear to the Court that this action, in its entirety, must be

dismissed based on the doctrine of abstention which precludes

federal court interference with pending state judicial

proceedings.”

The Court further held that “’[I]t is evident, based on

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

their motion for preliminary injunction, that this action was

filed in federal court, on the premise of supplemental

jurisdiction and federal question, to circumvent the ongoing

state court proceedings, an abuse of federal judicial resources.”

The Court further explained that it “need not address the

principles of judicial estoppel which also preclude the filing of

this action in federal court” and that “[I]t is clear that this

Court lacks jurisdiction over the matters asserted in this federal

action and the relief requested by Plaintiffs in their motion for

injunctive relief.”

The Court concluded that Plaintiffs have an adequate

state forum in which to pursue the issues presented. Plaintiffs

filed a notice of appeal.

In the present action, Plaintiffs appear to be attempting to

raise issues arising from the same cause of action and events

that originated in the Arizona state courts. Plaintiffs’ Original

Complaint & Application for Injunctive Relief fails to comply

with the requirements of Rule 8(a)(2), which requires a

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

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

of fraud or mistake, the circumstances constituting fraud or

mistake shall be stated with particularity.” These requirements

were set forth by Court order in the previous action, CV 03-

110 TUC FRZ, along with the warning that “[although the

pleadings of pro se litigants are construed liberally, pro se

litigants are nevertheless bound by the federal and local rules

of procedure.” See Ghazali v. Moran, 46 F.3d 52, 54 (9th Cir.

App. 18

1995). Plaintiffs’ Original Complaint & Application for

Injunctive Relief includes, but is not limited to, the following

allegations: Opposing counsel in Pima County Case 333954

inappropriately aligned their interests with those of Mr.

Meehan and Q&BSL during the Davidsons’ appellate action to

the Arizona court of Appeals as is amply demonstrated by their

Answer Brief and Opposition to Petition for Review. The

possibility of a prior association between any of the counsel of

the firm Quarles & Brady LLP [in any state or federal

jurisdiction] and any of the named defendants [or their Counsel]

in U.S. District Court Case # 03CV-110-TUC-FRZ, is of grave

concern to the Davidsons. The Davidsons pray for this court to

allow discovery on this question. Such a question is readily

subject to discovery, assuming that any records documenting

such an association have not been destroyed. This is

particularly relevant at this time because a number of the

named corporate defendants [Vivra Inc, Magellan Specialty

Health Inc, Allied Specialty Care Services Inc, and Health

Technologies Inc] in Case #03CV-110-TUC-FRZ are presently

in the process of disposing of their assets [and records?] in a

Chapter 11 Bankruptcy proceeding filed on March 11, 2003, in

the U.S. Bankruptcy Court, Southern District of New York [In

Re: Magellan Health Services Inc., Case No. 03-40515 (PCB),

Jointly Administered]. Case #03CV-110-TUC-FRZ is presently

stayed by the filing for Automatic Stay under the Bankruptcy

Code.

As of the filing of this complaint, Mr. Meehan appears no

longer to be an associate of the law firm Quarles & Brady Steich

Lang. According to the State Bar of Arizona Member Finder,

Mr. Meehan now works for the law firm, The Law Offices of

Michael J. Meehan, and he appears to now no longer be an

associate of Quarles 7 Brady Steich Lang. Thus, Mr. Meehan is

an attorney who has moved between law firms, frequently. The

plaintiffs will produce evidence at trial that this movement

between law firms [during Mr. Meehan’s attorney-client

? Plaintiffs’ Original Complaint & Application for Injunctive Relief,

139,40, 41.

App. 19

relationship with the Davidsons] inured to detriment of his

clients (the Davidsons) in Pima County Case #333954, in more

ways than one. This movement between law firms was not part

of the benefit bargained-for when the davidsons retained Mr.

Meehan as their legal counsel in Pima County Case #333954.”

As evidence by Plaintiffs’ Exhibits in Support of Objec-

tion to Motion to Dismiss, this case centers around the state

court controversies the Plaintiffs tried to raise in their previ-

ous federal action. The Court again, finding that Plaintiffs have

an adequate state forum in which to pursue the issues pre-

sented, invokes the doctrine of abstention pursuant to Younger

v. Harris, 401 U.S. 37, 91 S.Ct. 746 (1971), which “espouse[s] a

strong federal policy against federal-court interference with

pending state judicial proceedings.” H.C. ex rel. Gordon v.

Koppel, 203 F.3d610, 613 (9th Cir.2000) (quoting Middlesex

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

423, 431, 102 S.Ct. 2515, 2521 (1982). The Court does not find

extraordinary circumstances to intercede in the ongoing state

court proceedings in which Plaintiffs have adequate opportu-

nity to litigate any alleged federal claims. See Id.

Notwithstanding this finding, as Defendants assert, “it

is well-established that there is generally no constitutional right

to counsel in civil cases. “ United State v. Sardone, 94 F.3d 1233,

1236 (9th Cir 1996) (citing Hedges v. Resolution Trust Corp.,

32 F.3d 1360, 1363 (9th Cir. 1994) cert. denied, 514 U.S. 1082,

115 S.Ct. 1792 (1995)).

Based on the foregoing,

IT IS HEREBY ORDERED that this case is DISMISSED

with all parties to bear their own costs.

Judgment shall be entered accordingly.

DATED this 30th day of January, 2004.

/s FRANK R. ZAPATA

United States District Judge

App. 20

APPENDIX H FILED

PATRICIA A. NOLAN

CLERK, SUPERIOR CT

April 29, 2004 (11:27)

By: Kitty Vroman

ARIZONA SUPERIOR COURT, PIMA COUNTY.

JUDGE: HON. JANE L. EIKLEBERY CASE NO. C-333954

COURT REPORTER: NONE DATE: April 29, 2004

JAY GROSSMAN and EUDICE GROSSMAN, h/w,

Plaintiffs,

vs.

ROBERT MICHAEL DAVIDSON and VANESSA

DAVIDSON, a/k/a VANESSA E. KOMAR, h/w

Defendants

ROBERT MICHAEL DAVIDSON and VANESSA

E. KOMAR, h/w

Defendants/Counterclaimants,

V.

JAY GROSSMAN and EUDICE GROSSMAN, h/w,

Plaintiffs/Counterdefendants.

MINUTE ENTRY

IN CHAMBERS RULINGS RE: DEFENDANTS’ MOTION TO

AMEND DEFENDANTS’ ANSWER, TO ADD COUNTER

CLAIMS AND ADD PARTIES, PLAINTIFFS’ MOTION TO

REQUIRE DEFENDANTS TO PAY PLAINTIFFS FOR COSTS

AND ATTORNEYS’ FEES ASSESSED FOR FRIVOLOUS

APPEALS, DEFENDANTS’ MOTION TO ENLARGE TIME

App. 21

TO FILE RULE 26.1 DISCLOSURE STATEMENT AND

DEFENDANTS’ MOTION TO ENLARGE TIME FOR THE

DISCOVERY DEADLINE

The Court has reviewed all of the motions, oppositions

and replies submitted. The complaint in this action was

filed on July 2, 1999. The case is set for trial on October 13,

2004. On January 20, 2004, the parties were ordered to

comply with Rule 26.1 on or before Friday, March 19, 2004.

The discovery deadline was set for Friday, April 30, 2004.

Kitty Vroman, Deputy Clerk

By George Hofmeister, J.A.A.

App. 22

MINUTE ENTRY

Page: 2 Date: April 29, 2004 Case No: C-333954

Defendants belatedly seek to unnecessarily enlarge the

scope of this action to include claims and parties, some, if not

all, of which are presently before the 9th Circuit Court of

Appeals. Defendant Robert Michael Davidson was advised of

the trial date, the deadline for complying with Rule 26.1 and

the discovery deadline during the status conference of January

20, 2004. The motion to enlarge the deadlines during the status

conference of January 20, 2004. The motion to enlarge the

deadlines was filed after the disclosure deadline. Defendants’

motions appear to be filed for purposes of delay and

harassment. To allow the extensive proposed amendments to

the answer and the counterclaim would greatly prejudice the

plaintiffs given that the trial date is set for October 13, 2004.

This case has been pending for almost five years and absent

extraordinary and uuforeseen circumstances, the trial date will

not be continued.

Defendants’ motion to amend their answer to add

counterclaims and parties and defendants’ motion to enlarge

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

deadline are hereby denied.

Plaintiffs’ motion for sanctions is hereby denied at this

time with leave granted to refile the motion if warranted.

Defendants are warned that filing groundless motions, taking

actions primarily for delay or harassment, and attempts to

unreasonably expand or delay the proceeding may result in

the imposition of sanctions including , but not limited to, the

striking of their counterclaim, the striking of their answer,

entering of a default against them, and an award of additional

attorneys’ fees and costs to plaintiff.

Defendants delivered a copy of their disclosure statement

to the Court. Defendants are advised that disclosure

statements are neither filed with the clerk or copied to the

court.

ce: Bruce Heurlin, KARP, HEURLIN & WEISS, P.C.

Robert Davidson & Vanessa Komar, P.O. Box 1785,

Kilgore, TX 75663-1785

App. 23

FILED BY CLERK

FEB 27 2003

APPENDIX I COURT OF APPEALS

DIVISION TWO

IN THE COURT OF APPEALS

STATE OF ARIZONA

DIVISION TWO

JAY GROSSMAN and EUDICE 2 CA-CV 2002-0051

GROSSMAN, husband and wife, ) DEPARTMENT B

Plaintiffs/Appellees, )

MEMORANDUM

v. ) DECISION

) Not for Publication

ROBERT MICHAEL DAVIDSON, ) Rule 28, Rules of Civil

Defendant/Appellant) Appellate Procedure

)

APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY

Cause No. 333954

Honorable Jane L. Eikleberry, Judge

APPEAL DISMISSED

Karp, Heurlin & Weiss, P.C. Tucson

By Bruce R. Heurlin Attorneys for Piaintiffs/Appellees

Robert M. Davidson Kilgore, Texas

In Propria Persona

DRU KE, Presiding Judge

qj1 Jay and Eudice Grossman sued Robert and Vanessa

Davidson for defamation, slander, and other related counts.

Four months before trial, the Davidsons’ attorney moved to

withdraw as counsel and to continue the trial. The Davidsons

did not respond to the motion and the Grossmans had no

objection to it. On January 11, 2002, the trial court entered an

order granting the motion to withdraw and rescheduled the

trial. On February 13, Robert Davidson filed a notice of appeal

“from the order made and entered in this action on the 11"

day of January, 2002.” For the reasons that follow, we dismiss

the appeal for lack of jurisdiction.

App. 24

42 In a civil case, “the right to appeal is not absolute but

exists only by statute.” Southern Cal. Edison Co. v. Peabody W.

Coal Co., 194 Ariz. 47, 16, 977 P.2d 769, 416 (1999); see also In

re Pima County Juvenile Action No. S-933, 135 Ariz. 278, 660

P.2d 1205 (1982) (substantive right to appeal created only by

constitution or statute). Civil appeals are governed by A.R.S. §

12-2101, which limits this court’s jurisdiction to those matters

set forth in the statute. See Ariz. Const. Art. VI, § 9; A.R.S. §

12-120.21; Truck Ins. Exch. V. State Compensation Fund, 138

Ariz. 116, 117, 673 P.2d 314, 315 (App. 1983) (“[T]he right to

appeal and orders which are reviewable on appeal are strictly

statutory.”); Campbell v. Arnold, 121 Ariz. 370, 590 P.2d 909

(1979) (court of appeals only has jurisdiction given by statute).

q3 The Grossmans point out that the order granting

counsel’s motion to withdraw does not come “within any of the

categories of appealable orders.” In response, Davidson asserts

that this appeal comes within § 12-2101(D), which permits an

appeal “[f]rom any order affecting a substantial right made in

any action when the order in effect determines the action and

prevents judgement from which an appeal might be taken.”

He argues that “[t]he substantial rights in this appeal are the

Constitutionally-protected rights to Due Process, Equal

Protection, and right to Contract” and that “[t]he order

appealed from, in effect, determine[d] the action.” (Emphasis

omitted.)

4 Although we might agree that the rights to which

Davidson refers are substantial, we cannot agree that the trial

court’s order permitting his counsel to withdraw determined

the action that the Grossmans filed against him. That “order

did not finally dispose of the case, leaving no question open for

judicial determination.” Eaton v. Unified Sch. Dist. No. 1 of Pima

County, 122 Ariz. 391, 392, 595 P.2d 183, 184 (App. 1979).

'Both the notice of appeal and the opening brief state that Robert Davidson is

“representing” the defendants. He may represent himself, but because he is

not an attorney admitted to the practice of law, he cannot represent his wife.

See Haberkorn v. Sears, Roebuck & Co., 5 Ariz. App. 397, 427 P.2d 378 (1967)

App. 25

The order simply allowed Davidson’s attorney to withdraw

his representation and continued the date for a trial on the

merits. The order was, in fact, interlocutory, this is, “interim

or temporary, not constituting a final resolution of the whole

controversy.” Black’s Law Dictionary 819 (7" ed. 1999). And

interlocutory orders are generally noappealable. See Southern

Cal Edison, 194 Ariz. 47, 416, 977 P.2d 769, 916 (legislature’s

express listing in § 12-2101 of appealable judgements and

orders makes clear that “most interlocutory orders... are not

appealable”); Security Gen. Life Ins. Co. v. Superior Court, 149

Ariz. 332, 333, 718 P.2d 985, 986 (1986) (order disqualifying

counsel from representing party “is not a final order and in

therefore not appealable”); Riley, Hoggatt & Suagee, P.C. v.

Riley, 165 Ariz. 138, 796 P.2d 940 (App. 1990) (order denying

counsel’s motion to withdraw representation not appealable);

Eaton (§ 12-2101(d) does not permit appeal from interlocutory

order allowing case to proceed as class action). Accordingly,

we conclude that the trial court’s order allowing Davidson’s

counsel to withdraw is a nonappealable interlocutory order.

q5 But even iS we were to assume that the order is

appealable, because Davidson did not file his notice of appeal

until February 13, it was not filed within the thirty days

required by Rule 9(a), Ariz. R. Civ. App. P., 17B A.R.S. The

relevant part of Rule 9(a) states that a “notice of appeal... shall

be filed with the clerk of the superior court not later than 30

days after the entry of judgement from which the appeal is

taken.” Rule 2(d), Ariz. R. Civ. App. P., defines “[j]udgement”

as “any appealable order, weather denominated an order, a

judgement, a decree, or otherwise.” Thus, even if the order

were appealable, we would still lack jurisdiction to review it

because Davidson failed to timely file the notice of appeal. See

Butler Products Co. v. Roush, 145 Ariz. 32, 32, 699 P.2d 906, 906

(App. 1984) (“Appellate courts do not have jurisdiction to

consider appeals which are not timely filed.”); Pina County No.

S-933 (failure to file timely appeal deprives appellate court of

jurisdiction).

App. 26

"6 For the forgoing reasons, we dismiss for lack of

jurisdiction Davidson’s appeal from the trial court’s January

11 interlocutory order granting his attorney’s motion to

withdraw as counsel. We also grant the Grossmans costs and

attorney’s fees on appeal, finding, for the reasons set forth in

the answering brief, that Davidson filed a frivolous appeal.

Ariz. R. Civ. App. P. 25, 17B A.R.S. Costs and attorney’s fees

will be awarded to the Grossmans upon their compliance with

Rule 21, Ariz. R. Civ. App. P.

/s WILLIAM E. DRUKE, Presiding

Judge

CONCURRING;

/s PHILIP G. ESPINOSA, Chief Judge

/s JOHN PELANDER, Judge

App. 27

FILED

NOEL K. DESSAINT

APPENDIX J ‘CLERK SUPREME

COURT

SUPREME COURT OF ARIZONA

)

JAY GROSSMAN ) Arizona Supreme Court

and EDUICE GROSSMAN, ) No. CV-03-0148-PR

husband and wife, ) Court of Appeals

Division Two

Plaintiff/Appellee, ) No. 2 CA-CV 02-0051

Pima County Superior

) Court

ROBERT MICHAEL DAVIDSON No. 333954

Vv.

Defendant/Appellant. ORDER

On August 8, 2003, this Court issued a minute letter granting

Attorneys’ Fees to Appelles Jay Grossman and Eudice

Grossman. A “Plaintiffs-Appellees’ Verified Itemized

Statement of Costs and Attorney’s Fees” was filed on August

22, 2002. Pursuant to Rule 21, Rules of Civil Appellate

Procedure and this Court’s minute letter of August 8, 2003,

and the Clerk having been authorized to tax costs and attorneys

fees, and no objection having been received from Appellant

Robert Michael Davidson.

IT IS ORDERED granting Appellees Jay Grossman and

Eudice Grossman attorney’s fees in the amount of One

Thousand Seven Hundred Ten and 00.100 Dollars ($1,710.00)

and costs in the amount of Eighty-Two and 00/100 Dollars

($82.00).

DATED this 15" day of September, 2003.

/s NOEL K. DESSAINT

Clerk of the Court

TO:

Bruce R. Heurlin, Karp Heurlin & Weiss PC

Robert Michael Davidson

rd

App. 28

FILED __LopGeD |APPENDIXK =— FILED

ECEIVED __ COPY

|_R ae : Foy ot CATHY A CATTERSON, CLERK

CLERK US DISTRICT COURT U.S. COURT OF APPEALS

DISTRICT OF ARIZONA

DEPUTY

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 03-17342

ROBERT M. DAVIDSON

Plaintiff - Appellant D.C. No. CV-03-00110-FRZ

District of Arizona,

Vv.

VIVRA INC.: ET AL.. Tucson

Defendants - Appellees. ORDER

The Parties have stipulated to the dismissal of this case

under the Federal Rule of Appellate Procedure 42(b). The case

is dismissed as to appellees Vivra, Inc. Magellan Specialty

Health, Inc., and Allied Specialty Care Services, LLC f/k/a

Allied Specialty Care Serviced, Inc. ONLY.

Costs shall be allocated pursuant to the terms of the

stipulation.

A certified copy of this order sent to the district court

shall act as and for the mandate of this court as to appellees

Vivra, Inc. Magellan Specialty Health, Inc., and Aliied Specialty

Care Services, LLC f/k/a Allied Specialty Care Services, Inc.

ONLY.

A TRUE COPY

nage ey, oe CATHY A. CATTERSON

CLERK OF COURT

ATTEST

CATHY A. CATTERSON APRIL 16 2004

Clerk of the Court BY:/sDonna Gilmore

DEPUTY CLERK

/sLorela Bragado-Sevillena

Deputy Clerk

Ninth Circuit Rule 27-7/ Advisory Note

to Rule 27 and Ninth Circuit Rule 27-10

pro 4.12

S Court, U.S.

FILED

AUG 2 2 2005

No. 04-1687 OFFICE OF THE CLERK

In The

Supreme Court of Che Anited States

ROBERT M. DAVIDSON and

VANESSA E. KOMAR,

Petitioners

Vv.

VIVRA INC,

MICHAEL J, MEEHAN,

QUARLES BRADY STREICH LANG LLP,

at al

Nespondents

ne ee ee

On Petition For Writ of Certiorari

As to Two Final Judgments of the Ninth Circuit

United States Court of Appeals

SUPPLEMENTAL BRIEF

RORBAT DAVIDSON

Petibinher Pea Ge

HHO Nath Shpeeh, Bb

Lundview, PR Aaa

boa Ae Peo

SUPP RIEF

Petitioners [referred to herein as “Davidsons”] submit this

supplemental brief pursuant to this Court’s Rule 15.8, while

petition for writ of certiorari (U.S. Supreme Court Docket 04-1687)

is pending, so that attention may be called to new cases and “other

intervening matter” not available at the time of initial filing [see

Issue #2 below, paragraphs 1 and 2).

[ABBREVIATED] STATEMENT OF THE CASE

Albany County Case # 2960-91, settled on January 10, 1996,

in Albany, NY provides irrefutable evidence of pattern of

misconduct and overt acts of conspiracy by the Grossmans, and

others, acting in concert. The FDA Tucson EIR (Establishment

Inspection Report) of 5/5-6/28/99, also provides irrefutable evidence

of pattern of misconduct and overt acts of conspiracy by the

Grossmans and others, acting in concert. Both Vivra Inc and the

Grossmans had “unclean hands” when they recruited (fraudulently

indueed) Davidson’s employment in Tucson, AZ in September of

1994, The conspiracy to defraud by the federal court defendants,

began in Albany, NY. It should have been stopped in Albany, NY by

state and/or federal regulators. The Davidsons bore the

consequences of the conspiracy in Tucson, AZ. Because of his belief

in the AMA Principles of Medical Ethics and Oath of Hippocrates,

Davidson “blew the whistle” on Grossman in April 14, 1999, in his

letter ¢0 Dr Antoine El Hage of FDA.

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

Davidsons’ federal causes of action [in both federal court

proceedings CV-03-00110-FRZ and CV-03-00580-FRZ] under

Younger doctrine were clearly erroneous. The federal court

dismissals should be reversed, consolidated, and remanded for

trial. This Court may vacate the dismissals on any ground

supported by the record, including the issues raised on appeal to

the Niath Circuit (Docket 03-17342 and Docket 04-15304) and the

issues found in Davidsons’ Petition for Writ of Certiorari before

Judgment (U.S. Supreme Court Case 04-537, cert. denied) filed on

September 17, 2004.

i, avi s’ request for compensatory damages should

have precluded dismissal under Younger doctrine

)avidsons’ federal causes of action sought damages under 18

LIA) Section 1964(c) and 42 USC Section 1983. This Court has not

Haplititly decided whether the Younger abstention doctrine covers

“elite for damages as well as equitable relief with respect to 42

LISt) Section 1983 claims and 18 USC Section 1964(c) claims. See

2

Gilbertson v. Albright, 381 F.3d 965, Canatella v. California, 404

F.3d 1106, and Marran v Marran, 376 F.3d 143. Davidsons

requested compensatory and punitive damages in their Original

Complaint to the U.S. District Court against MJM and QBSL. See

Appellees’ SER Volume 2, Tab 21 at pages 502-505, in Ninth Circuit

Case 03-17342. Davidsons also requested compensatory and

punitive damages in their Original and First Amended Complaint

to the U.S. District Court against Vivra Inc, et al. See Appellees’

SER Volume 1, Tab 1 at pages 331-332, in Ninth Circuit Case 03-

17342. Davidsons now have no competent forum [see Issues #2

and #3 below], either state or federal, in which to timely raise their

federal Constitutional concerns. Comity [the evolving concept of

our Federalism] goes too far if it gives inadequate attention to

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

II. Dismissal was inappropriate because Davidsons’

allegations stated a constitutional claim against their

rivately-retain torn d his law firm

Structural Bias in the State Court Proceedings

Petitioners have recently learned that MJM was

candidate for se»eral vacancies on the bench of the Arizona Arizona

Court o eais (Divisio nd Arizona Supreme Court

from 2002 to 2003, during the time when Davidsons’

interlocutory appeal and petition for review were before the

Arizona appellate courts. See newspaper article from the April

15, 2002, issue of the Tucson Citizen, entitled “7 Tucsonans up for

high court seat”. See December 2002, Volume 22, Number 12, page

1, issue of the Maricopa Lawyer. See May 2002, Volume 22,

Number 5, page 1, issue of the Maricopa Lawyer. See January 2003,

Volume 23, Number 1, page 1, issue of the Maricopa Lawyer. See

April 8, 2002, and April 25, 2002, press releases, downloaded from

the archives of the Arizona Supreme Court, entitled “15 Applicants

Apply for Arizona Supreme Court Position” and “Public Input

Sought on Candidates for Supreme Court”, respectively.

Petiti have also recently learned that MJM s d

as law clerk to then Associate Justice William H. Rehnquist

U.S. Su urt (1971), MJM was president he

American Academy of Appellate Lawyers, and MJM was a

member of the Advisory Committee on Appellate Rules. See

September 27, 2003, issue of the Tucson Citizen. See Minutes of

Fall 1999 Meeting of Advisory Committee on Appellate Rules on

October 21 & 22, 1999, in Tucson, Arizona.

These facts are readily verifiable because copies of the

newspaper press releases from 2002-2003 can be found and

downloaded directly from the Arizona Supreme Court

3

internet website. Copies of the newspaper articles can be

obtained from archive departments of the Maricopa Lawyer

and the Tucson Citizen. These facts provide this Court with

more than just vague conclusory allegations of structural

bias in the Arizona judicial system. The Arizona judicial

system is institutionally biased. There exist circumstances

in the State court proceedings indicating a probability of

bias too high to be constitutionally tolerable.

“To perform its high function in the best way, justice must

satisfy the appearance of justice”. See Republican Party of

Minnesota v. White, 122 S.Ct. 2528, at page 31, quoting In re

Murchison, 349 U.S., at 136, 75 S.Ct. 623, quoting Offutt v. U.S.,

348 U.S. 11,14, 75S.Ct.11. “The legitimacy of the Judicial Branch

ultimately rests on public faith in those who don the robe”. See

Mistretta v. U.S., 488 U.S. 361, 407, 109 S.Ct. 647.

The State Court proceedings themselves violated Davidsons’

constitutional rights. Submission to a fatally biased adjudicator

constitutes ongoing, independent injury that requires immediate

Judicial relief. This Court has considered recusal mechanisms

ineffective where, as here, Petitioners allege structural bias that

would not be addressed by the substitution of particular

adjudicators. The Arizona judicial system does not measure up to

the yardstick of what an impartial adjudicator should be in

accordance with Due Process. Davidsons have suffered and

continue to suffer ongoing irreparable injury, which ts both great

and immediate, in the Arizona court system. Younger abstention

doctrine is subject to bias exception when core constitutional values

are threatened during ongoing state proceedings, and there is

showing of irreparable-harm that is both great and immediate. The

unavatiability of interlocutory review of Davidsons’ Due

Process claim in State courts represents a strong showing of

irreparable harm.

Davidsons allege facts which overcome the presumption of

honesty, integrity, good faith, and impartiality in those serving as

adjudicators in the Arizona judicial system. Davidsons allege facts

which provide prima facie evidence for serial violations of 28 USC

Section 455 (a) by the State Actors, acting in concert. A Judge shall

disqualify himself [herself] “in any proceeding in which his [her]

impartiality might reasonably be questioned”. Davidsons allege

facts which provide further evidence in support of violations by the

State Actors, acting in concert, of 42 USC Section 1983, Section

1985, and Section 1988. Davidsons allege facts which provide

strong support for their claim of “extraordinary circumstances”.

Davidsons allege facts which provide strong support for the Gibson

exception to Younger abstention. See Gibson v. Berryhill, 411 U.S.

564, 93 S.Ct. 1689.

Being subjected to biased proceedings is a due process

4

violation independent of the fines that have already been imposed,

and thus Davidsons are suffering an ongoing irreparable harm

necessitating federal intervention. Gibson exception allows a

federal court to intervene where the state adjudicator is so biased as

to be incompetent to adjudicate the matter and where the petitioners

show that abstention has resulted in irreparable harm. State law

barred Davidsons from obtaining interlocutory review of

their Due Process claim in State courts, thus establishing

irreparable-harm criterion for Younger bias exception. The

bias exception to Younger abstention doctrine may apply even in

event that party objecting to biased state proceeding has available to

it eventual judicial review of state decision, if proceedings

themselves subject party to irreparable-harm (Due Process

violation). The federal court dismissals under the Younger doctrine

were clearly erroneous.

State Action

MJM, QBSL, Bruce Heurlin (counsel of record for the

Grossmans), State trial court Judge, Judges of the Arizona Court of

Appeals (Division II), and Justices of the Arizona Supreme Court,

were all State Actors in the case at bar before this Court.

Davidsons have asserted the state involvement necessary to

transform the private acts of MJM, QBSL, Bruce Heurlin, the state

trial court judge, the judges of the Arizona appeals court, and the

justices of the Arizona Supreme Court, into state action covered by

42 USC Section 1983, Section 1985, and Section 1988. Withdrawal

of counsel in the State Action deprived Davidsons of federal

constitutional rights. Davidsons sustained and continue to sustain

ongoing irreparable injury in the State court system.

Actual Malice and Willful Misconduct

By information, belief, and the totality of the circumstances,

MJM and QBSL knew the content and substance of the Prosecution

Memorandum, prior to filing their Motion to Withdraw as counsel

of record. Yet, MJM and QBSL agreed [with each other] to continue

to refuse to bring Arizona fraud, Arizona RICO, and federal RICO

actions, on behalf of their then clients, the Davidsons, despite

repeated requests by the Davidsons to bring such actions.

Both a general retainer and a special retainer prohibit the

acceptance of adverse employment or the performance of adversary

services by the attorney. After being retained, an attorney

owes the client his or her undivided allegiance. Once an

attorney has received the confidence of a client, the attorney

may not act for both the client and for another whose

interests are in the slightest way adverse or conflicting. An

5

attorney, without just cause, may not abandon a case without the

consent of the client.

After MJM changed law firms (he joined the law firm of QBSL

during his representation of the Davidsons in the State court

proceeding), he stated in writing in a letter of January 15, 2001,

from MJM to the Davidsons, “I do not expect this [his change in law

firm] to affect or impair in any way my ability to continue effective

representation for you.” MJM and QBSL abandoned their clients

(the Davidsons) with their Motion to Withdraw, just fowr months

before the scheduled trial date, under color of Arizona Rule 5.1.

Both before and especially after MJM’s change of iaw firm

announcement [per letter of January 15, 2001, from MJM to

Davidson], Davidsons have never felt reasonably assured that the

principles of loyalty to the client or confidentiality were not

compromised by MJM or QBSL.

In retrospect, it is a reasonable inference to postulate that

both MJM’s empioyment with the law firm QBSL and MJM’s

candidacy for positions on the Arizona bench, were bribes and that

these bribes (and M-JM’s acceptance of these bribes) were overt acts

to conceal a racketeering conspiracy which has been ongoing for

nearly two decades, in both New York and Arizona. See Issues #2

and #3 from Davidsons’ Petition for Writ of Certiorari before

Judgment (Supreme Court Docket #04-537), cert. denied. See

Appellees’ Supplemental Excerpts of Record (SER), Volume 1, Tab

1, at pages 1-19, in Ninth Circuit Case No. 03-17342. See Appellees’

SER, Volume 2, Tab 20, at pages 448-485. See Appellees’ SER,

Volume 2, Tab 21, at pages 486-505.

MJM’s and QBSL’ s Motion to Withdraw as counsel of record

(December 17, 2001), when viewed against the backdrop of the

Prosecution Memorandum (November 20, 2000) provides prima

facie evidence of actual malice and willful misconduct by the

attorney (MJM) and his law firm (QBSL) towards his clients

(Davidsons). There was not “good cause appearing therefore” upon

which to base the Trial Judge’s Order of January 11, 2002. The

reasons given for attorney withdrawal in MJM’s and QBSL’s

Motion to Withdraw are false. MJM and QBSL have defrauded the

Trial Court by alleging that ethical considerations motivated their

Motion to Withdraw. MJM and QBSL actually slandered their

then clients (the Davidsons) in their Motion to Withdraw, by

maliciously characterizing their clients’ objectives as being

unprofessional, imprudent, unethical, and repugnant. This

intentional misrepresentation inflicted irreparable harm upon the

Davidsons once the motion was filed. By information and belief,

MJM and QBSL knew the substance and content of the Prosecution

Memorandum, prior to filing their Motion to Withdraw as counsel

of record. See ion for Judicial Notice of Prosecution

Memorandum, on June 11, 2004, in Ninth Circuit Case 04-15304.

6

ion rine of Judicial Immunit

If federal courts adopt a per se rule and dismiss all Section

1983 complaints against [attorneys], the most egregious behavior

by [an attorney], even if unquestionably the result of pressures by

the State, will not be cognizable under Section 1983. Under the

doctrine of absolute judicial immunity, judges are subject to suit

only for (1) non-judicial actions, i.e. actions aot taken in the judge’s

judicial capacity, or (2) “actions, though judicial in nature, taken in

the complete absence of all jurisdiction”. “The judge must have

jurisdiction over the person and subject matter if he [she] is to be

immune from suit for an act performed in his [her] judicial

capacity.” “A third element ts the power of the Court to render the

particular decision which was given.” “ The third element in the

concept of jurisdiction as used in the context of judicial immunity

necessitates an inquiry into whether the defendants’ action is

authorized by any set of conditions or circumstances. This inquiry

begins with an examination of the statute under which the

defendant presumed to act.” “There are actions of purported judicial

character that a judge even when exercising general jurisdiction, is

not empowered to take.” See Briley v. State of California, 564 F.2d

849.

III. Davidsons were precluded from raising federal law

claims in the state forum

S bar. Davidsons om __obtainin

interlocutory review of their Due Process claim in State

courts. Arizona court rules did not permit raising the Rule 5.1

constitutional claim in tne state court proceedings. Davidsons did

not have an opportunity to raise their federal claim in state court

because they were procedurally barred from raising such claims.

The state court’s application and enforcement of the facially

unconstitutional Arizona Rule 5.1 is of such magnitude as to justify

the federal court’s intervention in state affairs and is sufficient to

overcome general abstention principles. J.P. v. DeSanti, 653 F.2d

1080 (1981).

On December 29, 2004, the Arizona Court of Appeals

(Division Two) denied a stay of the State court proceedings. On

January 5, 2005, Division Two declined to accept jurisdiction over

Davidsons’ Petition for Special Action to Arizona Court of Appeals

(2 CA-SA 04-0105), filed on December 22, 2004. On February 16,

2005, the Arizona Supreme Court denied a stay of the State court

proceedings. On July 19, 2005, the Arizona Supreme Court denied

Davidsons’ Petition for Review of a Special Action Decision of the

Court of Appeals (CV-05-0052-PR).

7

Davidsons presently have a fully-briefed Appeal (2 CA-CV

2005-0011) before Arizona Court of Appeals (Division II). Where

state courts have regularly applied an unambiguous

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

determining the constitutionality of the statute until state

appellate courts have had an opportunity to construe it.

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

Denial of Interlocutory Review

An interlocutory appeal may be heard if the trial court’s

decision deprives the appellant of a substantial right which would

be lost absent immediate review. Davidsons’ interlocutory

appeal (2 CA-CV _ 2002-0051) in the State court proceeding

was_ properly appealable under _ the _ collateral order

exception to the final judgment rule. See Whiting v. Lacara,

187 F.3d 317 (“the collateral order doctrine permits appeal from an

order denying leave to withdraw as counsel”). See Fidelity

National Title Insurance Co. v. Intercounty National Title

Insurance Co., 310 F.3d 537 (“the Court of Appeals held that denial

of attorney’s motion to withdraw was immediaiely appealable as

collateral order, and court’s order denying attorney’ motion to

withdraw was abuse of discretion”). Davidsons were barred from

raising federal claims in the State court proceeding. Davidsons

affirm that in the State court proceeding, Arizona Court of Appeals

[2CA-CV 2002-0051], and Arizona Supreme Court [CV-03-0138-

PR], they did not have an opportunity to raise their federal claim

in state court because they were procedurally barred from raising

such claims. Younger abstention is not appropriate when state law

imposes procedurai barriers to raising the constitutional claims in

state court proceedings.

Incompetent State Forum

Unsigned Minute Entry Orders are not appealable under

Arizona law. The Trial Judge’s unsigned Minute Entry Order of

April 29, 2004, denying the Davidsons’ Motion to Amend

Defendants’ Answer, to add Counterclaims, and add Parties,

greatly prejudiced the Davidsons, by denying Davidsons the

right to argue and prove pattern of misconduct and conspiracy in

the State court proceeding. This ruling was intended to prevent the

Davidsons from ever raising their concerns regarding the federal

Constitutionality of the PDUFA before an Arizona court.

The State court’s denial on April 29, 2004, of the Davidsons’

Motion to Amend Defendants Answer, to Add Counterclaims, and

Add Parties, represents a complete denial of a State forum in which

to raise the Davidsons’ federal Constitutional concerns as to the

third Middlesex prong is lacking in both federal district court

proceedings.

The State trial court’s signed Order of January 11, 2002, denied

the Davidsons important Constitutional rights including the right

to Due Process, right to Equal Protection, right to Contract, right to

freedom from arbitrary Takings, and the presently-enjoyed right to

retained legal counsel in a civil proceeding.

Structural Errors

The State trial judge’s dismissal of Davidsons’ retained counsel

of record violates due process and amounts to structural error, and

this cannot be harmless error regardless. This constitutional

“error” had a profound prejudicial impact on the outcome of

Davidsons’ case. Both the denial of counsel and judicial bias were

structura! errors which affected the composition of the record in the

State court proceeding. See Sullivan v. Louisiana, 113 §.Ct. 2078.

The appearance of bias and partiality was created by actual

knowledge of MJM’s candidacy for the Arizona bench by the State

Actors, prior to rulings on Davidsons’ interlocutory appeal by the

Arizona Court of Appeals and Petition for Review to Arizona

Supreme Court, and prior to final Judgment in the State court

proceeding. See-Waller v. U.S., 112 S.Ct. 2321. Violations of 28

USC Section 455(a) which require judges to disqualify themselves

in any proceeding in which their impartiality might reasonably be

questioned does not require scienter. Davidsons move this Court

for relief from the final Judgment in the state court proceeding

under Fed. R. Civ. P. 60 (b)(6). 28 USC Section 455 (a) required the

State court trial judge to recuse herself, and this statute can be

applied retroactively. The risk of injustice to Davidsons, risk of

injustice in other cases if relief is denied, and risk of undermining

the public’s confidence, are all far too great to deny vacatur of the

final Judgment of the State i court under Rule 60 (b) (6). The

n in the rt

vacat L rie

9

ing. The reasonable person

standard applies. “The guiding consideration is that the

administration of justice should reasonably appear to be

disinterested as well as be so in fact”.

MJM’s candidacy for the

Arizona bench while Davidsons’ interlocutory appeal was

44 : w. See Liljeberg

v. Health Rerviees Acquisition Corn, 108 S.Ct. 2194.

If Davidsons had counsel and if Davidsons were tried by

impartial adjudicators, there is a strong presumption that any

“errors” that may have been made are subject to harmless error

analysis. Davidsons had neither counsel nor an impartial

adjudicator in the State court proceedings. The “erroneous”

dismissal of Davidsons’ counsel does compare with the kinds of

errors that automatically require reversal. The error (attorney

dismissal) was “so basic to a fair trial” that it could never be

harmless. Malice by MJM and the Trial Judge towards the

Davidsons may be presumed from predicate facts. Denial of counsel

can never be harmless error because it either aborts the basic trial

process or denies it altogether. Intentional discrimination in

the dismissal of Davidsons’ retained counsel is a grave

constitutional trespass, possible only under color of state

w ithi r_of the st

prevent. The coerced dismissal of Davidsons’ counsel vitiates the

judgment because it violates the Due Process Clause of the

Fourteenth Amendment (this is constitutional error that may not

be deemed harmless).

It is particularly striking in the State judicial proceedings to

compare the Courts’ apparent willingness to forgive constitutional

errors that rebound to the trial judge’s benefit with the Courts’

determination to give preclusive effect to trivial errors that

obstructed Davidsons’ ability to raise meritorious constitutional

arguments.

Denial of “the Basic Trial Process”

There exist a class of constitutional errors that “necessarily

render a trial fundamentally unfair” and these are not amenable to

harmless error analysis. Harmless error analysis “presupposes a

trial, at which the defendant, represented by counsel, may present

evidence and argument before an impartial judge and jury”.

Davidsons were denied representation by counsel, denied an

impartial judge, and denied a jury, in the State court proceedings.

Davidsons were denied “the basic trial process” in the State court

proceedings. Archetypal examples of constitutional errors are

denial of the right to counsel and trial before a biased judge.

Effective defense counsel and an impartial judge play central roles

in the basic trial process. A jury is an equally central entity under

10

= = ae 14% Amendments. See Rose v. Clark, 106 S. Ct. 3101.

the State court adi by der ting the existenc

of circumstances es a probability of bias too high to

be constitutionally tolerable See Mcllwain v. U.S., 104 S.Ct.

Vv. The “extraordinary circumstances” exception to

y. > canal F

The Younger doctrine is inapplicable if the state tribunal to

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

court to be incompetent by reason of bias to adjudicate the

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

The Gibson exception allows a federal court to intervene where the

state adjudicator is so biased as to be incompetent to adjudicate the

matter and where the petitioner shows that abstention has resulted

in irreparable harm. (See Issue #2, #3. and #4 above). The due

process clause entitles a person to an impartial and disinterested

tribunal in both civil and criminal cases.