Petition for Writ of Certiorari — Moore v. Time Warner, Inc.

Supreme Court brief1998

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fees Si AF PER es ay Is bon SADE cE tebe Sep “SMe o£

ys 363 JUN 2 5 1998

No. OPFICE OF THE CLERK

In The

SUPREME COURT OF FHEUNIFED SFATFES

October Term, 1997

DOUGLAS MOORE, O’NEIL BRADFORD,

Petitioner(s)

| VS.

| TIME WARNER, INC., ET AL,

| Respondent(s).

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

PETITION FOR WRIT OF CERTIORARI

| Douglas Moore, pro se

O’Neil Bradford, pro se

15106 Magnolia Blvd., #1

P.O. Box 57256

Sherman Oaks, Ca 91413-2256

(818) 753-7719

QUESTION(S) PRESENTED

No. 95-2256

l. Under Title 17 U.S.C. was the district court erred by

allowing Atlantic to proceed with defending this copyright

infringement action without copyright registrations on file at

the copyright office in Washington D.C. for the United States

of America?

2. In the judgment in this action Moore v. Atlantic

entered on August 2, 1996 in favor of Atlantic. If Brown

report was not signed under penalty of perjury then the

district court erred by not allowing plaintiff/petitioner the

time to amend his Opposition to Atlantic’s Summary

Judgment Motion by obtaining music expert Dennis Brown’s

signature under penalty of perjury especially in the presence

of conflicting expert testimony pursuant to F.R.C.P. 702

before entering judgment?

3. In respect to the judgment entered on August 2,

1996 regarding the existence of plaintiffs sheet music [ on

page 4 at line 12 ]. In order for music expert Brown to

complete his analysis of plaintiffs works verses defendants

work(s) he had to review the sheet music to plaintiffs

work(s). And if plaintiff/petitioner verbally expressed to the

presiding Judge that plaintiffs own sheet music to their

work(s) at the settlement conference held in his chambers on

October 25, 1995; therefore was the district court erred by

ruling no sheet music exist on plaintiffs works?

+ After reviewing the order in Douglas Moore v.

Atlantic Recording Corporation, U.S.D.C. Case No. 95-2256

Judge John G. Davies entered on August 2, 1996. Is there a

ae ee ee

genuine issue for trial regarding substantial similarity

between the works and was the district court erred by

dismissing this action without the need for trial because I

plaintiff Moore complied with F.R.C.P. 702 in my opposition

by providing expert testimony satisfying this rule in this civil

action.

No. 96-56337

5. Under Title 17 U.S.C. if Atlantic has no copyright

registration with regard to said work(s) at issue herein on file

at the copyright office in Washington D.C. Was the court of

appeal erred by allowing Atlantic to proceed on appeal

without copyright registrations on file in respect to the two

(2) works in question herein entitled “I wanna be down” and

“baby?”

6. Did the district court and court of appeal properly

exclude Mr. Brown’s analysis on the grounds that it was not

signed under penalty of perjury *'though the music analysis

was signed by Mr. Brown?

7. If the sheet music and music analysis were

provided by Moore on appeal was the court of appeal erred

by excluding the sheet music and music analysis submitted by

Moore on appeal from two (2) additional music experts

signed under penalty of perjury in which concur with Mr.

Brown’s findings?

LASC No. BC 154 147

8. Under California Civil Procedures CCP 413.10(b),

413.40, 414.10, 415.30 and 415.40 proof of service was

proper on all of the named defendants before removal of

action, and removal of the state claims were improvident

under 28 U.S.C. s 1441(c), s 1443, s 1446(a)(b), s 1447(e)

iii

and eleventh amendment of the United States Constitution.

And in a dual court system where state trial courts generally

have original jurisdiction on state claims and most claims

arising under federal law.[{ Restricted jurisdiction of

legislative courts consistently enforced by United States

Supreme Court }] Does it take an act of Congress to deny

State courts jurisdiction over particular, federal law based

claims or causes of action? See, e.g. Northern Pipeline Co. v.

458 U.S. 50, 76-7. 102 S. Ct. 2858,

Marathon Pipeline Co.,

73 L. Ed. 2d 598 (1982); Chicago, Rock Island & Pac Ry. V.

Martin, 178 U.S. 245, 248, 20 S. Ct. 854, 44 L. ed.

1055(1900).

No. 96-5877

9. Under the doctrines of res judicata and collaterel

Estoppel was the district court erred under 28 U.S.C. s

1441(c) by not permitting remand of all matters in which

state law predominates and precluded Bradford from

litigating the state claims in federal court?

10. Under 28 U.S.C. s 1441 was removal proper by

Atlantic, and joinder by EMI, and Koppelman effective?

11. In the district court order entered in Bradford v.

Time Warner, Inc., et al., on November 4, 1996 were

Bradford’s rights violated by the court in respect to the

August 2, 1996 when Moore proceeded pro se and Bradford

was terminated from said action on April 4, 1995;

subsequently the Moore v. Atlantic action was filed on April

7, 1995 by Moore only; however Bradford was added to the

final opinion by the district court?

12. If Moore case was filed under the claim of

- case was filed in state court on July 22, 1996 cited copyright

infringement and five (5) additional state claims doesn’t the

district court orders entered on August 2, 1996 and

November 4, 1996 conflict?

No. 96-56748

13. Under 28 U.S.C. 1447(c), on appeal did the court

of appeal erred in it’s ruling entered on December 19, 1997

and March 27,1998 in Bradford v. Time Warner, Inc., et al.

by failing to remand the state claims to the district court to be

litigated to final judgment where state trial courts generally

have original jurisdiction of claims or causes arising under

federal law; see also U.S. Cont., Art VI cl. 2 ( judges of every

state are bonded by Constitution and laws of United States)?

14. On appeal were Bradford’s rights violated by the

court when it rule on this case without oral argument?

15. On appeal were Bradford’s rights violated by the

district court and court of appeal when it rule on this case

after Bradford brought to the court’s attention that the

transcripts for the Motion to Dismiss in this action were

edited and reworded by the court reporter before mailing

them to Bradford in which were submitted to the court of

appeal as the official record?

LIST OF PARTIES

All parties do not appear in the caption of the

case(s) on the cover page. A list of all parties to the

proceeding in the court whose judgment is the subject of this

petition as follows:

Time Warner, Inc., Time Warnei, Entertainment, Warner

Communications, Inc., Warner Chappell Music Corp.,

Warner Tamerlane Music Corp., Warner Bros Publications,

Inc., WEA Distribution, Inc., WEA Int’l, Atlantic Recording

Corp., Atlantic Records, Atlantic Group, Elektra East West

Group, Gerald Levin, Robert Daly, Terry Semel. Les Bider,

Michael Fuchs, Ahmet Ertegun, Doug Morris, Val Azzoli,

Sylvia Rhone, Darryl Williams, Montie L. Bailey, Alysia

Young, Ilene M. Goldberg, Jeffrey L. Graubart, Judie

Castano, Carol King, Darlene Wilson, DJ Terence Toy, BMG

Dist., Inc., Columbia House, EMI Music Publ., Inc., EMI-

Chrysalis Music Corp., Charles Koppelman, [ Kevin Jones

aka Kipper Jones aka Booker T. Jones II] dba Human

Rhythm Music, Young Legends Songs, Pecot Music ], Keith

Crouch, [“Funky” Jimmy Blue aka Eddie Towns, Jr dba 17

Demo Studio, Nu Soul Music, Nu Soul Habits ], Rashaan

Patterson dba Ecstasoul Music, [ Michael McDavid, John

Kuvalic dba Groovilicious Music ], Brandy Norwood dba

Brand Nu, Inc., and Does 1:64, Inclusive Defendant(s.

aot ate

TABLE OF CONTENTS

TABLE OF AUTHORITIES

CASES

Page

562 F. 2d 1157 (9th Cir. 1977)-------- 2,7

Baxter v. MCA, Inc., 812 F. 2d 421, 423 (9" Cir.1987),

857 F. 2d 995, 999 (Sth Cir 1988)-------- 4a

178 U.S. 245, 247, 20 S. Ct. 854, 44 L. Ed.

1055 (1900) 5,9a

Wilson v, Republic Iron & Steel C

257 U.S. 92, 97 42 s. Ct. 35, 66 L. Ed. 1441 (1921)------ 5

Nishi Fed Becrech Bf

903 F. 2d 709, 712 n.3 (9th Cir. 1990- 9a

798 F 2d 1230, 1232-1233 (9" Cir. 1986) 5

STATUTES

United States Codes:

Removal of Action/Cause of Action

Title 17 U.S.C.------------ 2, 5, 6, 7, 5a

28 U.S.C. s 1441(c) 4,7

28 U.S.C. s 1446(d) l4a

28 U.S.C. s 1447(c)(e)- 3, 4, 14a, 15a

28 U.S.C. s 1446--- ----4, 5

‘Contents

California Civil Procedure:

Page

Proof of Service of Summons and Complaint

C.C.P. 413.10(b) 15a

C.C.P. 413.40 15a

C.C.P. 414.10- 15a

C.C.P. 415.30- 15a

C.C.P. 415.40- 15a

RULES

Federal Rules of Civil Procedure:

F.R.CP. Rule 702--- 2, 3, 6, 4a, 9a

Supreme Court Rule:

Rule 10- 7, 10a

FRAP:

FRAP 10(b-2) 3, 5a, 9a

United States Constitution:

Amendment and State Sovereign Immunity

Eleventh Amendment 7

U.S. Cont., Art VI cl. 2 7

Contents

Page

OPINION BELOW l

JURISDICTION 2

STATUTORY PROVISIONS INVOLVED 2

CONCISE STATEMENT OF CASE 3

REASONS FOR GRANTING THE WRIT 4

CONCLUSION 4 7

INDEX TO APPENDICES

APPENDIX A

Opinion of the United States Court of Appeals and is

unpublished. la

APPENDIX B

Opinion of the United States Court of Appeals and is

unpublished. 2a

APPENDIX C

Opinion and Orders of the Superior Court of California,

County of Los Angeles. lla

APPENDIX D

Opinion of the highest State Court of Appeals and is

unpublished. 13a

Petitioner(s), Moore and Bradford, individuals, respectfully

prays that this Court issue a writ of certiorari to review the

judgment of the United States Court of Appeals for the Ninth

Circuit and judgment(s) below.

OPINIONS BELOW

The opinion of the United States court of appeals appears at

Appendix A and B to the petition and is unpublished. The

decisions of the Ninth Circuit Court of Appeals are docketed

as Civil Actions No. 96-56337 and 96-56748.

The opinion of the United States district court in Bradford v.

Time Warner, Inc., et al., and is unpublished and is docketed

as Civil Action No. 96-5877 JGD(BQRx).

The opinion of the United States district court in Moore v.

Atlantic Recording Corporation, and is unpublished and is

docketed as Civil Action No. 95-2256 JGD(BQRx).

The opinion and orders of the state court appears at

Appendix C to the petition and is unpublished and is

docketed as Civil Action No. BC 154 147.

The opinion of the highest state court of appeal to review the

merits appears at Appendix D to the petition and is

unpublished and is docketed as Civil Action No. B111011.

JURISDICTION

The date on which the United States Court of

Appeals decided on our case(s) was a timely petition for

rehearing en banc and denied by the United States Court of

Appeals on the following date: March 27, 1998, the opinion

denying rehearing appears at Appendix A. The jurisdiction of

this Court is invoked under 28 U.S.C. s 1254(1). For case(s)

from state courts jurisdiction of this Court is invoked under

28 U.S.C. s 1257(a).

STATUTORY PROVISIONS INVOLVED

In Moore v. Atlantic No. 95-2256 pursuant to

(Title 17, U.S. Code) governing Atlantic’s ownership in

respect to the works entitled “ I wanna be down “ and “ Baby

“ no copyright registrations are on file at the copyright office

in Washington D.C. to establish Atlantic’s copyrights or the

right granted to Atlantic by the district court to proceed in a

Court of law under Title 17 U.S. Code 508 defending those

alleged rights.

In Moore’s opposition to Atlantic’s summary

judgment motion, I provided expert testimony pursuant to

FRCP Rule 702 regarding “experts” and “testimony”

substantiating my contentions that the works at issue are

substantially similar satisfying the “entrinsic” test as provided

by this Court in Sid & Marty Knofft Television Productions,

Inc. v. McDonald’s Corporation, 562 F. 2d 1157 (9" Cir.

1977), and Dennis Brown’s report was sign by Mr. Brown.

Remand is required.

Additionally, pursuant to FRAP 10b-2 and FRCP

Rule 702 and in the presence of conflicting expert testimony

the court of appeals was required to admit and consider the

sheet music and music expert analysis presented by

plaintiff/petitioner Moore on appeal.

BC 154 147

In Bradford v. Time Warner, Inc., et al., LASC Case

No. BC 154 147 removal of action on causes of action

pursuant to 28 U.S. Code s 1447(e) and s 1447( c), and the

United States Constitution, Art. VI cl. 2, and Eleventh

Amendment was improper on behalf of defendants-

respondents, Atlantic, EMI, and Koppelman. And under

California Civil Procedures service of the summons and

complaint were properly served on several of the forty-one

named defendants in this action. Remand of the state claims

are required under 28 U.S. Code 1447(c), (e) and the United

States Constitution.

CONCISE STATEMENT OF THE CASE

The instant action entitled Douglas Moore v.

Atlantic Recording Corporation was filed April 7, 1995 under

the claim of copyright infringement only. Atlantic

subsequently brought Summary Judgment with regard to the

lack of substantial similarity between the works conceding

plaintiffs ownership and Atlantic’s access to plaintiffs works.

The district court rule in favor of Atlantic and found plaintiffs

music expert report not admissible for not being signed

under penalty of perjury. Moore appealed. The instant action

entitled O’Neil Bradford v. Time Warner, Inc., et al., was

filed July 22, 1996 under six (6) different causes of action

including copyright infringement against forty named

defendants. Defendants Atlantic, EMI, and Koppelman

improperly removed this action to the district court ahd

subsequently brought a motion to dismiss on the grounds of

claim preclusion and issue preclusion. The district court

dismiss the complaint in it’s entirety without litigating the

state claims to final judgment. Bradford appealed.

On appeal Bradford and Moore appeals were

consolidated and on December 19, 1997 the court of appeals

for the Ninth Circuit before Circuit Judges Sneed, Leavy, and

Trott the Court affirmed lower court ruling. Finding plaintiffs

sheet music and expert music analysis inadmissible in the

presence of conflicting expert testimony.

Moore and Bradford subsequently Petition for

Rehearing En Banc however was denied by Court of Appeals

on March 27, 1998. Moore and Bradford’s Petition for Writ

of Certiorari enclosed and is timely.

REASON FOR GRANTING THE WRIT

THIS COURT SHOULD GRANT CERTIORARI

TO ENSURE PROPER ENFORCEMENT OF

JURISDICTIONAL ISSUES IN DUAL COURT SYSTEM

UNDER 28 U.S. CODE s_ 1441(C) REGARDING

PROCEDURAL REMOVAL OF SEPARATE AND

INDEPENDENT CLAIMS AND THE REQUIREMENT OF

ABSOLUTE DIVERSITY.

Remand of all matters in which state law

predominates also should simplify administration of the

separate and independent claim removal. The federal and

state claims must be so related in such a way as to establish

pendant jurisdiction over the state claim(s). In general, all

defendants must join in removal under 28 U.S. Code s

1446(b); see Chicago, Rock Island & Pac. Ry. V. Martin, 178

U.S. 245, 248, 20 S. Ct . 854, 44 L. ed. 1055 (1900).

The right of removal jointly held by all defendants.

Hewitt v. City of Stanton, 798 F. 2d 1230, 1232-1233 (9"

Cir. 1986). Some courts require improperly served

defendants to join. See Teitelbaum v. Soloski, 843 F. Supp.

614, 615 (C.D. Cal. 1994); parties to supplemental claims

must join because jurisdiction is based on single case.

Chicago, Rock Island & Pac. Ry. V. Martin, 178 U.S. 245,

247, 20 S. Ct. 854, 44 L. Ed. 1055 (1900). Defendants

seeking removal bears burden of proving federal jurisdiction.

Wilson v. Republic Iron & Steel Co., 257 U.S. 92, 97, 42 S.

Ct. 35, 66 L. Ed. 144 (1921).

In cases involving improvident removal under 28

U.S.C. 1447(d) and civil rule 11 notice of removal must be

signed by all defendants. Remand is required.

Il.

THIS COURT SHOULD GRANT CERTIORARI

TO INSTRUCT LOWER COURTS ON HOW TO

PROPERLY APPLY 17 508 U.S. CODE IN A

OWNERSHIP AND IMPROPER COPYRIGHT

REGISTRATION OF SAID WORKS.

In these actions, and pursuant to 17 508 U.S.C.

the district court has disregarded this law which would have

established Atlantic’s and Time Warner’s right to copy the

herein works which were distributed and sold to the public,

and would relieve the Courts of these types of actions in

ih TR ONS ee Se eee ee Nae et? en oe oe oe ee ee eS Se EN eee ee

which the defendants do not posses copyright registrations on

said works. Additionally, under 17 508 USC would require

defendants to posses copyright registrations on file at the

library of Congress before proceeding to defend actions in a

United States Court of law involving copyright infringement.

Il.

THIS COURT SHOULD GRANT CERTIORARI

TO INSTRUCT LOWER COURTS ON HOW TO

PROPERLY APPLY THE “ENTRINSIC” TEST

REGARDING ACTIONS IN WHICH EXPERT

TESTIMONY WAS PROVIDED IN OPPOSITION TO

SUMMARY JUDGMENT MOTION REGARDING

SUBSTANTIAL SIMILARITY AND SIGNED BY

EXPERT. HOWEVER, PRO SE PLAINTIFF-PETITIONER

DID NOT INSTRUCT EXPERT TO INCLUDE THE

PHRASE “ I DECLARE UNDER PENALTY OF

PERJURY” PRIOR TO SIGNING HIS REPORT.

Amended and additional pleadings could have been

requested by the court and provided by pro se plaintiff to

correct the deficiency with plaintiffs expert analysis submitted

in Moore v. Atlantic which determined the works at issue are

the same, and substantially similar.

Pursuant to the “Extrinsic” test under FRCP Rule

702, the opinion of the district court should be considered an

abuse of discretion, and rush to judgment in the presence of

conflicting expert testimony. The district court entered

judgment in the presence of conflicting expert testimony and

if further testimony could have been obtained by the presiding

magistrate judge Brian Q. Robbins through a sworn

deposition of music expert Dennis Brown, Brown testimony

would have been eventually sworn in by the court and

defendants.

a a me rm A

The district court did not properly apply the

“extrinsic” test in this action and this Court should review the

opinion of the lower Court to set a precedence regarding pro

se plaintiffs and verified pleadings submitted with a simple

correctable deficiency as it relates to the application of the

“extrinsic” test., see, Si Television

Productions, Inc. v. McDonald’s Corporation, 562 F 2d 1157

(9" Cir. 1977).

CONCLUSION

Pursuant to 28 U.S.C. s 1441(c) certiorari should

be granted: 1/ to ensure proper enforcement of jurisdictional

issues in a dual court system regarding procedural removal of

separate and independent claims and the requirement of

absolute diversity, 2/ to instruct lower courts on how to

properly apply title 17 508 U.S.C. in actions involving

improper copyright registration of defendants works, 3/ to

instruct lower courts on how to properly apply the “extrinsic”

test regarding actions in which expert testimony was provided

by pro se plaintiff however pursuant tu Rule 10 of the US

Supreme Court governing review of Certiorari on the within

appeals that the lower courts opinions are misstated, tainted,

and conflict as to call for an exercise of the Court’s

supervisory power.

The petition for writ of certiorari is extremely

warranted to instruct proper application of said laws and to

preserve the US Constitution [ Eleventh Amendment, and

U.S. Cont., Art. VI cl. 2 Jand laws and procedures referenced

herein above. The petition for writ of Certiorari should be

granted.

Appendix A —- ORDER OF THE UNITED STATES

COURTS OF APPEALS FOR THE NINTH CIRCUIT

FILED MARCH 27, 1998

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 96-56337

No. 96-56748

Douglas Moore, O’Neil Bradford,

Plaintiffs-Appellees,

Verses

Time Warner, Inc, et al.,

Defendants-Appellants.

ORDER

The panel has voted to deny appellant’s petition for

rehearing and to reject the suggestion for rehearing en banc.

/s/ Cathy A. Catterson

Clerk

Appendix B - OPINION OF THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT

DECIDED DECEMBER 19, 1997

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

By John G. Davies, District Judge

Brian Q. Robbins, Magistrate Judge

No. 95-2256

No. 96-56337

No. 96-5877

No. 96-56748

Decided without oral argument

Decided: December 19, 1997

Douglas Moore, O’Neil Bradford,

Plaintiffs- Appellants

Time Warner, Inc., et al.,

Defendants-Appellees.

Appeal from the United States District Court

for the Central District of California

Before: SNEED, LEAVY, and TROTT, Circuit Judges

3a —_

Appendix B

Affirmed by non-published opinion no specification

as to which circuit judge wrote the opinion or what judges

joined.

MEMORANDUM OPINION

In these two consolidated appeals, Douglas Moore

appeals pro se from the district court’s grant of summary

judgment in favor of Atlantic Recording Corporation

(“Atlantic Records”) in Moore’s action for copyright

infringement. O’ Neil Bradford appeals pro se from the district

court’s dismissal of his complaint based on copyright

infringement and additional state law claims. We review the

district courts grant of summary judgment and Fed. R. Civ. P.

12(b)(6) dismissal de novo.See, Bagdadi v. Nazar, 84 F. 3d

1194, 1997 (9" Cir. 1996) (summary judgment); Stone _v.

Travelers Corp., 58 F. 3d 434, 436-37 (9" Cir. 1995)

(dismissal). We have jurisdiction pursuant to 28 U.S.C. s

1291, and we affirm.

Appendix B

Douglas Moore, is (50%) fifty percent owner of

the copyrights at issue and proceded pro se in the instant

action alone. In Moore opposition contained expert music

report performed by Dennis Brown pursuant to FRCP Rule

702 substantiating substantial similarity between the four (4)

works at issue presenting a genuine issue for trial.

To establish a successful claim of copyright

infringement the plaintiffs must prove (1) ownership of the

defendant(s), Baxter v. MCA, Inc., 812 F. 2d 421, 423 (9"

Cir. 1987). (2) Defendants access to the copyrighted work

prior to the creation of defendants’ work, and (3) substantial

similarity between the copyrighted work and the defendant’s

work.

For purposes of this motion Atlantic concedes

plaintiffs’ ownership interest in the copyrights at issue,

( Atlantic had access to plaintiffs copyrighted works prior to

the creation of the works “I wanna be down” and “baby.)

Atlantic argues, however, that summary judgment must be

entered in it’s favor because it’s works are not substantially

similar to the plaintiffs works. Moore disagreed and rebutted

Atlantic’s suggestions with Brown report which contain

musical notes and analysis conflicting with Atlantic’s expert

D. Anthony Ricigliano which qualifies this action suitable for

trial to present the genuine material facts before the jury of

ordinary reasonable persons, satisfying the requirements with

regard to the “intrinsic” test, which is applied to

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Appendix B

determine whether two works are substantially similar in their

form of expression.

The issues with Atlantic’s summary judgment does

not only surround the issue of substantial similarity, however,

the courts blatant disregard of the law pursuant to 17 508

U.S.C. in respect to the non-copyrighted titles recorded and

distributed by the defendants entitled “ I wanna be down” and

baby.”

Why did the lower Court and Court of Appeals for

the Ninth Circuit overlook Atlantic’s ownership of said works

and their absence of copyright registrations. The defendants

must set forth specific facts showing how and where the

defendants obtain those rights and present them to the trial

court before proceeding to defend those rights. The lower

Courts have erred in it’s obligation under the law (17 508

U.S.C.).

Moore also provided additional sworn testimony

on appeal before circuit judges Sneed, Trott, and Leavy

pursuant to FRAP 10(b)(2) also concurring with Brown

report submitted in plaintiffs opposition before US District

Court Judge John G. Davies substantiating a genuine issue of

material facts suitable for trial. However, the circuit judges

rejected Brown testimony, along with Sanders and Wherli

sworn testimony.

1. The district court properly excluded Mr. Brown’s

music analysis on the grounds that it was not signed under

penalty of perjury. See, Fed. R. Civ. P 56(e); 28 U.S.C. s

1746; Celotex Corp. v. Catrett, 477 U.S. 317, 321 n3

(1986).

Appendix B

At the motion hearing at issue on May 13, 1996, if

the Court review the transcripts you will find the presiding

Judge completely leading the defense counsels argument

showing bias and prejudice, and you will also find attorney

Dana S. Milmeister’s statements as to the creation of the

“music” which she alleges is the sole creation of defendant

Keith Crouch. However, the defendants fraudulent copyright

registrations # PA 757-401 and # PA 757-402 plainly list

“words and music by” Keith Crouch, Kipper Jones, and

Rashaan Patterson. These registrations are with conscious

knowledge deceitful and appear to be fraudulent.

THE COURT: Let me ask counsel one further

question only.

Atlantic concedes access?

MS. MILMEISTER: For purpose of this motion,

yes, your Honor.

THE COURT: And there were two composers,

right. The Atlantic works?

MS. MILMEISTER: Actually, there was one

composer of the music, which is Keith Crouch. The other

writers of the songs were lyricists.

THE COURT: And did Crouch have access to the

plaintiff's works? You don’t seem to cover that point in your

Opposition. us

MS. MILMEISTER: Well, for purposes of this

motion, access --

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Appendix B

THE COURT: Well, let’s assume you’re in trial

and he’s called as a witness and Mr. Moore asks him the right

questions that relate to access. What would his answer be?

MS. MILMEISTER: Your Honor, Atlantic

believes that the testimony of Mr. Crouch truly would he that

he never heard from the —

THE COURT: The composer had never — there is

evidence then that the composer of the music had never heard

of or heard the demos that were submitted by Mr. Moore?

MS. MILMEISTER: That’s correct, your Honor.

THE COURT: What about the lyricists?

MS. MILMEISTER: The lyricist —

THE COURT: Same thing?

MS. MILMEISTER: Yes.

THE COURT: And they were submitted to

Atlantic, but the people who wrote the two works that

claimed infringing works personally had no access?

MS. MILMEISTER: That is correct.

THE COURT: Have you taken any depositions,

Mr. Moore? Is that correct? Is that what they tell you? Did

you ask them in depositions?

Appendix B

MR. MOORE: I wasn’t able to depose those

witnesses.

THE COURT: I see.

MR. MOORE: But I beg to differ with the

defendant’s counsel, and I ‘m contending that one of the

executives at Atlantic Records is a personal manager to Keith

Crouch and has a personal link to the composition that was

sent in.

Il.

O’Neil Bradford, is (50%) fifty percent owner of

the copyrights at issue and did not proceed in Moore _v.

Atlantic, and on April 4, 1995 was terminated by the United

States Magistrate Judge. The district court in conjunction

with the defense counsel has totally misrepresented

Bradford’s participation along with presenting false

statements of his participation at said court hearings on the

record. Plaintiff Bradford’s proof is the opinion in Moore v.

Atlantic and the transcripts of said hearings.

On July 22, 1996, Bradford filed an instant action

against forty-one defendants citing (1) copyright

infringement, (2) civil conspiracy, (3) fraud, (4) unfair

competition, (5) intentional interference with prospective

economic advantage, and negligent interference with

prospective economic advantage; case entitled: O’Neil

Bradford v. Time Warner, Inc., et al., Case No. BC 154 147,

Los Angeles Superior Court for the County of Los Angeles.

Appendix B

Defendant Atlantic, noticed removal of action

pursuant to 28 U.S.C. s 1446(a), [ U.S.D.C. Case No. 96-

5877 JGD(BQRx) J, and EMI and Koppelman joined then

subsequently brought a motion to dismiss on the grounds of

collateral estoppel and res judicata in respect to claim

preclusion and issue preclusion. The district court dismissed

Bradford’s action in it’s entirety with prejudice including the

non-litigated state claims.

Bradford argued on appeal that he was never a

plaintiff in Moore v. Atlantic and besides that action is only

based on the claim of copyright infringement. Claim

preclusion does not apply to any of the state claims filed in

Bradford v. Time Warner, Inc., et al.; and removal of the case

was improper under 28 U.S.C. s 1446(b), See, Chicago,

Rock Island & Pac Ry. V. Martin, 175 U.S. 243, 248, 20 S.

Ct. 854 44L Ed. 1055 (1900); Nishimoto v. Federman-

Bachrach & Assocs., 903 F. 2d 709, 712 n.3 (9" Cir.

1990)(Strong presumption against removal jurisdiction means

defendant always has burden of establishing removal proper);

Emrich v. Touche Ross & Co., 846 F. 2d 1190, 1195(9" Cir.

1988.)

2. On appeal, Moore has submitted various

documents including copies of sheet music and two (2)

additional music analysis pursuant to FRAP 10(b)(2) and

FRCP 702. Because these documents were not presented to

the district court we have not considered them for purposes

of this appeal. See, Fed. R. App. Proc. 10(a); United States v.

Elias, 921 F. 2d 870, 874 (9" Cir. 1990). The district court’s

judgment is therefore affirmed.

10a

Appendix B

The district court order entered November 4, 1996

falsely states the Moore v. Atlantic file date as May 3, 1995,

order at 2:17. And the order list the magistrate judge as

(BQRx), order at 2:6. However, the district court order

entered on August 2, 1996 cover page at 1:10 list the

magistrate judge as (RNBx). Pursuant to Rule 10 of the Rules

of the US Supreme Court governing review of certiorari the

lower court rulings are misstated and conflict as to call for an

exercise of the Court’s supervisory power. The petition for

writ of certiorari should be granted.

ila

Appendix C —- OPINION AND ORDERS OF THE

SUPERIOR COURT OF CALIFORNIA, COUNTY OF

LOS ANGELES

DATED MARCH 4, 1997

CIVIL ACTION

NUMBER BC 154 147

By Aurelio Munoz

O’Neil Bradford,

Plaintiff,

Time Warner, Inc., et al.,

Defendants.

ORDER

The Motion is granted. Once the matter was removed to the

Federal Court, the Federal Court took jurisdiciion of all the

parties and all causes of action. Plaintiffs remedies, if any,

have to be litigated in the Federal Court. ALLSTATE INS.

CO. v. SUPERIOR COURT (1982) 132 CA 3d 670, further

status conference is placed off calendar.

MT eal nema laicabaiinl ad

1 inate RE A oa

12a

Appendix C

Nature of Proceeding:

MOTION OF DEFENDANT ATLANTIC

RECORDING CORPORATION, DEFENDANTS

ATLANTIC RECORDING CORPORATION, EMI MUSIC

PUBLISHING, INC., AND CHARLES KOPPELMANS’

TO DISMISS COMPLAINT.

3. No final judgment of appealable order of dismissal

in the form of a written order signed by the court and filed in

this action until August 20, 1997. (Code Civ. Proc., s 581d.)

13a

APPENDIX D - ORDER OF THE COURT OF APPEAL

OF THE STATE OF CALIFORNIA SECOND

APPELLATE DISTRICT — DIVISION SEVEN.

DECIDED NOV 19, 1997

NOT PUBLISHED

COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

No. B111011

( Superior Ct. No. BC 154 147 )

O’Neil Bradford,

| Plaintiff-Appellant,

Was

Time Warner, Inc., et al.,

Defendants and Respondents.

Appeal from order of the Superior Court of Los

Angeles County. Aurelio Munoz, Judge. Affirmed.

14a

Appendix D

Affirmed by non-published opinion. Judge J.

Woods wrote the opinion, in which Johnson, Acting P.J. and

Judge J. Neal joined.

OPINION

Woods, Judge:

Appellant invites this court to determine wiiether certain

defendant’s other than respondents were properly served and

whether removal to the Federal court was improvident and

then stay the action against respondents and remand the

entire matter to state court.

Federal court, which in turn had dismissed the action without

remanding it to state court.

The court reasoned: “One of the controlling federal

statutes establishes that removal of a civil action from state

court to a federal court ..... operates as a literal ‘removal’ of

the action from the state court and terminates that court’s

jurisdiction to proceed in it at the time. [ 28 U.S.C. s

1446(a),(d),(e).] A companion federal statute makes clear

that proceedings in the action may thereupon be conducted in

the federal court, which has exclusive jurisdiction after

removal; that the federal court must ‘remand’ the action to

the state court may resume it’s first instance jurisdiction if —

but only — there is or a ‘remand’ of the action to it from the

federal court. [ 28 U.S,C. s 1447, (a) and (c).]”

15a

Appendix D

The Court of Appeal determined that without a

remand, there was no action in which the superior court

could resume jurisdiction so consequently the superior court

was without jurisdiction to proceed further.

Similarly, appellant’s action was removed to

federal court, which in turn dismissed the action without

remanding it to the superior court. Any arguments appellant

had about the propriety of remand had to be raised in federal

court. ( 28 U.S.C. s 1447, ( c ).) State courts have no

authority to stay federal actions or order federal actions

remanded to state courts. Accordingly, as the superior court

in this case had no jurisdiction of appellant’s action, it’s

dismissal was proper. The order is affirmed.

Pursuant to C.C.P. 413.10(b), 413.40, 414.10,

415.30, and 415.40 governing service of the summons and

complaint in a civil action, several of the named defendants in

this instant action were properly served and never responded

to the summons and complaint, or joined into Atlantic’s

motion to dismiss. Subsequently, Bradford made two (2)

attempts before final judgment to file defaults on those

defendants, however, rejected by the Clerk of the Superior

Court and returned by US Mail addressed to plaintiff-

appellant O’Neil Bradford under discrepancy. Atlantic’s

notice of removal was falsely stated with regard to proper

service on several of the forty-one defendants before removal.

* * *

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.