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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1998
- **Citation:** 525 U.S. 1016

## Text

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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

i
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

ii
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
copyright infringement claim in Moore v. Atlantic entered on
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

copyright infringement only on April 7, 1995 and Bradford
- case was filed in state court on July 22, 1996 cited copyright

iv

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.,

Vv

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

vi

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

I

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.

2
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.

3
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

4

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
I.

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

5

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
COPYRIGHT INFRINGEMENT ACTION REGARDING
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

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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

7

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
copyright infringement and said ownership regarding
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.

la
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

2a

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
v.

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.

4a
Appendix B
1.

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.

Copyright Infringment

To establish a successful claim of copyright
infringement the plaintiffs must prove (1) ownership of the
copyright, and “copying” of protectable expression by 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).

6a
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?

os

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?

8a
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.

9a

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.

-
i
i

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,
v.
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.

I.

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.

* * *

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_1512%3A1. Public record. Not legal advice.