Petition for Writ of Certiorari — Barash v. Northern Northern Trust Trust Corp. (No. 07-167)
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Supreme Court, U.S.
FILED
07-167 AUG 0 6 2007
No: OFFICE OF THE CLERK
3n The
Supreme Court of the Gnited States
EXECUTOR, ESTATE OF CELIA KATES
PHILIP BARASH, BENEFICIARY, IRVING
G. KATES TRUST, SANDRA BARASH
Petitioners,
Vv.
NORTHERN TRUST CORPORATION,
WILLIAM A. OSBORN, CEO, GWEN
BOYKIN,
Respondents.
On Petition For Writ Of Certiorari
To The United States Court of Appeals
For the Second Circuit
PETITION FOR WRIT OF CERTIORARI
Executor, Philip Barash, pro se
Beneficiary, Sandra Barash, pro se
6 Serenite Lane
Muttontown, New York 11791
516-621-8665
QUESTIONS PRESENTED FOR REVIEW
1- The Supreme Court of the United States is obligated
to protect and defend the Constitution of the United States as
specifically defined under Article VI which states “This
Constitution, and the laws of the United States which shall
be made in pursuance thereof; and all treaties made, or
which shall be made, under the authority of the United
States, shall be the supreme law of the land; and the judges
in every state shall be bound thereby, any thing in the
constitution or laws of any state to the contrary not-
withstanding. Can a State Court defy Federal Statutes and
can a Federal Court defer to a State Court ruling that defies
Federal Statute?
2- Title 28 USCS 1446 (d) is specific in that “State
Court shall proceed no further with a removed case unless
and until the case is remanded”. Should a State Court
proceed with a judgment obtained ex-parie of the current
Petitioners who were Defendants, does not the Federal
Statute render that judgment automatically null and void?
“Once a petition for removal is filed, state court shall
proceed no further and all proceedings in state court are
null and void”. “After removal jurisdiction of state court
ceases and state court has duty to proceed no further even if
the case was removed improperly”. Maseda v. Honda Motor
Co. Ltd. CA 11 (Fla) 1988 861 F. 2d 1248, 128 FRD 124.
3- A Federal Court sitting in New. York is obligated to
look to New York State Law under diversity jurisdiction and
cannot dismiss an action brought by a New York Trust under
New York Estates, Powers and Trusts Law, to enforce that
law against a Corporation who has fraudulently brought an
(i)
action for “judicial accounting” in a foreign state which has
no jurisdiction over a New York Trust, and has falsely
claimed that such trust was administered in the State of
Florida, whereas evidence concluded that such trust was in
fact administered in the State of Illinois.
A Federal Court in New York cannot dismiss such
an action based upon “probate exception” because under
New York Law trust litigation must take place in the regular
courts of the state, the Supreme Court of the State of Mew
York and not the Surrogate Court, which is a Court of
limited jurisdiction and only handles Estates and Wills not
trusts. Only in states where trust litigation must take place
in a Probate Court can a Federal Court dismiss a trust action
for “probate exception”. Is not such dismissal reversible?
4- Cana state court award attorney fees in a Florida
judgment against fees that resulted from an action in a
Federal Court in the State of New York where it is clear that
any award of attorney fees in Federal Court can only resuit in
a Federal Statute making such award, when the party
claiming such fees was not the same party in the New York
action?
5- Can a Federal Court in New York which has had
an action removed to it, and such action proceed in state
court while removed and prior to remand, permit a judgment
obtained prior to remand, in violation of Federal Statute
become the basis for a footnote judgment of “res judicata”?
(i)
LIST OF PARTIES
All parties appear in the caption of the case on the
cover page.
CORPORATE DISCLOSURE STATEMENT
PURSUANT TO RULE 29.6
Northern Trust Corporation is a publicly traded
company on the NASDAQ Exchange unJer the stock symbol
NTRS. Its principal headquarters under Federal Law is 50
South LaSalle Street, Chicago, Illinois 60675. It is in current
registration with the State of Delaware and under Federal
Statute may be a citizen of Delaware or Illinois.
Northern Trust Bank of Florida, N.A. not sued but
referenced is a subsidiary company licensed by the Office of
the Comptroller of the Currency to conduct trust business
from 700 Brickell Avenue, Miami, Florida, and claims that
is has jurisdiction in Florida Courts.(This company falsely
sued the Petitioners in a Florida Court claiming that it was
the successor trustee of the New York Trust)
Northern ‘i rust Company is the administrator and
manager of all of the Northern Trust Corporation’s trust
business, is an Illinois State Bank, and is located at 50 South
LaSalle Street, Chicago, Illinois 60675.(This company was
the successor trustee, appointed by the beneficiaries of the
trust, not sued, and did not sue. This company has only the
jurisdiction of the Illinois Courts.)
(il)
The Respondent is Northern Trust Corporation but
reference is made to the other companies, because actions
by them are of importance to the issues.
NOTICE TO THE COURT!
As a regular course of pleading in order to deceive
the tribunal, attorneys for the Respondent will state that
“Northern Trust Corporation” hereinafter called “Northern
Trust” and then make the Court believe that there is only
one Northern Trust.
Northern Trust is not an entity and does not exist
and cannot file pleadings in a Court of Law. The three
companies listed above have distinct and separate
jurisdictional rights.
This “Northern Trust” ploy is designed to make the
Court believe that whatever any company in the
Northern Trust Corporation group of companies does
with its unique jurisdictional rights applies to all of the
other companies.
While this may be true for the other National
Brokerages, such as Smith Barney, Merrill Lynch, etc.
it is not true for the Northern Trust Corporation cilia
of separate and distinct companies.
(ii)
TABLE OF CONTENTS AND
INDEX TO APPENDICES
QUESTIONS PRESENTED (i)
LIST OF PARTIES AND CORPORATE
DICLOSURE STATEMENT RULE 29.6 (ii)
TABLE OF CONTENTS (iii)
INDEX TO APPENDICES (iii)
TABLE OF AUTHORITIES (iv)
REVIEW OF OPINIONS Page i
JURISDICTION Page 2
CONSTITUTIONAL AND
STATUTORY PROVISIONS _ Page 2-3
STATEMENT OF THE CASE Page 3-12
STATEMENT REQUIRED
PURSUANT TO RULE 14 (g)(ii) Page 13
STATEMENT REQUIRED
PURSUANT TO RULE 14(h) Page 13
ARGUMENT AS TO WHY WRIT
SHOULD BE GRANTED INCLUDING
CITATIONS. Page 14-25
REQUEST TO GRANT WRIT Page 25
(iii)
INDEX TO APPENDICES
APPENDIX A- MEMORANDUM OF DECISION AND
ORDER IN COURT OF FIRST
INSTANCE DATED NOVEMBER 17,
2005
APPENDIX B- JUDGMENT IN FLORIDA PROBATE
COURT OBTAINED IN DEFIANCE
OF USCS 1446 (d) JANUARY 27, 2005
APPENDIX C- AWARD OF ATTORNEY FEES IN
DISREGARD FOR FEDERAL LAW
BY FLORIDA COURT AGAINST
FEES FROM A FEDERAL COURT
IN NEW YORK.
APPENDIX D- FLORIDA COURT ORDERS CASE
TO CONTINUE DESPITE
REMOVAL, DECEMBER 17, 2004
APPENDIX E- UNITED STATES COURT OF
APPEALS DENIES APPEAL AND
AFFIRMS DISMISSAL OF THE
COURT OF FIRST INSTANCE
DATED NOVEMBER 8, 2006
APPENDIX F- APPEALS COURT DENIES A
MOTION FOR NEW EVIDENCE
DATED JUNE 14, 2007.
APPENDIX G- APPEALS COURT DENIES RE-
HEARING EN BANC
DATED JUNE 19, 2007.
(iii)
TABLE OF AUTHORITIES REFERENCED
TO THE PAGES OF THE TEXT
Title 28 USCS 1446 (d) Page (i)
Maseda vy. Honda Motor Co Ltd
CA 11 (Fla)1988, 861 F. 2d 1248,
138 FRD 124 Page (i)
Article VI United States
Constitution Page 2
Title 28 USCS 1446 (d) Page 2
12 CFR Chapter 1, section 9.7 (d) Page 4
12 CFR Chapter 1, section 9.8 (a) Page 4
Florida Statute 737.101 Page 8
Aetna Cas. and Sur Co v. Aniero
Concrete Co. 404 F./ 3d 566, 604
(2d Cir 2005) Page 11
King v. Simpson 189 F. 3d 284,
287 (2d Cir 1999) Page 11
Jaghory v. New York State Dept
of Educ. 131 F. 3d 326, 329
(2d Cir 1997) Page 11
Buenger v. Kennedy 151 So 2d 463,
Fla App 2 Dist 1963. Page 12
Perry v. Agnew 903 So 2d 376 Page 12
USCS 1446 (d) Page 12
Peary v. Parrish 385 So 2d 1034 Page 13
USCS 1446 (d) Page 14
Article VI United States
Constitution Page 14
Ocean Energy Inc. v. Plaquemines
Parish Govt. 880 So 2d 1 (La 2004) Page 15
State Ex Rel King v. Summit
County Council 990 Ohio St 3d 172
2003 Ohio 3050, 789 NE 2d 1108 Page 15
(iv)
Anderson v. United Parcel Service
2004 UT 57, 96 P 3d 903 (Utah 2004)
United States v. Ashland Oil &
Transport Co. 504 F. 2d 1317
(6th Cir 1974)
Cooper v. State 277 Ga 282, 587,
SE 2d 605 (2005)
Caterpillar v. Dept of Treasury
Revenue Div. 440 Mich 400, 488 NW
2d 182 (1992)
Whitcomb v. Young 258 Ind 127, 279
NE 2d 566 (1972)
Bagley v. Blankenship 161 W. Va 630
246 SE 2d 99 (1978)
Barron v. City of Baltimore 32 US 243
8 L Ed 672, 1833, WL 4189
Peterson v. Williams 85 F. 3d 39,
2d Cir 1996
Moberly v. Herboldsheimer 276 Md 211
345 A 2d 855 (1975)
In Re Arizona Appettitos Stores Inc.
893 F 2d 216 |
Securities Exchange Commission v
McCarthy 322 F. 3d 650
Siripongs v. Davis 282 F. 3d 755
(2002)
Difford v. Sec. of Health & Human
Services 910 F. 2d 1316
Provident Life & Acc. Ins Co v.
United States 740 F. Supp 492
Moore y. Interstate Fire Insurance Co.
SD Miss 1989, 717 F Supp 1193
Sands v. Geller SD NY 1971, 321 F
Supp 558
(iv)
Page 15
Page 15
Page 16
Page 16
Page 16
Page 16
Page i6
Page 16
Page 16
Page 16
Page 17
Page 17
Page 17
Page 17
Page 17
Page 17
Saslow v. State Farm Mutual Auto Ins
Co SD NY 1971, 321 F. Supp 558 Page 17
In Re Wellington Resource Corp ND Tex
1982, 20 BR 64 Page 18
Ward v. Resolution Trust Corp 1992, 972
F. 2d 196, 507 US 971 Page 18
Kirven v. Virginia-Carolina Chemcial Co.
58 SE 424, 77 SC 493, Affd 30 SCT 78, 215
US 252, LED 179 Page 18
Lubrizol v. Exxon 932 F.Supp 326 SD Tex
1986 Page 19
USCS 1446 (d) Page 19
McClellan v. Chapman 164 US 347, 357 Page 20
David v. Elmira Savings Bank 161 US
275, 283 Page 20
In Re Office of the Comptroler o
the Currency WI 486347 (1992) Page 20
Jimenz v. Shippy Realty Corp 622 NYS
2d 983, 213 AD 2d 377 Page 20
Van Wie v. Van Wie 507 NYS 2d 486,
124 AD 2d 353 Page 20
641 Ave of the Americas Ltd Partner-
ships v. 641 Association Ltd 189 BR 583 Page 20
Amalagmated Sugar Co. v. NL Industries
Inc. 687 F. Supp 97 Page 20
Rothenberg v. Amalgamted Sugar Co.
108 S. Ct 571, 484 US 992, 98 LED 2d 571 = Page 20
Tole SA v. Miller 530 F. Supp 999 Affd
697 F. 2d 298 Page 21
Jeanson v. Middle Grove Estates 634 NYS
2d 818, 222 AD 2d 782 Page 21
In Re Schwarz 36 BR 355 Page 21
Barol v. Barol 464 NYS 2d 561, 95 AD
2d 942 Page 21
(iv)
Juan vy. Cortinas 657 NYS 2d 561, 89 NY
2d 659, 679 NE 2d 1061
Kaufman v. Eli Lilly & Co 492 NYS 2d
584, 65 NY 2d 449, 482 NE 2d 63
Ryan v. New York Telephone 62 NY 2d
494, 500 (1984)
McLaughlin v. State of New York
Governor’s Office 784 F. Supp 961
State Hospital for the Criminally
Insane v. Cosolidated Water Supply Co.
110 A 281, 267 PA 29
Khol Cahridum Kirays Joel v. Village
of Kiryas Joel 935 F. Supp 450
Celtano v. Purer SD NY 602 F Supp
777 (1985)
Farrell v. O’Brien 199 IS 89, 50 LED
101, 25 S Ct 727
Day & Zimmerman Inc. v. Calloner
96 S. Ct 167, 423 US 3, Tex 1975
Marshall v. Marshall S. Ct 2006
WL 113194 US
Crowley Amer Trans Inc. v. Richard
Sewing Machine Co. 172 F 3d 781 CA
11 Fla 1999
Tanker Management Inc. v. Brunson
918 F 2d 1524
Kreager v. Solomon & Flanagan PA 775
F 2d 1541, 27
Amalgamated Clothing & Textile Workers
Union v. Walmart Stroes Inc. 54 F 3d 69
(iv)
Page 21
Page 21
Page 21
Page 22
Page 22
Page 22 |
Page 23
Page 23
Page 23
Page 23
Page 24
Page 24
Page 24
Page 25
Jn The
Supreme Court of the United States
PETITION FOR WRIT OF CERTIORARI
Petitioners respectfully request that a Writ of
Certiorari be issued by this Court to review the
judgments listed below:
1- Summary Order of the United States Court of
Appeals for the Second Circuit denying appeal and affirming
judgment of the District Court.
2- Memorandum of Decision and Order of the United
States District Court for the Eastern District of New York
dismissing the action against the Respondents based upon
Probate Exception to Federal Diversity Jurisdiction with a
footnote reference to possible “Res Judicata”.
3- Final Judgment in the Circuit Court of the Fifteenth
Judicial Circuit in and for Palm Beach County, Florida with
the award of attorney fees from a Federal action in the State
of New York against not the same party. This action was
concluded without participation of the Petitioners who were
Defendants because the case had been removed to Federal
Court and not remanded. (Removed December 6, 2004,
judgment January 27, 2005, remanded March 29, 2005)
JURISDICTION
The date that the United States Court of Appeals
denied the appeal and affirmed judgment of the District
Court was November 8, 2006.
The date that a Motion for new evidence to be filed
before the En Banc panel was denied was June 14, 2007.
The date that a petition for panel rehearing en banc
was denied was June 19, 2007
Wherefore the time to file a Petition for Writ of
Certiorari before this Court extends for 90 days from June
19, 2007, and this petition is filed on August 3, 2007 and
the jurisdiction of this Court is invoked under 28 USCS
Section 1257 (a).
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
l- Article VI of the United States Constitution and
the mandate of this Court to uphold in particular “judges
in every state shall be bound thereby” to Federal Statutes.
2- Title 28 USCS 1446 (d) in specific violation by
Florida State Court and by United States District Court for
the Eastern District of New York.
3- Specific failure to enforce New York State
Estates, Powers and Trusts Law a requirement of Federal
Courts sitting in the State of New York.
(2)
4- Florida State Court cannot award attorney fees
in violation of Federal Statutes in a New York Federal action
and award them to a party not in that action.
5- A Federal Court in New York cannot fail to
apply Federal Statute concerning the continuation of a state
court case while not remanded from Federal Court and offer
a “res judicata’ footnote judgment, when the Court offering
such judgment was the Court who had not remanded the
action when the Florida judgment was obtained, and
therefore had “judicial notice” that the Federal Statute was
not being complied with.
6- Probate exception rules and precedents were not
applied properly to a New York Trust in a Federal action in
the State of New York.
STATEMENT OF THE CASE
Relevant Background
On December 10, 1982, Irving G. Kates, a citizen of
the State of New York executed a will which created the
Irving G. Kates New York Trust. Under New York Law and
New York precedents, a trust created by an instrument while
the grantor was a citizen of the State of New York remains a
New York Trust regardless of where the will is in final
probate.
In addition, precedent includes the State in which the
assets remain and where the administration and management
of the trust takes place.
In 1989 shortly after the death of Irving G. Kates, the
Trust was funded in the State of New York, and the trust was
administered by the testamentary trustees, and administered
(3)
in the State of New York at Smith Barney in Nassau County.
In June of 2001, Celia Kates, lifetime beneficiary
and testamentary trustee, due to a dispute with another of the
trustees, caused the trust to award successor trusteeship to
the Northern Trust Company of Chicago, Illinois.
In July 2001, the assets of the trust were transferred
from Smith Barney in Garden City New York to Chicago,
Illinois, whereafter, Northern Trust Company, who manages
and administers all of the trust business of the Northern
Trust Corporation managed and administered the trust.
THE NORTHERN TRUST FRAUD
Unknown at the time, November 2001, there appears
in letterheads, titles, advertising and other pertinent types of
documents the use of the name NORTHERN TRUST and
no further definition.
In violation of the Federal Rules of the Federal Trade
Commission, Northern Trust is not an entity, and was used
to conceal the fact that Northern Trust Corporation has many
State based and State jurisdictional companies. In fact the
Federal Rules of Civil Procedure, New York State Rules of
Civil Procedure deny to anyone the use of “fictitious names”
in pleading in a Court of Law.
Northern Trust Company defined for Celia Kates that it
had a office in Palm Beach, where in June 2001, she was in
residence. However, soon afterward, Celia Kates returned to
New York State where she became a citizen until her death
on August 10, 2004.
Based upon the illegal use of the entity which does not
exist under the law, “ Northern Trust”, the following events
took place:
In violation of 12 CFR Chapter 1 section 9.7 (d) and
12 CFR Chapter 1 section 9.8.(a) incredibly no required
agreement formally setting up a successor trusteeship and
(4)
forming the contract for the administration and management
of the trust is either presented or signed between any of the
many Northern Trust Corporation companies and the bene-
ficiaries of the trust.
Although the trust assets and administration and
management is now in Chicago, Illinois, the Irving G. Kates
Trust remains a New York Trust. New York State Banking
Law and New York State Estates, Powers and Trusts Law
require that there be contracts in writing between the trustee
and the beneficiaries spelling out conditions of such an
arrangement. There are none.
All statements of account are mailed monthly from the
Chicago headquarters of the Northern Trust Company and
administrative documents, such as the monthly transfer of
earnings from Chicago to the Celia Kates accounts in New
York clearly identify Northern Trust Company of 50 South
LaSalle Street, Chicago, Illinois 60675.
All statements are mailed to Celia Kates in New York,
Sandra Barash in New York and to the Gloria Kates Trustee,
Paul Siler in Colorado. Wherefore not a single statement of
account ever is mailed from Florida or to Florida.
THE PURPOSE OF THE DECEPTION
By May of 2003, a mere 21 months after assuming the
successor trusteeship it is apparent that Northern Trust Corp-
oration, through its trust management company, has lost
$ 300,000 in investments. Threatened with legal action in
September 2003, Northern Trust Bank of Florida, N.A.
appears in a court action as a counterclaimer even though not
sued and not a Defendant.
This entity now claims in Court papers that it is the
successor trustee and that documents, mainly a settlement
agreement between the testamentary trustees of the Irving G.
Kates Trust, a document of which it was not a party, and a
(5)
Court order of June 2001, both of which through error state
“Northern Trust”, without defining just which Northern
Trust Company is represented. There is no entity entitled -
simply as “Northern Trust” and a fictitious name is not
a legal person in any document to be considered by a
court of law.
The reason for such deception becomes clear. By the
false use of the Florida subsidiary, not the appointed trustee
of the trust, Northern Trust Corporation hopes to defray any
charges of mismanagement or ultra vires acts.
In November of 2003, the officer of Northern Trust
Corporation, Gwen Boykin, a Defendant herein, swears an
oath that she is a vice president of the Northern Trust Co.
and that her office is in Palm Beach. She further swears in a
deposition taken by the Northern Trust Bank of Florida, N.A.
Florida attorney that she hired him to represent the Northern
Trust Company. There is only one such company, and it is
an Illinois State Bank with jurisdiction in Illinois Courts not
in Florida Courts. |
However, despite these sworn statements, Northern
Trust Bank of Floride, N.A. has appeared in a Florida Court
and falsely stated that it was the successor trustee, and in
addition that the trust was administered in the State of
Florida.
Northern Trust Bank of Florida, N.A. persues a false
counterclaim against beneficiaries of the Trust and removes
$ 68,000 from the Celia Kates portion of the Irving G. Kates
trust for legal fees and expenses while this 94 year old
woman is not even a party to any lawsuit. During this event,
Northern Trust Corporation ignores a Court order ending
their case and directing mediation and pursues a course of
extortion refusing to pay Celia Kates’ bills until the false
counterclaim is paid back to the trust. The purpose of the
trust at this point is to pay for Celia Kates’ living expenses
without regard to her personal assets.
(6)
On August 10, 2004 Celia Kates dies at the age of
97 years 6 months. Under significant New York State law,
both precedent and statutory, the Estate of the trustee ends
upon the end of the purpose of the trust, and the assets of
the trust are the property of the remaindermen without
any need of conveyance upon the part of the trustee.
The attorney for Northern Trust Bank of Florida
send a notice that the trust has ended and that upon the
signing of a release of all claims against the Northern Trust
Companies, the moneys will be turned over.
The Estate of Celia Kates and Sandra Barash at this
point have had more than $ 350,000 disappear from their
values of the trust without either an agreement in place
authorizing such acts, and it is clear that there has been
significant ultra vires acts committed. They refuse to sign
any release and demand that the funds be turned over.
At no time in any pleading has the Respondent or
any of the companies owned by it claimed that the trust
was other than a New York Trust.
Despite all this the Respondent holds the funds in
hostage and has removed $ 160,000 for its own use in trying
to prevent any trial against its acts and refuses to release
the funds in the trust for which it is no longer legal trustee.
Despite the mandates under New York Law that the
trustee retains no power over a trust once the trust has ended
and despite significant precedent law that a trustee does not
have an automatic right to sue for judicial accounting, 70
days after the trust ended, Northern Trust Bank of Florida,
N.A. enters a Florida Court and sues the Petitioners for
judicial accounting. In a Florida Court in order to obtain a
decree for judicial accounting the trustee must only show that
he delivered statements of account.
Northern Trust Bank of Florida, N.A. files a false
complaint, stating that it is the successor trustee of the trust
and that the trust was administered in the State of Florida. it
(7)
then proceeds to produce statements of account that were
mailed from Chicago, Illinois to New York and Colorado,
which defies Florida Statute 737.101 which states that a trust
is administered in the State in which the records are kept.
Proof that Illinois is such that state.
PETITIONERS FILE A PROPER LAWSUIT
AGAINST NORTHERN TRUST CORPORATION FOR
MISMANAGEMENT OF THE TRUST AND ULTRA
VIRES ACTS IN A NEW YORK FEDERAL COURT.
Petitioners had filed two motions to dismiss the lawsuit
by Northern Trust Bank of Florida, N.A. for lack of venue,
and lack of jurisdiction. The Florida attorney for the Respon-
dent orders out a hearing without the attendance of the
petitioners on November 18, 2004 for the purpose of having
the Court deny the dismissal because the Petitioners did not
attend by telephone, Petitioners are New York citizens, and
the Court agrees.
On November 30, 2004, Petitioners file an action
against the Respondents, Northern Trust Corporation,
William A. Osborn, CEO for mismanagement and ultra vires
acts. This is a proper action under diversity juris-
diction in the United States District Court for the Eastern
District of New York. ©
Shortly thereafter, an Article 19 complaint is filed due
to the realization of the acts committed by Gwen Boykin an
officer of the company, and accepted by the Court, and she is
added as a Defendant.
On December 9, 2004 a telephone hearing is scheduled
by the Florida Court to set a trial date for action for judicial
accounting. Petitioners file several motions asking that the
case be dismissed for improper venue, and asking for delay
in the trial date so that the Petitioners can have time for
discovery to prove their allegations.
(8)
On December 6, 2004, without prior warning, the tele-
phone rings and Judge Martin states that the hearing is in
progress. Petitioners ask if the motions filed for the original
December 9, 2004 date are to be heard. Judge Martin says
that the Court needed to change the date of the hearing and
that there is no hearing on December 9, 2004, and she has no
motions for consideration by the Petitioners. She is to set a
trial date for the judicial accounting case.
Petitioners state that they have had no discovery to
prove that there is no jurisdiction for judicial accounting in a
Florida Court. Judge Martin denies the verbal motion.
Petitioners state that based upon their information no
venue or jurisdiction exists in Florida and that this day,
December 6, 2004, the case for Judicial Accounting will be
removed to Federal Court in New York.
Judge Martin asks, “The whole case?” Petitioners
state, “Yes the whole case.” Judicial notice complete.
On December 6, 2004, Petitioners file a petition for
removal of the Florida Case with the Clerk of the Court for
the United States District Court for the Eastern District of
New York, pay the fee, and notice the State Court in Florida
of the removal, and file a motion to consolidate both cases.
On December 7, 2004 the Clerk of the Court notices
the Petitioners that the case has been accepted in removal.
Although it is clear in Appendix B, the Florida
judgment for judicial accounting that Gloria Kates is not a
Defendant, but a Plaintiff, she files for remand of the Florida
action by claiming that she is a Defendant. The attorney for
Northern Trust Corporation in New York files for remand
based upon the perception that the removal was not proper.
Although this may be a correct filing, it is not correct
for the Florida attorney for the Northern Trust Bank of
Florida, N.A. to file a motion with the Florida Court in which
a single Florida precedent, not even a Florida statute, implies
that a state court may proceed anyway with a “removed case”
(9)
federal law notwithstanding. Incredibly, Judge Martin issues
an order refusing to allow the Clerk of the Court to send
the case papers to New York and sets a trial date of January
27, 2005 to continue the case despite removal
Petitioners spend $ 900 in fees and have the clerk of
the Florida Court send the papers from the action for judicial
accounting to the Federal Court in New York. The New
York Federal Judge is required to review the state court pro-
ceedings prior to consideration of remand. The Florida
Court has only prohibited the clerk from sending the court
papers free of charge. The Petitioners have the right to pay
for such transfer of pleadings.
PETITIONERS ARE NEVER NOTICED OF THE
FLORIDA TRIAL DATE
The action for judicial accounting is now in New
York. Unaware that the case is proceeding in violation of
Federal Law in Florida, and strangely so since the Northern
Trust Corporation attorney in New York is pressing for a
remand, and does not inform the Petitioners of the continued
action in Florida, the Florida attorney for the Northern Trust
Bank of Florida, N.A. files deposition hearings for the
Petitioners with the Court, but not served. He then applies to
the Court by motion that failure of the Petitioners to show up
for their depositions in Florida (citizens of New York) that
the Court should deny any attempt for them to appear at the
trial. There is no record on the ruling that Judge Martin may
have made on this motion, but it shows a deliberate attempt
to conduct the “trial” without the participation of the parties.
Appendix B clearly shows that the Petitioners did not
attend the trial, they were not noticed, and the case had been
removed and not remanded.
After extensive motion practice during which the
Petitioners oppose remand, the United States District Court
(10)
for the Eastern District of New York approves an order for
remand dated March 29, 2005.
In a strange bending of Federal Ruies of Civil
Procedure, the Defendant in the action filed on November
30, 2004, amended complaint February 2005, never files any
answer to the complaint, but files a motion to dismiss.
On November 17, 2005, the United States District
Court for the Eastern District of New York in the Memo-
randum of Decision and Order dismisses the action brought
by the Petitioners based upon “probate exception”. The
Court recognizes the petitioners claims that the action
brought for judicial accounting by the Northern Trust Bank
of Florida, N.A. “had no standing to bring the Florida action
and did so fraudulently”. The Court continues ““The Court
may not dismiss a complaint under Rule 12(b)(c) unless it
appears beyond doubt that the plaintiff can prove no set of
facts to support his claim.” The Court cites Aetna Cas and
Sur Co v. Aniero Concrete Co. 404 F. 3d 566, 604 (2d Cir
2005) The Court further explains “The Court must accept all
factual allegations in the proposed complaint as true and
draw all reasonable inferences in favor of the plaintiff” and
then cites: King v. Simpson, 189 F. 3d 284, 287(2d Cir 1999)
and Jaghory v. New York State Dept. of Educ. 131 F 3d,
326, 329 (2d Cir 1997).
Having clearly defined that the Plaintiff in the
action in the Florida probate action was not the trustee of the
trust and appeared “without standing”, and that the proofs,
and many were placed into evidence, that Northern Trust
Company of Chicago was the successor trustee and that the
trust had been managed and administered in Illinois, leaving
no possibility of proper jurisdiction in a Florida probate
court, in a stunning reversal of what was just stated, the
Court dismisses the complaint upon “probate exception”.
In a footnote, on page 5 (Appendix A) the Court
makes reference that the instant action is barred under res
(11)
judicata and collateral estoppel. The court then states “a
final judgment on the merits of an action precludes parties
from relitigating issues that were or could have been raised
in that action”. The Court refers to the judgment of January
27, 2005 obtained without participation of the Petitioners in
the Florida probate court while the very case in question, the
action for judicial accounting had been removed to this very
Federal Court. In a footnote on page 6 (Appendix A) this
court recognizes that the judicial accounting proceeding
which had been removed and was 04 CV 5295 had not been
remanded until March 29, 2005.
What this court fails to explain is just how a judg-
ment obtained by a trustee who had no standing in a
Florida probate court, obtained prior to remand in gross
violation of Federal Law USCS 1446 (d) and hundreds of
precedents which render such judgment null and void,
and clearly obtained by fraud, can possibly permit this
court to dismiss the action under “probate exception”
and “issues that were raised or could have been raised
in a Florida probate court.”
No issues of the complaint were raised in the Florida
Court and the Petitioners filed repeated motions denying that
the Florida Court had venue or jurisdiction over a New York
Trust. In fact in Buenger v. Kennedy 151 So 2d 463, Fla
App.2 Dist 1963 “New York Law applies to New York
Trusts in a Florida Court.” There is no issues that “could
have been raised” unless under New York Law. New York
law prohibits a trustee from any action against beneficiaries
after the trust has ended.
The Florida Court had no proper venue or jurisdiction
to proceed and the New York Federal Court was aware of it,
yet the dismissal was improper. Jn Perry v. Agnew 903 So
2d 376, “Statute providing that court shall not entertain pro-
ceedings concerning a trust that has its principal place of
administration in other state must be observed.” Also in
(12)
Peary v. Parrish 385 So 2d 1034 “Venue lies where trust
assets are located.” Trust assets are located in Chicago,
Illinois. Jurisdiction and venue were improper in a
Florida probate court and it was known, alleged and was
the basis for no dismissal by the Federal Court in New
York.
A proper notice of appeal was filed on December 12,
2005 and the appeal was accepted by the United States Court
of Appeals for the Second Circuit which became Case No:
05-631 1-cv.
On November 8, 2006 the Appeals Court affirmed
the lower court judgment, Motion for inclusion of new
evidence was denied on June 14, 2007, a petition for en banc
rehearing was denied on June 19, 2007.
STATEMENT REQUIRED UNDER RULE 14 (g)(ii)
A review of the judgment of the United States Court of
Appeals for the Second Circuit is sought, and the case that
was brought in the United States District Court for the
Eastern District of New York was properly brought under
Federal Diversity of Citizenship and for the jurisdictional
amount which exceeded $ 75,000. Accordingly, the require-
ments have been met for federal diversity jurisdiction in the
Court of first instance.
STATEMENT REQUIRED UNDER RULE 14 (h)
The United States Court of Appeals for the Second
Circuit has decided an important question of Federal Law,
and an important Constitutional question, that has not been,
but should be settled by this Court, and has decided an
important Federal question in a way that conflicts with the
relevant decisions of this Court.
(13)
ARGUMENT WHY THE WRIT SHOULD BE
ALLOWED INCLUDING APPLICABLE CITATIONS.
(Pursuant to Rule 14 (h))
An important Constitutional Issue of whether a state
court may with deliberation trash a Federal Statute and while
a Federal Court knowing that a judgment was obtained in the
continuation of an action removed, even as the Federal Court
has evidence that such action was initiated and continued
fraudulently, and that such continuation violated Federal
Statute, yet proceeded to dismiss the federal Court action
based upon two diverse theories, “res judicata” and probate
exception.
The Constitutional issue is framed by the deliberate
continuation of a removed case, by the state court, and the
approval by a Federal Court which was the court that “knew”
the case had not been remanded.
Northern Trust Bank of Floirda, N.A. who knew
that they had continued the Florida case in violation of
USCS 1446 (d), and knew that the attorney for the Northern
Trust Corporation had filed for remand in New York, never
even sought to complete their claim by continuing a valid
action in the Florida Court after remand of March 29, 2005
but have continued to rely upon the invalid judgment of
January 27, 2005 which is null and void by action of the
federal statute.
This Court is mandated to enforce the United States
Constitution and is the primary Court required to perform
that specific function
Article VI is in clear. concise language. “This constit-
ution, and the laws of the United States which shall be made
in pursuance thereof.....shall be the supreme law of the land,
and the judges in every state shall be bound thereby, any
thing in the constitution or laws of any state to the contrary,
not withstanding. (The excuse relied upon by the state court
(14)
in continuing the action while the case has not been
remanded was a single Florida precedent, an insufficient
excuse for the failure to follow federal law.)
The Federal Court in New York was equally required
to nullify the January 27, 2005 judgment for judicial account-
ing obtained in a Florida Court by a fraudulent Plaintiff, but
instead in violation of constitutional mandates affirmed that
ill begotten judgment, and in a footnote, adding insult to
injury outlined certain principles of “res judicata” all of
which the New York Federal Court had reason to believe did
not apply to conclusive verdict of “res judicata” Perhaps that
is why it was a footnote, yet the United States Court of
Appeals for the Second Circuit, despite contrary evidence did
chose to assert “res judicata” in its decision to affirm the
faulty ruling in the court of first instance.
Based upon the proofs submitted to the Appeals
Court it should have vacated the judgment of the Florida
Court by action of the Federal Statute USCS 1446 (d), and
by virtue of the proofs offered that the Plaintiff in that action,
Northern Trust Bank of Florida, N.A. was not the trustee of
the trust and acted fraudulently, and that the court of first
instance must vacate its judgment and permit discovery and
jury trial, under remand.
In Ocean Energy Inc. v. Plaquemines Parish Govt.
880 So 2d 1 (LA 2004) also: State Ex Rel King v. Summit
County Council 990 Ohio St 3d 172, 2003, Ohio 3050, 789
NE 2d 1108, also: Anderson v. United Parcel Service
2004 UT 57, 96 P 3d 903 (Utah 2004) “Language of a
Constitional provision should be construed as writtten and
words employed be given their natural and obvious signifi-
cance.”
In United States v. Ashland Oil & Transport Co.
504 F, 2d 1317 (6th Cir 1974) “Validity of an Act of
Congress depends on whether power to enact statute has
been granted by the Constitution.”
(15)
In Cooper v. State 277 Ga 282, 587, SE 2d 605 (2003)
Also: Caterpillar Inc. v. Dept. of Treasury Revenue Div.
440 Mich 400, 488 NW 2d 182 (1992) “Specific constitutio-
al provision at issue must be identified as well as how it was
violated.”
In Whitcomb v. Young 258 Ind 127, 279 NE 2d 566
(1972) also: Knapp v. O’Brien 288 Minn 103, 179 NW 2d
88 (1970) also: Bagley v. Blankenship 161 W. Va 630, 246
SE 2d 99 (1978) “Where a constitutional provision is compr-
ehensive in scope and leaves no room for interpretation a
court is without power to amend, add to, or detract from a
constitutional provision or create exceptions thereto.”
Barron vy. City of Baltimore 32 US 243, 8 L Ed 672
1833, WL 4189 “In all cases involving a Federal Constitu-
tional matter the courts of the United States have the final
authority.”
In Peterson v. Williams 85 F. 3d 39, 2d Cir 1996
“Absolute words of the constitution derive their meaning
from their context, and it is to the context that the court must
look.”
In Moberly v. Herboldsheimer 276 Md 211, 345 A 2d
855 (1975) “Even when a constitutional provision is subsep-
tible of two constructions it should be given a construction
that will not nullify legislation.”
Wherefore the Constitutional grounds for granting the
Writ of Certiorari are affirmed.
The statutory grounds for failure to apply the Federal
Statute as previously ruled upon by this Court and other
appeals courts follows:
In Re Arizona Appettitos Stores Inc_893 F 2d 216
“Statutory language according to its terms is to be enforced
by the Court of Appeals which interprets Federal statutes
by ascertaining the intent of Congress.”
(16)
In Securities Exchange Commission v. McCarthy
322 F 3d 650 “Congress explicit decision to use one word
over another in drafting a statute is material.”
In Siripongs v. Davis 282 F. 3d 755 (2002) “In the
interpretation of a statute Court of Appeals looks to general
principles of statutory construction and begins with the
language of the statute itself.”
In Difford v. Sec. of Health & Human Services 910
F. 2d 1316, also: Provident Life & Acc. Ins Co v. United
States. 740 F. Supp 492, “Under rules of statutory construc-
tion, if intent of Congress is clear, courts must give effect to
the statute as written.”
Specific support of what must be done when an
action is removed from state court to Federal Court in
support of the constitutional provision Article VI, and
the statute USCS 1446(d)
In Moore v. Interstate Fire Insurance Co SD Miss
1989, 717 F. Supp. 1193 “When case is removed from state
court to Federal Court, entire action, including all parties,
claims, is transferred to federal court and state court may not
proceed further unit] case is remanded. The Federal Court
acquires full and exclusive jurisdiction over case as though
it had been commenced in that forum.”
Wherefore Petitioners remind this Court that the
false Plaintiff in the Florida action for judicial accounting
never attempted to affirm its action by continuing any
proceeding after proper remand on March 29, 2005.
In Sands v. Geller SD NY 1971, 321 F. Supp 558
“Removal of a diversity action from state to Federal Court
halts all further proceedings in the state court which there-
upon loses jursidiction until the case is remanded.”
In Saslow v. State Farm Mutaul Auto Ins. Co DC
Alaska 1963, 224 F. Supp 965 “Effect of removal of case to
federal court was to deprive state court of jurisdiction to
proceed further with any phase of litigation in the removed
(17)
case, unless and until remanded.”
In Re Wellington Resources Corp ND Tex 1982,
20 BR 64 “Removal to federal district courts of proceedings
pending in state court deprives state court of further jurisdic-
tion.”
In Ward vy. Resolution Trust Corp 1992, 972 F. 2d
196, 507 US 971. “State Appellate court could proceed no
further after case was removed to federal court and that state
appellate court ruling and order was null and void.”
The matter of the application of “res judicata” to
the fraudulently filed action for judicial accounting in a
Florida probate court, by affirming the judgment
obtained in violation of federal statute, violation of the
United States Constitution, and in violation of the “res
judicata” principles is also a matter for granting the
Writ of Certiorari.
In Kirven v. Virginia /Carolina Chemical Co 58 SE
424 ,77 SC 493, Affd 30 SCT 78, 215 US 252, LED 179
“Under the rulings of the United States Supreme Court a
judgment is not “res judicata” in a second action, ona
different cause of action , unless the question was actually
litigated in the original action.”
Wherefore the Appeals Court for the Second
Circuit ruled that the issue “could have been litigated”
yet Petitioners had proven that a New York Trust cannot
“could have been litigated” in a Florida Court when
under New York Trust Law no trustee, fraudulent or
otherwise has any power over a trust or its beneficiaries
once the trust has ended, and there was no question of
honoring New York Trust law as required on a New
York Trust in a Florida court.
There are 8 rules of “res judicata” that a court
must use to render such decision.
(18)
Rule 1- Identical parties. In Lubrizol Corp v. Exxon
932 F. Supp. 326 SD Texas 1986 “Employment by one of
the parties does not provide sufficient privity for the purpose
of meeting the identical party requirement of “res judicata”
It order to deceive the tribunal, Northern Trust Corpora-
tion attorneys always file pleadings with “Northern Trust
Corporation” hereafter known as “Northern Trust” In
the instant matter, Northern Trust Bank of Florida, N.A.
entered a Florida probate court falsely claiming to be the
successor trustee. When the Northern Trust Corporation of
Chicago was sued for mismanagement and ultra vires acts in
a New York Federal Court, the attorneys for the Respondent
paraded this action as if the parties were “identical”. No
privity extends to separate and distinct companies of the
Northern Trust Corporation since they all retain separate and
distinct jurisdictional rights and purpose. “Northern Trust”
is not an entity entitled to file pleadings, and the term is used
to deceive the Court into believing that everything is just a
“Northern Trust”. In fact fictitious names may not be used in
Court papers.
The Northern Trust Corporation players in this
scenario are: Northern Trust Corporation a public company
with headquarters in Chicago, registered in Delaware:
Northern Trust Company, the trust arm of the corporation
which handles all trust administration and management and
is an Illinois State Bank restricted to Illinois Courts, and
never sued by the Petitioners. Northern Trust Bank of
Florida, N.A., a national bank confined to the State of
Florida, but since federally chartered required to obey the
federal statutes and rules and regulations of the Office of the
Comptroller of the Currency. Never sued by the petitioners.
Rule 2 of “Res Judicata” The judgment which grants
“Res judicata” must be legally valid and binding. The judg-
ment which the district court accepted is null and void by
action of USCS 1446 (d) having been obtained in violation
(19)
of a federal statute and by constitutional restraint.
In McClellan v. Chapman |64 US 347, 357, also:
David v. Elmira Savings Bank 161 US 275, 283: also
In Re Office of the Comptroller of the Currency WL
486347 (1992) “The doctrine of Federal Preemption is based
upon the supremacy clause of the United States Constitution
Article VI clause 2 “This Constitution and the laws of the
United States shall be the supreme law of the land...and laws
of any state to the contrary...notwithstanding. This principle
is sanctioned by repeated adjudication in this Court.”
Rule 3 of “Res Judicata” requires the raising of
identical issues in both actions. In Jimenz v. Shippy Realty
Corp 622 NYS 2d 983, 213 AD 2d 377 also: Van Wie v.
Van Wie_ 507 NYS 2d 486, 124 AD 2d 353; also 64] Ave
of the Americas Ltd Partnerships v. 641 Association Ltd
189 BR 583 “Res Judicata” only applies to a final judgment
when it is rendered on the merits in a prior action.”
Rule 4 of “Res Judicata” requires that the issues have
been actually litigated in the prior action. The only issue
presented without participation of the Petitioners was that
statements had been delivered. In deliberate fraud since not
a single statement came from Florida or was sent from
Chicago to Florida, a prime requirement for any jurisdiction
in a Florida court.
In Amalgamated Sugar Co. v. NL Industries Inc.
687 F. Supp 87; also Rothenberg v. Amalgamated Sugar
Co. 108 S Ct 571, 484 US 992, 98 LED 2d 571 “For “Res
Judicata” to apply to a judgment there must be identical
issues in the two actions involved.”
Rule 5 requires that the parties have a full and fair
opportunity to litigate the issues. The reading of the false
judgment of January 27, 2005 makes it clear that the
Petitioners were not even noticed of the trial and that the
false Plaintiff even filed a motion to prevent the petitioners
from even attending the trial, and that there was no “trial”
(20)
upon the presentation of statements the court affirmed that
judicial accounting had been approved. The Florida court
never even “bothered” to ascertain if the delivery of such
statements afforded the court jurisdiction.(Appendix B)
In Tole SA v. Miller 530 F. Supp 999, Affd 697 F. 2d
298; also: Jeanson v. Middle Grove Estates 634 NYS 2d
818, 222 AD 2d 782. “Questions which must be answered
when determining whether issue preclusion applies from
litigation in a previous action are: Is the bar asserted against
the same parties? is the issue the same? was it resolved on
the merits? was there a full and fair opportunity to litigate
the issue in the first action?
In Re Schwarz 36 BR 355 “Before Collateral estoppel
may be given to factual issues underlying a prior action, they
must be the same and have been actually litigated.”
In Barol v. Barol 464 NYS 2d 561, 95 AD 2d 942
“Collateral estoppel would not apply where Plaintiff had yet
to litigate the issues.”
In Juan C. v. Cortines 657 NYS 2d 561, 89 NY 2d
659, 679 NE 2d 1061, also: Kaufman v. Eli Lilly & Co 492
NYS 2d 584, 65 NY 2d 449, 482 NE 2d 63 “Party seeking
benefit of collateral estoppel has the burden of demonstrating
identical iossues were litigated”. The Federal District Court
failed to require the Respondent to make that proof!
Rule 6 denies “Res Judicata” if the prior action was
undertaken in fraud.
In Ryan v. New York Telephone 62 NY 2d 494, 500
(1984) “An action undertaken in fraud does not trigger “Res
Judicata” Although in Appendix A, the order from the
district court states that the Petitioners have alleged a
fraud in that the Northern Trust Bank of Florida, N.A.
was not the successor trustee of the trust and had no
standing to pursue an action in a Florida Court, in the
same document in a strange inconsistency, the court states
that the “Plaintiffs were aware of their claims (the fraud)
(21)
“accordingly the fraud exception to res judicata would not
apply?” The court is grossly wrong. The Plaintiffs were
aware of the fraud and expressed it to the court so the
fraud exception to res judicata must apply, not the other
was around!
Rule 7 requires that the claims actually be litigated.
In McLaughlin y. State of New York Governor’s
Office. 784 F. Supp 961 “Under New York Law “Res
Judicata” operates as a bar to only those claims which could
have been raised in a prior proceeding, however it does not
bar litigation over claims over which the prior tribunal lacked
authority or jursidiction to litigate.”
In State Hospital for the Criminally Insane v.
Consolidated Water Supply Company 110 A 281, 267 PA
29 “Res adjudicata” relates to the conclusiveness of prior
judicial findings based upon the same facts as those involved
in the pending controversy between the same exact parties
over the same subject matter.”
Rule 8 requires that the court before making a deter-
mination of “res judicata” review all factors of the prior
decision.
In Khol Cahridum Kirays Joel v. Village of Kiryas
Joel 935 F. Supp 450 “Determination of finality of purpose
of claim preclusion must require the court to look at all the
factors governing the nature and conduct of the previous
decision” It is clear that the district court failed to do
that.
Wherefore the major issue of ‘res judicata” has
been shown to require this Court to permit the Writ of —_,
Certiorari to properly settle the matter.
The final issues are probate exception and the
award of attorney fees by a Florida Court for an action
in a Federal Court in New York, not against the same
party in the Florida Court and once again in violation of
federal law. Federal law only permits the award of attorney
(22)
fees in a federal court if a federal statute permits such award.
The Irving G. Kates New York Trust is protected under
the New York State Surrogate Procedure Act Article 14,
sections 1401-1424. Probate is defined as the settlement of
wills and estates. Under the law an express trust is defined as
either an inter-vivos or testamentary trust and that the courts
of first jurisdiction over trusts are the Supreme Court of the
State of New York which defined in federal terms is a
regular court of equity.
In Celtano v. Purer SD NY 602 F. Supp 777 (1985)
“The probate exception to federal diversity jurisdiction
concerns will and estates only.”
In Farrell v. O’Brien 199 IS 89,50 LED 101,25S
Ct 727 “Where state laws authorize suit in courts of general
jurisdiction to determine the adjudication of trusts, federal »
jurisdiction may be invoked for the same purpose of grounds
of diversity of citizenship”
In Day & Zimmerman Inc. v. Calloner 96 S. Ct 167,
423 US 3, Tex 1975 “In conflict of laws to be applied by a
federal district court in a diversity case, laws applied must be
those prevailing in the state where the court is located, and
which prevail in state courts.”
Wherefore the probate exception cannot apply to a
New York Trust in a New York federal court and the
court was noticed that the Florida probate action was
fraudulent and could not form the basis for a probate
exception ruling..
The Appeals Court for the Second Circuit was supplied
with the entire ruling of Marshall v. Marshall S.Ct 2006
WL 113194 US. In that ruling the appeals court for the
second circuit, without warrant from Congress or from
decisions of the Supreme Court broadened acceptance of
the probate exception which has no standing in any federal
(23)
law or in the Constitution to include a New York Trust
proven to have been wrongly adjudicated in the courts of the
state of Florida, without recognition that a New York Trust
may not be subject to adjudication by a trustee against the
beneficiaries once the trust had ended under New York
Estates, Powers and Trusts Law. Once the trust ends under
New York Law, the trustee, no matter who that might be
losses all rights to hold trust assets, to plunder trust assets or
to file litigation against beneficiaries.
The probate exception issue is an important review
by this Court which should issue a writ of certiorari.
Appendix C, is an order from the court in the state
of Florida, wherein attorney fees are ordered from the
trust against the petitioners in an additional order in
which the Florida Court affirms its rights in the
judgment of January 27, 2005, a judgment that by action
of federal law is null and void, (Appendix B)
In Crolwey Amer. Trans. Inc. v. Richard Sewing
Machine Co. 172 F. 3d 781CA 11 Fla 1999, “Under the
American Rule attorney fees are not available in the absence
of common law, statutory exceptions or a contract provision”
No company of the Northern Trust Corporation ever
presented or executed any agreements or contracts with
the beneficiaries of the trust outlining conditions and
respective rights of the parties for trust administration
or management, in violation of state and federal laws.
In Tanker Management Inc. v. Brunson 918 F.
2d 1524 “Attorney fees are not recoverable unless statute
that created the cause of action expressly provides for
attorney fees.”
In Kreager v. Solomon & Flanagan PA 775 F 2d
1541, 27, Wage & Hour Cas. BNA 689, “Absent a specific
provision of Congress a federal litigant may not recover
attorney fees.”
(24)
In Amalgamated Clothing & Textile Workers Union
v. Walmart Stores Inc. 54 F. 3d 69 “Courts may not award
attorney fees absent statutory or contractual authority.”
Wherefore the illegal award of attorney fees by a
Florida Court against the petitioners for an action filed
against not the same party in a New York Federal Court
violates federal law.
The granting of the Writ of Certiorari will enable
the issues outlined herein to receive the proper attention
and ruling that have been lacking heretofore and the
Petitioners believe that they have made a sufficient case
for this Court to issue a Writ of Certiorari.
This petition for a Writ of Certiorari should be
granted by this Court.
Prepared at Muttontown, New York on this 3rd day
of August 2007 ,and hbo submitted to this Court.
(Rasa
Executor, E¥tate of Celia Kates
Philip Barash, pro se
ie ee
~ Beneficiary, Irving G. Kates Trust
Sandra Barash, pro se
6 Serenite Lane
Muttontown, New York 11791
516-621-8665
(25)
(SUPCOVER)
APPENDIX A
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
EXCUTOR OF THE ESTATE OF CELIA
KATES, PHILIP BARASH, BENEFICIARY
OF THE IRVING G. KATES TRUST,
SANDRA BARASH,
Plaintiffs, MEMORANDUM OF
DECISION AND ORDER
-against- 04-CV-5153 (DRH)(WDW)
NORTHERN TRUST CORPORATION,
WILLIAM A. OSBORN. CEO and
GWEN BOYKIN.
Defendants.
APPEARANCES:
PHILIP BARASH, PRO SE
6 Serrenite Lane
Muttontown, New York 11791
KATTEN, MUCHIN, ROSENMANN
Attorney for the Defendants
575 Madison Avenue
New York, New York 10022
By. Jay W. Freiberg, Esquire
HURLEY, District Judge:
Plaintiff, Philip Barash as Executor of the Estate of
Celia Kates and his wife, Sandra Barash, (collectively,
“Plaintiffs” filed the present action against the Northern
Trust Corporation (“Northern Trust”), William A. Osborn,
Ceo, and Gwen Boykin (collectively, “Defendants’ ),
asserting multiple claims arising out of the Defendants
alleged mismanagement of a trust. Defendants have moved
to dismiss the Amended Complaint pursuant to the Federal
Rules of Civil Procedure 12 (b)(1)(2)(3)(6) and (7). For the
reasons that follow, Defendants’ motion is granted and this
case is dismissed in its entirety.
BACKGROUND
This action arises out of a testamentary trust created
under the will of Irving G. Kates, dated December 10, 1982
(the “Trust”) (Am Compl, Ex 2) Upon Irving G. Kates death
in 1988 (see id at Ex 4) and according to the terms of his
will, the initial trustees of the trust were his wife,Celia Kates,
and his two daughters, plaintiff Sandra Barash and non party
Gloria Kates. (Id Ex 2) Celia Kates had a lifetime interest in
the trust and Sandra Barash and Gloria kates were the
remainder beneficiaries, (id) Pursuant to the terms of the
trust it terminated upon the death of Celia Kates.(id)
Pursuant to a settlement agreement between the initial
trustees and others dated September 26, 2001 “Northern
Trust, 440 Royal Palm Way, Palm beach Fl 33480 became
the sole Trustee of the Trust (Id Ex 3) Attached as exhibits to
the amended complaint are two letters from Northern Trust,
440 Royal Palm Way, Palm Beach, Florida 33480 to Sandra
Barash, dated May 13, 2003 and July 13, 2004, respectively,
regarding ,matters related to the trust (ID Exs 16, 18)
Following the death of Celia Kates in August 2004,
Northern Trust Bank of Florida commenced a proceeding in
the probate division of the Circuit Court of the Fifteenth
Judicial Circuit in and for Palm Beach County, Florida to
settle its final account and to thereafter distribute the Trust’s
assets. (ID EX 12) After a trial the probate court entered a
footnote |
The amended complaint includes 28 exhibits, all of which
the Court has considered in deciding the present motion. See
Leonard F. v. Israel Discount Bank of N.Y. 199 F. 3d 99, 107
(2d Cir 1999)(In adjudicating a Rule 12 (b)(6) motion, a
district court must confine its consideration to facts stated on
the face of the complaint, in documents appended to the
complaint or incorporated in the complaint by reference, and
to matters which judicial notice may be taken)
2
final judgment on January 27, 2005. (id) The court held that
the principal place of administration of the trust was in Palm
Beach County, Florida for the entire time which Northern
Trust served as trustee and thus this court has venue and
jurisdiction. (Id) The probate court further approved all of
Northern Trust’s accountings. According to the Defendants
distribution of the net assets to the beneficiaries has not yet
occurred because Philip Barash has appealed the final
judgment to the Florida District Court of Appeals and has
also sought a stay of its enforcement. (Defs Mem at 5)
The thrust of the Plaintiffs’ allegations in this
action is that pursuant to its own terms the Trust appointed
defendant Northern Trust as Trustee, not Northern Trust
Bank of Florida, N.A. the party which initiated the probate
action. Accordingly, Plaintiffs allege, Northern Trust
illegally posed as a Florida corporation, to wit, Northern
Trust Bank of Florida, N.A. to gain access to the Florida
Probate Court and falsely claimed that the trust was a Florida
trust governed by Florida law. Plaintiffs allege that Northern
Trust, a national bank is the real party in interest, and thus
Northern Trust Bank of Florida, N.A. had no standing to
bring the Florida action and did so fraudulently. Thus the
Plaintiffs allege that Northern Trust induced the Florida
Probate Court to violate the law by wrongfully entertaining
the suit. Because, Northern Trust Bank of Florida, N.A. is a
wholly owned subsidiary of Northera Trust, Plaintiffs allege
that Northern Trust is liable for its acts. Plaintiffs assert
fourteen causes of action based upon Northern Trust’s
alleged fraudulent initiation of the Florida probate sun and
its alleged mismanagement of the trust. The amended
complaint also names as defendants William A. Osborn,
Chairman, Chief Executive Officer, and President of
Northern trust and Gwen Boykin, Vice President of Northern
Trust Bank of Florida, N.A.
3
DISCUSSION
1- Applicable Law and Legal Standards
The Court may not dismiss a complaint under Rule
12 (b)(6) unless it appears beyond doubt that the plaintiff can
prove no set of facts in support of his claim which would
entitle him to relief. Aetna Cas. and Sur. Co v. Aniero
Concrete Co, 404 F 3d 566, 604 (2d Cir 2005). The Court
must accept all factual allegations in the proposed complaint
as true and draw all reasonable inferences in favor of the
plaintiff King v. Simpson, 189 F. 3d 284, 287 (2d Cir 1999)
Jaghory v. New York State Deot of Educ, 131 F 3d 326, 329
(2d Cir 1997)
2- The Probate Exception to Diversity Jurisdiction Applies
to this Action.
In the instant case, subject matter jurisdiction is
predicated upon diversity jurisdiction. Such diversity juris-
diction requires that parties be completely diverse and the
amount in controversy exceed $ 75,000. 28 USC 1332.
However, even when these requirements are satisfied, the
Supreme Court has held that probate matters are excepted
from the scope of federal diversity jurisdiction. Moser v.
Pollin, 294 F 3d 335, 340 (2d Cir 2002)(quoting Markham v.
Allen 326 US 490, 494 (1946) The reason for this limitation
is that in equity jurisdiction conferred by the Judiciary act of
1789...which is that of the Engiish Court of Chancery in
1789, did not extend to probate matters.Id (quoting Markham
326 US at 494)
A two part inquiry is used to determine whether a
particular lawsuit implicates probate matters such that the
probate exception to federal diversity jurisdiction applies. Id
Satisfaction of either part mandates the dismissal of the
matter for lack of subject matter jurisdiction. Id. The first
part of the inquiry requires the Court to examine if the
federal district
4
court sitting in diversity (is) being asked to directly probate a
will or administer an estate. Id. Such functions are purely
probate in character and are considered to be categorically
outside the jurisdiction of federal courts. Id (citing Markham
326 US at 494). This first part of the inquiry is rarely
satisfied.
The second inquiry direct the Court to determine
whether entertaining the action would cause the federal
district court to interfere with the probate proceedings or
assume general jurisdiction of the probate control of property
in the custody of the state court. (Id quoting Markham, 326 at
494.)
Here the exercise of jurisdiction would impermissibly
interfere with the Florida probate proceedings as the
accountings approved by that court could be potentially
rendered meaningless should this Court entertain the case.
The instant dispute between the parties turns singularly on
the proper identity of the trustee and whether it mismanaged
the trust. These issues have already been decided, either
directly or indirectly by the Florida Probate Court. By
Footnote 2
In this regard, the Court notes that the instant action is
also barred under the doctrines of res judicata and collateral
estoppel. See Storey v. Cello Holdings LLC, 347 F 3d 370,
380, (2d Cir 2003)(Under the doctrine of res judicata, or
claim preclusion, a final judgment on the merits of an action
precludes the parties or their privies from relitigating issues
that were or could have been raised in that action)(internal
quotation marks and citations omitted) Uzdavines v. Weeks
Marine Inc, 418 F 3d 138, 146 (2d Cir 2005)(Collateral
estoppel or issue preclusion applies where (1) the identical
issue was raised in a previous proceeding (2) the issue was
actually litigated (3) the party had a full and fair opportunity
to litigate the issue (4) the resolution of the issue was necess-
ary to support a valid and final judgment on the merits.)
(internal quotation marks and citations omitted) Although
there is a fraud exception to the application of res judicata
see Moser, 294 F 3d at 342 (citing Ryan v. New York Tel
Co, 62 NY 2d 494, 500 (1984) there are no allegations here
that defendants alleged fraud prevented the Plaintiffs from
asserting their fraud claims in the probate action. See e.g.
Welson v.US 70 F 3d 1, 5 (2d Cir 1995). In fact the
Amended complaint demonstrates that Plaintiffs were aware
of their claims regarding Northern Trust and Northern Trust
Bank of Florida, N.A. during the pendency of the probate
suit. Accordingly, the fraud exception to res judicata would
not apply in this case.
5
filing the instant suit, Plaintiffs undoubtedly seek to obtain a
different result that that received in the Florida probate action
Such an interference with the functions of s state probate
court is prohibited by the probate exception to federal
diversity jurisdiction. Moser, 294 F 3d at 345.
Moreover, Plaintiff attempt to circumvent this
conclusion by alleging the existence of federal law that
presumably was beyond the jurisdiction of the probate
court is misguided as Plaintiffs have wholly failed to
sufficiently allege any such violation. All of the claims
asserted in this action were either raised or could have been
raised in the Florida Probate Court. .
CONCLUSION
For all of the above reasons, Defendant’s motion to
dismiss is GRANTED as to all of the Plaintiffs’ claims, and
this case is DISMISSED in its entirety. The Clerk of the
Court is directed to CLOSE this case.
SO ORDERED
Dated : November 17, 2005
Central Islip, New York /s/
Denis R. Hurley
United States District Judge
footnote 3
To the extent Plaintiffs allege that the Florida Probate Court
erroneously exercised jurisdiction because the Plaintiffs had
removed that action to this Court, the claim has already been
rejected by this Court in case no 04 CV 5295, wherein the
Court found that the Plaintiffs improperly removed the
probate action to this Court and remanded it back to Florida
(See Northern Trust Bank of Floirda N.A. v estate of Celia
Kates, 04 CV 5295 remanded March 29, 2005.
*Judge Hurely admits that the case was remanded on
March 29, 2005 yet fails to explain how a judgment in
the Florida probate action could have taken place while
the case had been removed in violation of USCS 1446 (d)
with that judgment on January 27, 2005!
(6)
APPENDIX B
IN THE CIRCUIT COURT OF THE
FIFTEENTH JUDICIAL CIRCUIT
IN AND FOR PALM BEACH,
COUNTY, FLORIDA
IN: RE TRUST UNDER THE
WILL OF IRVING G. KATES PROBATE DIVISION
/
NORTHERN TRUST BANK OF
FLORIDA, N.A., Trustee CASE: 502004CP00451 1
Plaintiff, XXXXMB
vs.
ESTATE OF CELIA KATES
By its Executor, SANDRA BARASH
and GLORIA KATES,
Defendants.
/
FINAL JUDGMENT
This cause came for trial on January 27, 2005. Northern
Trust Bank of Florida, N.A., (“Northern Trust”) trustee, the
Plaintiff, was represented by Pressly & Pressly, P.A. and
Defendant Gloria Kates was represented by Page, Mrachek,
Fitzgerald & Rose, P.A. Sandra Barash and Philip Barash did
not appear. They were properly noticed for the trial
1- Although Gloria Kates was nominally a Defendant, she
admitted the allegations of the Complaint and for all
practical purposes became a Co-Plaintiff. Neither Sandra
Barash nor Philip Barash as Executor/Temporary of the
Estate of Celia Kates filed a pretrial stipulation nor attended
nor participated in the trial. Plaintiff noticed Sandra Barash
for her deposition on January 5, 2005, she failed to appear,
and a Notice of Non-Appearance was filed (D.E. # 70)
Pleadings
The Complaint filed by Northern Trust Bank of Florida
N.A., Trustee requested the Court to settle and approve the
accounts of the Trustee, award attorney fees to the Plaintiff
and allocate the fees pursuant to 737.2053 (3) Fla. Stat if
deemed appropriate by the Court. and direct distribution of
the remaining assets in the Trust, and discharge the trustee
from liability as provided in 737.201 (1)(b) Fla. Stat. Bene-
ficiary Gloria Kates admitted the allegations of the
Complaint and joined in the request that the relief be granted
\and has assrted that the fees of the Trustee’s counsel should
be allocated against Sandra Barash’s share of the Trust.
Sandra Barash and Philip Barash filed an answer not in
compliance with the Florida Rules of Civil Procedure and
failed to deny allegations in the complaint and thus all
factual allegations in the complaint are deemed admitted. See
Heingold Commodities Inc v. S. Dale Trude 508 So 2d 1327
Fla 4th DCA 1987. Nonetheless Plaintiff did not rely on the
deemed admission and offered evidence and proof of all of
Plaintiff's claims.
Defendants Sandra Barash and Philip Barash moved to
dismiss the Complaint on grounds of venue and jurisdiction.
The Court denied the motion without pejudice and permitted
the Barashs to raised the issue at trial. (D.E. #27) The Court
now denies the motion to dismiss with prejudice. Jurisdiction
amd venue were established at trial.
The Trial
At the trial on January 27, 2005 Northern Trust
adduced into evidence accountings from the inception of the
trust in September 2001 through the date of the trial; the
testimony of Gwendolyn Boykin; and the Court took judicial
notice of the pleadings filed by the Barashs in the Federal
District Court in New York.
Attorney Fees
The Court received documentary evidence, fact
testimony, and expert witness testimony from Willam E.
Boyes, Esquire with respect to the fees and costs of counsel
for the Plaintiff, Northern Trust and Defendant, Gloria Kates
by way of deposition testimony.
Rulings
Having considered the evidence and heard arguments
of counsel it is ordered that judgment is entered for the
Plaintiff, Northern Trust Bankof Florida, N.A., trustee, and
for Gloria Kates (nominal defendant) and against Sandra
Barash and Philip Barash as temporary executor of the
Estate of Celia Kates. The Court finds and enters judgment
as follows:
1- The Barashes Motion to Dismiss on grounds of
venue and jurisdiction is denied. The principal place of
administration of the Trust was Palm Beach County, Florida
for the entire time which Northern Trust served as Trustee
and thus this Court has venue and jurisdiction pursuant to
737.101; 737.202 and 737.201 Fla. Stat.
2- The accountings for the period from the time that
Northern Trust took office as trustee, September 2001
through February 2004 were properly served on the bene-
ficiaries are a deemed approved pursuant to 737.307 Fla
Stat. In addition the Court approves and settles the
accountings submitted into evidence at trial for this period.
3- The accounting for the period from February 2004
as supplemented up to the day of trial is approved and
settled.
4- Plaintiff, Northern Trust is fully discharged and
released from liability for its services as Trustee for the
period from the date Northern Trust took office as trustee to
the date of distribution of the assets of the trust as directed in
the Final Judgment and shall go hence without day.
5- The Court approves and awards attorney fees for
Pressly & Pressly to be paid from the corpus of the trust for
the period August 16, 2003 through July 31, 2004 and finds
that 145 hours expended by the law firm are reasonable at a
blended hourly rate of $ 290 an hour for a total of $ 42,000
and costs of $ 3,000.
6- The Court approves and awards the attorney fees
for Pressly & Pressly, P.A. to be paid from the corpus of the
trust for the period August 1, 2004 through the date of trial
and finds that 120 hours expended by the law firm are
reasonable at a blended rate of $ 313 an hour for a total of
$ 38,000 and costs of $ 3,300.
7- The Court awards expert witness fees to William E.
Boyes in the amount of $ 1,225.
8- The Court finds that Page, Mrachek, Fitzgerald &
Rose, P.A. have provided services to the trust and are entitled
to an award of attorney’s fees.
9- The Court approves and awards the attorney fees
for Page, Mrachek, Fotzgerald & Rose, P.A. to be paid from
the corpus of the trust for the period October 7, 2004
through the date of trial and finds that 31.6 hours expended
by the law firm are reasonable, the hourly rates charged by
Page, Mrachek, Fitzgerald & Rose, P.A. are reasonable for a
total of $ 5,836.
10- Pursuant to section 737.2053 (3) Fla. Stat. the
Court finds that the attorney fees for Northern Trust and
Gloria Kates counsel and costs incurred by Northern Trust
counsel shall be paid from the Sandra Barash Sub-Trust.
11- After payment of attorney fees for Northern
Trust’s counsel and Gloria Kates’counsel and final trustee’s
fees and expenses and allocation of same, Northern trust
shall distribute the remaining assets of the trust as follows:
A-, The Celia Kates subtrust shall be distributed
forthwith, one half to Gloria Kates and one half to Sandra
Barash, each of whom shall furnish the appropriate transfer
or wire instructions to Northern Trust and Northern Trust
shall have no obligation to make distribution until receipt of
same.
B- With regard to the Gloria Kates subtrust, this court
previously granted Gloria Kates’ Motion for Partial Distribu-
tion and Northern Trust shall continue to hold the remaining
amount in the Gloria Kates Sub-Trust pursuant to that order
(D.E. # 67)
C- With regard to the Sandra Barash Sub-Trust,
Northern Trust is directed to liquidate securities sufficient to
pay the attorney fees awarded in this action and allocated to
Sandra’s subtrust plus a additional $ 100,000. That additional!
$ 100,000 in cash shall be retained by Northern Trust and
invested in short term U.S. Treasury Bills or an equivalent
money market fund until final deposition of any claims by
Northern Trust for reimbursement of attorney fees and costs
incurred by Northern Trust as determined and awarded by
this Court with respect to fees incurred by Northern Trust in
the United States District Court for the Eastern District of
New York, Case No CV 04-5153 and the United States
District Court for the Eastern District of New York, Case No
CV 04-5295. The remaining assets in the Sandra Barash
Sub-Trust shall be transferred to Sandra Barash pursuant to
transfer and/or wire instructions to be furnished by Sandra
Barash and Northern Trust shall have no obligation to make
distribution until receipt of same.
9- The Court reserves jurisdiction for enforcement of
the terms of this judgment and for the entry of further orders
as described herein.
DONE AND ORDERED in West Palm Beach, Palm
Beach County, Florida on this 27th day of January 2005
/s/ _ Martin
KAREN MARTIN
Circuit Court Judge
*prior to the entry of this order, the court thoroughly
considered the evidence. This order reflects the courts
findings based on the evidence. (*handwritten)
APPENDIX C
IN THE CIRCUIT COURT OF THE
FIFTEENTH JUDICIAL CIRCUIT
IN AND FOR PALM BEACH,
COUNTY, FLORIDA
IN RE: TRUST UNDER THE
WILL OF IRVING KATES
/ PROBATE DIVISION
NORTHERN TRUST BANK
OF FLORIDA, N.A. Trustee, CASE: 502004CP004511
Plaintiff, XXXXMB
VS.
ESTATE OF CELIA KATES
By its Executor, SANDRA BARASH,
GLORIA KATES,
Defendants.
/
JUDGMENT ON ATTORNEY FEES AND COSTS
On March 21, 2006 this Court conducted an evidentiary
hearing on Northern Trust Bank of Florida, N.A. Trustee’s
Amended Motion Re Attorney Fees and Costs and Other
Relief.
The Court heard fact and other testimony, received
documentary evidence, and heard arguments of counsel and
of Philip Barash, pro se.
The Court finds in favor of Northern Trust Bank of
Florida, N.A. and Gloria Kates and against Philip and Sandra
Barash. The Court finds that reasonable attorney fees charge
able to the trust pursuant to 737.2035 (2) and (3): 737.204
(4), and 737. 627 (1) and (2), Fla. Stat. for Pressly & Pressly,
P.A. are $ 59,665 computed as follows:
Reasonable number of hours 205
Reasonable hourly blend $291
Lodestar amount $ 59,665
Reasonable costs are $ 2,664
The Court finds that reasonable fees for Katten, Muchin,
Rosenman, LLP are $ 138,516 computed as follows pursuant
to 737.2035 (2) and (3): 737.204 (4) and 737.627(1) and (2)
Fla. Stat. are chargeable to the Trust:
Reasonable number of hours 388
Reasonable blended hourly rate $ 357
Lodestar amount $ 138,516
Reasonable costs $ 767
The Court awards Northern Trust expert witness William
Boyes, Esquire, compensation in the amount of $ 5,250,
computed at 15 reasonable hours at $ 350 reasonable
hourly rate.
Based upon the evidence presented, the Court finds that
all of the attorney fees and costs of Pressly & Pressly, P.A.
and Katten, Muchin, Rosenman LLP must be charged to the
share of Sandra Barash and no part of these fees and costs
should be charged to Gloria Kates.
The Court reserves jurisdiction to award further fees and
costs for counsel for Northern Trust Bank of Florida, N.A.
and to enter further orders with respect to final distribution of
the trust assets.
This judgment entered in West Palm Beach, Palm Beach
County, Florida on this 29th day of March 2006.
/s/ Karen L. Martin
KAREN L. MARTIN
Circuit Court Judge
(Note: The fees for Katten, Much'n, Rosenman are for
the Federal Lawsuit in New York and cannot be justified
by Florida Statutes, New York or Federal Law)
APPENDIX D
IN THE CIRCUIT COURT OF THE
FIFTEENTH JUDICIAL CIRCUIT
IN AND FOR PALM BEACH
COUNTY, FLORIDA
IN RE: TRUST UNDER WILL
OF IRVING G. KATES PROBATE DIVISION
/
NORTHERN TRUST BANK
OF FLORIDA, N.A. Trustee CASE: 502004CP004511
XXXXMB
Plaintiff,
VS.
ESTATE OF CELIA KATES By
its Executor, SANDRA BARASH,
and GLORIA KATES,
Defendants.
/
ORDER ON NORTHERN TRUST BANK OF
FLORIDA, N.A.’S MOTION TO QUASH AND DIRECT
CLERK
Defendant’s Motion to Quash (* this order is invalid
on its face because the Defendants filed no such motion.
Motion was filed by the Plaintiff.) And to Direct Clerk
came on for hearing the 23rd day of December, 2004 and
(* Defendant’s were not noticed to appear a violation of
Florida Court Rules) and the Court having heard arguments
of the counsel for Northern Trust Bank of Florida, N.A; it is
(*Court does not even mention why the Defendants did
not appear.)
Ordered that the motion is granted. The Court finds
that on the face of the claimed removal it is shown that there
is no colorable claim and thus this Court need not recognize
the removal See Hunnewell v. Palm Beach County 786 So 2d
4 (Fla 4th DCA 2001) Rev Denied 817 So. 2d 847 (Fla.2002)
Without limitation on any other grounds on which removal is
invalid it is plain for at least the following reasons it is
invalid:
1- On the defendants in this cause, Gloria Kates, is a
resident of Palm Beach County, Florida and under the plain
jurisdictional requirements for an action to be removable, it
must be shown that none of the defendants are citizens of
Florida (See 1441 (b) USCA.(* in the judgment order of
January 27, 2005 this Court clearly states that Gloria
Kates is not a defendant, but a co-plaintiff. A false
defendant may not be used to thwart removal)
2- The place for removal, if removal were proper would
be the United States District Court for the Southern District
of Florida and not in the Federal District Court for the
Eastern District of New York (See 1446(a) USCA) (* when
no basis for jurisdiction in Florida exists because of a
fraudulently filed lawsuit, removal can take place to the
state of proper jurisdiction.)
3- The Notice of removal must be filed within 30 days
after the service of the Complaint. Service was made on
October 30, 2004 and the Notice of Removal was not filed in
Federal District Court until December 6, 2004 (See 1446 (b)
USCA) (* service was illegal upon an executor in New
York State unless and until he is appointed by the court.
Appointment took place on December 17, 2004.) Also,
Florida rules require that service in another state
conform to the laws and rules of that state.)
The Court retains jurisdiction over this cause and
pending matters shall proceed as scheduled.
(*notes in paranthesis are Petitioner’s notes and do not
appear in the order)
DONE AND ORDERED in West Palm Beach, Palm
Beach County, Florida on this 23rd day of December 2004.
/s/ Karen L. Martin
KAREN L. MARTIN
Circuit Court Judge
APPENDIX E
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
THIS SUMMARY ORDER WILL NOT BE PUBLISHED
IN THE FEDERAL REPORTER AND MAY NOT BE
CITED AS PRECEDENTAL AUTHORITY TO THIS OR
ANY OTHER COURT, BUT MAY BE CALLED TO THE
ATTENTION OF THIS OR ANY OTHER COURT IN A
SUBSEQUENT STAGE OF THIS CASE, IN A RELATED
CASE OR IN ANY CASE FOR PURFOSES OF
COLLATERAL ESTOPPEL OR RES JUDICATA
At a stated term of the United States Court of
Appeals for the Second Circuit, held at the Daniel Patrick
Moynihan United States Courthouse, 500 Pear! Street, in the
City of New York on the 8th day of November, two thousand
Six.
PRESENT:
HON. RICHARD J. CARDAMONE,
HON. JOHN M. WALKER, JR.,
HON. CHESTER J. STRAUB,
Circuit Judges. SEAL
NOV 08 2006
Executor, Estate of Celia Kates, Philip Barash
beneficiary, Irving G. Kates Trust, Sandra Barash
Plaintiffs/Appellants,
No. 05-631 1-cv
v.
Northern Trust Corporation,
William A. Osborn, Gwen Boykin
Defendants/Appellees
PHILIP AND SANDRA BARASH, pro se, Muttontown, NY
JAY WARREN FREIBERG, Katten, Muchin, Rosenman
LLP (Julia Chung, on the brief) New York, NY, for
Defendants-Appellees.
AFTER SUBMISSION AND UPON DUE CONSIDER-
ATION, it is hereby ORDERED, ADJUDGED, AND
DECREED that the judgment of the District Court is
affirmed.
Appellants pro se appeal from the November 17, 2005
judgment of the District Court.
for the Eastern District of New York (Denis R. Hurley,
Judge) dismissing their complaint because claims (1) fell
within the probate exception to federal diversity jurisdiction
(2) were barred by claim preclusion, and (3) were barred by
issue preclusion. We assume the parties familiarity with the
balance of the facts and procedural history of the case.
The doctrine of claim preclusion prevents parties and
their privies from re-litigating claims that were, or could
have been raised in an earlier action that has resulted in a
final judgment. See Storey v. Cello Holdings LLC 347 F 3d
370, 380-81 (2d Cir 2003) The fraud exception to this
doctrine is limited; it does not permit litigant to collaterally
attack a judgment on the ground of fraud, when the fraud
could have been raised in a post trial motion or direct attack
on the judgment. See Weldon v. United States , 70 F 3d 1,5
(2d Cir 1995) The District Court properly dismissed
appellants’ claims because those claims were raised or
could have been raised, in an earlier proceeding in the Circuit
Court of Florida. Accordingly, the judgment of the
District Court is AFFIRMED.
FOR THE COURT
Thomas Asreen, Acting Clerk
By: Lucille Carr
APPENDIX F
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
Thurgood Marshall US Courthouse at Foley Square 40
Centre Street, New York NY 10007
MOTION INFORMATION STATEMENT
Motion For:
Permission to file new evidence
for review by en banc panel.
SEAL
FILED MAY 15, 2007
ORDER:
Before: Hon. Richard J. Cardamone, Hon. John M. Walker,
Jr.
Hon. Chester J. Straub, Circuit Court Judges
IT IS HEREBY ORDERED that the motion is DENIED.
JUNE 14, 2007 SEAL
JUNE 14, 2007
FOR THE COURT
Catherine O’ Hagen Wolfe, Clerk
by Arthur M. Heller
Motions Staff Attorney
APPENDIX G
UNITED STATES COURT OF APPEALS FOR
THE SECOND CIRCUIT
THURGOOD MARSHALL US COURT HOUSE
40 FOLEY SQUARE
NEW YORK 10007
Catherine O’ Hagen Wolfe
Clerk
Docket Number: 05-631 1-cv
Short Title: Executor of Cellia Kates, Philip Barash v.
Northern Trust
DC Docket Number: 04-cv-5153
DC: EDNY (CENTRAL ISLIP)
DC Judge Honorable Colleen McMahon
At a stated term of the United States Court of Appeals for the
Second Circuit, held at the Daniel Patrick Moynihan United
States Courthouse, 500 Pearl Street, in the City of New York
on the 19th day of JUNE two thousand seven.
Executor, Estate of Celia Kates, Philip Barash, Beneficiary,
Irving G. Kates Trust, Sandra Barash
Plaintiffs/Appellants
Vv.
Norther Trust Corporation, William A. Osborn. Gwen
Boykin
Defendant/Appellees SEAL
JUN 19 2007
A petition for panel rehearing and a petition for rehearing en
banc having been filed herein by the appellant, Philip Barash.
Upon consideration by the panel that decided the appeal, it is
Ordered that said petition for rehearing is DENIED.
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.