# Petition for Writ of Certiorari — Dillard v. Security Pacific Corp. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_1650%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1993 - **Citation:** 506 U.S. 1079 ## Text ’ . | i] Komen O89 sus CLERK IN THE a . SUPREME COURT OF THE UNITED STATES October Term, 1992 CARVEL GORDON DILLARD, Petitioner versus SECURITY PACIFIC CORP. ; MERRILL LYNCH, PIERCE FENNER & SMITH, I! SECURITIES INDUSTRY ASSOCIATION, INC.:; SECURITY PACIFIC BROKERS, INC.; FINANCIAL CLEARING & SERVICES CORPORATION; JENKINS & GILCHRIST (A PARTNERSHIP); and JENKINS & GILCHRIST (A PROFESSIONAL CORP.) Respondents PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUI PETITION Carvel Gordon Dillard, pro se 903 SW Central Grants Pass, OR 97526 (503) 479-0098 STATEMENT OF QUESTIONS PRESENTED Whether this court should overturn the appeals court's ruling that illegal denial of the fundamental onstitutional right to judicial trial remedied by award of economic damages ¢ ¢ - - demand specifi performance tw! } + bh - 5 ~r\1) ~ +) tr _— } Whether this irt should overturn the | on ) + © ry 1) + hh + + appeals cour S ruling that he arbitration contract is still binding and enforceable even if it is proven that it was an adhesion demand compelled by the duress of an illegal ry . ~) 4 (7 - - m > - monopolisti restraint »f trade. ie Whether this court should enjoin defendants and their co-conspirators from uniformly adopting and agreeing to ise, and in using exclusively, margin and option account contracts which contain provisions for the —d — ] determination of al aims and controversies arising under said contracts in arbitration. Whether this court should find that the S court made error by allowing the district court to ignore requests under F.R.C.P. 52 for findings of fact and conclusions of law concerning injunction and issue of illegal arbitration contract. Le Whether this court should declare it to be an abuse of discretion in violation OF F.mcG. Ps: & (E} t consolidate the three actions and then for the appeals court to declare that for some but not all purposes of the mandate the appeals court was pretending that it was ignorant of the related actions instead of considering the three actions as + Ss Q J whole Whether it 1S error that the appeals ry ads — | i a * — . .-S-% court ruled that although Dilla pleaded that he = y ey oF oO - L T — rr ) a7) Sonal 7) = ¥ 1 KS arrested and imprisoned for illegal ulterior motives such facts lf proven to be true created no Lolat n ft nis s ers 7 = 7 + a oe a thts under fae >. 4 f ier it 1S error that the appeals irt's ruling that there was n« private right f action under the Hobbs Act 18 U.S.C. Section 1951 and it's ruling that there is no private right of action under the RICO Act Le Use. section 1961 et seq. for a violation f t ne Hobbs Act 8. Whether it is error that the appeals irt ruled that there is no private oc a & ~ = - * . 2 + i ee | the securities Act f > ‘e , : ° 9. Whether incorrect or misleading Statements in the appeal court ’s ) Tv, Shows that the court of appeals has 1gnored the district Oourts departure from the accepted and usual course of judicial proceedings in so far a manner is to all for an exercise of this court's power of supervisior shall this urt affir the rule f law by reviewing this petition or Shall this court ratify the rule of men by al OW1NG t he ] We?! Cour? t¢ The district court at Houston often iagqnceres the obvious in order to Suppress pro se litigation. The precise allegations which would CoO pel trial Oo} the legalityv of the arbitration lause that the Fifth Circuit stated were missing are in fact exhibited in the record appendixed } + iS I NPT M Mm .IT - ; =4 « Y) a S + ~~ UU) rs | ~ O, & ~ v ’ - j i Ne ‘~~ , rs com — pa ona ~~ biel oe » — TABLE OF AUTHORITIES Cases LW al 4 tna Insurance Co. v. Kennedy, U.S. 389, 393, 37 &. Ct. 609. 81 L. Ed. 1177 (1937) WW OY American Airlines, Inc. v. Louisville & Jefferson County Ai Board, 269 F. 2d 811, 816 (6th Cir. 1959) 16 vy American Safety Equipment Corp. v. J.P. Maguire & Co. 391 F.2d at 62) ) 4 f= OF Ames v. Merrill Lynch, Pierce, Fenner & Smith, Inc. 567 F.2d 117 fo 1178 (2nd Cir 1977) 14 Atlas Roofing Co., 430 U.S at 455 20 Atlas Roofing Co. v. Occupational Safety and Health Review Commissior 430 U.S. 442, 449 (1977) Z 19,20 AT&T Technologies v. Communications Workers of America, 475 U.S. 643 Bal 1] ey V e Central Ve rmont R. er. 319 US 350 87 L ed 1444 62 ¢ Cr 1062 a Baylis v. Traveler's Insurance Co. i i . . 113 U.S. 316 es Bernhardt v. Polygraphic Co f America, 350 U.S. 198, 203 (1956) 18,22 Commodity Putures Tra ling Commissi v. Schor, 478 U.S. 833, 848, 853-855 (1 986) “a ‘e} “ L) — ee Dean Witter Reynolds Inc., 470 U.S. at 218-219 De Filippo v. Ford Motor Co. (1975, CA3 Pa) 516 F2d .1313, cert den 423 US 912, 46 L Ed 2d 141, 96 S Ct 216 D.H. Overmyer Co. v. Frick Co., 405 U.S. at 183 Eastern Marine Corporation v. Fukaya Trading Co., 364 F. 2nd 80 (Fifth Circuit 1966) Elmore v. McCammon 640 F. Sup. 905 (S.D. Tex. 1986) Fuentes v. Shevin, 407 U.S. 67, 32 L. ed 2nd 556, 92 § Ct. 1983 Geldermann, Inc. v. Commodity Futures Trading Commission, 836 F.2d 310, 316 (7th Cir. 1987), cert. denied, S. Ct. 54 (1988) Heine v. Wright, 76 Cal App 338, 244 Pr. 355, 356 Heyman v. Kline, 456 F. 2nd 123, 129 (2nd Cir. 1972), cert denied, 409 Wises O87, 93-5. Ct. 33, 34 4. B84. 2nd 88 (1972) Hodges v. Easton, Wis. 1882, 1S. Ct. 307, 106 U.8. @412, 27 LL. 84 169 Jacob v. City of New York, 315 U.S. 752, 86 L. Ed 1166, 62 S. Ct. 854 Johnson v. Zerbst, 304 U.S. 458, 58 Ct. 1019, 82 L. Ed. 1461 (1938) Keystone Shipping, 855 F. 2d at 3 VIII. iS ao 63 36 i9 40 36 ao 39 36 16 K.M.C. Co. v. Irving Trust Co. 757 F 2nd at 756 Lervic v. White Top Cabs, La. App., 10 So. 2nd 67, 68, 73 May v. Lakeland Highlands Canning Co.,; 307 0.5. 310,°326, 60 §. C€t. 517, 520, 84 L.Ed 774, 779 Mitsubishi Motors v. Soler Chrysler- Plymouth, Inc., 473 U.S. 614, 627 (1985) National Equipment Rental Ltd. v Hendrix, 565 F. 2nd 255, 258 (2n cir. 1977) Paramount Famous Lasky v. United States 34 F. 2nd 984, 282 U.S. 30 Perry v. Thomas, 107 S. Ct. at 2527 a. 3 Pierson v. Dean, Witter, Reynolds, anc. (624 F.2G@ 334, 3339 (7th Cir... 1984) Prima Paint Corp. v. F MrG., 366 U.S. 3395 (19 Robert Lawrence Co. v. Devonshire Fabrics, Inc. C.A. N.Y. 1959 271 F. 2nd 402 Certiorari Dismissed 81 S. Ct. a2, 264 U.S. $01, SL Bd. 2nd 37 Shearson/American Express, Inc. v. McMahon, 107 S. Ct. at 2337 Jy \¢ U.S. v. Huck Co. 214 F Supp. at page 78 U.S. v. First National Pictures Inc. 282 U.S. 44 Supp. at page Ik. 40 34 , 36 29 vv vv > 7 - hs ih onke a) » n — r ~ vv + ‘ > ‘ + , , r } ‘ ¢ 4 . | ¢ - (sf asia sais Ly + r— r on jail ~ é be ‘ —) adi WA l ] DION | ~~ rru r ’ 4 e ra © \C T Vie¢ = + a fs hy v 7 cy f + OW + ‘ at “ 2 , F l f J r ~~ [x {x (x) 4 v A r » ~ ame a= ‘ : : C 1 ral 1 wc C ( u C oe ; @ : 2 _— 7 l m~ ea OK ; a = (x, a = ; ia ‘ ~ - é&- me {x rw ry re 1 - Cc f f ds ] 44 a. rat a r ( ( l 4.97 ont e ee \ : | = o ~ 7 hich Dillard was ignorant ) c - on $ - ed Security Pacific for - ~ ~ - - = - ~ and secur les fraud ncerning la ot “ Se a — = Short sale ss and for ‘. nspiracy false swear J 2+ » + > 3 j r = rerTeorery rT ] + h a | ~ v , + - ‘ + _ y } t 3 7 c ~ ‘ — ana ‘ . Were D i-86-3251 was dismissed and appealed and overturned and remanded: the dismissal of the $50,000 negligence and securities fraud claim was upheld due to the prior default but the dismissal of the one ee, et and all other charges stemming from the Criminal prosecution was reversed. upplemental complaint to H-86-3251 was filed naming Merrill Lynch and Jenkins & llchrist as defendants and co-conspirators and naming the parent corporation, Security Pacific Corp. as defendant and adding additional charges of malicious prosecution, abuse of process, and anti- trust violations to the complaint; Securities Industry Association was added as an anti-trust defendant. The Supplemental complaint was stricken. H-88-2848 was filed in place of the Stricken supplemental complaint in order to be sure that the new causes of action could not be lost to statute limitations. H-88- 2848 charged violation of the Sherman Act, Clayton Act, R.I.C.0. Act. Hobbs act, ee OO pee — malicious prosecution defamation and securi Orders of dismissal a entered in H-88-2848 Arbitration appeal 4135 and the action w Order of dismissal an entered in H-8&8-2848 i a 2781 Sid ie mae H-86-3251 was Yr in amended complaint. abuse of process, ties fraud claims. nd abatement were and were vacated was ordered in H-8 as finally dismis d abatement was agai ey) 2) OQ a iQ a) =) mw | | T m 7T peal with ad an l Xu a ry - » “ = » 9 A ont — - aI = ™ Tr > ~ complaint included violat I cP aee a Act, 18 U.S.C. Section 1961 t eq. ~ 1Q : S Act is U.S.C Section 195] jefamat abuse of process, and T i= prosecution. Titl violations charging f imprisonment were add charge was W) aoe : maiiciou f t a) omg “tr ,_- - a aLne arres ed and the briber were ne as 1Y lt + Fiic + lY Pei wuss | ' | -y 4 v7? CW le tT) 1a i a. l was dismissed and appealed and was ie) ao a4 YK ~~: = os a dec rh Bs Y r -- nha : if . = wt ands r + i #) peals et t ppres ates tha nstituti S right 1 unfalr The F aft 4 fin illegal af the e mages; a rin © ament y tak 1us] thoug 1¢ th rT} A ia OusS TY = I) } YY) a YH 14. With a customer unless. inter alia, the agreement is not a condition for the customer to utilize the services of the broker, and it contains cautionary language in large bold-face type, which must be Separately endorsed by the customer that enumerates the customer's rights and the legal effect of the agreement. 17 CFR The CFTC regulations were promulgated "to assure that the investor's agreement to compulsory arbitration [of disputes arising out of commodity futures transactions] is ‘truly voluntary on the part of the customer'" Wotkyns v. D.E. Jones Commodities, Inc., 791 F.2d 749, 750 (9th Cir. 1986); see also Ames f dis " _ nm - ” “ 4n o: r.7 } ~ } Ww ii > t f > ¢ | O ondi t ion Congress intended was mere y to overrule } legislation long-standing judicial precedent, which declared agreements [t arbitrate] contrary to public policy, on Grounds that enforcement f such agreements would oust the courts of their Jurisdiction." American Airlines, ne. The authors of the FAA emphasized that the arbitration agreements to be enforced under the Act were limited to voluntary agreements. The FAA "was passed to ensure that courts would honor the contractual agreements of parties who choose to resolve their disputes by means of the informal arbitration procedure." Keystone Shipping, 855 F. 2d at 3 (emphasis added). The Senate report refers to “the great value of voluntary arbitrations" and the "practical justice in the enforced arbitration of disputes where written agreements for that Purpose have been voluntarily and solemn] t y he ~ nay u rs nae J Ae | Si t While expanding the scope of art it able laims this durt has emphasized the need for courts to be vigilant in policing the savings clause see Mitsubishi Motors v. Soler Chrysler- Plymout}! Inc 473 U.S. 614, 627 (1985) -~ —h — = j “courts should remain attuned to well- Supported laims that the agreement t ~ ww ~uyF lTming AC - 1c°? Nowe? + } Wwod?) } OY OVerwnhneiming Sconoma€ powe} nat WOU1LGA loanl ~~ al ~ J pls T (2 ~ cS re pw fy ry + —_ x 1 aed T » 9 | 1 y _ h } r lie [ . + no nscr + } i r t ~ —e i y m y r as oo i > @) " of a vY 226 nied t nar e X ty > Y, } 4 ~ . ia Va 1= A 7 q . 4 if Ps c ee) Nn - Witter, > ie | or. % ga 2 . 339 il \ Lz - + at Least { e erate = ——. > te aw Cial S = Ti. + a mm y ri ites th. - = —_ 744 y14¢ 74 a et - =| 1020 provides that t l . - nere the valu ,.94 ++ + «7 , wWwencty | em. y: 2 a } nail i | Oh + - ~ + Y _ ] — A ( = + . . a c as €S £ 4 } Cc 4 ‘¢ es. 4 } v Wri l ; ~ me gle a y Occupational Safety and Health Review Commission, 430 U.Ss 442 449 (1977) Article TIT extends the judicial power f the United States to "all cases in Law and Equity.” U.S. Constitution, art ITI, 2 "(Al ‘private’ right for which state law provides the role of decision ... is a claim of the kind assumed to be at the 'core' of matters normally reserved to t ry + ) T a III courts.” Commod ity Futures Trading Commission v. schor, 478 U.S. at 853 Analysis under the Seventh Amendment and Article IIT is similar when considering whether Congress nay assian the adjudication of certain Claims to a non- judi Saas Fors See Atlas R oofing Co 430 U.S. at 455 and Article IIT Implications for the Applicability of the Seventh Amendment to Federal Statutory Actions, 95 Yale L.J. 1459 (1986) During the hearings on the FAA, Congress was assured that "* {tlhe constitutional right to jury trial is adequately safeguarded’ by the Act. Paint, 388 U.S. at 413 (Black J., dissenting). Mr Cohen, the American Bar Association's draftsman of the bill, assured the members of Congress that Act would not impair the right to a trial, because it deprives a person right certain disput added) The arbit here (90-2722, would necessar inder nstitu Overmyvyer C J myer Co. more than con ff constitutic Irving Trust C arbitrat I a desir than WS) bails ° only when he has voluntarily and it by agreeing to submit -s to arbitration (empha: at1 oF contract 1n gues page 202-203 paragr ional waiver analys Fr Toh Xe A405 ? ie ract law involved ir al rights) ee, ee 77>! © .2a at T36 be = | Mer Ally oa it«¢ r , ) 3 10} 2 lan es and > ften litigation because —h ry » i) ry YY a J» a ry -C) — — ne) mh rh er Yr Caan © 2 guaran Arbitr a ry ena) O —! baad © lfra o f t S tria ~ » Be K act } fron - i bh? pn Ar , = oS \ 5 Walver + + _ act is one ; —_ + Lpmen ok “a ~ “FQ J.J3 re) er of e when argaining Bernhardt v Yt BP benefit of judicial instruction on the law; they need not give their reasons for their results: the record of their proceedings is not as complete as it 1S 1n a court trial; limited than udicial review of a trial poe 350 U.S at 203 These characteristics remain accurate today See Shearson/American Exp., Inc. v. McMahon 107 S.ct. at 2354 (Blackmu J Jissenting). Loss f property in an arbitration proceeding compelled without consent where mistake of law is no grounds for reversal is a violat n of the Fourteenth Amendment wherein it states "Nor shall any state deprive any person of property without due process f law 7 This court has indicated that "Excessive economic power moow ild or Jide qrounds for the revocatior f al i an rat Y agreement cnears AmMmerical}l Express, Inc. v. McMahon, 107 S. Ct. at 23437 rls Perry v Thomas Cie ae my it y 2527 n 9 (sending ur ns nability clain back to lower court). But the Fifth Circuit has ruled in the instant action that use of excessive economic power is not unfair nor is it unconscionable. By ensuring that broker-customer arbitration agreements are voluntary, the injunction will enhance the integrity of the arbitration process and minimize the neec O Hh for judicial enforcement arbitration agreements and awards. The injunction thus serves to protect against claims "that the agreement to arbitrate resulted from the sort of fraud overwhelming economic power that would provide grounds ‘for the revocation of any contract.'" Mitsubishi Motors 2s Corp. - soler Chrysler-Plymouth, Inc., 473 U.S. 614, 627 (1985) (quoting 2 of the Act). With the option of not Signing and still opening an account, securities customers who refuse arbitration will again have access to the options and margin account market which access is currently totally denied by the defendant's group boycott See White and White v. American Hospital Supply 540 F. Supp. at 958 wherein “it is . >. 1 : : sufficient to establish illegal boycott ~~ > ,. _ _ . if members of boycott have collective p _— N V) Capacity to deny their victims acce The proposed injunction has many 1eed beneficial effects. The anti-competitive . ~ a] rs ae ae os = effect of uniform denial of services t a } J force arbitration upon consumers who a t want to arbitrate 1s prohibited Services can not be denied on the basis of reject r = ot —_ junction forces compliance with the n ) } - imr tox, ' Smt —_ consent no waiver imperative which 1s ° a a 4 4 rs integr 3 | t ) the in ent ( fF the rAR 5 | . ™ - + 1 + The defendants have not denied the 1 7 a — > existence f the nonon | nsteaad a J + 7 = ) + -, - 9 7 their rebuttal 1s directed ward refuting 4 7 9 + v= —— x + 7 , ne 4 begation Di ACY t t } } c . 5 TH ¢ 1 Y YY + } > & { na t a T 5% T) a - ~ Ps 2 : 74 + - Jas yr) aw, ident + =~ mn t eda] rs + 1 2 1 ’ 2 ~ ~ they an re rne pron on Bi ons Ll? FT gD ta H&S -s a - rcu 1 4 s that ti-trust Sider tha nan adhe nm contra instant act established adopted by bu tha nent might be considered the Fifth Circuit remanded action for trial but refused t there is any difference S1o0r ntract (1 and an t llegally compelled by ade by monopoly (2) ge » 79) + ly power when adopted by 80% of the market" U.S. v. op. at page 7 it has been conclusively & tf we have an agreement firms enjoying 95% of the opt ions account dispute with Cy) YN Yr mon ] wate any Sherman TY ¢ ylizat IS trading pa "an Act Lons market and the underlying ferrill Lynch occurred in an account. Options accounts rt of the trade or d as such are covered under proscriptions against and restraints and an identical situation of a tr adopting a uniform arbitrat imposing it on consumers by ke services has been found t¢t of the Sherman Act by this Paramount Famous Lasky v. U + OA non , In = F. 2nd 984, 282 U.S. 0 First National Pictures, In Even if the arbitrati fair, there was still no c arbitrate since the essenti c-onsent is missing from the contract. Adhesion contrac A they are not compelled b + cenpulsion by monopoly is u inconscionable and an adhes compelled by monopoly is void. Therefore the decisi arbitrat 10Nn panel must He order to arbitrate wa ade r ar y bindir Jj mrtra + art trat r and er the of Dillard wt 1¢ and } 7 } determination ff the disput ry n ~s n re and Ji — Bs St 4 Pa 2 Yr) ‘ + ~ + A . TT CC ha + at he nd tra nu > ~ I i Nn Was f : | | 73) ) ir | » + i - 7 Ana oa ‘ } a OY 2 ,11Y if c } — > | = + the - 1) art r i ; +ho } + br we A ~ YY . 1na r 3 3 YrA ac r ry + ra : rt Th ns tr Y y + + ee — nen rey OL. n YY c SS e a c } r - + , Lng - } al Rijt pu ee Ail nar . — 4 ust nte ic ae QW 7) e)) 30 a ) - Nn +) bend al ry hit, - 4 c ne i aa = . mply s wh ~+ 5 cad ‘ reat ros se 1 sra er Nn not O CO “orn —& 6S that Comal a ul y S > } ii - ry a ess .¥ ¢ Sa ~ re is +a Ar ation the Th Se trv ted iy the r int +on fr +~ 7 ai ‘ \ restrain themselves to elimination of large damages and to maintaining a capacity to control which they exert to controlled advantage. Dillard did not consent to arbitrate. Dillard has raised issue of illegal] arbitration contract in the pleadings of H- a an q 5 - sm | Aika ‘. Cit ys Appendix) Plaintiffs Motion for Trial by Jury Restricted to Specific Issue of Arbitration Agreement) and in Compl ae) a! ae H-88-2848 (see 90-2761 item 33 page In both the motion and complaint the pleading of Dillard is identical: "Assen ict was not voluntary, it was coerced by the advantage of defendants which was unlawfully exercised. Unlawful advantage of defendants consisted of threat to prohibit trade of plaintiff in securities. The threat constituted duress which induced MHMlaintiff to c ae the "“ontract ~ HAtrarv + plaintiff's will and to plaintiff's jetriment. Defendants' threat of restraint of plaintiff's trade overcame plaintiff's du my ~ udi 1c] J) - 7, + AY it - anYreto 9 Ac @ « - 4 nee wer ft VI the complaint and they neglected to deny the allegation of duress aint of trade in the motion this ist consider that for purposes of eal that every allegation in the ed quotation is proven. re was no consent and without there is no waiver of right to remedy. The arbitration must be to be null and void. The i10n waS improperly and illegally d under the terms of an alleged 10on contract which because of the conditions under which it was f) 5 2) -+ ~~ » + ohibiting monopolization of two would condemn and prompt him n: »t 33. securities markets: options accounts and margin accounts by defendants and their co- conspirators by their adopting and agreeing to use, and in using exclusively, as a precondition of any trading, margin and option contracts which contain provisions requiring the determination of all claims and controversies arising under said contracts in arbitration. In failing to make findings and conclusions on the injunction and on the material issue of the legality of the arbitration contract, the trial court in H- 85-4135 violated Rule 52(a) of the Federal Rules of Civil Procedure. Rule 52(a) provides in pertinent part that "[i]n al actions tried upon the facts without a jury or with an advisory jury, the court shall find the facts specially and state separately its conclusions of law thereon, and in granting or refusing interlocutory : injunctions the court shal Similarly set forth the findings of fact and conclusions — | of law which constitute the grounds of its Ar ‘ } £ + + . r ‘ . ) v? 4 aa " + rr + . . | t + =~ ~ Y i >| , 4 se 4 W + ‘ + y 2 “a 7 - 7 ‘? Ray >, r A 4 ; a , + ‘ > , c- 4 + ) ‘ 3 £ + «¢ ? +> 4 ~ 2 — o~ ~ r r t cr) 1 nere meet 1 . + £ , j 17 Satay 3 y , ? + } f y m| q . T ~ 4 IYACY j b i] 14 ane R Ar, 4 y + hh; Beater , : + } Ww f + } y ‘ r)? 7 f ave .© j - + + . . . iw 44 i = °.? + ) © ) ‘ A n 4 + > ” r) ¢2 -, + , . ‘ ~ -- . r 7 + 2 . 4 3 + | GQ » + + ¢ + | + . " co rA4 + 2 i + y rt (yu rh re) « U urisdictional lard does so Dillard mad af equ e denie Cy. ~ } at ry e 4 ] art 1-tyr c+ , + = + \ right t .* t fut 1a] juarant } r t rest \y t f f i Jury LOF pon prt f that de 2] wa iT iS iable 38. and that the alleged waiver of his right to jury trial rests solely upon defendants providing proof of his voluntary, informed, consent. Defendants show no such proof instead they admit apparent “lack of choice". If there is no choice there is no Waiver. This no choice no waiver imperative should be declared by injunction to restore Dillard's Constitutional rights and to restore the Constitutional rights of the investing public and to alleviate the damage being done to Dillard and to many others like him as a direct result of the broker's unrestrained monopoly. The right of jury trial in civil cases is a basic and fundamental feature of federal jurisprudence which is protected by the Seventh Amendment to the Constitution of the United States. See Bailey v. Central Vermont R. Co. 319 US 350, 87 L ed 1444, 63 S.Ct. 1062. Right to trial by jury is a right which is justly dear to the American people a) and right to trial by jury should be jealously guarded by the courts. See Jacob V. City of New York, 315 U.S. 752, 86 L. Ed 1166, 62 S. Ct. 8654. Any curtailment of this right should be scrutinized with the utmost care. See Baylis v. Traveler's Insurance Co. 113 U.S. 316. The standard set by this court in the Baylis case was that right to trial by jury was absolute and inviolate unless there was waiver of the right “by consent of the parties". Consent means voluntary agreement. But signing the adhesion contract which demanded compulsory arbitration in lieu of jury indicated only submission to the duress of the threat of restraint of the trade by the Securities Industry Association's monopoly. There is a big difference between consenting and submitting. Every consent involves a submission; but a mere Submission does not necessarily involve consent. ee | | Si. arbitration contract; they did not deny the concert of action of the association in using a standard form adhesion contract compelling arbitration. They did deny that the monopoly was created by conspiracy but conspiracy is a jury question. What they fail to realize is that it does not matter if the monopoly was created legally. Even if it was created by an act of God, if it's result is monopolization of « any part of the trade or commerce and if it restrains trade or if it serves to nullify a Constitutional right of the U.S. public; that monopoly must be broken. Dillard has so proposed starting with preliminary injunctive relief. Right to trial by jury is nullified and made worthless by the concerted actions of substantially all of the providers of securities brokerage services. You have right to trial by jury unless you consent to sign that right away but you must sign the right away or the brokers monopoly + + } r t . + } ~ + + } Y ¢ + i ©) F + } ira mu) ior I I Ice * A 7, > * ) S . } r) ¢ c a > 5 ] ~ Ee _ ¢ > + } ¢ -@7 NOY S nd amid Yr Y \Y I b? 2 - y Se nq ..% a ae - t wT ¢ sm F nots + iot 2 ie | Fs ~ - he reat er ws “ r y i } i , } KF t yrveA h 4 P| Li m 4 o2 I yh ind t } er whi [ons ] an o f ] ha DV s ¢ = s ~ + S r sworn s YY, - ~} ar nind A a sha Ti T eT + ‘ WwW > ubs + tu 1 mu + ¢ ~ | S " | yu £ + h n of Oren 4 7,4 + l + a +> ] the Inq the emand t ess Ln ntial a ereof f the U werful 1 rT) r b ind ldier wh rder CS T least effect upon ( I nae rr~ ~ § » r _ if > - - - « > r Ps or" -_. b 4 ad a pay — . l > + 0 J rr L rr 4 r Uf ‘ re h ows ’ 7 1 r L r i j - er % > hd ~~ + 4 > , f L is o 4 A 4 (vt \ > . 1 4 : > Y f ri U . ~ are arbitrable."; and Robert Law) ence Cc Vv evonshire Fabrics, In C.A.N.Y. 1959 271 F. 2nd 402 Certiorari dismissed 81 S. Ct. 27, 364 U.S. 801 5 L Ed. 2nd 37. oe es arbitration clause itself was induced by illegality, there can be no arbitration and there must be judicial trial of that question before stay can issue pending arbitration." Tt is of exceptional importance for this court to find that the monopoly should be restrained by permanent injunction or in the alternative by preliminary injunction pending the trial and for this court to issue an injunction. Dillard does so move the court. The injunction can be quite Simple. It should include a finding that contracts for margin accounts and option accounts provided by brokerage and securities Services companies to the public for trade and commerce in stocks, bonds and options can not require acceptance of an arbitration provision as a pre-condition to ee aes trade and commerce in stock, bonds and options; this order being necessitated by a finding that in excess of 90% of the providers of these financial services have made acceptance of an arbitration provision a precondition to trade and commerce in stocks, bonds and options within said margin and option accounts. Therefore their mutual action has resulted in adhesion arbitration having monopoly power which is a monopolization as proscribed by Section 2 of the Sherman Act; this irresistible economic power robs the public of consent and without consent any agreement allegedly waiving the fundamental Constitutional right of trial by jury, under the Seventh Amendment guarantee, must be void. Therefore the arbitration agreement in this action is void as are all 1ike arbitration agreements which have similarly been imposed by the monopoly by restraint fF the trade o f those who refuse to agree } > a. | , + > + 4 y + ic y ; t art ate gisputes piace f judi A - Ps ~ + > P + 7 - Y @ € - | } ‘en. | ned ead =| rm + T) iB AY 5S’ c . nD) aI mNnre T 12 ¢ } ~? = it? iat L tp oe & | ra I 1c] : } " > * + a the = + nec , 30 heer _ ne 7} ia } } Cc oo 4 y a | a | r.7 } + - ‘ + " °.9 . + 5 =) Lea we. 1A I) wa Ss f a 2" a a = 74 . hoi Q +4 > 7 . . > — > ror aA x “ i = a Fr 4s al 4 i e i ©cwvwea e - > 3 + + ao + . + » - . —- — - Wer 4 + aq a ~ | I a I DY I 5 ba) . > 5 Cc oe na nr 7 nt ai ? na hu £4 na a eeiiv . = : g- ‘ a A > y 4 : 4 2 z 2 ~ > | a) ‘ e " & « . r L- > Suppiemental pial! Sty Ken). > es Fx lana = 7 . vy ) 1 nt . hic V xy Raha a rw i alfit Was iS I y ~ a my} 5 i Ye l?Y Ce ner he ty ~() Yer eat e > | t s ‘ ii % 4 y Ps 2 a] > ° \ 1 5 “Ane > I= + Tmanied , +} " I> + + = + . +) + )} > Lic Los el! i A i )T 11f ie lY construed as to dad Substantial justice" wh } y + } ls instance neans that al] the complaints should be nsidered as a whole. The rime f false prisonment is well pleaded and it is a substantial violation of civil rights under Title 42 although the Fifth Circuit improperly affirmed dismissal of the civil rights complaint for failure to sta te a claim. The Fifth Circuit did not review dismissal of Dillard's extor under the Hobbs Act because did not raise the issue but raise the issue on page 5 of which CF an the permission of the Fifth Dillard complained that: ". complaint, Extortion Complai tion complaint to nt, Abuse ar Process by Extortion Complai 42 civil rights violations a plead." If indeed there wer right of action it could not ~. Y plead and therefore Dillard issue of private right of ac violation of the Hobbs Act cl due to extortion under color oe > WwW - ial - ay aa @ N ‘e. ae bed + ~ e > Se Th. £46 is no a7 = ~ ther hav ¢ nave i ( 3 a WT * Y unde 1 ~ \ = on the re) f I cz Lncorre -ausegd ere K WwW + } + + } 1a ch heir - i 4 » - sity A Fr mT} ry h ~ + I 72 Val t Dillar - + ‘ + } 7 — iit cTiWw T Jey Se c *aAnN9 oh &: it has d — a 8 EK | Vi sucn as ed priva atements isleadi 11 Lynch although susands of dol urported to be ng. d's fraud clais eS not rest upon under Section ae 4 a rights of that the d requests LS required for be no greater than t T) 17 (a) of the 13 US sec TF me eclared that there action under Section des the circuits. the Second Circuit te right of action in the opinion of The i nj The stock was Dillard had paid a VW lars Lynch including the purchase of guaranty insurance to absolutely guarantee the delivery. The Fifth Circuit's allegation of a deficit of $5,000 in Dillard's Merrill Lynch account is not an agreed fact - Dillard has stated that the account should have had a $250,000 positive balance at time he attempted to transfer funds. Merrill Lynch never even answered the complaint and nowhere in the record of any action does Merrill Lynch allege a $5,000 deficit. The status of that account is at issue and there has been no discovery and no adjudication. Tt 1s a defamatory abuse for the Fifth Circuit to state this "fact in the record. The Fifth Circuit states a failure tc buy as the basis for certain f Dillard's alms against Security Pacific The Fifth Circuit knows but neglects t lisclose that the order t buy was a short sal er 5 Under the law Secur Cy Pacif > was absolutely required to buy: if Dillard ordered it or if the account were not properly margined@ since a buy was absolutely required in any event for elimination of the short position. These Statements of "fact" are in violation of normal standards of fairness and judicial restraint. This court should study the original records of the instant actions which clearly show improper ex parte contact between the court at Houston and the mg defendants. At Houston normal rules of fairness are often ignored to the injury of pro se litigants and the pleading standards demanded of pro se litigants are more stringent than for members of the bar. Pro se litigation is unconscionably delayed or Summarily dismissed - it never comes to trial. This court needs the entire record of the instant actions for proper analysis - but an analysis of the docket sheets alone will give some indication of the problem. The docket sheets are the wrong 63. Size to be bound in this booklet so 40 copies have been sent to your clerk, in the separate appendix, and should be available upon request. The chief judge at Houston encourages abrogation of the rules in order to "do something" to suppress pro se litigation generally which he regards as a total waste of time. Please see: Elmore v. McCammon 640 F. Sup. 905 (S.D. Tex. 1986). The 1985 ana 1986 actions were on his docket for a time until Dillard complained about unconscionable delay and ex parte contact and he removed himself as judge. The Fifth Circuit has refused to take any supervisory action on Dillard's complaints that the United States District Court for the Southern District of Texas, Houston Division is denying pro se litigants their federally guaranteed right of effective court access. ~ 2 Dillard has brought to your attention a few problems with parts of the judicial 64. system over which you have control. He urges you to remember that it is bad form to kill the messenger. Although that is a way to hear only good news; it is unhealthy for the system because problems are hidden rather than remedied. Please understand that Dillard has the greatest respect for the federal judicial system; indeed, the bulk of his complaint pleads for protection of our Constitutionally guaranteed judicial System from being supplanted by private arbitration compelled by irresistible economic power. For any or all the foregoing reasons this Supreme Court of the United States should grant Writ of Certiorari. Dated: Grants Pass, Oregon August 12, 1992 Respectfully Submitted, PU MEL Carvel Gordon Dillard, pro se 903 SW Central Grants Pass, OR 97526 (503) 479-0098 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_1650%3A1. Public record. Not legal advice.