Opposition Brief — Catz v. McDonald

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Supreme Court, U.S.

FILED

MAR 27 1997

No. 96-1354

OFFICE OF THE CLERK

In The

Supreme Court of the United States

October Term, 1996

ROBERT S. CATZ,

Petitioner,

TRIAL COMMISSIONER JOSEPH R. McDONALD,

DOMESTIC RELATIONS DIVISION OF THE

SUPERIOR COURT IN AND FOR THE COUNTY OF

PIMA, ARIZONA, SUSAN R. CHALKER

(Real Party of Interest), FIDELITY INVESTMENTS,

TEACHERS INSURANCE ANNUITY ASSOCIATION-

COLLEGE RETIREMENT EQUITY FUND, AND

WATERHOUSE SECURITIES, INC.,

Respondents.

On Petition For Writ Of Certiorari

To The Arizona Court Of Appeals, Division Two

BRIEF IN OPPOSITION

LEONARD Karp

Counsel of Record

Counsel for Respondent Susan R. Chalker

33 N. Stone Avenue

Suite 2120

Tucson, Arizona 85701-1415

(520) 882-9705

March 27, 1997

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

Whether this Court has jurisdiction pursuant to 28

U.S.C. § 1257 to hear this matter where Petitioner

neither raised, nor did the court below decide, the

“question” Petitioner presents in-his Petition for Writ

of Certiorari.

Whether the Arizona statutes and the Arizona courts

afforded due process to Petitioner.

TABLE OF CONTENTS

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B: ARIZONA: THE TRIAL COURT .............

C. THE PETITION IS YET ANOTHER ATTEMPT

TO COLLATERALLY ATTACK THE DIVORCE

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THE PETITION FOR WRIT OF CERTIORARI

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A. THE ARIZONA STATE COURT DID NOT

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B. A.R.S. § 25-315 IS CONSTITUTIONAL ON ITS

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C. THE UNIQUE FACTS OF THIS CASE ARE

NOT SUITED TO THE PRONOUNCEMENT

OF BROAD LEGAL PRINCIPLES............

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TABLE OF CONTENTS - Continued

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D. THE IMPOSITION OF SANCTIONS ACAINST

PETITIONER IS APPROPRIATE

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TABLE OF AUTHORITIES

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CASES

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STATUTES AND RULES

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MISCELLANEOUS

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. BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

Real Party in Interest, Susan R. Chalker (“Chalker”)

requests that this Court deny the Petition for Writ of

Certiorari filed by Robert Catz (“Catz”), wherein he seeks

review of the judgment of the Arizona Court of Appeals,

Division Two, entered on May 2, 1996. The decision of the

Arizona Court of Appeals, Division Two, does not decide

an important federal question nor does it conflict with

any decisions among other state or federal courts. Review

by this Court is unnecessary and inappropriate.

OPINIONS BELOW

Chalker concurs with the Statement of Opinions

Below as set forth in Catz’ Petition.

JURISDICTION

On November 26, 1996, the Supreme Court of the State

of Arizona denied review of Catz’ Petition for Special

Action filed with the Arizona Court of Appeals, Division

Two (“Court of Appeals”). Catz asserts that this Court has

jurisdiction to review the Court of Appeals decision pur-

suant to 28 U.S.C. § 1257. He is wrong. A final judgment

regarding the “question” presented in Catz’ Petition for

Writ of Certiorari (“Petition”) was never entered by the

Court of Appeals or the Arizona Supreme Court and this

Court is therefore deprived of review jurisdiction under 28

U.S.C. § 1257. Jurisdiction under 28 U.S.C. § 1257 is also

unavailing because Catz never raised the issue of the

constitutional validity of the Arizona statute imposing an

automatic injunction against the parties to a domestic rela-

tions proceeding, A.R.S. § 25-315, in his Petition for Special

Action to the Court of Appeals.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Arizona Revised Statutes, § 25-315 is the sole statu-

tory provision involved in the matter before this Court. It

states in full:

Temporary order or preliminary injunction;

effect

A. In all actions for the dissolution of mar-

riage or for legal separation, the clerk of the

court shall pursuant to order of the superior

court issue a preliminary injunction in the

following manner:

1. The preliminary injunction shall be

directed to each party to the action and

contain the following orders:

(a) That both parties are enjoined from

transferring, encumbering, concealing, sell-

ing or otherwise disposing of any of the

joint, common or community property of

the parties except if related to the usual

course of business, the necessities of life or

court fees and reasonable attorney fees

associated with an action filed under this

article, without the written consent of the

parties or the permission of the court.

(b) That both parties are enjoined from

molesting, harassing, disturbing the peace

of or committing an assault or battery on

the person of the other party or any natural

or adopted child of the parties.

removing any natural or adopted child of

the parties then residing in Arizona from

the jurisdiction of the court without the

prior written consent of the parties or the

permission of the court.

2. The preliminary injunction shall include

the following statements:

“Warning

This is an official court order. If you disobey

this order the court may find you in contempt of

court. You may also be arrested and prosecuted

for the crime of interfering with judicial pro-

ceedings and any other crime you may have

committed in disobeying this order.

You or your spouse may file a certified copy

of this order with your local law enforcement

agency. A certified copy may be obtained from

the clerk of the court that issued this order. If

you are the person that brought this action, you

must also file evidence with the law enforce-

ment agency that this order was served on your

spouse.

This court order is effective until a final

decree of dissolution or legal separation is filed

or the action is dismissed.”

3. The preliminary injunction shall be

effective against the petitioner upon filing

the petition and against the respondent

upon service of a copy of the order. In the

event of service by registered mail under

the rules of civil procedure, the order shall

be effective upon receipt of the order. The

order shall remain effective until further

order of the court or the entry of a decree of

dissolution or legal separation.

4. At the time of filing the petition for

dissolution or legal separation, the copies of

the preliminary injunction shall be issued to

the petitioner or the agent, servant or

employee filing the petition for dissolution

or legal separation. The petitioner shall be

deemed to have accepted service of the peti-

tioner’s copy of the preliminary injunction

‘and to have actual notice of the contents

thereof by filing or causing to be filed a

petition for dissolution or legal separation.

The petitioner shall cause a copy of the

preliminary injunction to be served upon

the respondent together with a copy of the

summons and petition for dissolution or

legal separation.

5. The preliminary injunction shall have

the force and effect of an order of the supe-

rior court signed by a judge and shall be

enforceable by all remedies made available

by law, including contempt of court. The

provisions of rules 65(a)(1) and 65(e) of the

rules of civil procedure shall not be applica-

ble to the preliminary injunction.

B. In a proceeding for dissolution of mar-

riage, for legal separation or for mainte-

nance or support following dissolution of

the marriage by a court which lacked per-

sonal jurisdiction over the absent spouse,

either party may move for temporary main-

tenance or temporary support of a child,

natural or adopted, common to the parties

entitled to support. The motion shall be

accompanied by an affidavit setting forth

the factual basis for the motion and the

amounts requested.

C. As a part of a motion for temporary

maintenance or support or by independent

motion accompanied by affidavit, either

party may request the court to issue a tem-

porary restraining order or preliminary

injunction for any of the following relief:

1. Excluding a party from the family home

or from the home of the other party upon a

showing that physical or emotional harm

may otherwise result.

2. Providing other injunctive relief proper

in the circumstances.

D. The court may issue a temporary

restraining order without requiring notice

to the other party only if it finds on the

basis of the moving affidavit or other evi-

dence that irreparable injury will result to

the moving party if no order is issued until

the time for responding has elapsed. No

bond shall be required unless the court

deems it appropriate.

E. On the basis of the showing made, and

in conformity with §§ 25-318 and 25-319, the

court may issue a preliminary injunction

and an order for temporary maintenance or

support in amounts and on terms just and

proper in the circumstances. The court may

also make temporary orders respecting the

property of the parties, as may be necessary.

F. A temporary order or preliminary

injunction:

1. Does not prejudice the rights of the par-

ties or any child which are to be adjudicated

at the subsequent hearings in the proceed-

ings.

2. May be revoked or modified before final

decree on a showing by affidavit of the facts

necessary to revocation or modification of a

final decree under § 25-327 and as provided

in rule 65 of the rules of civil procedure.

3. Terminates when the final decree is

entered or when the petition for dissolution

or legal separation is dismissed.

G. A person who disobeys or resists an

injunction issued pursuant to subsection A,

paragraph 1, subdivision (b) or subsection

C, paragraph 1 of this section is subject to

arrest and prosecution for interference with

judicial proceedings pursuant to § 13-2810

and the following procedures apply:

1. Any party may cause a certified copy of

the injunction and return of service on the

other party to be registered with the sheriff

having jurisdiction of the area in which the

party resides. The party original registering

the injunction shall register any changes or

modifications of the injunction with such

sheriff. For enforcement by arrest and pros-

ecution for interference with judicial pro-

ceedings, a certified copy of the injunction,

whether or not registered with such sheriff,

is presumed to be a valid existing order of

the court until a final decree of dissolution

or legal separation is entered or the action

iii.

for dissolution or legal separation is dis-

missed.

2. A peace officer may, with or without a

warrant, arrest a person if he has probable

cause to believe that an offense under this

subsection has been committed and he has

probable cause to believe that the person to

be arrested has committed the offense,

whether such offense is a felony or a misde-

meanor and whether such offense was com-

mitted within or without the presence of the

peace officer. The release procedures avail-

able under § 13-3883, paragraph 4 and

§ 13-3903 are not applicable to arrests made

pursuant to this subsection.

3. A peace officer making an arrest pur-

suant to this subsection is not civilly or

criminally liable for the arrest if the officer

acts upon probable cause and without mal-

ice.

4. A person arrested pursuant to this sub-

section may be released from custody in

accordance with the rules of criminal pro-

cedure or other applicable statute. An order

for release, with or without an appearance

bond, shall include pretrial release condi-

tions necessary to provide for the protection

of the alleged victim and other specifically

designated persons and may provide addi-

tional conditions which the court deems

appropriate, including participation in any

counseling programs available to the defen-

dant.

5. The remedies provided in this subsec-

tion for enforcement of the preliminary

injunction are in addition to any other civil

or criminal remedies available, including

civil contempt of court. The use of one rem-

edy does not prevent the simultaneous or

subsequent use of any other.

STATEMENT OF THE CASE

Catz’ factual recitation of the case is inaccurate,

incomplete and misleading and Chalker therefore

includes a Statement of the Case.

A. INTRODUCTION

The instant Petition is but another in a long series of

attempts by Catz to collaterally attack the Decree of Dis-

solution of Marriage (“Divorce Decree”) entered March

14, 1995, by the Superior Court of Arizona in and for the

County of Pima (“Superior Court”). Although the

“issues” raised in the Petition are the same as those

repeatedly raised by Catz in various proceedings in var-

ious fora, they were never presented to the Court of

Appeals nor properly raised before the Supreme Court of

the State of Arizona for resolution. With the exception of

his recently filed and pending request for review in the

United States Court of Appeals for the Sixth Circuit and

an action in, although currently stayed by, the United

States District Court for the Middle District of Tennessee,

all other related actions filed by Catz have either been

dismissed or voluntarily withdrawn. The following state-

ment details the odyssey of judicial abuse of process to

which Catz has subjected Chalker and the courts from

November, 1994 to date.

B. ARIZONA: THE TRIAL COURT

On November 4, 1994, Chalker filed a Petition for

Dissolution of Marriage against Catz in the Superior

Court, Cause No. D-103065. At the same time, she also

filed a Petition for Order to Show Cause requesting pen-

dente lite orders on spousal maintenance, exclusive use of

the marital residence, attorney’s fees, child support and

funds to service the parties’ community debt. Hearing on

the Petition for Order to Show Cause was set for January

11, 1995. On December 1, 1994, the Superior Court

granted Chalker’s Ex Parte Motion to Add Parties and for

Issuance of Temporary Restraining Orders (“TRO”) as

permitted under A.R.S. § 25-315. Fidelity Investment

Trust, TIAA-CREF, and others, were named as additional

parties to the action on Dissolution of Marriage.

Chalker’s request for TRO was prompted by Catz’

avowal that he intended to remove all property from the

reach of the Arizona court and had taken steps to see that

Chalker would be unable to touch any community

assets.' Catz misrepresents the facts when he states in his

Petition that the Superior Court was not advised of the

existence of an earlier entered Ohio divorce decree. In an

affidavit appended to the application for TRO, Chalker

stated, under oath, she never had actual notice of any

prior divorce proceedings, nor had she been served with

1 Chalker’s fears that Catz would secret away community

assets proved correct. On November 26, 1994, Catz acted on his

threat and requested Fidelity, a financial institution holding

community assets, to transfer title of community funds to his

adult children from a prior marriage, Shawn and Jason Catz.

—*

divorce papers from any jurisdiction purporting to con-

tain a judgment on divorce between herself and Catz.”

Catz’ repeated claims to the contrary aside, the Superior

Court was well aware from the outset of the action on

Dissolution of Marriage of the Ohio “divorce”.

Although Catz knew that Chalker had filed a Petition

for Dissolution (he had received notice from the Superior

Court on November 22, 1994 informing him of his option

to attend mediation to resolve child custody issues), he

evaded service of process until December 14, 1994. On

that same date, Catz filed an Emergency Motion to Dis-

miss the action on dissolution. The court did not, as Catz

contends, “evaluate” Catz’ emergency motion and deter-

mine that Chalker failed to disclose the existence of the

Ohio decree. Rather, it set a hearing on the Motion to

Dismiss for December 19, 1994. This hearing was later

reset to January 11, 1995, the same date and time as the

2 Catz and Chalker were married on April 13, 1980. On or

about April 10, 1989, while Catz was teaching law in Ohio and

Chalker was residing with their minor son at their marital

residence in Florida, Catz obtained a divorce from the Court of

Common Pleas of Cuyahoga County, Ohio, by entry of a default

judgment. Catz claimed to have obtained service upon Chalker

by sending the summons and complaint to a post office box,

registered in Catz’ name, where they were purportedly accepted

by an individual named Tim Loughart; Catz did not serve

Chalker personally at the marital residence. Chalker testified

that she was never served with process, never received notice of

the action, and was not aware of the purported divorce until late

in 1994. (APPENDIX 1)

Chalker recognizes that the Appendices to her Brief in

Opposition are unusually lengthy but believes the submission

of same is necessary for the Court appreciation of the

multiplicitious litigation to which she has been subjected.

pending hearing on pendente lite orders. Instead of

actively defending against the Superior Court action,

Catz filed a Notice of Removal to the United States Dis-

trict Court for the District of Arizona (“Arizona district

court”), thereby staying all state court matters, including

the very post-seizure hearing Catz now complains the

Superior Court failed to provide. (APPENDIX 2)

Following the Arizona district court’s remand on Jan-

uary 12, 1995, Catz did nothing to preserve or to obtain a

hearing to determine the efficacy of the TRO. Rather, it

was Chalker who filed an amended notice of hearing for

pendente lite relief. The Superior Court reset that hearing

to February 16, 1995, later rescheduled to March 14,

1995.3 Catz was provided with all pleadings, discovery

requests, court orders, and notices of hearing.‘ In fact, at

3 Chalker’s Motion to Continue the Show Cause hearing for

pendente lite orders was filed on January 25, 1995 and mailed to

Catz. (APPENDIX 3) Catz promptly responded to this Motion

on February 3, 1995 requesting that the hearing be continued for

the reason that he had competing commitments. (APPENDIX 4)

At the February 6, 1995 hearing, for which Catz did not appear,

the Superior Court continued the Show Cause hearing to March

14, 1995. Catz’ request for continuance is significant in that it

shows he was in receipt of Chalker’s pleadings and because he

did not ask for a hearing regarding his earlier filed Motion to

Dismiss.

4 At the heart of Catz’ grievance is his charge that hearing

notices came to him at a delayed pace, if at all. This allegation is

disingenuous. Catz chose to respond to some of Chalker’s

pleadings in a timely fashion, while completely ignoring others.

Catz changed places of residence on several occasions during

the time period in question, and did not notify the Superior

Court of his permanent relocation to Nashville, Tennessee, until

late January 1995.

one point, Chalker was serving Catz at five different

addresses and communicating with Catz through a Mr.

Philip Stinson, an attorney who represented Catz in the

Arizona district court matter. When Catz failed to appear

at his deposition as scheduled, Chalker filed a Motion for

Sanctions which was set for hearing. Although Catz

alleges not to have received timely notice of the hearing

on sanctions, Chalker informed Catz of the hearing both

by sending him the notice of hearing, and confirming the

hearing date and time, via telephone and letter, with Mr.

Stinson. (APPENDIX 5) Following the March 2, 1995,

evidentiary hearing on sanctions, for which Catz did not

appear, the Superior Court found Catz had willfully,

deliberately and in bad faith refused to Participate in

discovery and ordered that the scheduled March 14, 1995

hearing be limited to a proceeding on default. (APPEN-

DIX 6)

Although he now states he had untimely and inade-

quate notice, Catz has conceded his knowledge of the

March 14, 1995 hearing. Indeed, in an attempt to forestall

the very hearing of which he claims to have ill notice

Catz filed, on the very day of the hearing, yet another

Notice of Removal to the Arizona district court. (APPEN-

DIX 7) Prior to the second removal and following an

evidentiary hearing, the Superior Court entered default

judgment against Catz. The Superior Court refused to

give full faith and credit to the 1989 Ohio Decree of

Dissolution, finding it to be null and void as having been

fraudulently obtained. (APPENDIX 8)

On March 31, 1995, the Arizona district court again

remanded the case to the Superior Court and specifically

ordered the federal clerk to accept no further pleadings

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from Catz without the court's permission. (APPENDIX 9)

While Catz’ second attempt at removal was pending in

the Arizona district court, he filed motions pursuant to

Rules 59 and 60, ARIZ.R.CIV.P., in the Superior Court to

vacate the orders on sanctions and the default judgment

entered against him. Catz claims that his post-judgment

Superior Court pleadings were returned to him on April

14, 1995 by the clerk of the Superior Court with a ques-

tionnaire required of litigants unable to pay fees and

costs. However, after the second remand from the Ari-

zona district court, Catz did not attempt to re-file his

Superior Court post-judgment motions, nor did he return

the clerk’s questionnaire. Catz, a practicing lawyer and

former professor of law, having failed to substantively

respond to the proceedings pending in the Superior

Court and without having made even the most cursory

attempt to comply with the procedural requirements of

Arizona law, now complains that he lost his right to

appeal the judgment of the Superior Court because of the

actions of the clerk of the court.5

> Rule 60, Ariz.R.Civ.P., provides a litigant with indefinite

time for filing a motion for relief from judgment if the judgment

is void and six months if the judgment was obtained by fraud.

Therefore, as a matter of law, Catz was not deprived of any

rights as a result of the clerk’s return of his papers. Rather, it is

apparent that Catz simply elected to challenge the Superior

Court’s ruling in other fora, via collateral attacks, rather than

through the well-articulated procedures that were available to

him in the Arizona courts.

C. THE PETITION IS YET ANOTHER ATTEMPT TO

COLLATERALLY ATTACK THE DIVORCE DECREE

Catz asserts that “having been deprived of his right

to file a direct appeal from the default judgment,” he filed

an “original” action in the United States District Court for

the Middle District of Tennessee (“Tennessee district

court”) collaterally attacking the Arizona Divorce Decree

on October 2, 1995.° Curiously, Catz omits mention of the

litigious wars he fought on other fronts from April 1995

through the October Tennessee filing. A summary of

Catz’ filings from April 10 through October 1995, which

escape mention in his Petition follow:

1. On April 10, 1995, Catz moved to dismiss

his earlier filed federal civil rights action

against Chalker. Catz filed this § 1983 com-

plaint against Chalker on December 20,

1994. The Arizona District Court dismissed

this complaint with prejudice on June 8,

1995 expressly adopting Chalker’s reasoning

that Catz’ “utter disregard for the law must

be halted . . . ” (APPENDIX 11) Catz had

° Coincidentally, this occurred after a hearing in the United

States District Court for the Northern District of Ohio (“Ohio

district court”) on September 29, 1995 on Catz’ Motion for

Temporary Restraining Order filed in conjunction with his

Complaint for Declaratory and Injunctive Relief. At that

hearing, the Honorable John M. Manos noted, on the record,

numerous deficiencies in Catz’ pleadings, including lack of

personal jurisdiction, improper venue, the absence of

allegations of state action to support a civil rights action under

42 U.S.C. § 1983, and the preclusive effect of the prior actions in

which the same claims had been asserted and dismissed. The

transcript of that hearing demonstrates the court’s clear intent

to dismiss Catz’ complaint. (APPENDIX 10).

also filed a companion civil rights action

against Chalker’s divorce attorneys, but

never served the complaint.

On April 12, 1995, Catz filed an Application for

Supplemental Relief and an Ex-Parte Lis Pen-

dens in the Court of Common Pleas of

Cuyahoga County, Ohio (“Ohio State Court”),

requesting declaratory and injunctive relief.

(APPENDIX 12) Catz voluntarily dismissed

this action on July 28, 1995, the day of the

hearing on the temporary orders, stating to the

court that his intentions were to litigate his

claims to fruition in Arizona.

On April 28, 1995, Catz filed a Notice of

Appeal to the United States Court of

Appeals for the Ninth Circuit (“Ninth Cir-

cuit”) from the Order of the Arizona District

Court, remanding the dissolution proceed-

ings to the Superior Court. He voluntarily

dismissed this appeal on June 10, 1995.

On June 23, 1995, and although the time

limits for filing a Motion to Vacate Judgment

pursuant to Rule 60(c), ARIZ.R.CIV.P., had

yet to expire, Catz filed a Petition for Special

Action in the Supreme Court of Arizona

requesting review of the Superior Court’s

orders. (APPENDIX 13) The court declined

to hear the petition by order entered on June

30, 1995. (APPENDIX 14)

On July 4, 1995, in the Supreme Court of

Arizona, Catz filed an Emergency Motion

for Rehearing by the Full Court En Banc

regarding the denial of entertaining the Peti-

tion for Special Action. (APPENDIX 15) This

motion was denied by the court on July 14,

1995. (APPENDIX 16) Instead of pursuing

relief through the Court of Appeals, as the

Arizona Supreme Court suggested in their

June 30, 1995 order, Catz voluntarily with-

drew his Petition for Special Action on

August 10 and advised the clerk that he

intended to petition for a Writ of Certiorari

with the United States Supreme Court.

(APPENDIX 17)

On July 27, 1995, and while the Ohio state

court action was still pending, Catz filed a

complaint for Declaratory and Injunction

relief in the Ohio district court requesting

substantially the same relief as he requested

in both the Ohio state court action and in his

Arizona Special Action Petition. (APPEN-

DIX 18)

On September 26, 1995, Catz filed his First

Amended Complairt in the Ohio district

court adding Cha!«er’s divorce counsel,

Leonard Karp and Annette Everlove, as

additional defendants. (APPENDIX 19) This

complaint was Cismissed, with prejudice, by

the Honorable Judge M. Manos, on Decem-

ber 1, 1995. The court found “the complaint

does not have an arguable basis in law or

fact because it is barred by the principle of

res judicata. Catz entered an appearance in

the Arizona state case and filed the second

Arizona federal case. Judgments were ren-

dered on the merits in both cases. His

opportunities to attack them ended when he

did not appeal.” (citations omitted). The

court further found “[Catz’] claims in [this

case] are identical to ones previously raised

and decided . . . [t]he complaint filed by

Catz is without merit.” (APPENDIX 20).

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AOD REND LEE SPRITE 4 FO

Following entry of the Divorce Decree by the Supe-

rior Court, Catz embarked upon a campaign of forum

shopping marked by dishonesty and vituperation, raising

substantially the same claims in the Arizona district

court, the Ninth Circuit, the Ohio state court and the

Ohio district court, as well as the Tennessee district court.

Never, however, did Catz put his claims for relief before

the court to which he was admonished time and time

again to seek redress, the Arizona Court of Appeals.

Contrary to Catz’ assertion, his Tennessee action was

far from “original,” rather it was substantially identical to

the complaints previously filed in the Ohio state court

and the district courts of Ohio and Arizona. (APPENDIX

21) Chalker moved to dismiss Catz’ complaint in the

Tennessee district court for lack of personal and subject

matter jurisdiction, responsive to which Catz filed his

First Amended Complaint. On October 26, 31 and

November 2, 1995, the Tennessee district court, the Hon-

orable Robert Echols, held a hearing on Chalker’s Motion

to Dismiss. A flurry of post-hearing filings by Catz fol-

lowed, including his motion to, once again, amend his

complaint. On February 7, 1996, Judge Echols entered a

Memorandum Opinion and Order dismissing Catz’ com-

plaint, finding that Catz’ claims were nothing more than

collateral attacks on the judgment of the Superior Court

in a domestic relations action and that federal subject

matter jurisdiction was therefore lacking. (APPENDIX 22)

Catz thereupon filed a motion to alter or amend the

judgment and another motion for leave to amend the

complaint. (APPENDIX 23) All were denied by court

order on April 10, 1996.7 The Tennessee district court, like

the Ohio and Arizona district courts before it, advised

Catz that his only avenue for relief, if such were due, was

through the appellate process in Arizona.

On November 30, 1995, while the first Tennessee

district court case was pending, Catz filed a second action

in the Tennessee district court. In February, 1996, Catz

filed an Amended Complaint in this second action, a

document almost identical to the proposed amended

complaint he was denied leave to file in the first action,

even containing the same typographical errors. (APPEN-

DIX 24) However, it was not until February 26, 1996, after

Judge Echols had issued his ruling dismissing the first

Tennessee district court action, that Catz attempted to

serve any defendant in the second action. At the May 14,

1996 status conference regarding the second action, Catz

acknowledged that he intended to file yet another action

against the same named defendants in the United States

District Court for the District of Columbia. This

prompted the Magistrate Judge presiding at the status

conference to enter an order enjoining Catz from filing

any actions against the defendants in any other district

court and staying further proceedings in the second Ten-

nessee district court action pending the determination of

the consolidated cases on appeal to the Sixth Circuit.

(APPENDIX 25) See footnote7, supra.

” Catz appealed the Tennessee district court’s order, which

was consolidated with his appeal of the Ohio district court’s

order, Case Nos. 96-3114 and 96-5776, currently pending in the

Sixth Circuit Court of Appeals.

> I

AEN eSB A EAR AA ane

D. BACK TO ARIZONA

On March 27, 1996, more than a year after entry of

the Divorce Decree Catz filed his Verified Petition for

Special Action in the Arizona Court of Appeals, Division

Two. (APPENDIX 26) By Order entered May 2, 1996, the

Court of Appeals declined jurisdiction and awarded

Chalker her attorneys’ fees and costs. (APPENDICES 27

and 28) On May 18, 1996 Catz filed his Petition for

Review with the Arizona Supreme Court. (APPENDIX 29)

There, Catz asked the court to consider for the first time

the constitutionality of the injunctive provisions of A.R.S.

~ § 25-315. Although Catz insisted in pleadings to the Ari-

zona Supreme Court that this issue was presented to the

Court of Appeals, it in fact was neither raised by Catz nor

decided by that court. Likewise, Catz now persists in his

assertion to the Court that the question of the constitu-

tionality of A.R.S. § 25-315 was properly before the Court

of Appeals. However, as the record below clearly demon-

strates, Catz never asked the Court of Appeals to review

and/or rule upon the constitutionality, or lack thereof, of

A.R.S. § 25-315. On October 25, 1996, the Supreme Court

of Arizona denied Catz’ Petition for Review, and as with

the Court of Appeals below, awarded Chalker her attor-

neys’ fees and costs. (APPENDICES 30 and 31)

THE PETITION FOR WRIT OF

CERTIORARI SHOULD BE DENIED

A. THE ARIZONA STATE COURT DID NOT DECIDE

AN IMPORTANT FEDERAL QUESTION OR

IMPORTANT QUESTION OF FEDERAL LAW.

The principal purpose behind certiorari jurisdiction

is to permit this Court to resolve conflicts among the

United States courts of appeal inter se and/or the state

courts of last resort concerning the United States Consti-

tution or provisions of federal law. Rule 10, Sup.Ct.R;

Braxton v. U.S., 500 U.S. 344 (1991). At a minimum, the

petitioner must present a question of federal dimension

and must have presented that same question to the courts

below. When an important federal question is not prop-

erly raised below, this Court may not proceed on a peti-

tion for certiorari. Ellis v. Dixon, 349 U.S. 458, rehearing

denied, 350 U.S. 855 (1955). Here, neither the Arizona

Supreme Court nor the Court of Appeals decided an issue

of federal law. The question Catz now presents for review

was neither presented to, nor resolved by, the Arizona

courts. In fact, in his Petition for Special Action to the

Court of Appeals, Catz never mentions A.R.S. § 25-315,

nor does he cite any of the cases to which he refers this

Court in support of his claim that the Arizona statute is

unconstitutional.

Even assuming arguendo that Catz properly presented

a federal question to the Court of Appeals, this Court

should nevertheless deny certiorari for the reason that no

conflict regarding the constitutionality of A.R.S. § 25-315

exists between any federal and/or state courts. Indeed,

demonstrative of the uniformity among jurisdictions as to

‘4

the validity of A.R.S. § 25-315 is the fact that it is based

upon § 304 of the Uniform Marriage and Divorce Act.®

B. A.R.S. § 25-315 IS CONSTITUTIONAL ON ITS

FACE AND AS APPLIED HERE

On November 4, 1994, concurrent with the filing of

the Petition for Dissolution of Marriage, the clerk of the

Superior Court issued a preliminary injunction enjoining

both Catz and Chalker from removing their minor child

from the state, from disturbing the peace of each other,

and from disposing of marital assets without written

permission of the parties or the court. The clerk’s action

was taken pursuant to A.R.S. § 25-315(A).9 By order

entered on December 1, 1994, the Superior Court froze

certain marital assets of Catz and Chalker in accordance

with A.R.S. § 25-315(D). This order was issued after the

Superior Court reviewed affidavits of Chalker and Sandra

Potter, a mutual friend of both parties, and found that

8 Arizona adopted the Uniform law with a slight variation

which provides even more constitutional guarantees to

divorcing spouses. Specifically Arizona’s preliminary

injunction states that a spouse may not dispose of joint or

community property while the Uniform law states that a spouse

may not dispose of “any” property pending dissolution

proceedings. U.L.A. § 304(b)(1).

° The preliminary injunction expressly exempts the

disposal of property in the usual course of business or for the

necessities of life. A.R.S. § 25-315(A). Therefore Catz’ complaint

that he would have to suspend his business operations and

would be unable to pay for the necessities of life is in error. (See,

Catz’ Petition at page 6).

absent such order irreparable injury to the marital com-

munity would result. Additionally, the Superior Court

specifically found the posting of a bond inappropriate

given the facts and circumstances of the case.

The purpose of A.R.S. § 25-315 is clear: to prevent,

during the pendency of proceedings on dissolution of

marriage, exactly the type of misconduct Catz attempted

to engage in here, i.e., the wrongful dissipation of marital

assets, the secreting of marital assets, and the placing of

marital assets beyond the jurisdiction of the court. The

constitutionality of the injunctive provisions of A.R.S.

§ 25-315 was challenged and affirmed by the United

States Court of Appeals for the Ninth Circuit in Stone v.

Godbehere, 894 F.2d 1131 (9th Cir. 1990). While recognizing

that due process requires some form of notice and hear-

ing when deprivation of property is at issue, the Ninth

Circuit found that A.R.S. § 25-315 conformed to the due

process requirements of the United States Constitution

given the special circumstances involved in a dissolution

proceeding (which include the individual’s reduced inter-

est in community property, the state’s interest in prevent-

ing the dissipation of marital assets, and the unlikely risk

of erroneous deprivation, Stone id. at 1134).

Similarly, the issuance of a TRO pursuant to A.R.S.

§ 25-213 is constitutionally sound, offering even more

protection than the preliminary injunction provisions of

A.R.S. § 25-315. Under A.R.S. § 25-213, the court must

find an extraordinary need for prompt judicial action and

the moving party has the burden of showing that irrepar-

able injury will result without the order. Catz’ allegation

that he was deprived of due process because he was not

given the opportunity to be heard on the TRO is absurd.

A.R.S. § 25-315(F)(2) provides for a post-seizure hearing.

Specifically, A.R.S. § 25-315(F)(2) states that the TRO or

the preliminary injunction may be revoked or modified

“on a showing by affidavit of the facts necessary to

revocation or modification of [the order]”. The statute

clearly provides for a prompt hearing on orders issued

pursuant to A.R.S. § 25-315(D). It was not any statutory

failing or frailty that caused the hearing on Catz’ Motion

to Dismiss to be stayed but rather it was Catz’ own

conduct including, most significantly, the filing of the

Notice of Removal to the Arizona District Court. After

remand to the Superior Court, Catz never renewed his

request for hearing. It is axiomatic that one who conscien-

tiously disregards his rights and opportunities to be

heard, as Catz did here, cannot later be permitted to

claim a violation of due process.

C. THE UNIQUE FACTS OF THIS CASE ARE NOT

SUITED TO THE PRONOUNCEMENT OF BROAD

LEGAL PRINCIPLES

Although Catz casts this case as an example of the

Arizona courts depriving an innocent litigant of due pro-

cess, it is not. Rather, this case involves a lawyer and

former professor of law, who fraudulently obtained a

divorce in 1989, never disclosed the same to his wife and

thereafter continued to live with her as husband and

wife, including a relocation from Florida to Arizona, until

September 1994. After his wife filed for dissolution of

marriage in Arizona, Catz Strategically chose to litigate

his claims in the federal arena, thereby voluntarily aban-

doning his opportunities to avail himself of his rights

under the Arizona state appellate process.1° After entry

of judgment, Catz consistently refused to follow estab-

lished, cogent Arizona post-judgment procedures.

Instead, Catz commenced a protracted, abusive course of

litigation in other jurisdictions in an effort to collaterally

attack the Arizona judgment. These unique facts make

this case particularly inappropriate for review and inap-

propriate for the explication of national policy by this

Court.

D. THE IMPOSITION OF SANCTIONS AGAINST

PETITIONER IS APPROPRIATE

As is plain from a brief review of the procedural

history in this case, Catz has made a mockery of the

judicial system. He has used both federal and state court

processes to abuse and to harass his ex-wife and her

counsel, rather than attempting to secure the just deter-

mination of any valid legal dispute. The “question” pre-

sented to this Court was never raised before the Arizona

Court of Appeals. It has, however, been the subject of

\ endless litigation pursued by Catz in court after court, in

jurisdiction after jurisdiction, where his claims have

either been summarily dismissed by the court or volun-

tarily withdrawn at the eleventh hour.

10 Response to Catz’ allegations of no notice, calloused

treatment, collusion and other draconian measures is detailed in

Chalker’s Statement of the Case. However, to briefly repeat,

Chalker adamantly denies Catz’ allegations and alleges that

Catz is the victim of his own scheme to evade the Arizona state

court process.

Chalker has been required to respond to these myr-

iad spurious actions, causing to deplete her funds and

hire counsel in three different states. “Somewhere along

the line, the rights of the defendant to be free from costly

and harassing litigation must be considered. So too must

the time and energies of our courts and the rights of

would-be litigants awaiting their turns to have other

matters resolved.” Poppenheim v. Portland Boxing and

Wrestling Commission, 442 F.2d 1047, 1054 (9th Cir. 1971).

Catz’ opportunity to attack the judgment of the Supe-

rior Court ended when he did not appeal. Chalker there-

fore requests that this Court exercise its inherent powers

to put an end to Catz’ pattern of abusive and vexatious

litigation and enjoin him from filing or prosecuting other

litigation challenging the Divorce Decree entered by the

Superior Court.

Rule 42, S.Ct.R., provides that when a Petition for

Writ of Certiorari is frivolous, the Court may impose just

damages and single or double costs against the Petitioner.

Here, Catz’ Petition is frivolous and constitutes a misuse

of process for which he should be sanctioned. Chalker

submits that the need for and Propriety of sanctions is

redoubled where, as here, Catz is a former law professor

and member of the bars of the states of Ohio, Florida and

the District of Columbia. Chalker therefore further

requests that this Court impose just damages and double

costs against Catz.

CONCLUSION

As stated herein, Catz raises no issue appropriate for

the exercise of this Court's jurisdiction, and accordingly,

the Petition for Writ of Certiorari should be denied.

Respectfully submitted,

LEONARD Karp

Counsel of Record for

Respondent Susan R. Chalker

33 N. Stone Avenue

Suite 2120

Tucson, Arizona 85701-1415

(520) 882-9705

March 27, 1997

App. i

APPENDICES

Affidavit of Susan Ruth Chalker filed with Peti-

tion for Temporary Restraining Orders in the

Pima County Superior Court dissolution action

ee MII Ber PUN eco ecuedlveercceys App. 1

Petition and Notice of Removal in the United

States District Court for the District of Arizona;

Certificate of Service of Petition and Notice of

PE ce Bive rev eeleredrercs rh tseecedees App. 4

Notice of Hearing on Motion and Order to Con-

tinue Hearing on Order to Show Cause filed in

Pima County Superior Court on January 25,

aes a Pe ae ee App. 6

Respondent's Response to Petitioner’s Motion to

Continue Hearing on Order to Show Cause filed

in Pima County Superior Court on January 31,

1995 with attached Certificate of Service...App. 8

Letter dated February 15, 1995 (Dictated Febru-

ary 14, 1995) to Philip Matthew Stinson, Sr.,

Esq., from Annette Everlove with enclosed

Notice of Hearing on Petitioner’s Motion for

Sanctions/Motion to Strike Pleading filed in

Pima County Superior Court on February 10,

REE Se pee oe AE Ss eee a App. 12

Pima County Superior Court Minute Entry

Order regarding Under Advisement Ruling

regarding Petitioner’s Motion for Sanctions

oS ee App. 15

Second Petition and Notice of Removal filed in

the United States District Court for the District

of Arizona on March 13, 1995 with attached

RUE GE DOWIE, cece cence snes App. 21

10.

11.

12.

13.

14.

15.

App. ii

Certified copy of Decree of Dissolution of Mar-

riage filed in the Pima County Superior Court

ee a, . ee Ca cs App.

Order filed in the United States District Court

for the District of Arizona on March oi,

WG. os iinicuchcsvisrapecoteueiecn eee App.

Transcript of Proceedings Before the Honorable

John M. Manos, United States District Judge, for

the United States District Court, Northern Dis-

trict of Ohio, Eastern Division dated September

SD, TR y 00 i renee ais gutieteisbediee ak App.

Order filed in the United States District Court

for the District of Arizona on June 9, 1995;

Defendant’s Response to Plaintiff’s Motion for

Voluntary Dismissal filed in the United States

District Court for the District of Arizona on May

BO) SHOR si pc iwbwss ererc arene etiatis App.

Plaintiff’s Application for Supplemental Relief

Pursuant to Ohio Rev. Code § 2721.09 to Enforce

Against Defendant a Judgment of this Court

Entered on April 10, 1989 filed in the Court of

Common Pleas, Division of Domestic Relations,

Cuyahoga County, Ohio.................:. App.

Verified Petition for Special Action filed in the

Supreme Court of Arizona (cover page and page

F QO 88a PEER ke Pee Bet Oe as App.

Order filed in the Supreme Court of Arizona on

FE Bs: Pes 4a nin 8s catneny eens hak ee ek App.

Emergency Motion for Rehearing by the Full Court

en Banc filed on July 4, 1995 with attached Certifi-

cate of Service; Order filed in the Supreme Court of

Arizona on June 30, 1995................... App.

16.

17.

18.

19.

20.

Zi.

ye ®

App. iii

Order filed in the Supreme Court of Arizona on

SO Sy SOO aes aver tek sks ed eeeaeel aula App.

Letter dated July 13, 1995 to Ms. Joyce A.

Goldsmith, Clerk, from Robert S. Catz,

NOS 6.55 oid wine & cose Kade ke antee ened App.

Complaint for Injunctive and Declaratory Relief

filed in the United States District Court for the

Northern District of Ohio, Eastern Division on

i ae Neer pean epee App.

Plaintiff’s First Amended Complaint filed in the

United States District Court for the Northern

District of Ohio, Eastern Division on September

re ae ee eee eer App.

Memorandum of Opinion filed in the United

States District Court for the Northern District of

Ohio, Eastern Division on December 1, 1995;

Order filed in the United States District Court

for the Northern District of Ohio, Eastern Divi-

sion on December 1, 1995................ App.

Complaint for Declaratory and Injunctive Relief

filed in the United States District Court for the

Middle District of Tennessee, Nashville Division

OR, SOUUE i: BO ion 605s hs bene shane en App. 102

Memorandum filed in the United States District

Court for the Middle District of Tennessee,

Nashville Division on February 7, 1996; Order

filed in the United States District Court for the

Middle District of Tennessee, Nashville Division

ek Bee: A ir ae App. 107

23.

24.

25.

26.

a7.

28.

29.

30.

31.

App. iv

Plaintiffs’ Motion for Leave to File the Attached

Amended Complaint Pursuant to Rule 15(a) of

the Federal Rules of Civil Procedure filed in the

United States District Court for the Middle Dis-

trict of Tennessee, Nashville Division on Febru-

ary 17, 1995; Plaintiffs’ Amended Complaint

filed in the United States District Court for the

Middle District of Tennessee, Nashville Division

Om Fraary FF, Webs icin sve venebeasean App. 130

Plaintiffs’ First Amended Complaint filed in the

United States District Court for the Middle Dis-

trict of Tennessee, Nashville Division on Febru-

CES Dy. BOR occ cncaveakinseseiseneer App. 140

Order filed in the United States District Court

for the Middle District of Tennessee, Nashville

Division on May 14, 1996................ App. 147

Verified Petition for Special Action filed in the

Arizona Court of Appeals (cover page and page

FOO as 05k. 0:0:005% snenhnsnedke nae App. 150

Order filed in the Court of Appeals, State of

Arizona, Division Two on May 2, 1996... App. 153

Order filed in the Court of Appeals, State of

Arizona, Division Two on June 10, 1996.. App. 154

Petition for Review by the Supreme Court

(cover page and page 2 only) filed on May 18,

Ps eivicn's'u hh es gio nae eee a ee eee App. 155

Order from Supreme Court of Arizona dated

NIN Bile; WEEE cstnctig was de seh uweae en App. 158

Order from Supreme Court of Arizona dated

DEMOS WL RON sp eresicieenccacusnai App. 160

App. 1

APPENDIX 1

AFFIDAVIT

State of Arizona )

)

County of Pima)

I, SUSAN RUTH CHALKER, being first duly sworn,

upon my oath, depose and say:

1. I am the Wife of Respondent, ROBERT S. CATZ,

and I reside in Pima County, at 6374 North Vuelta Tajo,

Tucson, Arizona 85718.

2. My Husband and I were married in April 1980 in

Washington D.C.

3. Since the time of our marriage to date, my hus-

band has always controlled our financial affairs.

«. In all the time we were married I only visited

Ohio briefly on one or two occasions.

5. I have never seen any documents whatsoever

concerning an alleged Ohio “divorce” until my Arizona

attorneys obtained them from the court of Common Pleas

in Cuyahoga County, Ohio in November 1994.

6. The Ohio court files state that the divorce petition

was sent to a postal drop located on Bird Avenue in

Miami, Florida and that someone named “Tim Luckhart”

signed for the return receipt of said papers as my agent. |

never rented, leased, owned, in any way contracted for,

or had a key to a postal box at the Bird Avenue Postal

Plus. I never authorized Tim Luckhart to be my agent at

App. 2

the Bird Avenue address. Tim Luihard is a friend and

business partner of my husband’s and also owned Postal

Plus at the time of the receipt.

7. Only when my husband was out of town would I

pick up the mail from the Bird Avenue box and only

during business hours, because the owners knew me as

Robert Catz’ wife.

8. My husband was constantly hiding from credi-

tors maintaining several postal drop boxes.

9. My husband and I moved to Florida in 1983. At

all times material to this case, we had a common under-

standing that Florida was our marital residence.

10. The Ohio Court file indicates that the divorce

was granted on the grounds that my husband and I lived

separate and apart without cohabitation from November,

1987 through November 1988. This is not true. He kept

his clothes at 3241 Gifford Lane, Coconut Grove, Florida

in a house we shared as man and wife. During 1988 he

was working as a law professor in Ohio and returned

home to Miami on many occasions.

11. In 1988, when my husband filed for divorce in

Ohio without my knowledge, he lived with me as my

husband at 3241 Gifford Lane, Miami Florida. We had a

joint checking account in Florida and we both used that

account to pay for groceries, family expenses, Aaron’s

clothes, and school expenses and gifts. His name was on

the phone bill and the gas bill at the Gifford Lane

address. All of my personal mail was sent to me at the

Gifford Lane address and my husband was aware of this

fact.

—

App. 3

12. We moved to Tucson in 1993 from Miami, Flor-

ida. We relocated so that my husband could begin a new

career and start new businesses.

13. At the time we moved, he told me not to get a

legal job, but to get a job earning approximately $25,000 a

year and he would monitor the investments and try to

start a business. He told me that it was important that I

have summers and time off so we could travel and live a

certain lifestyle.

14. He also consistently told me that I would just

have to work for a few years at which time we could live

off his retirement and other investments.

FURTHER AFFIANT SAYETH NOT.

/s/ Susan Ruth Chaiker

SUSAN RUTH CHALKER

SUBSCRIBED AND SWORN TO this 30th day of

December, 1994, by Susan Ruth Chalker.

/s/ Selma Carrills

NOTARY PUBLIC

My. Commission Expires:

August 25, 1998

App. 4

APPENDIX 2

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

ROBERT S. CATZ

Civil Action

)

ie )

Petitioner, No. 94-872

vs. )

SUSAN RUTH CHALKER ‘

Respondent. )

)

PETITION AND NOTICE OF REMOVAL

(Filed Dec. 9, 1994)

The Petition of Removal of Robert S. Catz alleges as

foliows:

1. On November 4, 1994, an action was commenced

against petitioner in the Superior Court of the State of

Arizona in and for the County of Pima, entitled Chalker v.

Catz, No. D-103065, by the service on the petitioner of a

summons and complaint at his residence on December 14, |

1994. Copies of all relevant pleadings are attached hereto. |

2. The above civil action, for which this Court has

original jurisdiction pursuant to 28 U.S.C. §§ 1331 and

1343, is one which may be removed to this Court by

Petition pursuant to 28 U.S.C. §§ 1441(b) and 1443 in that

the removed action originally brought in the Superior

Court collaterally attacks on equal protection and due

process grounds the constitutional validity of an Ohio

state court judgment entered on April 10, 1989 in Catz v.

Chalker, No. D191073 (Cuyahoga County Court of Com-

mon Pleas, filed December 12, 1988) (a copy of said

App. 5

judgment is attached hereto) by alleging that the State of

Ohio failed to serve her with a Petition for Divorce or

similar pleading, nor a judgment or decree purporting to

enter a divorce between the parties.

WHEREFORE, Petitioner prays that the above action

now pending against him in the Superior Court of Ari-

zona of and for the County of Pima be removed to this

Court.

Respectfully submitted,

/s/ Philip Matthew Stinson, Sr.

Philip Matthew Stinson, Sr.

P. O. Box 809

Valley Forge, PA 19482-0809

(610) 525-5040

Attorney for Petitioner

App. 6

APPENDIX 3

Annette Everlove, Esq.

BUTLER & STEIN, P.C.

110 South Church Ave.

Suite 9300

Tucson, Arizona 85701

(602) 628-1618

Pima County Computer No. 17238

and

Leonard Karp, Esq.

KARP & WEISS, P.C.

33 N. Stone Ave.

Suite 1800

Tucson, Arizona 85701

(502) 882-9705

Pima County Computer No. 30244

Co-Counsel for Petitioner

IN THE SUPERIOR COURT OF THE STATE OF

ARIZONA IN AND FOR THE COUNTY OF PIMA

NO. D-103065

NOTICE OF HEARING

ON MOTION AND

In re the Marriage of:

SUSAN RUTH CHALKER,

)

is )

Petitioner, ORDER TO

and CONTINUE HEARING

ROBERT STEVEN CATZ ) ON ORDER TO SHOW

meni CAUSE

espondent, ;

itional ‘es, ) Assigned to: Judge

Additional Parties ) McDonald

NOTICE IS HEREBY GIVEN that Petitioner, Susan

Ruth Chalker, has filed a Motion to Continue Hearing on

Order to Show Cause.

App. 7

NOTICE IS FURTHER GIVEN that a hearing will be

held on said Motion on Monday, the 6th day of February,

1995 at 9:00 a.m., before the Honorable Joseph R.

McDonald, Pima County Superior Court, 110 W. Congress

Street, Tucson, Arizona 85701.

DATED this 25th day of January, 1995.

BUTLER & STEIN, P.C.

/s/ Annette Everlove

Annette Everlove

Attorney for Petitioner

Copy of the foregoing

mailed this 25th day of

January, 1995 to Respondent,

Robert Steven Catz, at the

following addresses:

6241 Tierra de las Catalinas

Tucson, Arizona 85701

6421 Tierra de las Catalinas

Tucson, Arizona 85718

4302 E. Fairmount, No. 23

Tucson, Arizona 85712

730 Harrison Street, #201

San Francisco, CA 94107

c/o Philip Matthew Stinson, Sr.

P.O. Box 809

Valley Forge, PA 19482-0809

with a telephonic message left

on Respondent’s answering machine

telephone no. (602) 798-6474,

on January 25, 1995, regarding

hearing date and time, at the Court’s

request.

App. 8

APPENDIX 4

IN THE SUPERIOR COURT OF THE STATE OF

ARIZONA IN AND FOR THE COUNTY OF PIMA

In re the Marriage of:

SUSAN RUTH CHALKER,

Petitioner,

No. D-103065

vs.

ROBERT STEVEN CATZ,

Respondent.

ee Owe eae we

RESPONDENT’S RESPONSE TO PETITIONER’S

MOTION TO CONTINUE HEARING ON

ORDER TO SHOW CAUSE

Respondent hereby responds to petitioner’s Motion

to Continue Hearing on Order to Show Cause, and avers

as follows:

1. The parties were married on April 13, 1980, in

Washington, D.C. The parties have a minor son, Aaron

Catz, currently age 14.

2. On April 10, 1989, the Cuyahoga County, Ohio,

Court of Common Pleas, issued a divorce, in Catz v. Catz.

A copy of said decree is attached an exhibit to Respon-

dent’s Emergency Motion to Dismiss filed in this Court

on December 14, 1994.

3. The parties’ Ohio decree of divorce judgment is

presumptively valid under Arizona law. See, e.g., Car-

nahan v. Carnahan, 290 P.2d 729, 730-31 (Ariz. Supr. Ct.

App. 9

1950). Furthermore, a litigant attacking a sister state judg-

ment in a divorce case has a heavy burden. See, e.g.,

Williams v. North Carolina, 325 U.S. 226, 233-234 (1945).

4. All of respondent’s assets were attached by Order

of this Court on December 1, 1994, by an ex parte tempor-

ary restraining order, without hearing, and without

notice to respondent.

5. As a direct result of this Court’s issuance of the

temporary restraining order and subsequent attachment,

respondent has become homeless; suffered extreme finan-

cial hardship; is unable to financially support himself; has

ceased operations of his businesses in Tucson for want of

operating capital; is unable to financially support the

parties minor child; and has been forced to place his

personal belongings in storage and relocate to Tennessee,

where he is currently residing with his 26 year-old son in

a small one bedroom apartment. As of this date, respon-

dent has less than $750.00 in personal assets upon which

to support himself.

6. At all times between 1989 and this Court's issu-

ance of the temporary restraining order, respondent has

paid regularly child support for Aaron, currently in the

amount of $825.00 per month (an mount [sic] equal to

petitioner’s rent).

7. The temporary restraining order was issued ex

parte without any demonstration by petitioner of the like-

lihood of successfully attacking the state court judgment,

which is a legal predicate to her being able to secure relief

from this Court. Yet it has been more than seven weeks

since respondent filed an Emergency Motion to Dismiss

on the grounds that this action is barred by claim/issue

App. 10

preclusion and, therefore, entitled to full faith and credit

under Article IV, Section I, of the United States Constitu-

tion and 28 U.S.C. § 1738. In the seven week period, not

only has petitioner failed to file a responsive pleading

and, thereby, address the significant and dispositive issue

in the case, but has never even sought an order extending

the time to reply, therefore placing petitioner in default.

See attached Motion of Respondent filed this date. Nor

has petitioner ever stated on the record precisely how she

intends to collaterally attack the Ohio judgement. See

Coffee v. National Equipment Rental, Ltd., 451 P.2d 329, 331

(Ariz. Ct. App. 1969).

8. Respondent’s family has recently established a

small trust fund for the support of the parties minor

child, Aaron, in the amount of $400.00 per month, to be

paid until such time as respondent’s monies are released

by this Court so that he will provide support for his son.

9. Petitioner - by averring that she is in need of a

continuance because she needs to attend a professional

conference in Phoenix — has failed to aver good cause as

to why her Show Cause hearing should be continued.

WHEREFORE, respondent requests the following

relief:

(a) the the court issue an order setting a date

certain by which respondent must file an

opposition to the Motion to Dismiss, and

that her failure to do so will so deem the

matter for adjudication without more;

(b) that no hearings in this case be rescheduled

until such time as petitioner files a reply to

respondent’s Motion to Dismiss; or in the

alternative, until the time designated by the

App. 11

Court expires for petitioner to file such

reply;

rescheduled for a date subsequent to March

15, 1995, as respondent will be on the East

Coast of the United States searching for

employment, and has several interviews

scheduled in late February and early

March; and,

(d) that the temporary restraining order attach-

ing all of respondent’s monies be vacated

and that the standard preliminary Injunc-

tion issued on November 4, 1994, remain in

full force and effect.

Respectfully submitted,

/s/ Robert S. Catz

Robert S. Catz

1402 17th Avenue, Apt. B

Nashville, TN 37212

(615) 298-4706

Respondent, Pro Se

App. 12

APPENDIX 5

BUTLER & STEIN, P.C.

ATTORNEYS AT LAW

110 SOUTH CHURCH AVENUE

SUITE 9300

TUCSON, ARIZONA 85701

A. BATES, BUTLER IIiI* TELEPHONE:

ALAN L. STEIN* ¢ (602) 628-1618

ANNETTE EVERLOVE FAX (602) 629-0197

JEAN MOSKOW

* ALSO ADMITTED IN COLORADO

$ ALSO ADMITTED IN DISTRICT OF COLUMBIA

February 15, 1995

(Dictated February 14, 1995)

Via Telefax and First Class Mail

Philip Matthew Stinson, Sr., Esq.

P.O. Box 809

Valley Forge, PA 19482-0809

RE: Chalker/Catz Dissolution

Pima County Cause No. D-103065

Dear Mr. Stinson:

This letter confirms today’s telephone conversation

where you called to inform me that you will be represent-

ing Robert Catz in the above-referenced domestic rela-

tions matter.

I advised you of the pending hearing on Petitioner’s

Motion for Sanctions scheduled for March 2, 1995 at 9:30

a.m. and the continued hearing on Order to Show Cause

set on March 14, 1995 at 9:00 a.m. In addition to a copy of

App. 13

the Notice of Hearing on Petitioner’s Motion for Sanc-

tions, I enclose copies of the Motion for Sanctions and

Petitioner’s Opposition to Respondent’s Motion to Dis-

miss (which you will note was filed and mailed to Mr.

Catz on December 30, 1994).

During our conversation you made, inter alia, the

following statements and/or representations:

(1)

(2)

(3)

(4)

we had attached all of Mr. Catz’ assets and there

were absolutely no additional assets, but then

asked me if I knew of any additional assets;

information regarding the source of trust funds

referred to in a letter from Rochelle Catz to Ms.

Chalker was confidential, that it was not Mr.

Catz’ money but rather from people who have

taken an interest in providing for Aaron’s sup-

port;

you intend to sue Ms. Chalker for illegally using

Mr. Catz’ PIN number to access deposit informa-

tion at Riggs Bank;

Mr. Catz informed a representative of Geico

Insurance Company, (an individual whom, as I

told you, I had instructed to contact Mr. Catz),

within the last two days, that Ms. Chalker’s

claim for property damage reimbursement from

her recent automobile accident constituted “a

fraudulent insurance claim” and that neither Ms.

Chalker nor her vehicle are insured in that Ms.

Chalker had bought Mr. Catz’ car and that you

had a bill of sale to prove it. Responsive to my

question as to when this purported sale took

place and the purchase price of the vehicle, you,

after apparently looking for the document,

stated that you could not locate the bill of sale at

this time;

App. 14

(5) upon Mr. Catz leaving Arizona, he deposited

into your care a “pile of papers” that you were

“proud to say” you had not touched.

I reiterate the observation made to you that Mr. Catz’

outrageous representations to the insurance company,

and his position that Ms. Chalker is not insured, is very

dangerous. Due to Mr. Catz’ continued machinations, Ms.

Chalker has been unable to negotiate the property dam-

age reimbursement check in the approximate sum of

$4,800.00, cannot purchase a replacement vehicle, and

thus has been reliant upon a rented vehicle. Request is

made that you ask your client to re-think his position in

this regard and instruct Geico Insurance to issue a check

to Ms. Chalker in her name alone, and correct his misrep-

resentation to the insurance company as to her lack of

insured status.

Lastly, I concluded our conversation by telling you

that, both pertaining to the domestic relations action and

matters filed-in federal court, all communication between

you and this firm, as well as between you, Mr. Karp and

his firm, must be in writing.

Very truly yours,

BUTLER & STEIN, P.C.

/s/ Annette Everlove

Annette Everlove

Enclosures: As stated

cc: S. Chalker w/o enclosures

AE:smh

App. 15

APPENDIX 6-

Annette Everlove, Esq.

BUTLER & STEIN, P.C.

110 South Church Ave.

Suite 9300

Tucson, Arizona 85701

(602) 628-1618

Pima County Computer No. 17238

and

Leonard Karp, Esq.

KARP & WEISS, P.C.

33 N. Stone Ave.

Suite 1800

Tucson, Arizona 85701

(602) 882-9705

Pima County Computer No. 30244

Co-Counsel for Petitioner

IN THE SUPERIOR COURT OF THE

STATE OF ARIZONA

IN AND FOR THE COUNTY OF PIMA

In re the Marriage of: )

SUSAN RUTH CHALKER, ) NO: D-103065

) NOTICE OF HEARING

) ON PETITIONER'S

and ) MOTION FOR

ROBERT STEVEN CATZ, ) SANCTIONS/MOTION

) TO STRIKE PLEADING

Petitioner,

Respondent,

Additional Parties.) Assigned to:

) Judge McDonald

)

App. 16

NOTICE IS HEREBY GIVEN that Petitioner, Susan

Ruth Chalker, has filed a Motion for Sanctions/ Motion to

Strike Pleading.

NOTICE IS FURTHER GIVEN that a hearing will be

held on said Motion on Thursday, the 2nd day of March,

1995 at 9:30 a.m., estimated time: 30 minutes.

before the Honorable Joseph R. McDonald, Pima County

Superior Court, 110 W. Congress Street, Tucson, Arizona

85701.

DATED this 10th day of February, 1995.

BUTLER & STEIN, P.C.

/s/ Annette Everlove

Annette Everlove

Co-Counsel for Petitioner

Copy of the foregoing

mailed this 10th day of

February, 1995 to:

Mr. Robert S. Catz

c/o Shawn D. Catz

1402 - 17th Ave. #B

Nashville, TN 37212

Respondent

WITH CONFORMED COPY TO FOLLOW

App. 17

ARIZONA SUPERIOR COURT, PIMA COUNTY

Judge: Pro Tempore Joseph CASE NO. D-103065

~ ee DATE — March 2, 1995

Court Reporter: None

—

In re the Marriage of (

SUSAN RUTH CHALKER, (

Petitioner

and )

ROBERT STEVEN CATZ, ( )

Respondent

EVENT SUMMARY

TYPE: Under Advisement Ruling Result:

Date: Time: Length: Div: Reg:

TYPE: Result:

Date: Time: Length: Div: Reg:

TYPE: Result:

Date: Time: Length: Div: Reg:

TYPE: Result:

Date: Time: Length: Div: Reg:

MINUTE ENTRY

App. 18

UNDER ADVISEMENT RULING

RE: PETITIONER’S MOTION FOR SANCTIONS

The Court has heard the arguments of counsel for

petitioner, respondent not appearing in person or by

counsel, and finds as follows:

1. Respondent was served with the summons,

amended petition for dissolution and various other docu-

ments described in the return of service on December 14,

1994 in Tucson, Pima County, Arizona. The documents

with which respondent was then served included uni-

form interrogatories and a request for production of doc-

uments.

2. On the same date, December 14, 1994, respondent

filed his emergency motion to dismiss the amended peti-

tion. Petitioner has filed her written opposition to this

emergency motion. The emergency motion had as respon-

dent’s address the same address where he was served

earlier in the day.

3. On December 19, 1994, respondent filed a peti-

tion and notice of removal of this dissolution proceeding

to the United States District Court for the District of

Arizona at Tucson. The basis alleged by respondent in the

petition for removal was that the dissolution petition

filed in this court represented an attack on the constitu-

tional validity of an Ohio decree of divorce entered April

10, 1989. The matter was remanded to this court by the

U.S. District Court, Marquez, J.

4. On December 22, 1994, respondent was noticed

for deposition on January 3, 1995. Because of the removal

and subsequent remand, the deposition was reset for

App. 19

February 9, 1995, and the notice was issued January 24,

1995.

5. Since December 14, 1994, respondent has appar-

ently moved from Tucson and has failed to provide the

court or opposing counsel with a current address as he is

required to do under Rule 12(a), Uniform Rules of Prac-

tice for the Superior Court. As a consequence, counsel for

petitioner has been required to send copies of pleadings

to respondent at five different addresses.

6. On February 6, 1995, by minute entry order,

respondent was directed to provide opposing counsel

and the court with a single address where he will hence-

forth receive all process, pleadings and notices. Respon-

dent has failed to do so.

7. In the same minute entry order, respondent was

directed to appear for his deposition on February 9, 1995.

Again, respondent has failed to comply.

8. Respondent has not answered uniform interroga-

tories served upon him on December 14, 1994, nor has he

produced the documents set forth in the request for pro-

duction similarly served upon him on the same date.

9. Respondent has failed to participate in discovery

as required by the Arizona Rules of Civil Procedure and

that failure is willful, deliberate and in bad faith. Respon-

dent is subject to sanctions as set forth and permitted in

Rules 16(f), 26(f) and 37(b), Arizona Rules of Civil Pro-

cedure.

10. Petitioner is entitled to an award of all fees and

costs associated with respondent's failure to comply with

discovery requests.

App. 20

THEREFORE, IT IS ORDERED:

1. Respondent is in contempt of the Court’s orders

regarding discovery.

2. Respondent is subject to sanctions and will be

sanctioned in accordance with Rules 16(f), 26(f) and 37(b),

Arizona Rules of Civil Procedure.

3. Petitioner is awarded her fees and costs associ-

ated with respondent's failure to comply with discovery.

Ms. Everlove will submit the appropriate affidavit.

4. As a sanction, the default of respondent, Robert

Steven Catz, is herewith entered. The hearing currently

set on petitioner’s OSC on March 14, 1995 shall be limited

to entry of a default judgment pursuant to Rule 55(b),

Arizona Rules of Civil Procedure.

The Court signs this minute entry in lieu of a formal

order.

/s/ Joseph R. McDonald

Joseph R. McDonald

Judge Pro Tempore

Copies to:

Hone. Joseph R. McDonald

Annette Everlove, Esq.

Leonard Karp, .

Robert S. Catz, c/o Shawn D. Catz, 1402 17th Ave., #B,

Nashville, TN 37212

Under Advisement Cierk

Court Administrator

Beth Hoover/If

Deputy Clerk

App. 21

APPENDIX 7

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

ROBERT S. CATZ,

)

Petitioner,

na ) No.

SUSAN RUTH CHALKER, ) CVY-94-872-TUC-ACM

Respondent.

)

SECOND PETITION AND NOTICE OF REMOVAL

The Second Petition of Removal of Robert S. Catz,

alleges as follows:

1. Respondent Chalker filed a Petition for Dissolu-

tion of Marriage in the Pima County Superior Court of

the State of Arizona on November 4, 1994 entitled Chalker

v. Catz, No. D-103065.

2. On December 14, 1994, petitioner Catz filed an

Emergency Motion to Dismiss Petition for Dissolution of

Marriage in the Pima County Superior Court of the State

of Arizona.

3. On December 19, 1994, petitioner Catz removed

the case to this Honorable Court.

4. Respondent Chalker filed a Motion to Remand

the instant action to the Pima County Superior Court of

the State of Arizona on December 28, 1994.

5. On January 12, 1995, this Honorable Court

granted respondent's motion, and the case was remanded

App. 22

to the Pima County Superior Court of the State of Ari-

zona, on the grounds that respondent had not challenged

the constitutional validity of a prior judgment of divorce

entered by the state of Ohio.

6. On February 14, 1995, counsel for petitioner dis-

covered that on December 30, 1994 - some ten days after

the instant action was removed from state court, and on

the same day that respondent filed her Motion to Remand

~ respondent filed an Opposition to Catz’s Motion to

Dismiss Petition for Dissolution of Marriage in the Pima

Court Superior Court of the State of Arizona.

7. Respondent Chalker, in her Opposition to Catz’s

Motion to Dismiss Petition for Dissolution of Marriage

filed on December 30, 1994, in the Pima County Superior

Court of the State of Arizona, challenges the constitu-

tional validity of the prior judgment of divorce entered

by the State of Ohio by arguing, inter alia, that the Ohio

Court did not possess subject matter jurisdiction; the

Ohio Court lacked personal jurisdiction over Chalker;

and, the Ohio judgment was obtained by fraudulent rep-

resentations. See Exhibit 1 (pp. 3-6).

8. On December 30, 1994, respondent and her coun-

sel knew that the instant case was pending in federal

court; that the Pima County Superior Court of the State of

Arizona did not have jurisdiction over the case; that all

pleadings were properly to be filed in the United States

District Court for the District of Arizona; and, that the

undersigned counsel was attorney of record to accept

service of all pleadings in the instant action.

App. 23

9. At no time did counsel for respondent serve a

copy of the Opposition to Catz’s Motion to Dismiss Peti-

tion for Dissolution of Marriage on the undersigned

counsel for petitioner, nor was a copy of the Opposition

filed with the Office of the Clerk of Court at the U.S.

District Court in Tucson.

10. Respondent Chalker and her counsel committed

a fraud and gross misrepresentation upon this Honorable

Court by attempting to hide the federal question until

after this Court ruled on respondent Chalker’s then-

pending Motion to Remand through challenging the con-

stitutional validity of the prior judgment of divorce enter-

ing by the State of Ohio in a pleading filed in a state court

which respondent and her counsel knew did not have

jurisdiction over the case.

11. This Court has original jurisdiction in the

instant matter pursuant to 28 U.S.C. § 1331 and 1343, and

this case may be removed to this Court by Petition pur-

suant to 28 U.S.C. § 1441(b), 1443, and 1446(b), in that

respondent Chalker collaterally attacks on equal protec-

tion and due process grounds the constitutional validity

of an Ohio state court judgment entered on April 10, 1989

in Catz v. Chalker, No. D191073 (Cuyahoga County Court

of Common Pleas, Filed December 12, 1988).

12. A second removal following remand to state

court is proper upon pleading of a federal question. See

Dodd v. Fawcett Publs., Inc., 329 F.2d 82, 85 (10th Cir. 1964)

(fraudulent joinder in diversity action served to frustrate

federal jurisdiction and removal was proper following

remand); Kulbeth v. Woolnought, 324 F. Supp. 908, 910 (S.D.

Tex. 1971) (A second removal petition may be filed if

App. 24

subsequent pleadings or conduct of the parties make

removable a case not previously removable).

WHEREFORE, Petitioner prays that the above action

now pending against him in the Superior Court of Ari-

zona of and for the County of Pima be removed to this

Court.

Respectfully submitted,

/s/ Philip Matthew Stinson

Philip Matthew Stinson, Jr.

P. O. Box 809

Valley Forge, PA 19482-0809

(610) 525-5040

Attorney for Petitioner Catz

App. 25

APPENDIX 8

Annette Everlove, Esq.

BUTLER & STEIN, P.C.

110 South Church Ave.

Suite 9300

Tucson, Arizona 85701

(602) 628-1618

Pima County Computer No. 17238

and

Leonard Karp, Esq.

KARP & WEISS, P.C.

33 N. Stone Ave.

Suite 1800

Tucson, Arizona 85701

(602) 882-9705

Pima County Computer No. 30244

Co-Counsel for Petitioner

IN THE SUPERIOR COURT OF THE

STATE OF ARIZONA

IN AND FOR THE COUNTY OF PIMA

In re the Marriage of: y

SUSAN RUTH CHALKER, . NO. D-103065

a DECREE OF

Petitioner, . DISSOLUTION OF

and ) MARRIAGE

ROBERT STEVEN CATZ, ) (Filed Mar. 14, 1995)

Respondent, ‘ Assigned to: Judge

Additional Parties. ) McDonald

)

This matter coming on regularly to be heard before

the Court on March 14, 1995, and Petitioner being present

in person and through her attorneys, Annette Everlove

and Leonard Karp; the Respondent not appearing; this

App. 26

Court having acquired jurisdiction over the Respondent

on December 14, 1994 by personal service upon him of

the Amended Petition for Dissolution, Summons, Prelimi-

nary Injunction, and other pleadings, all as set forth in

that certain Affidavit of Return of Service dated Decem-

ber 15, 1994; Respondent not having responded to Peti-

tioner’s Request for Production of Documents served

upon him on December 14, 1994; Respondent not having

answered Uniform Domestic Relations Interrogatories

served upon him on December 14, 1994; Respondent fail-

ing to attend his deposition duces tacum scheduled for

February 9, 1995; Respondent failing to obey this Court's

Minute Entry Order dated February 6, 1995, and having

been found in contempt of Court, all as set forth in this

Court’s Minute Entry Order dated March 2, 1995, and

default against Respondent having been entered and evi-

dence having been presented and considered, the Court

finds as follows:

1. Petitioner and Respondent were domiciled in the

State of Arizona for at least ninety days prior to the filing

of the Petition for Dissolution of Marriage.

2. Any judgment on the divorce purportedly here-

tofore obtained by Respondent against Petitioner in the

State of Ohio, County of Cuyahoga, is null and void

having been fraudulently obtained and further this Court

shall not give full faith and credit to said judgment.

3. The conciliation provisions of A.R.S. § 25-381, as

amended, either do not apply or have been met.

4. The marriage of the parties is irretrievably bro-

ken with no reasonable prospect of reconciliation.

App. 27

5. There is one minor child the issue of this mar-

riage, to wit: Aaron Michael Catz, date of birth October

15, 1980.

6. To the extent it has jurisdiction to do so, this

Court has considered, approved and made provision for

the custody and support of the parties’ minor child,

maintenance and support of the parties, division of com-

munity and other joint or common debts, obligations and

property of the parties.

7. Petitioner shall have sole legal and physical cus-

tody of the parties’ minor child with such visitation in

Respondent as Petitioner, in her sole discretion, deems

appropriate.

8. Respondent has been employed as a professor of

law from 1979 until approximately 1993, first at Cleve-

land Marshall School of Law and later at District of

Columbia School of Law, and the Court attributes income

to him based upon income earnings ability of $73,000.00

per annum.

9. Petitioner shall be entitled to an award of child

support pursuant to Arizona Child Support Guidelines as

set forth in the Child Support Order and Order of Assign-

ment submitted herewith and signed by the Court this

date. Said child support award shall be effective January

1, 1995 with no offset in Respondent for any sums paid to

date.

10. Petitioner satisfies the statutory requirements of

A.R.S. § 25-319(A) and is in need of, and entitled to, an

award of spousal maintenance, in that Petitioner lacks

sufficient property, including property awarded herein, to

App. 28

provide for her reasonable needs and has, at Respon-

dent’s urging, become a contract elementary school

teacher with no tenure, nor tenure possibility with her

present employer.

11. During the pendency of these proceedings, Peti-

tioner sustained an insurable loss on her automobile in

the sum of $4,800.00 which Respondent’s conduct has

precluded Petitioner from collecting.

12. Respondent has secreted, dissipated and /or oth-

erwise failed to account for substantial community funds

and assets.

13. The terms of this Decree are fair and equitable

given the Court’s finding of Respondent's dissipation,

secreting and/or failure to account for marital assets.

NOW THEREFORE IT IS ORDERED, ADJUDGED

AND DECREED AS FOLLOWS:

1. The marriage previously existing between the

parties is dissolved.

2. Petitioner shall have sole legal and physical cus-

tody of the parties’ minor child, Aaron Michael Catz,

with such visitation in Respondent as Petitioner, in her

sole discretion deems appropriate.

3. Respondent shall pay to Petitioner as and for

child support the sum of $700.00 per month commencing

January 1, 1995 pursuant to the Child Support Order

signed this date.

4. Petitioner shall be entitled to claim Aaron as a

dependent for income tax purposes for tax year 1994 and

all years subsequent thereto.

App. 29

5. Respondent shall pay to Petitioner as and for

spousal maintenance the sum of $1,000.00 per month

commencing January 1, 1995.

6. Petitioner is awarded as her sole and separate

property all right, title and interest in and to the follow-

ing investments, bank and/or retirement accounts:

A. Fidelity Latin American Fund (7,926.390

shares valued at $92,659.49 as of January 17, 1995);

B. Fidelity Southeast Asia Fund (15,644.564

shares valued at $186,639.64 as of January 17, 1995);

C. Fidelity U.S. Government Reserves (balance

unknown);

D. Waterhouse Securities, Inc., account no.

301-10632 (approximate value as of February 22, 1995 -

$120.00);

E. Waterhouse Securities, Inc., IRA-SEP account

No. 301-10633 (approximate value as of February 22, 1995

— $1,410.00);

F. Waterhouse Securities, Inc., IRA account no.

301-10634 (approximate value as of February 22, 1995 -

$13,529.00);

G. CREF Retirement Annuity, Certificate

number ©8%66023-8, Global Equities Account (approxi-

mate value $10,116.71);

H. CREF Supplemental Requirement Annuities,

certificate no. J091114-7, Global Equities Account

(approximate value $424,055.24);

App. 30

I. TIAA Transfer Payout Annuity, contract no.

1E42653-2 (approximate value $36,654.54);

J. Petitioner’s State of Arizona Retirement

(approximate value $ 230.00);

K. Petitioner’s automobile 1989 Honda Accord;

L. All personal property in Petitioner’s posses-

sion;

M. All bank accounts standing in Petitioner’s

name;

N. All bank accounts standing in Aaron’s name.

7. As to those items set forth in { 6 (G), (H) and (I)

above, all right, title and interest shall be transferred to

Petitioner by a Qualified Domestic Relations Order. The

Court retains jurisdiction to enter such other QDRO’s or

other orders as are necessary to assure transfer to Peti-

tioner of the property awarded to her hereunder.

8. Respondent is awarded all right, title and interest

in and to his pension and/or retirement plan through the

State of Ohio, current balance unknown.

9. The Court retains jurisdiction pursuant to A.R.S.

§ 25-318(B) to divide additional marital property which

remains unknown by Petitioner and undisclosed by

Respondent.

10. Respondent shall pay and hold Petitioner harm-

less from all debts of any kind or nature incurred by the

parties during marriage, including all tax liability,

whether incurred in his name, Petitioner’s name or both

names except for the following:

Res 4

App. 31

A. loan from Bernice Mennis to Susan Chalker

in the principal sum of $7,300.00:

B. those certain credit card debts set forth in

Petitioner’s spousal affidavit dated Novem-

ber 4, 1994.

11. Judgment is entered in favor of Petitioner and

against the Respondent in the sum of $4,800.00 as and for

the insurable loss on her automobile, which Respendent’s

conduct has precluded her from collecting.

12. Judgment is hereby entered in favor of Peti-

tioner and against the Respondent for child support and

spousal maintenance accrued from January 1 to March 1,

1995 in the sum of $3,000.00.

13. Petitioner is entitled to payment of her attor-

neys’ fees and costs incurred in this matter and judgment

thereon shall be entered by this Court by separate judg-

ment or order upon filing by counsel for Petitioner of

appropriate affidavits pursuant to China Doll Restaurant

Inc. v. Schweiger.

14. Interest shall run on all monies adjudged to be

owing Petitioner from Respondent at the legal rate of

interest from entry of judgment until paid in full.

DONE IN OPEN COURT this 14 day of March, 1995,

at 10 AM.

/s/ J. R. McDonald

Honorable

Joseph R. McDonald

Pima County Superior Court

App. 32

APPENDIX 9

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

ROBERT S. CATZ,

— No. CIV 94-872 TUC

‘ ACM

vs.

SUSAN RUTH CHALKER, ORDER

Respondent. (Filed Mar. 31, 1995)

ee ee ee ee

I. Facts:

Respondent Susan Ruth Chalker (“Chalker”) filed a

Petition for Dissolution of Marriage in the Pima County

Superior Court of the State of Arizona on November 4,

1994 entitled Chalker v. Catz, No. d-103065 (“State Case”).

On December 14, 1994, Catz filed an Emergency Motion

to Dismiss Petition for Dissolution of Marriage in the

State Case. On December 19, 1994, Petitioner Robert S.

Catz (“Catz”), Removed the State Case to the United

States District Court for the District of Arizona. On

December 28, 1994, Chalker filed a Motion to Remand

this case to the Pima County Superior Court of the State

of Arizona. On January 12, 1995, this Court granted

Chalker’s Motion, and the case was remanded to the

Pima County Superior Court. On December 30, 1994,

Chalker filed her Opposition to Catz’s Motion to Dismiss

in the State Case. A default judgment was entered against

Catz on March 14, 1995 at approximately 10 a.m.

App. 33

On March 14, 1995, Catz filed a Second Petition and

Notice of Removal of the State Case to this Court. On

March 28, 1995, Chalker filed a second Motion to @“.>~ad

to state court.

II. DISCUSSION:

Catz argues that a second removal following remand

to state court is proper upon pleading a federal question.

Catz contends that Chalker asserts constitutional argu-

ments in her opposition to Catz’s Motion to Dismiss

Petition for Dissolution of Marriage in the State Court

case.

According to Evak Native Village v. Exxon Corp., 25

F.3d 773 (9th Cir. 1994),

If the case stated by the initial pleading is not

removable, a notice of removal may be filed

within thirty days after receipt by the defender,

through service or otherwise, of a copy of an

amended pleading, motion, order or other paper

from which it may first be ascertained that the

case is one which is or has become remov-

able. ...

Id. at 779 (quoting 28 U.S.C. § 1446(b)). Although it is not

clear from the pleadings, apparently, Catz argues that the

Opposition filed by Chalker in the state case constitutes

the “other paper” justifying the removal. This Court does

not agree.

In Chalker’s Opposition, she claims that the Ohio

Court did not possess subject matter jurisdiction because

She was not served with the papers indicating that a

divorce proceeding had been commenced against her.

App. 34

Chalker also asserts that the Ohio Court lacked personal

jurisdiction over her because she never resided in Ohio.

In addition, Chalker argues that the Ohio judgment was

obtained by fraudulent representations. The aforemen-

tioned arguments are the same arguments which Chalker

made prior to the first Notice of Removal. In order to

permit granting of a second petition for removal, there

must be both an amended pleading or paper and a

ground for asserting removability that exists for the first

time. O’Bryan v. Chandler, C.A.10 (OKL.) 1974, 496 F.2d

403, certiorari denied 95 S.Ct. 245, 419 U.S. 986, 42

L.Ed.2d 194, rehearing denied 95 S.Ct. 838, 420 U.S. 913,

42 L.Ed.2d 845. This Court finds that Chalker’s Opposi-

tion to Catz’s Motion to Dismiss in the State Case does

not present a federal question, therefore, the State Case is

not removable.

In addition, upon a valid removal, the federal court

takes the case as it finds it. Butner v. Neustader, 324 F.2d

783 (9th Cir. 1963). On March 14, 1995, a Decree of Disso-

lution of Marriage was entered in the State Case. Judge

McDonald in the Superior Court of the State of Arizona

in and for the County of Pima determined the issues

which Catz believed were appropriate for this Court's

determination.

For the same reasons stated herein, Catz’s most

recent motion filed March 30, 1995, asking this Court to

vacate the January 12, 1995 Order remanding this case

back to the state courts is without merit.

App. 35

Ill. CONCLUSION:

Accordingly,

IT IS ORDERED that Respondent’s Second Motion to

Remand is GRANTED.

IT IS FURTHER ORDERED that Petitioner’s Motion

for Relief from Judgment filed March 30, 1995, is

DENIED.

IT IS FURTHER ORDERED that the Clerk of the

Court is to accept no further pleadings in this matter

without permission from this Court.

Dated this 31st day of March, 1995.

/s/ Alfredo C. Marquez

ALFREDO C. MARQUEZ

Senior Judge

App. 36

APPENDIX 10

[p. 1] UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

ROBERT KATZ, Case No. 1:95CV1652

Cleveland, Ohio

slamresinss SEPTEMBER 29, 1995

VS. 2:00 P.M.

SUSAN CHALKER, et al.,

Defendants.

TRANSCRIPT OF PROCEEDINGS

BEFORE THE HONORABLE JOHN M. MANOS

UNITED STATES DISTRICT JUDGE

APPEARANCES:

For the Plaintiff: REGINALD MAXTON, ESQ.,

JAMES TANNER, ESQ.,

For the Defendant: MARK COHN, ESQ.,

RICHARD RABB, ESQ.,

McCarthy, Lebit, Crystal & Hei-

man, Co. L.P.A.

1800 Midland Building

101 Prospect Avenue, West

Cleveland, OH 44115

(216) 696-1422

For the Defendant,

Fidelity Service Co.: JORDAN BERNS, ESQ.,

Court Reporter: Shirle M. Perkins

201 Superior Avenue, Room 539

Cleveland, Ohio 44114-1201

(216) 241-5622

App. 37

Proceedings recorded by mechanical stenography, tran-

script produced by computer-aided transcription.

[p. 2] FRIDAY SESSION, SEPTEMBER 29, 1995,

at 2:00 P.M.

THE COURT: You want to identify yourselves

for the record.

MR. MAXTON: I’m Reginald Maxton, attorney-

at-law.

THE COURT: You represent who?

MR. MAXTON: Representing the Plaintiff,

Robert Katz.

THE COURT: Speak louder because I can’t hear

you.

MR. MAXTON: Representing the Plaintiff,

Robert Katz.

THE COURT: Is he here?

MR. MAXTON No, he’s not.

MR. TANNER: I’m James Tanner, also repre-

senting Robert Katz. Mr. Katz is available by telephone

from his home in Tennessee.

THE COURT: Is he domiciled in Southington,

Ohio?

MR. TANNER: I’m sorry?

THE COURT: Is he domiciled in Southington,

Ohio.

App. 38

MR. TANNER: At the present time, he’s down

in Tennessee.

THE COURT: The answer is he’s not domiciled

in Ohio?

MR. TANNER: That’s correct, sir, yes.

THE COURT: OKAY.

You want to identify yourself?

[p. 3] MR. COHN: Yes. My name is Mark Cohn,

C-o-h-n, with the firm of McCarthy, Lebit, Crystal, and

Haiman. I’ve been retained this morning, and I’m here

this afternoon on behalf of Susan Chalker, Annette

Everlove, and Leonard Karp.

And if I may, to my right is Richard Rabb, an associ-

ate with my firm. He’s also going to be working with me.

MR. BERNS: My name is Jordan Berns, B-e-r-n-s,

and I’m here on behalf of Fidelity Service Company.

THE COURT: You’re not here on behalf of the

Arizona court?

MR. BERNS: No. I don’t think they managed to

get somebody out here quick enough.

THE COURT: Okay.

MR. MAXTON: Judge, there’s one preliminary

matter.

Mr. Tanner is not licensed in the federal bar at the

time, and I’d like to make a motion that he be admitted

pro hoc vice for this proceeding.

App. 39

THE COURT: I can’t admit him if he’s - if he

isn’t a member of the bar here, never applied for it, I can’t

admit him.

MR. MAXTON: All right.

THE COURT: I can’t make him a member of the

bar, but I'll let him participate.

[p. 4] MR. MAXTON: Thank you, your Honor.

MR. TANNER: If I may clarify, I was admitted

to the practice of law in the State of Ohio before -

THE COURT: I don’t care.

MR. TANNER: - before the Ohio Supreme

Court.

THE COURT: You have to also apply for the

Federal Court. If you haven’t appi:ed, you’re - off the

record.

THE COURT: You want to be heard?

MR. TANNER: Thank you, your Honor. Today,

Mr. Katz seeks temporary restraining order enjoining the

dissipation of funds that are filed by defendants, Fidelity

Investments, Inc., Waterhouse Securities, and TIAA/

CREF.

Essentially, the basis of a request is that there are at

this time two conflicting state court decisions as to who

those funds belong to.

In 1989, Mr. Katz secured a divorce from Ms. Chalker

in the Ohio State Court. Subsequent thereto, in 1994, Ms.

Chalker filed for a dissolution in the state of Arizona and

App. 40

subsequently was given a default dissolution in Arizona,

in which she was awarded essentially all of Mr. Katz’s

assets, which accumulated substantially subsequent to

the divorce in Ohio.

There’s questions as to —

THE COURT: Let me ask this question.

[p. 5] He was in Ohio, and he was teaching at Cleve-

land Marshal Law School?

MR. TANNER: That’s correct, sir.

THE COURT: And he filed for a divorce. His

wife was living in Florida?

MR. TANNER: That’s correct.

THE COURT: With their son? And on weekends

or on days of holidays, he would go to Florida to be with

his wife? Yeah?

MR. TANNER: Your Honor, as to the weekends -

THE COURT: Yes or no?

MR. TANNER: No, that’s not correct.

THE COURT: He didn’t go to -

MR. TURNER: He went to Florida but not to

visit his wife.

THE COURT: He went to Florida, but not to

visit his wife?

MR. TANNER: That’s correct.

THE COURT: And he didn’t visit his wife?

App. 41

MR. TANNER: He may have visited her. On

some occasions, they may have seen each other during

that period of time, correct.

THE COURT: All right.

It came to pass that he left the City of Cleveland and

went, I think, to Washington, taught as some law school

[p. 6] there.

MR. TANNER: District of Columbia School of

Law.

THE COURT: District of Columbia Law School.

At some point in time, terminated that relationship.

He went to Florida, and with his wife and child he

traveled to Arizona where they set up a home where they

set — they made a home for themselves, and he wanted to

operate a bar, and his wife wanted to teach school, both

of whom were lawyers but neither of whom wished to

pursue practice of law, and I think they were together for

about a year, after which they separated again, and she

filed for dissolution of the divorce, right? Is that right so

far?

MR. TANNER: Essentially, that’s correct.

THE COURT: Essentially, that’s correct?

MR. TANNER: There was an attempt at a recon-

ciliation between the two of them, which was around the

time.

THE COURT: I said they lived together for

about a year, didn’t I?

MR. TANNER: That’s correct.

App. 42

THE COURT: And that is correct, isn’t it?

MR. TANNER: Yes.

THE COURT: after which, he left the house?

MR. TANNER: That's correct.

THE COURT: And following the departure of

[p. 7] Mr. Katz, she filed for dissolution —

MR. TURNER: That’s correct, sir.

THE COURT: - of the divorce.

At some point in time, he left to go to Tennessee,

where he lived with his son from another marriage, right?

MR. TANNER: That’s correct.

THE COURT: Okay.

And there was some problems in connection with

notice of a divorce that was filed for by the wife, prob-

lems about pending hearings, to which he never got

notice, but he availed himself of the jurisdiction of that

court by filing motion inside that court, did he not?

MR. TANNER: That’s correct.

THE COURT: He filed any number of motions,

right?

MR. TANNER: That's correct.

THE COURT: Okay.

And ultimately, he filed a motion removing the case

from the Arizona divorce court to the Federal Court,

which court remanded it back to the Arizona court

because it had no jurisdiction?

App. 43

MR. TANNER: That’s correct, sir.

THE COURT: He then filed an action in the

Federal Court in Arizona, charging his wife’s lawyers and

his wife with a 1983 violation of abridgement of constitu-

tional right [p. 8] under color of state law, right?

MR. TANNER: That’s correct, sir.

THE COURT: And as well, a declaratory judg-

ment seeking that court to recognize the Ohio divorce

and to declare any action taken by the Arizona court to be

null and void?

MR. TANNER: Yes, sir.

THE COURT: Is that essentially correct?

MR. TANNER: That's essentially correct, sir.

THE COURT: Jordan; is that correct?

MR. BERNS: My understanding is that that is

correct.

THE COURT: I didn’t ask about your under-

standing. I asked you whether it’s correct?

MR. BERNS: It is.

THE COURT: You externed here for a summer,

and you were brilliant, and you were taught not to think,

to say, “I think,” right?

MR. BERNS: I was taught that and_more.

THE COURT: In 1983, action was dismissed

with prejudice by the Federal Court, right, insofar as the

wife was concerned, and the declaratory judgment action

App. 44

was dismissed with prejudice, the action against the law-

yers was withdrawn without prejudice, right?

MR. TANNER: That’s essentially correct, sir.

[p. 9] THE COURT: What you mean essentially?

I don’t like the word essentially.

MR. TANNER: That’s correct, your Honor.

THE COURT: Aren’t you teaching him right,

Chris? You’re Russell?

MR. MAXTON: Reginald.

THE COURT: It says here Reginald. Are you

Reginald or Russell?

MR. TANNER: Reginald.

THE COURT: Reginald? I’m calling you

Reginald. All right?

Well, that Court knocked out the declaratory judg-

ment action with prejudice, knocked out the case against

the wife for 1983 violation of abridgement of constitu-

tional right under color of state law, and the lawsuit

against the lawyers was withdrawn without prejudice,

right?

MR. TANNER: That’s correct.

THE COURT: Okay. Now, he’s in Tennessee,

right?

MR. TANNER: That’s correct.

THE COURT: And now, he seeks to avail juris-

diction of this Court by filing a TRO, in which he alleges

App. 45

a violation of his constitutional rights under color of state

law 1983 action as against his wife, and then as against

her lawyer, right?

MR. TANNER: That’s correct, you Honor.

[p. 10] THE COURT: And he asks for a declara-

tory judgment, doesn’t he, Reginald?

MR. MAXTON: That’s correct.

THE COURT: And he wants this Court to

decide that it is the Ohio Court, and the divorce obtained

there, that if the court in which the relationship between

his wife and him is determined, and that the Arizona

court has done a futile thing in not recognizing the decree

of that position by the Ohio State court, right?

MR. TANNER: That’s correct, sir.

THE COURT: All right.

Now, if I were to ask Jordan what the standards are

for TRO, he would tell me, “Judge, the first point is there

is a likelihood of success on the merits, and it’s a stan-

dard. Secondly, the judge must look at departure facing

the parties seeking the-temporary restraining order for

which there is no adequate remedy at law prior to the

party against which the TRO was directed and the public

interest. Those are the standards.”

Now, how do I have jurisdiction over a person -

jurisdiction over the wife, the lawyers who she retained

in Arizona, and over the Arizona court?

Now, I’m sure that you’re probably saying that I have

jurisdiction because there’s diversity, but I don’t have

anyone domiciled here, do I, Mark?

App. 46

[p.11] MR. COHN: No, you don’t.

THE COURT: No one domiciled here, in per-

sona jurisdiction. And you heard what I said about 1983

action, which is an abridgement of one’s constitutional

rights under color of state law. His wife is not a state

actor. The lawyers representing her aren’t state actors.

1983 action is out, can’t be considered. It’s something that

can’t be before this Court unless you look — off the record.

(Discussion had off the record.)

THE COURT: Now, you heard what the stan-

dards are. Tell me what the likelihood of success is on the

merits.

MR. TANNER: Your Honor, the —- as to the

diversity action?

THE COURT: You’re not here on diversity?

MR. TANNER: I’m sorry.

THE COURT: You’re not here on diversity?

MR. TANNER: Yes, we are

THE COURT: You’re seeking jurisdiction

because of diversity, right?

MR. TANNER: That’s correct, sir.

THE COURT: You're saying a resident of this

state is suing a resident of another state?

MR. TANNER: What we’re saying, your Honor,

is =

App. 47

THE COURT: But, your man isn’t a resident of

this [p. 12] state, is he? Jordan, is he? He’s from Tennes-

see.

MR. BERNS: That’s correct.

THE COURT: Can somebody from Tennessee

file an action here saying there’s diversity?

MR. BERNS: I do not believe so.

THE COURT: What is the likelihood of success

on the merits? Tell me.

MR. TANNER: Your Honor, we feel the likeli-

hood of success on the merits is very good; particularly,

with respect to the diversity action as to —

THE COURT: Let’s assume that we’re here

because they’re citizens of two different states. Although,

you admit that he is not a — he’s not domiciled in Ohio;

he’s domiciled in Tennessee, Nashville, Tennessee.

Now, you're telling me I have diversity jurisdiction

and, Mark, I think, and Jordan are going to question that,

but forget the diversity.

How do I have in persona jurisdiction? How do I

have venue? He’s got to be a citizen of this state for me to

have venue. And where do you come from? Tell me.

MR. TANNER: The action that we were primar-

ily claiming is the attack on the state court judgment that

was entered into Ohio. And by virtue of that there —

THE COURT: Wait.

To attack anything — the way to attack anything is do

[p. 13] you have an adequate remedy at law? You have a

App. 48

hardship. Undoubtedly, all his funds were removed from

him, and perilously now, they’re headed for his wife. And

you want to put a stop to this.

When a court in Arizona makes a decision — and I

don’t know exactly what that - I think everything is in

default almost. I mean he never responded to anything,

either a hearing on the sanctions.

The appropriate remedy is to file a motion for recon-

sideration and appear before — off the record.

(Discussion off the record.)

THE COURT: You haven’t explained to me just

how his wife and her lawyers are state actors against

whom an action can be filed under 1983 abridgement of

constitutional right under color of state law. And the state

law that was abridged, if any, was Arizona.

MR. TANNER: The state action on the part of

the attorney/defendants stems from their being officers

of the court. The Court itself -

THE COURT: Sir, I’m telling you I’m the Judge

and you’re not. There’s no state action for which attor-

neys, who are licensed by the state to practice law, can be

brought under an abridgement for constitutional right

under 1983. Now, that’s the law, and that’s the same as to

his wife.

[p. 14] Anyway, as to the wife, we have a decision by

the District Court out there to which I look and say that’s

my brother court, and I accept that decision and that was

decided with prejudice; the other was dismissed volun-

tarily without prejudice.

App. 49

You’re here now, and I’m dismissing it with preju-

dice; one reason of which is I don’t have those people

before me on the basis of in persona. You can’t win that

action.

Now, so far as that the state decree is here, the Ohio

State decree issuing a divorce, we have an Arizona court,

which decided that action out there. We have a right to

appeal, we feel, a civil case. We have a right to delayed

appeal.

This request for temporary restraining order is

denied. The preliminary injunction hearing will not be set

down. The whole case is dismissed with prejudice for the

reason that this Court does not have in persona jurisdic-

tion. There’s a question as to venue and the allegations

made are not before this Court.

Anything further?

MR. COHN: Nothing.

THE COURT: Anything further?

MR. RABB: No.

MR. BERNS: Nothing, your Honor.

THE COURT: So ordered.

[p. 15] MR. MAXTON: Thank you, your Honor.

THE COURT: Call your client. It’s being dis-

missed.

MR. TANNER: Note Plaintiff’s exception, your

Honor.

THE COURT: What?

App. 50

MR. TANNER: Note Plaintiff's exception.

THE COURT: Note Reginald’s exception

because he can’t make it.

All right.

MR. TANNER: Thank you, your Honor.

(Proceedings adjourned.)

CERTIFICATE

I certify that the foregoing is a correct transcript from

the record of proceedings in the above-entitled matter.

/s/ Shirle M. Perkins

Shirle M. Perkins, RPR-CM

Official Court Reporter

App. 51

APPENDIX 11

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

ROBERT S. CATZ, ) No. CIV 94-879-TUC ACM

Plaintiff,

vs. )

SUSAN R. CHALKER,

)

Defendant.

On April 13, 1995, Plaintiff Robert S. Catz, filed a

Motion for Voluntary Dismissal Without Prejudice. On

May 26, 1995, Defendant Susan Chalker filed a Response

to the Plaintiff’s Motion for Voluntary Dismissal.

For the reasons set forth in the Defendant’s

Response.

IT IS ORDERED that this case shall be DISMISSED

WITH PREJUDICE.

IT IS FURTHER ORDERED that the hearing set for

June 12, 1995 is VACATED.

Dated this 8th day of June, 1995.

/s/ Alfredo C. Marquez

ALFREDO C. MARQUEZ

Senior Judge

Copies mailed this date to:

Mr. Philip Matthew Stinson, Sr.

P.O. Box 809

Valley Forge, PA 19482-0809

App. 52

KARP & WEISS, P.C.

Leonard Karp

2120 Bank of America Plaza

33 North Sone Ave.

Tucson, Arizona 85701-1415

Karp & Weiss, P.C.

ATTORNEYS AT LAW

2120 BANK OF AMERICA PLAZA

33 NORTH STONE AVENUE

TUCSON, ARIZONA 85701-1415

(520) 882-9705

LK:Ip

PCC NO. 30244

ATTORNEY For:

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

ROBERT S. CATZ, ) NO. CV94-879 TUC ACM

Plaintiff, )

a ) DEFENDANT'S

) RESPONSE TO

SUSAN R. CHALKER, PLAINTIFF’S MOTION

FOR VOLUNTARY

Def t.

ee DISMISSAL

)

Defendant, Susan Chalker, by and through her attor-

neys undersigned, hereby responds to Plaintiff’s Motion

for Voluntary Dismissal and asks this court to dismiss

Plaintiff’s action with prejudice. This request is supported

App. 53

by the accompanying Memorandum of Points and

Authorities.

Respectfully submitted this 26th day of May, 1995.

KARP & WEISS, P.C.

AND

BUTLER & STEIN, P.C.

/s/ Leonard Karp

Leonard Karp

Attorneys for Defendant

App. 54

MEMORANDUM OF POINTS AND AUTHORITIES

Plaintiff requests this Court issue an order of volun-

tary dismissal, without prejudice, because he improperly

anticipated that the Defendant would raise a federal

question in her state court pleadings thus enabling Plain-

tiff to bring an action against her pursuant to 42 U.S.C.

§ 1983. Defendant agrees that Plaintiff’s lawsuit should

be dismissed; however, the dismissal should be with prej-

udice.

Rule 41(a)(2), Federal Rules of Civil Procedure, pro-

vides that this court may dismiss Plaintiff’s action upon

such terms and conditions as it deems proper. Rule 1,

supra, as amended, requires federal courts to construe

and administer the rules to secure the just, speedy and

inexpensive determination of every action. Rule 41,

applied in conjunction with Rule 1, requires this court to

dismiss Plaintiff’s lawsuit with prejudice in order to halt

the Plaintiff’s abusive use of the federal legal system to

intimidate the Defendant, and to avoid further frivolous

filings by Plaintiff.

Plaintiff’s conduct illustrates that he is using both

federal and state court processes to abuse and harass the

Defendant rather than to secure the just determination of

any valid legal dispute. He has filed numerous lawsuits

and pleadings in this court, the Arizona and Ohio state

courts, and most recently the Ninth Circuit Court of

Appeals. Plaintiff has made himself unavailable, thereby

precluding Defendant’s attempt at discovery in the Ari-

zona state court action. He has changed his address sev-

eral times over the course of six months, requiring

Defendant to mail various pleadings to his numerous

App. 55

addresses in several states, and he has never appeared

personally, telephonically, or through counsel in any of

these court hearings.

As this court is well aware, Plaintiff has filed

numerous pleadings with this court not limited to this

§ 1983 complaint. He has also filed a companion § 1983

lawsuit against undersigned counsel; a motion to dismiss

or to transfer the state divorce action to the Ohio District

Court; two removal petitions of the Arizona divorce

action; and an appeal to the Ninth Circuit of this Court's

decision remanding the state divorce action back to the

Superior Court. All of Plaintiff’s pleadings, excluding the

companion lawsuit against Defendant's counsel, required

responsive pleadings and, finally, resulted in an order

from this Court directing the clerk of the court to not

accept further pleadings in case number CV-94-872-TUC-

ACM from Plaintiff without the Court’s express permis-

sion.

This § 1983 lawsuit, is further evidence of Plaintiff’s

attempts to harass and intimidate the Defendant, requir-

ing her to deplete her funds to hire counsel to defend her.

In Von Poppenheim v. Portland Boxing and Wrestling Com-

mission, 442 F.2d 1047 (9th Cir. 1971), the court, in dis-

missing a lawsuit pursuant to Rule 42(b), stated:

Somewhere along the line, the rights of the

defendant to be free from costly and harassing

litigation must be considered. So too must the

time and energies of our courts and the rights of

would-be litigants awaiting their turns to have

other matters resolved.

Id. at 1054. Here, Plaintiff has reached the end of the line.

His overzealous and aggressive litigation tactics need to

App. 56

be terminated by order of this court. His basis for the

original filing is facially frivolous. He filed in anticipation

that the Defendant would raise a federal claim in the

state court pleadings. The Plaintiff is a lawyer who

knows, inter alia, that one does not ethically file a lawsuit

in anticipation that he will have a cause of action. One

files a lawsuit if he has a cause of action. Moreover,

Plaintiff’s filing of the instant complaint is the exact type

of filing prohibited by Rule 11 and shall subject him to

monetary sanctions, including the costs and attorneys

fees Defendant exhausted in defending herself in this

meritless action. (A motion for sanctions under Rule 11

shall be filed under separate cover).

CONCLUSION

For the foregoing reasons, Plaintiff’s utter disregard

for the law must be halted and his complaint must be

dismissed with prejudice.

App. 57

APPENDIX 12

IN THE COURT OF COMMON PLEAS

DIVISION OF DOMESTIC RELATIONS

CUYAHOGA COUNTY, OHIO

CASE NUMBER: D

191073

JUDGE STANLEY M.

FISHER

ROBERT S. CATZ,

Plaintiff,

vs.

SUSAN R. CATZ, aka

SUSAN R. CHALKER,

Defendani.

mee eee ee ee ee”

PLAINTIFF’S APPLICATION FOR SUPPLEMENTAL

RELIEF PURSUANT TO OHIO REV. CODE § 2721.09

TO ENFORCE AGAINST DEFENDANT A JUDGMENT

OF THIS COURT ENTERED ON APRIL 10, 1989

Plaintiff Robert S. Catz hereby makes application for

supplemental relief pursuant to Ohio Rev. Code § 2721.09

in the form of a declaratory judgment and permanent

injunction pursuant to Ohio R. Civ. P. 65 enjoining defen-

dant Catz aka Chalker from relitigating in this or any

other fora the issues and claims previously presented to

and adjudicated by this Court in its final judgment

entered on April 10, 1989. In support of this application,

plaintiff Catz avers as follows:

1. The parties were married on April 13, 1980, in

Washington, D.C.

2. On April 10, 1989, the Cuyahoga County Court of

Common Pleas, issued a final judgment in divorce, and

further provided as follows: (1) neither party is entitled

App. 58

to alimony; (2) that plaintiff Catz shall regain possession

of and have sole and exclusive rights of his personal

property located in the State of Ohio; (3) that defendant

Catz aka Chalker shall retain possession of and have sole

and exclusive rights of her personal property located in

the State of Florida.

3. On November 4, 1994, defendant Catz aka

Chalker filed a dissolution action in the Pima County

Superior Court, Tucson, Arizona, collaterally attacking

the final judgment of this Court. Chalker v. Catz, No.

D-103065.

4. On March 14, 1995, the Pima County Superior

Court, Tucson, Arizona, issued a final Decree of Dissolu-

tion by default in favor of defendant Catz aka Chalker,

and declined on grounds of fraud to give this Court’s

prior judgment full faith and credit under Article IV,

Section 1, United States Constitution. Said Arizona decree

purports to award defendant Catz aka Chaiker alimony

and transfers property rightfully belonging to plaintiff

Catz that this Court awarded him on April 10, 1989.

5. At no time since the April 10, 1989 decree of this

Court granting a divorce did the parties remarry.

6. The final judgment entered by the Arizona court

in Chalker v. Catz is invalid and unenforceable and not

entitled to be given the full faith and credit under Article

IV, Section 1, United States Constitution, by this or any

other court.

WHEREFORE, plaintiff prays that this Court issue a

declaratory judgment pursuant to Ohio Rev. Code

App. 59 -

§ 2721.09 finding that: (1) this Court has continuing sub-

ject matter jurisdiction in this case to enforce its prior

decree and judgment pursuant to Ohio Rev. Code

§ 3105.01; (2) when said judgment was entered on April

10, 1989, this Court had acquired in personam jurisdiction

over the defendant under International Shoe v. Washington,

326 U.S. 310 (1945); Pasqualne v. Pasqualne, 406 N.E.2d

1121, 1124-25 (Ohio 1980); Hofsteder v. Kennedy, 590

N.E.2d 793 (Ohio App. 1990); (3) when said judgment was

entered on April 10, 1989, this Court had acquired in rem

jurisdiction over all property belonging to the plaintiff in

the State of Ohio under Schaffer v. Heitner, 433 U.S. 186

(1977); (4) service of process on the defendant Catz aka

Chalker was effectuated pursuan: to Ohio R. Civ. P.

4.3(A)(8) and that said method of service satisfies due

process under Mullane v. Central Hanover Bank and Trust

Co., 339 U.S. 306 (1950); United Home Federal v. Rhinehart,

601 N.E.2d 138 (Ohio App. 1991); (5) defendant Catz aka

Chalker’s claim of fraud committed by plaintiff Catz

before this tribunal, and possibly by others is denied, and

is nonetheless barred by laches, claim/issue preclusion,

estoppel, waiver, and any fraud claim must have been

asserted by defendant Catz aka Chalker within one year

of its discovery and brought before this Court under Ohio

R. Civ. P. 60(b). See Karp & Karp, DOMESTIC TORTS

(1989) §§ 1.36-1.37; (6) under Article IV, Section 1, United

States Constitution, as interpreted by the Arizona courts

and others, defendant Catz aka Chalker may only attack

the Ohio judgment for fraud on jurisdictional facts, stated

with particularity, and only upon a finding of clear and

convincing evidence. None of these elernents form the

App. 60

basis of the Arizona court's arbitrary and capricious find-

ings of fact and conclusions of law, nor does the evidenti-

ary record support such findings, and is therefore clearly

erroneous. Accordingly, plaintiff Catz is entitled under

Ohio R. Civ. P. 65 to a final injunction permanently

enjoining the defendant Catz aka Chalkar from bringing

any further frivolous, vexatious, harassing litigation

regarding issues and claims presented and adjudicated by

this Court’s April 10, 1989 final judgment and arising

under these supplemental proceedings, in this or any

other fora.

Respectfully submitted,

By: /s/

Gerald R. Walton & Associates

Co. ECA.

(Bar No. 0003914)

2800 Euclid Avenue, Suite 500

Cleveland, Ohio 44115

(216) 621-1230

Attorney for Plaintiff

App. 61

APPENDIX 13

IN THE SUPREME COURT OF ARIZONA

ROBERT S. CATZ, ESQUIRE

Petitioner,

Vs.

THE HONORABLE LEONARD I.

KARP, THE HONORABLE

MICHAEL ALFRED, THE

HONORABLE JOSEPH

MCDONALD, Judges of the

Superior Court in and for the

County of Pima,

THE HONORABLE JAMES N.

CORBETT, Clerk of the Superior

Court in and for the County of

Pima,

and,

SUSAN R. CHALKER, ESQUIRE

real party in interest,

Respondents.

tl tl i i ee ee ee a a oe

VERIFIED PETITION FOR SPECIAL ACTION

ROBERT S. CATZ

1402 17th Ave. South #B

Nashville, TN 37212

(615) 780-3594

Petitioner In Propria Persona

* * *

App. 62

1871, 42 U.S.C. § 1983 as this action alleges multiple

unconstitutional acts committed under color of law. New

Times Inc. v. Arizona Board of Regents, 519 P.2d 169, 176

(Ariz.1974). See, generally, S. Steinglass, SECTION 1983

LITIGATION IN STATE COURTS (Shepherd/McGraw

Hill 1987). See also, Steinglass, The Emerging State Court

Section 1983 Action: A Procedural Review, 38 U.MIAMI

L.REV.381, 383-84 n.10 (1984).

STATEMENT OF THE ISSUES

PRESENTED FOR REVIEW

4. Whether judicial respondents’ standing orders

entered on November 4, 1994, December 1, 1994, March 2,

1995, and March 14, 1995 are arbitrary, capricious, and an

abuse of discretion and therefore contrary to required

law.

5. Whether the respondent judicial officers have

proceeded in excess of jurisdiction and without legal

authority.

PARTIES

6. Petitioner Robert S. Catz, Esquire, is the respon-

dent below, and a member in good standing of the bar of

the Supreme Court of Ohio and appears in these proceed-

ings in propria persona. From 1977 to 1989 petitioner was

domiciled in Cleveland, Ohio where he served as a pro-

fessor of law with tenure as a member of the faculty of

law of the College of Law, Cleveland State University,

Cleveland, Ohio and taught civil procedure,

App. 63

APPENDIX 14

SUPREME COURT OF ARIZONA

ROBERT S. CATZ,

Petitioner,

Supreme Court

vs. No. M-95-0026

THE HONORABLE LEONARD I.

KARP, THE HONORABLE ORDER

MICHAEL ALFRED, THE (Filed

HONORABLE JOSEPH

MCDONALD, JUDGES OF THE

SUPERIOR COURT OF THE STATE

OF ARIZONA, in and for the

County of Pima,

JAMES N. CORBETT, CLERK OF

THE SUPERIOR COURT OF THE

STATE OF ARIZONA, in and for

the County of Pima,

jun. 30, 1995)

and,

SUSAN R. CHALKER, ESQUIRE

real party in interest,

Respondents.

Ct Net et ee ee ed ee ed DD DD DD DD DD De ee

The duty justice has considered the verified petition

for special action, the documentary appendix in support

of special action, application for interlocutory order stay-

ing all further proceedings below, and other motions. The

duty justice has been unsuccessful in locating petitioner

by telephone or to have a phone conference with oppo-

sing counsel.

App. 64

The court declines to entertain the petition. The court

appeals appears to have jurisdiction to entertain the peti-

tion for special action or as an appeal. A.R.S. §12-120.21.

Therefore,

IT IS ORDERED transferring this cause to the Court

of Appeals, Division Two. A.R.S. §12-120.22(B). No action

is taken on the motion to waive fees.

DATED this 30th day of June, 1995.

/s/ Robert J. Corcoran

ROBERT J. CORCORAN

Duty Justice

TO:

Robert S. Catz, Petitioner

Hon. Leonard I. Karp, Pima County Superior Court

Hon. Michael Alfred, Pima County Superior Court

Hon. Joseph McDonald, Pima County Superior Court

- James Corbett, Clerk, Pima County Superior Court

Carl A. Piccarreta, Esq.

Joyce A. Goldsmith, Clerk, Court of Appeals Division

Two, Tucson

App. 65

APPENDIX 15

Supreme Court of Arizona

ROBERT S. CATZ, ESQUIRE

Jeune Supreme Court

vs. No. M-95-0026

THE HONORABLE L. I. KARP,

THE HONORABLE M. ALFRED,

THE HONORABLE J.

MCDONALD, JUDGES OF THE

SUPERIOR COURT of Pima

County, and

SUSAN R. CHALKER, ESQUIRE

real party in interest,

Respondents.

EMERGENCY MOTION FOR REHEARING

BY THE FULL COURT EN BANC

Petitioner, Robert S. Catz, Esquire hereby moves the

full court en banc to reconsider the order entered by

Justice Corcoran on June 30, 1995 in which he declined to

exercise jurisdiction over the petition for special action

filed on June 29, 1995. (A copy of the order is attached

hereto) As grounds for reconsideration petitioner relies

on Rule 7(b) of the Rules for Special Action as this case is

properly before this Court and not the court of appeals in

the first instance and states as follows:

1. Whether this Court declines or accepts

to hear a petition for special action given the

omnibus allegations of aggregious misconduct

by three judicial officers of a lower court and

App. 66

instead transferring this case to the court of

appeals in the first instance is a matter to be

properly considered by each individual justice

and not by a single justice sitting to hear pro-

cedural motions as a duty justice.

2. This is precisely and uniquely the kind

of case that warrants the immediate intervention

of a court of last resort to exercise its super-

visory powers over lower court judges that have

committed clear and numerous violations of the

Code of Judicial Conduct and have acquiesced

to violations of the Code of Professional Con-

duct by respondent Chalkers’ counsel including

the fraudulent withholding of evidence, suborn-

ing perjury, and holding private and clandestine

conferences with respondent judges off the

record among others. The constitutional and

procedural irregularities that have occurred

below cannot be tolerated by this Court and

requires the immediate intervention by this

Court to insure that basic and fundamental

rights are protected and to safeguard that the

law of the land is faithfully executed by judicial

officers sworn to uphold the U.S. and Arizona

Constitutions. This Court has historically exer-

cised its supervisory powers in special actions

in matters concerning the efficient and just

administration of the Arizona judicial system, a

role properly exercised by the Supreme Court

and not a court of appeals, whenever the needs

[sic] arises as this case clearly demonstrates, for

the prompt and final resolution of far reaching

legal questions of state-wide import to avoid

unnecessary and protracted litigation which will

continue unabated in Arizona and in the Ohio

Courts unless this Court disciplines the judges

below, and to preserve collateral questions of

App. 67

law that might otherwise evade judicial review

thereby promoting statewide judicial efficiency

as this case clearly qualifies as the kind of spe-

cial action more properly before this court given

the unique posture of this case. See, Arizona’s

Special Action Practice, 1983 ARIZONA ST.L.J.

535, 553-54.

3. The serious allegations of judicial and

professional misconduct by respondents is not a

matter that should be properly heard and con-

sidered by Pima County appellate court judges

who live and reside in that community when the

allegations of misconduct that have occurred in

a locale where the violations as so pervasive and

reflect a local culture and bias against an out of

state litigant who is not a senior member of the

Pima County Bar and retains professional and

personal relationships with jurists of Pima

County that should be remedied by this Court

and not a court with relationships with judges

of the Superior Court of Pima County.

4. The serious, constitutional violations

which are clearly documented in the record

below as contained in the documentary appen-

dix require this Court to intervene and review a

jurisdictional dispute and conflict between the

Arizona and Ohio Courts regarding which of

two judgments is entitled to full faith and credit

under Article IV § 1 and 28 U.S.C. § 1738, a

unique role for a court of last resort regarding

the comity owed to the judgments of a sovereign

sister state and the applicable legal standard

that should be applied under 28 U.S.C. § 1738.

This Court has not spoken on this issue of state-

wide applicability since it rendered a decision in

Stephens v. Thomasson, 160 P.2d 238 (Ariz.

App. 68

1945), nor has it ever interpreted the reach of 28

-U.S.C. § 1738 under the Supremacy Clause of

the U.S. Constitution which was patently disre-

garded by the respondents below.

5. The final default judgment enter [sic] by

the court below on March 14, 1995 finds that

petitioner a member of the bar of the Supreme

Court of Ohio committed fraud upon an Ohio

court in 1988 and therefore the Ohio judgment

was not entitled to full faith and credit when no

such evidence exists nor was it established

below at a default evidentiary hearing. Unless

__amediate intervention and relief is granted by

this Court petitioner will be required as a mem-

ber in good standing of the bar of three separate

jurisdictions since 1970, to report the Arizona

state court finding of “fraud” to the Supreme

Court of Ohio, the District of Columbia Court of

Appeals and the Supreme Court of Nebraska

which ought to be a concern of this Court, and

would be wholly unnecessary and will simply

cause further waste of judicial resources by

other additional jurisdictions to determine

whether petitioner should be disciplined or dis-

barred for the commission of “fraud” by an

officer of the court, if the full Court declines to

promptly exercise its plenary and supervisory

powers over respondents through their acts of

misconduct as clearly present in the record

below rathering than transferring this case to

court of appeals which creates a totally unneces-

sary and additional sub-level of review thereby

prolonging a proceeding that this Court could

easily and finally adjudicate now given the

unique procedural posture of this special action

involving issues that a court of last resort

should and must consider without further delay.

App. 69

WHEREFOEE, petitioner prays that this Court reconsider

: and vacate the order entered by the duty justice and

4 exercise clear jurisdiction in this case forthwith.

Respectfully submitted,

/s/ Robert S. Catz.

ROBERT S. CATZ

1402 17th Ave. South #B

Nashvile [sic], TN 37212

(615) 780-3594

Petitioner In Propria Persona

App. 70

SUPREME COURT OF ARIZONA

ROBERT S. CATZ,

Petitioner,

Supreme Court

vs. No. M-95-0026

THE HONORABLE LEONARD I.

KARP, THE HONORABLE ORDER

MICHAEL ALFRED, THE (Filed

HONORABLE JOSEPH

MCDONALD, JUDGES OF THE

SUPERIOR COURT OF THE STATE

OF ARIZONA, in and for the

County of Pima,

JAMES N. CORBETT, CLERK OF

THE SUPERIOR COURT OF THE

STATE OF ARIZONA, in and for

the County of Pima,

June 30, 1995)

and

SUSAN R. CHALKER, ESQUIRE,

real party in interest,

Respondents.

meee eee eee ee

The duty justice has considered the verified petition

for special action, the documentary appendix in support

of special action, application for interlocutory order stay-

ing all further proceedings below, and other motions. The

duty justice has been unsuccessful in locating petitioner

by telephone or to have a phone conference with oppos-

ing counsel.

The court declines to entertain the petition. The court

of appeals appears to have jurisdiction to entertain the

App. 71

petition for special action or as an appeal. A.R.S.

§12-120.21. Therefore,

IT IS ORDERED transferring this cause to the Court

of Appeals, Division Two. A.R.S. §12-120.22(B). No action

is taken on the motion to waive fees.

DATED this 30th day of June, 1995.

/s/ Robert J. Corcoran

ROBERT J. CORCORAN

Duty Justice

TO:

Robert S. Catz, Petitioner

Hon. Leonard I. Karp, Pima County Superior Court

Hon. Michael Alfred, Pima County Superior Court

Hon. Joseph McDonald, Pima County Superior Court

James Corbett, Clerk, Pima County Superior Court

Carl A. Piccarreta, Esq.

Joyce A. Goldsmith, Clerk, Court of Appeals Division

Two, Tucson

App. 72

APPENDIX 16

SUPREME COURT OF ARIZONA

ROBERT S. CATZ,

Petitioner,

Supreme Court

vs. No. M-95-0026

THE HONORABLE LEONARD I.

KARP, THE HONORABLE ORDER

MICHAEL ALFRED, THE (Filed

HONORABLE JOSEPH

MCDONALD, JUDGES OF THE

SUPERIOR COURT OF THE STATE

OF ARIZONA, in and for the

County of Pima,

JAMES N. CORBETT, CLERK OF

THE SUPERIOR COURT OF THE )

STATE OF ARIZONA, in and for

the County of Pima,

Jul. 14, 1995)

mee me eee eee eee ee

and,

)

SUSAN R. CHALKER, ESQUIRE

real party in interest, )

)

Respondents.

Upon reading the Motion for Rehearing by the Full

Court En Banc,

And it appearing that there are no grounds to recon-

sider the order of this Court in this cause entered on June

30, 1995,

IT IS HEREBY ORDERED that the motion is DENIED.

TO:

App. 73

DATED this 14 day of July, 1995.

/s/ Frederick J. Martone

FREDERICK J. MARTONE

Justice

Robert S. Catz, Petitioner

Hon. Leonard I. Karp, Pima County Superior Court

Hon. Michael Alfred, Pima County Superior Court

Hon. Joseph McDonald, Pima County Superior Court

James Corbett, Clerk, Pima County Superior Court

Carl A. Piccarreta, Esq.

Joyce A. Goldsmith, Clerk, Court of Appeals Division

Two, Tucson

cc: Herb P. 7/20/95

App. 74

APPENDIX 17

ROBERT S. CATZ, ESQUIRE

1402-17th Avenue South #B

Nashville, Tennessee 37212

(615) 780-3594

July 13, 1995

Ms. Joyce A. Goldsmith, Clerk

Court of Appeals, Division Two

State Office Complex

400 West Congress

Tucson, Arizona 85701-1374

re: Supreme Court No.

M-95-0026

Catz v. Karp et al

Dear Ms. Goldsmith:

As per Mr. Dessaint’s direction and our telephone conver-

sation of yesterday I have enclosed a copy of my motion

for rehearing filed in the above-matter on July 6, 1995

asking the full Court to reconsider Justice Corcoran’s

| order transferring my Petition for Special Action to Divi-

sion Two. Since the Petition for Special Action is still

pending in the Arizona Supreme Court and the transfer

order is not yet final I ask you that you not file the

pleadings sent to you by Mr. Dessaint’s office until the

Supreme Court’s mandate issues.

I should also inform you that should the Supreme Court

of Arizona decline by final order to exercise discretionary

review on the Petition for Special Action it is my inten-

tion to file a petition for writ of certiorari to the Supreme

Court of the United States to review claims arising under

the full faith and credit clause and the due process clause

and seek a stay of the final judgment of the Pima County

App. 75

Superior Court entered on March 14, 1995 from Associate

Justice O’Connor sitting as Circuit Justice for the Ninth

Circuit.

Given the unreliability of the U.S. mails I ask that your

office confirm receipt of this letter.

I look forward to hearing from you.

Cordially,

/s/ Robert S. Catz

ROBERT S. CATZ

cc: James Leonard Karp; Judge Michael Alfred; Judge

Joseph McDonald; James Corbett, Clerk; Annette

Everlove, Esquire for Susan R. Chalker, Esquire real party

of interest; Noel K. Dessaint, Clerk; Carl Piccaretta,

Esquire.

Enclosure

App. 76

APPENDIX 18

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

ROBERT S. CATZ,

1402 17th Avenue South #4B

Nashville, TN 37212,

PLAINTIFF,

vs.

SUSAN R. CHALKER,

6374 Vuelta Tajo

Tucson, AZ 85718

FIDELITY INVESTMENTS,

164 North Northern Avenue

Boston, MA 02210

WATERHOUSE SECURITIES,

100 Wall Street

New York, NY 10005

TEACHERS INSURANCE

ANNUITY

ASSOCIATION /COLLEGE

RETIREMENT EQUITY FUND,

730 Third Avenue

New York, NY 10017

OHIO STATE TEACHERS

RETIREMENT SYSTEM

275 Broad Street

Columbus, OH 43215

DEFENDANTS.

CA No. 1:95CV

1652

JUDGE MANOS

MAG. JUDGE

HEMANN

le i de ee ee ee ee ee ee ee ee ee ee ee

App. 77

COMPLAINT FOR INJUNCTIVE AND

DECLARATORY RELIEF

I. INTRODUCTORY STATEMENT

1. This action arises under 28 U.S.C. §1738 seeking final

injunctive and declaratory relief as to which of two final

and conflicting state court judgments is entitled to full

faith and credit under Article IV §1 of the United States

Constitution.

Il. JURISDICTION

2. This Court has subject matter jurisdiction under 28

U.S.C. §1332 as there is complete diversity of citizenship

between the parties and the amount in controversy

exceeds $50,000 exclusive of interests and costs.

Ill. PARTIES

3. The plaintiff Robert S. Catz is an adult resident of the

State of Tennessee.

4. The defendant Susan R. Chalker is an aduit resident

of the State of Arizona.

5. The defendant Fidelity Investments of Massachusetts

is a financial services company authorized to sell securi-

ties and other investment instruments in the State of

Ohio.

6. The defendant Waterhouse Securities of New York is

a financial services company authorized to sell securities

and other investment instruments in the State of Ohio.

7. The defendant Teachers Insurance Annuity Associa-

tion/College Retirement Equity Fund of New York is a

App. 78

financial services company authorized to sell securities

and other investment instruments in the State of Ohio.

8. The defendant Ohio State Teachers Retirement System

of Columbus was created by the Ohio legislature to pro-

vide retirement and other related benefits and services to

Ohio’s public school and state university employees.

IV. FACTUAL ALLEGATIONS

9. On April 13, 1980 the plaintiff Robert S. Catz and

defendant Susan R. Chalker were married in Washington,

ce.

10. On April 10, 1989 the plaintiff Robert S. Catz and

defendant Susan R. Chalker were divorced by final

decree entered by the Cuyahoga County Court of Com-

mon Pleas in Catz v. Catz, No. D 191073 a copy of said

final judgment is attached hereto.

11. On November 4, 1994 defendant Chalker filed a

petition for dissolution of marriage in the Pima County

Superior Court, Tucson, Arizona in Chalker v. Catz, No.

D103065 collaterally attacking the validity of 1989 Ohio

judgment.

12. On March 14, 1995 the Pima County Superior Court

entered a final judgment in Chalker v. Catz granting

defendant Chalker a dissolution of marriage by default

judgment on grounds that the 1989 Ohio judgment was

not entitled to full faith and credit under Article IV §1 of

the United States Constitution as it was procured by

fraud and ordered among other things the transfer of

property held in the name of plaintiff Robert S. Catz on

App. 79

account with defendants Fidelity Investments, Water-

house Securities, Teachers Insurance Annuity Associa-

tion/College Retirement Equity Fund and the Ohio State

Teachers Retirement System to defendant Chalker a copy

of which is attached hereto.

V. CLAIMS FOR RELIEF

13. The Arizona state court judgment was entered in

violation of 28 U.S.C. §1738 and Article IV §1 of the

United States Constitution and is therefore invalid.

14. The Arizona state court judgment was entered in

violation of the due process clause of the fourteenth

amendment of the United States Constitution as plaintiff

Catz was denied a full and fair opportunity to present his

claims before the Arizona state court in Chalker v. Catz

and is therefore invalid.

VI. PRAYER FOR RELIEF

WHEREFORE, plaintiff prays that the Court grant the

following relief:

1. Issue a declaratory judgment that the Arizona state

court judgment is invalid under 28 U.S.C. §1738, Article

IV §1 and the fourteenth amendment of the United States

Constitution.

2. Issue a permanent injunction enjoining defendant

Chalker from initiating any further litigation collaterally

attacking the Ohio judgment on grounds that said judg-

ment is constitutionality [sic] valid and therefore entitled

to complete and full preclusive effect under Ohio law as

App. 80

to all issues and claims adjudicated by the Ohio court in

1989.

Respectfully submitted,

/s/ Robert S. Catz

ROBERT S. CATZ

1402 17th Avenue South # B

Nashville, Tennessee 37212

(615) 780-3594

PLAINTIFF APPEARING PRO SE

App. 81

APPENDIX 19

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

ROBERT S. CATZ, ESQ.

1402 17TH AVE So. # B

Nashville, TN 37212,

Plaintiff,

vs.

SUSAN R. CHALKER, ESQ.

6374 Vuelta Tajo

Tucson, AZ 85718

ANNETTE EVERLOVE, ESQ.

BUTLER & STEIN, P.C.

110 Church Ave #9300

Tucson, Az 85701,

LEONARD I. KARP, ESQ.

KARP, HEURLIN & WEISS, P.C.

33 No. Stone Ave # 1800

Tucson, Az 85701,

FIDELITY INVESTMENTS, INC.

164 N. Northern Ave

Boston, MA 02210,

WATERHOUSE SECURITIES

100 Wall Street

New York, NY 10005

TIAA/CREF

730 Third Avenue

New York, NY 10017,

Defendants.

NO. 1:95 cv 1652

JUDGE MANOS

(Mag. Judge

Hemann)

ee ee ee a a ee ee ee ee ee ee ee ee ee

App. 82

PLAINTIFF’S FIRST AMENDED COMPLAINT

Now comes the plaintiff, Robert S. Catz and com-

plains as follows:

I. INTRODUCTORY STATEMENT

1. This action arises under the due process clause of the

fourteenth amendment of the U.S. Constitution and 42

U.S.C. §§ 1983, 1985 seeking permanent injunctive relief

enforcing a final Ohio state court judgment entered on

April 10, 1989, and a declaratory judgment pursuant to 28

U.S.C. § 2201 seeking a judicial determination from this

Court, which of two final and conflicting state court

judgments is entitled to full faith and credit under Article

IV, § 1 of the U.S. Constitution and 28 U.S.C. § 1738.

Plaintiff also seeks an award of damages for violation of

rights secured under the due process clause of the four-

teenth amendment of the U.S. Constitution, for violations

of the Electronic Communications Act of 1986, 18 U.S.C.

§ 2511, for common law fraud and deceit, for tortious

interference with plaintiff’s professional license and for

intentional infliction of emotional distress under Ohio

law.

II. JURISDICTION

2. This Court has subject matter jurisdiction pursuant to

U.S. Constitution, under 28 U.S.C. § 1332 as there is

complete diversity of citizenship between the parties and

the amount in controversy exceeds $50,000 exclusive of

interests and costs, and under 28 U.S.C. § 1343(a)(3)(4) for

Le ee meee

App. 83

violations of plaintiff’s civil rights committed under color

of law.

3. This Court has personal jurisdiction over the defen-

dants pursuant to O.R.C. § 2307.382(A)(2)&(6), Ohio’s

long-arm statute.

III. THE PARTIES

4. The plaintiff, Robert S. Catz is an adult resident of the

State of Tennessee and an attorney admitted to the bar of

Ohio.

5. The defendant, Susan R. Chalker is an adult resident

of the State of Arizona and an attorney admitted to the

bar of Florida.

6. The defendant, Leonard I. Karp is an adult resident of

the State of Arizona and an attorney admitted to the bar

of Arizona.

7. The defendant, Annette Everlove is an adult resident

of the State of Arizona and an attorney admitted to the

bar of Arizona.

8. The defendant, Karp, Heurlin & Weiss, P.C., is a pro-

fessional association incorporated under the laws of the

State of Arizona for the purposes of providing legal ser-

vices and at all times alleged herein relied on the services

of attorney-defendant Karp.

9. The defendant Butler & Stein, P.C., is a professional

association incorporated under the laws of the State of

Arizona for the purposes of providing legal services and

at all times alleged herein relied on the services of attor-

ney-defendant Everlove.

App. 84

10. The defendant, Fidelity Investments of the State of

Massachusetts is a financial services company authorized

to to [sic] sell securities in the State of Ohio.

11. The defendant, Waterhouse Securities of the State of

New York is a financial services company authorized to

sell securities in the State of Ohio.

12. The defendant, Teachers Insurance Annuity Associa-

tion/College Retirement Equity Fund of the State of New

York is a financial services company authorized to sell

securities in the State of Ohio.

IV. FACTUAL ALLEGATIONS

13. On April 13, 1980, the plaintiff Robert S. Catz and

defendant Susan R. Chalker were married in Washington,

D.C. The parties have a son, Aaron, age 14.

14. On April 10, 1989, the plaintiff Robert S. Catz and

defendant Susan R. Chalker were divorced by final

decree entered by the Cuyahoga County Court of Com-

mon Pleas, Cleveland, Ohio, in Catz v. Catz, No. D191073.

See Exhibit “A” attached hereto (Ohio divorce decree).

15. On November 4, 1994, defendant Chalker filed a

petition for dissolution of marriage in the Pima County

Superior Court, Tucson, Arizona in Chalker v. Catz, No.

D103065 collaterally attacking the validity of the Ohio

judgment.

16. On October 20, 1994, October 27, 1994, November 7,

1994, November 8, 1994 and November 14, 1994 defen-

dant Chalker acting in concert with defendants Everlove,

Karp and their respective law firms together conspired in

the unlawful electronic interception and surreptitious

App. 85

forced entry by aural acquisition of plaintiff’s personal

sole bank account operating in interstate commerce.

17. On March 14, 1995, the Pima County Superior Court

entered a final decree and judgment in Chalker v. Catz

granting defendant Chalker a dissolution of marriage by

default and invalidated the 1989 Ohio state court judg-

ment upon a finding by the Arizona court that it was not

entitled to full faith and credit under Article IV, § 1 of the

U.S. Constitution as plaintiff allegedly procured said final

decree of divorce by committing fraud upon the

Cuyahoga County Court of Common Pleas while an offi-

cer of that court and admitted to practice before the bar

of the Supreme Court of Ohio. The Arizona decree fur-

ther ordered inter alia the transfer of all his separate

property awarded to him by the Ohio court and in the

custody of defendant financial institutions named herein.

See Exhibit “B” attached hereto (Arizona dissolution

decree).

18. The manner in which the Arizona state court pro-

ceeding were [sic] conducted, resulting in the coerced

and involuntary entry of the final decree of dissolution

by default deprived the plaintiff of a full and fair oppor-

tunity to be heard on all claims adjudicated on March 14,

1995 as well as denying the plaintiff to opportunity to

present his own claims and defenses before that tribunal;

that said decree was procured by defendant Chalker’s

knowing and intentional use of false testimony and affi-

davits; and through the fraudulent withholding of rele-

vant and material documentary evidence from the

Arizona court by her counsel, defendants Karp and

Everlove acting in concert with defendant Chalker and

their respective professional corporation/defendants and

App. 86

other yet unnamed defendants with the specific intent to

deceive, suborn perjury and obstruct by the unlawful

invalidation of the 1989 Ohio judgment. If said material

documentary evidence had not been concealed but forth-

rightly presented to the Arizona tribunal it would have

resulted in the summary dismissal of the dissolution pro-

ceedings.

19. On July 28, 1995 plaintiff attended a chambers con-

ference before the presiding judge of the Cuyahoga Court

of Common Pleas in Catz v. Catz, and pursuant to his

professional obligation as an officer of that court,

reported the Arizona state court finding that plaintiff had

committed fraud upon the Ohio court in securing the

1989 decree of divorce. At that conference, plaintiff

requested and the presiding judge agreed to refer the

Arizona court fraud finding to the Disciplinary Commit-

tee of the Cuyahoga Bar Association for investigation of

misconduct under DR 1-103(A) (reporting misconduct) of

violations of DR 1-102(A)(3) (criminal act), DR

1-102(4)(A) (fraud), and DR 1-101(A)(5) (conduct prejudi-

cial to the administration of justice) of the Ohio Supreme

Court Code of Professional Responsibility.

V. CLAIMS FOR RELIEF

Count One:

Declaratory Judgment 28 U.S.C. § 2201

(Catz v. all defendants)

20. The plaintiff hereby incorporates all paragraphs

herein as though fully set forth at length.

21. Plaintiff’s claims are controversies between the par-

ties over which this Court has jurisdiction.

App. 87

22. The controversies are actual because there are con-

flicting state court judgments; one judgment awarding all

of plaintiff’s property located in the State of Ohio to him,

and the other judgment all of plaintiff's property and

assets to defendant Chalker.

23. The Arizona state court default judgment was

entered in violation of the due process clause of the

fourteenth amendment of the U.S. Constitution and is

therefore invalid.

24. The Arizona state court default judgment was

entered in violation of Article IV § 1 of the U.S. Constitu-

tion and is therefore invalid.

25. The Arizona state court default judgment was

entered in violation of 28 U.S.C. § 1738 and is therefore

invalid.

Count Two:

Violations of 42 U.S.C. §§ 1983 and 1985

(Catz v. Chalker, Karp, Everlove, Karp, Heurlin & Weiss,

P.C. and Butler & Stein, P.C.)

26. The plaintiff hereby incorporates all paragraphs

herein as though fully set forth at length.

27. Defendants Chalker, Karp, Everlove, Karp, Huerlin

& Weiss, P.C. acting in concert with each and other yet

unnamed persons were state actors under the color of

Arizona law when they invoked the machinery of the

Arizona courts to improperly seize plaintiff’s property.

28. The fraudulent acts committed by defendants consti-

tute violations of 42 U.S.C. § 1983 and a claim of conspir-

acy under 42 U.S.C. § 1985 to deprive the plaintiff of

App. 88

federally protected rights under the due process clause of

the fourteenth amendment of the U.S. Constitution.

Count Three:

The Electronic Communications Act of 1986 (18 U.S.C.

§2511) (Catz v. Chalker, Karp, Everlove, Karp, Heurlin &

Weiss, P.C. and Butler & Stein, P.C.)

29. The plaintiff hereby incorporates all paragraphs

herein as though fully set forth at length.

30. The intentional electronic interception of plaintiff’s

personal and separate bank checking account by defen-

dants constitute a violation of the civil damage remedy

provisions of 18 U.S.C. § 2511

Count Four:

Fraud and Deceit

(Catz v. Chalker, Karp, Everlove, Karp, Heurlin & Weiss,

P.C. and Butler & Stein, P.C.)

31. The plaintiff hereby incorporates all paragraphs

herein as though fully set forth at length.

32. The intentional acts as alleged against the defen-

dants constitutes a claim for common law fraud and

deceit under Ohio law.

Count Five:

Tortious Interference with a Professional License

(Catz v. Chalker, Karp, Everlove, Karp, Heurlin & Weiss,

P.C. and Butler & Stein, P.C.)

33. The plaintiff hereby incorporates all paragraphs

herein as though fully set forth at length.

App. 89

34. The intentional acts alleged against the defendants

constitutes a claim for tortious interference with plain-

tiff’s professional license to practice law in Ohio.

Count Six:

Intentional and Negligent Infliction of Emotional Distress

(Catz v. Chalker, Karp, Everlove, Karp, Heurlin & Weiss,

P.C., Butler & Stein, P.C.)

35. The plaintiff hereby incorporates all paragraphs

herein as though fully set forth at length.

36. The acts alleged against the defendants constitutes a

claim for intentional and negligent infliction of emotional

distress under Ohio law.

VI. PRAYER FOR RELIEF

WHEREFORE, piaintiff Robert S. Catz prays that the

Court grant the following relief:

a. issue a declaratory judgment pursuant to 28

U.S.C. § 2201 that the Arizona state court judgment is

invalid under 28 U.S.C. § 1738, Article IV, § 1 of the U.S.

Constitution, and the due process clause of the fourteenth

amendment of the U.S. Constitution, and issue corre-

sponding permanent injunctive relief pursuant to Rule 65

of the Federal Rules of Civil Procedure permanently

enjoining defendant Chalker from enforcing the Arizona

state court judgment and direct that defendant financial

institutions release plaintiff's assets forthwith;

b. award plaintiff actual, compensatory, consequen-

‘tial and punitive damages against defendants Chalker,

App. 90

Karp, Everlove, Karp, Heurlin & Weiss, P.C., and Butler &

Stein, P.C. in the amount of $10,000,000.

c. set this matter down for jury trial on the damage

claims.

d. award plaintiff reasonable attorneys’ fees pur-

suant to 42 U.S.C. § 1988 and 18 U.S.C. § 2511 and his

costs, fees and expenses incurred herein.

Respectfully submitted,

Robert S. Catz Reginald N. Maxton

1402 - 17th Ave. So. #B James R. Tanner, Jr

Nashville, TN 37212 1367 East 6th Street #400

(615) 780-3594 Cleveland, OH 44114

(615) 696-0066

Philip M. Stinson, Sr.

BOCHETTO & LENTZ, P.C.

Centre Square, East Tower

1500 Market Street, # 1460

Philadelphia, PA 19102

(215) 735-3900

COUNSEL FOR PLAINTIFF

App. 91

APPENDIX 20

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

ROBERT S. CATZ, ) CASE NO.

Plaintiff, : 1:95CV1652

Vv. , Judge John M. Manos

) MEMORANDUM OF

SUSAN R. CHALKER, et al., ) OPINION

Defendants. )

On July 27, 1995, Robert S. Catz, the plaintiff, filed

the above captioned case. On September 26, 1995, he filed

his first amended complaint against Susan R. Chalker,

Annette Everlove, Leonard Karp, Karp, Heurlin & Weiss,

P.C. (“KH&W”), Butler & Stein, P.C. (“B&S”), Fidelity

Investments (“Fidelity”), Waterhouse Securities (“Water-

house”), Teachers Insurance Annuity Association/Col-

lege Retirement Equity Fund (“TIAA/CREF”), the

defendants. Catz seeks a declaratory judgment regarding

the validity of a judgment of divorce entered by a state

court in Arizona. In addition, he alleges violations of his

civil rights under 42 U.S.C. §§ 1983, 1985, violations of the

Electronic Communications Act of 1986, 18 U.S.C. § 2511,

and common law fraud, tortious interference with busi-

ness relations, and intentional infliction of emotional dis-

tress. He asserts jurisdiction under 28 U.S.C. §§ 1332,

1343.

On September 26, 1995, Catz filed a motion for a

temporary restraining order and preliminary injunction.

On September 29, 1995, a conference was held, and the

App. 92

court heard arguments of counsel. For the following rea-

sons, his motion for temporary restraining order and

preliminary injunction is denied, and his complaint is

dismissed with prejudice.

Catz is a former law professor and a licensed attor-

ney in Ohio. From 1980 until 1989, he taught at Cleveland

Marshall School of Law in Cleveland, Ohio. Between 1989

and 1992, he taught at the District of Columbia School of

Law in Washington, D.C. On April 13, 1980, he married

Chalker. They have one child from.

On April 10, 1989, a final decree of divorce was

entered by the Court of Common Pleas of Cuyahoga

County, Ohio (“the Ohio state case”). Catz v. Catz, Case

No. D191073, slip op. (C.P. Cuyahoga Cty. filed Apr. 10,

1989) (Pl.’s Am. Compl. Ex. A.). It ordered that:

Neither party is entitled to alimony;

[Catz] shall retain possession of . . . his personal

property located in the State of Ohio;

[Chalker] shall retain possession of .. . her

personal property which is presently in her pos-

session.

Id. at 3. It also determined that it did not retain jurisdic-

tion over their child and that “it was not the proper

forum to determine matters of child support” and visita-

tion. Id. at 2.

Chalker has testified that, when Catz was living with

her in Georgia, he sent service of the proceedings to his

posta’ b * 1 Miami, Florida, and it was accepted by his

App. 93

friend who signed for it as her agent. (Pl.’s Appendix at

203-07.) She also testified that she never knew about the

Ohio state case until November 1994. (Id.)

In 1993, Catz and Chalker moved to Arizona where

they lived together. (Id. at 200.) He worked as a club

owner, and she was a school teacher. In September 1994,

they separated, and on November 4, 1994, she filed a

petition for divorce in the Pima County Superior Court in

Tucson, Arizona (“the Arizona state case”). Chalker v.

Catz, Case No. D103065, slip op. (Sup. Ct. Pima Cty. filed

Mar. 15, 1995) (Pl.’s Am. Compl. Ex. B.) On December 1,

1994, the Arizona state court issued an ex parte order

which seized his assets, including those funds held in his

accounts with Fidelity, Waterhouse and TIAA/CREF

(“the financial institution defendants”).

On December 14, 1994, Catz was served with the

petition for divorce in the Arizona state case. Also on

December 14, 1994, he filed an emergency motion to

dismiss, arguing that the divorce granted in the Ohio

state case was entitled to full faith and credit. On Decem-

ber 19, 1994, he filed a notice of removal of the Arizona

state case to federal court. He also filed an action in

federal district court in Arizona (“the first Arizona fed-

eral case”) against Everlove, Karp, KH&W and B&S (“the

attorney defendants”).! He alleged a claim under 42

U.S.C. § 1983 that the attorney defendants “invok[ed] the

1 The complaint named Karp & Weiss, P.C. Subsequently,

Karp & Weiss, P.C. became Karp, Heurlin & Weiss, P.C. when

Heurlin joined the firm. The attorney defendants represented

Chalker in the Arizona state case.

App. 94

machinery of the State of Arizona to effect ex parte sei-

zure of [his] property after they were aware of the possi-

ble existence of a prior controlling state court

judgment. . . . ” Catz v. Everlove, Case No. CIV 94-873 TUC

ACM, Compl. { 20 (D. Ariz. filed Dec. 19, 1994).

On December 20, 1994, Catz filed an action in federal

district court in Arizona (“the second Arizona federal

case”) against Chalker. He sought a declaratory judgment

that “the manner in which [she] was served in [the Ohio

state case] is constitutional.” Catz v. Chalker, Case No. CIV

94-879 TUC ACM, Compl. { 10 (D. Ariz. filed Dec. 20,

1994). He also alleged the same claim under 42 USC.

§ 1983 that he had charged against the attorney defen-

dants. Id. { 11.

Thereafter, Catz moved from Arizona and eventually

became domiciled in Nashville, Tennessee, living with his

son from a prior marriage. On January 12, 1995, the

Arizona state case was remanded. Catz v. Chalker, Case

No. CIV 94-872 TUC ACM, Order (D. Ariz. filed Jan. 12,

1995). On January 27, 1995, he mailed a notice of his new

address to the Arizona state court and to the attorneys of

Chalker, but the court returned his notice. (Pl.’s Appen-

dix at 12-13.)

On February 6, 1995, a hearing was held in the Ari-

zona state case. Catz was not present. The court ordered

him to provide it with a single address and to participate

in discovery, including his deposition scheduled for Feb-

ruary 9, 1995. (Pl.’s Appendix at 24.) He asserts that he

received this order on February 11, 1995. (Pl.’s Aff. 1 16.)

OO B ALLER IER

App. 95

On March 2, 1995, another hearing was held in the

Arizona state case. Again, Catz was not present.2 The

court found that he did not participate in discovery, that

he violated the court’s order of February 6, 1995, that he

“engaged in unreasonable, groundless, abusive or

obstructionist conduct”, and that sanctions were appro-

priate. (Pl.’s Appendix at 29-32.) It struck his emergency

motion to dismiss and ordered that he not be permitted to

file an answer, oppose any claim, or introduce evidence.

It also entered default judgment in favor of Chalker. (Id.

at 32-33.)

On March 14, 1995, the Arizona state court held a

third hearing. Again, Catz was not present.3 The court

heard evidence from Chalker. It found that the divorce

obtained in the Ohio state case “is null and void having

been fraudulently obtained and [it] shall not [be] given

full faith and credit”, and that Catz “secreted, dissipated

and/or otherwise failed to account for substantial com-

munity funds and assets.” (Pl.’s Compl. Ex. B, at 2, 4.) It

ordered:

[Chalker] shall have sole legal . . . custody of the

parties’ minor child . . . with such visita-

tion . . . in her sole discretion. .

[Catz] shall pay to [Chalker] as and for child

support the sum of $700.00 per month...

? Catz asserts that he received notice of a hearing, but it did

not contain a time or date. (Pl.’s Appendix at 26-27.)

3 Catz asserts that, on March 14, 1995, he received notice of

the hearing. (Pl.’s Br. at 9.)

App. 96

[Catz] shall pay to [Chalker] as and for spousal

maintenance the sum of $1,000.00 per month. ...

[Chalker] is awarded as her sole and separate

property all right, title and interest in and to the

following investments, bank and/or retirement

accounts: [Fidelity, Waterhouse, CREF, and

TIAA].

(Id. at 4-5.)

Also on March 14, 1995, Catz filed a second notice of

removal. On remand, the federal court ordered the clerk

of the court not to accept further pleadings without its

express permission. Catz v. Chalker, Case No. CIV 94-872

TUC ACM, slip op. at 3 (D. Ariz. filed Mar. 31, 1995).

On March 29, 1995, Catz mailed a motion to vacate

the default judgment entered in the Arizona state case.

However, on April 11, 1995, it mailed his motion back. He

alleges that he received his motion on April 14, 1995, one

day after time to appeal had expired. (Pl.’s Aff. { 22-23.)

He did not file an appeal of the judgment of the Arizona

state case. (Id. ] 25.)

On April 13, 1995, Catz filed a notice of voluntary

dismissal in the first Arizona federal case. Also on April

13, 1995, he filed a motion for voluntary dismissal with-

out prejudice in the second Arizona federal case. On May

26, 1995, Chalker filed a brief in opposition. On June 9,

1995, his motion was denied, and his complaint was

App. 97

dismissed with prejudice. Catz v. Chalker, Case No. CIV

94-879 TUC ACM, Order (D. Ariz. filed Jun. 9, 1995).4

On July 27, 1995, Catz filed the above captioned case

against Chalker and the financial institution defendants.5

Also on July 27, 1995, he filed a notice of lis pendens

regarding the funds held by them.

On August 29, 1995, the Arizona state court issued an

order to the financial institution defendants to show

cause why they had not transferred to Chalker the assets

held by them. It also scheduled a hearing for October 16,

1995. (Pl.’s Br. at 3-4.)

On September 26, 1995, Catz filed his amended com-

plaint. To date, no service of process has been filed on

any defendant.

Il.

Under Fed. R. Civ. P. 12(b)(6), a complaint does not

state a claim upon which relief can be granted if “it

appears beyond doubt that the plaintiff can prove no set

of facts in support of his claim which would entitled him

to relief.” Conley v. Gibson, 355 U.S. 41, 45-46 (1957). The

* The court adopted the reasoning of Chalker’s brief which

asserted that Catz “is using both federal and state court

processes to abuse and harass [her] rather than to secure the just

determination of any valid legal dispute.” Catz v. Chalker, Case

No. CIV 94-879 TUC ACM, Def.’s Br. at 3 (D. Ariz. filed May 26,

1995).

5 Catz also named the Ohio State Teachers Retirement

System. However, in his amended complaint, he did not name

this entity.

App. 98

complaint is to be construed in the light most favorable to

the plaintiff, and all factual allegations are to be consid-

ered as true. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).

A district court has inherent power to dismiss a

complaint on the merits. However, it must:

(1) allow service of the complaint upon the

defendant; (2) notify all parties of its intent to

dismiss the complaint; (3) give the plaintiff a

chance to either amend his complaint or

respond to the reasons stated by the district

court in its notice of intended sua sponte dis-

missal; (4) give the defendant a chance to

respond or file an answer or motions; and (5) if

the claim is dismissed, state its reasons for the

dismissal.

Tingler v. Marshall, 716 F.2d 1109, 1112 (6th Cir. 1983).

Ill.

Since July 27, 1995, Catz has had the op

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