# Opposition Brief — Catz v. McDonald > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_0322%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1997 - **Citation:** 520 U.S. 1168 ## Text 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. ii TABLE OF CONTENTS COURSE CIOS PGT no oon Si och vc dacdcheces SRE Se Ce ao kn ss enn sca coenseeeaenee BRIEF IN OPPOSITION TO PETITION FOR WRIT OF BOE 4 c's 60nd cde caauenne eee eeen enn PE 6 « 6k5 60 5h0ade ese eee CONSTITUTIONAL AND STATUTORY PROVI- SNE OPS » x os eckanctcwkeeenss ee A TR cbs ceca sk ancaceaueesenan B: ARIZONA: THE TRIAL COURT ............. C. THE PETITION IS YET ANOTHER ATTEMPT TO COLLATERALLY ATTACK THE DIVORCE [PEPE +544 50408 4sensabanseewcueeee =. GUL Tee Aes 655 scan cease THE PETITION FOR WRIT OF CERTIORARI SEED Oe EOD sss xinackeespadnubeeeuss A. THE ARIZONA STATE COURT DID NOT DECIDE AN IMPORTANT FEDERAL QUES- TION OR IMPORTANT QUESTION OF FED- BNEn BOE «:0's.05sax.c dee tena cess B. A.R.S. § 25-315 IS CONSTITUTIONAL ON ITS FACE AND AS APPLIED HERE............. C. THE UNIQUE FACTS OF THIS CASE ARE NOT SUITED TO THE PRONOUNCEMENT OF BROAD LEGAL PRINCIPLES............ 20 21 iii TABLE OF CONTENTS - Continued Page D. THE IMPOSITION OF SANCTIONS ACAINST PETITIONER IS APPROPRIATE ise snes J o¢n cess eicosceecenc.. 26 iv TABLE OF AUTHORITIES Page CASES Braxton v. U.S., S00 US. FOG CIGGE) co ccccccccecesaccs 20 Ellis v. Dixon, 349 U.S. 458, rehearing denied, 350 Sa 8). | Peerereye rrr peer rt eT Per yr ror 20 Poppenheim v. Portland Boxing and Wrestling Com- mission, 442 F.2d 1047 (9th Cir. 1971).............. a Stone v. Godbehere 894 F.2d 1131 (9th Cir. 1990) ..... 22 STATUTES AND RULES pe GB FPPC PETE Pere ere rere re 1 eS 2 Perr er er Prrerr er re rer rrr eee 22 ABD. © BGES oo ccscsee per ert eee 2, 9, 19, 20, 21, 22 rt rrrrer er rere errr ver rr TS 21 Pee Ft errr Trt rrr ero rer ore: 21, 23 Be ae I 60h eG aecns Hinata eesaciic eases 23 Se ee EI oS ewan. ne key eae + cea Deeb eared 20 Re ep errr er rt er or re re oe 25 ee ee sd bx cae be a oe ea ee Lee 13 ee i ec eee va us os ee hake ow eeee 13 a PCRs ive bases nth cedwces Fanees 13, 15 MISCELLANEOUS § 304, Uniform Marriage and Divorce Act........... 21 a . 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. e 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. (c) That both parties are enjoined from 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 4 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. 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. 14 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). 15 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 16 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). of eos ee eal AOD REND LEE SPRITE 4 FO 17 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 18 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 ~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 sb 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, as + * ~ 7 * 4 * * « * a * * * 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 sb 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: sb 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 ee 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. 3 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 opportunity to serve the defendants. To date, no notice of service of process has been filed. At the conference on September 29, 1995, the court notified all parties of its intent to dismiss, and it heard arguments of Catz. It also permitted the defendants to respond. The defendants have not answered or filed any motions. A review of the complaint indicates that the events of which Catz complains occurred in Tucson, Arizona. Therefore, the district court in Arizona is the only proper venue for this matter. See 28 U.S.C. § 1391(b). Title 28 U.S.C. § 1406(a) provides that an action with improper venue shall be dismissed unless it is “in the App. 99 interest of justice” that it be transferred to a district or division in which it could have been brought. The court finds that it would not be in the interest of justice to transfer this matter, and therefore, it is dismissed with prejudice.® The complaint does not have an arguable basis in law or fact because it is barred by res judicata. Catz entered an appearance in the Arizona state case and filed the second Arizona federal case. Judgments were rendered on the merits in both cases. His opportunities to attack them ended when he did not appeal. Southard v. Southard, 305 F.2d 730, 732 (2d Cir. 1962).7 His claims in the above captioned case are identical to ones previously raised and decided. See generally 18 Wright, Miller & Cooper, Federal 6 In addition, none of the pleadings filed by Catz assert any facts which would sustain personal jurisdiction over the defendants. See Fed. R. Civ. P. 12(b)(2). 7 In Southard, the appellant obtained a divorce from a Nevada court in 1956. In 1960, the appellee filed her own action for divorce in Connecticut. After entering an appearance in the Connecticut action, the appellant’s “answer was stricken out upon the pretext that he had failed to answer written interrogatories, of which he had received no notice or knowledge; he was deprived of representation by counsel and a default judgment entered against him in his absence and without his knowledge.” Southard, 305 F.2d at 731. The Connecticut court granted a divorce, and the appellant did not appeal. Instead, he filed an action for declaratory judgment in United States District Court for the Southern District of New York. The Second Circuit affirmed dismissal on the basis of res judicata. App. 100 Practice and Procedure: Jurisdiction § 4407 (1981).° There- fore, he is not entitled to relief. IV. The complaint filed by Catz is without merit. Accord- ingly, his motion for temporary restraining order and preliminary injunction is denied, and his complaint is dismissed with prejudice. See Fed. R. Civ. P. 12(b)(6). IT IS SO ORDERED. /s/ John M. Manos UNITED STATES DISTRICT JUDGE 8 “To the extent that a second action advances any part of the same claim or cause of action, an otherwise qualified judgment in the first action ‘prevents litigation of all grounds for, or defenses to, recovery that were previously available to the parties, regardless of whether they were asserted or determined in the prior proceedings.’ ” ‘ , & 4 » f . & App. 101 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO EASTERN DIVISION ROBERT S. CATZ, ) CASE NO. Plaintiff, 1:95CV1652 v. ) Judge John M. Manos SUSAN R. CHALKER, et al., . ORDER Defendants. ) Pursuant to the Memorandum of Opinion issued in the above captioned case this date, the plaintiff’s motion for temporary restraining order and preliminary injunc- tion is denied, and his complaint is dismissed with preju- dice. IT IS SO ORDERED. /s/ John M. Manos .- UNITED STATES DISTRICT JUDGE JMM App. 102 APPENDIX 21 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE NASHVILLE DIVISION SHAWN D. CATZ JASON A. CATZ ROBERT S. CATZ 1402 - 17th Avenue South, No. B Nashville, Tennessee 37212, Plaintiffs, S-95-0947 (JUDGE ECHOLS) VS. SUSAN R. CHALKER 6374 Vuelta Tajo Tucson, Arizona 85718 FIDELITY INVESTMENTS, INC. 164 N. Northern Avenue Boston, Massachusetts 02210 WATERHOUSE SECURITIES 100 Wall Street New York, NY 10005 TIAA-CREF 730 Third Avenue ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) New York, NY 10017 ) Defendants. COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF (Filed Oct. 2, 1995) Now come the Plaintiffs and complain as follows: App. 103 I. JURISDICTION 1. This Court has subject matter jurisdiction pur- suant to 28 U.S.C. §1331, as the claims presented herein arise under the due process clause of the Fourteenth Amendment to the United States Constitution, under 28 U.S.C. §1332, as there is complete diversity of citizenship between the parties, and the amount in controversy exceeds Fifty Thousand Dollars ($50,000), exclusive of interest and costs. Il. THE PARTIES 2. Plaintiff, Shawn D. Catz, is an adult resident of the State of Tennessee. 3. Plaintiff, Jason A. Catz, is an adult resident of the State of Tennessee. 4. Plaintiff, Robert S. Catz, is an adult resident of the State of Tennessee. 5. Defendant, Susan R. Chalker, is an adult resident of the State of Tennessee. 6. Defendant, Fidelity Investments of the State of Massachusetts is a financial services company authorized to sell securities in the State of Tennessee. 7. Defendant, Waterhouse Securities, of the State of New York is a financial services company authorized to sell securities in the State of Tennessee. App. 104 8. 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 Tennessee. Il. FACTUAL ALLEGATIONS 9. On April 13, 1980, Plaintiff, Robert S. Catz, and Defendant, Susan R. Chalker, were married in Washing- ton, D.C. 10. On April 10, 1989, 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). 11. On November 4, 1994, Defendant, Susan R. 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. 12. On December 1, 1994, the Pima County Superior Court issued an ex parte temporary restraining order enjoining Defendant financial institutions from the pay- ment, withdrawal, and/or disbursement of accounts in its custody and possession and titled in the name of the Plaintiffs. See, Exhibit “B” attached hereto (Temporary Restraining Order). 13. On March 14, 1995, the Pima County Superior Court entered a final decree and judgment in Chalker v. App. 105 Catz, granting Defendant Chalker a dissolution of mar- riage by default and invalidated the 1985 Ohio state court judgment upon a finding by the Arizona court that it was not entitled to a full faith and credit under Article IV §1 of the United States Constitution. The Arizona decree further ordered inter alia the transfer of all accounts in the custody and possession of Defendant financial institu- tions and titled in the name of the Plaintiffs. See, Exhibit “C” attached hereto (Arizona divorce decree). 14. The manner in which the Arizona state court proceeding was conducted, resulting in a coerced and involuntary entry of the final decree of dissolution by default, deprived the plaintiffs of a full and fair oppor- tunity to be heard on all claims adjudicated on March 14, 1995, and resulted in the taking and transfer of accounts in the custody and possession of Defendant financial institutions and titled in the name of the Plaintiffs by denying them an opportunity to be heard. Furthermore, Plaintiffs, Shawn D. Catz and Jason A. Catz, were never named or joined as parties in the Arizona proceeding, served with a summons and complaint, a temporary restraining order, or the final judgment awarding assets titled to them to Defendant Chalker. IV. CLAIM FOR RELIEF DECLARATORY JUDGMENT 28 U.S.C. §2201 15. Plaintiffs hereby incorporate all paragraphs herein as though fully set forth at length. 16. Plaintiffs’ claims are controversies between the parties over which this Court has subject matter, per- sonal, and in rem jurisdiction. App. 106 17. The Arizona state court judgment was entered in violation of the due process clause of the Fourteenth Amendment to the United States Constitution. V. PRAYER FOR RELIEF WHEREFORE, Plaintiffs pray that the Court grant the following relief: (a) Issue a final declaratory judgment, pursuant to 28 U.S.C. §2301, that the Arizona state court judgment is invalid under 28 U.S.C. §1738, Article IV, §1 of the United States Constitution, and the due process clause of the Fourteenth Amendment to the United States Constitu- tion, and issue corresponding final injunctive relief, pur- suant to Rule 65 of the Federal Rules of Civil Procedure permanently enjoining Defendant financial institutions from transferring accounts in their custody and posses- sion and titled in the name of the Plaintiffs. (b) Award the Plaintiffs their costs and fees herein. Respectfully submitted, RAY & BOUSCH By: /s/ Charles R. Ray CHARLES R. RAY (#3188) 211 Third Avenue North P.O. Box 198288 Nashville, TN 37219 (615) 256-2111 Attorney for Plaintiffs App. 107 APPENDIX 22 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE NASHVILLE DIVISION No. 3-95-0947 JUDGE ECHOLS SHAWN D. CATZ, et al., Plaintiffs, SUSAN R. CHALKER, et al., Defendants. ) ) ) v. ) ) ) ) MEMORANDUM Presently pending before the Court is Defendant Susan Chalker’s Motion to Dismiss for Lack of Subject Matter Jurisdiction and for Lack of Personal Jurisdiction, to which Plaintiffs have responded in opposition. For the reasons outlined herein, Defendant’s Motion to Dismiss is hereby GRANTED. Also pending are Plaintiffs’ Motion for Preliminary Injunction and Plaintiffs’ Motion Request- ing Interpleader Fidelity to Deposit Bond in Registry of Court in Lieu of Cash Deposit. The Court held a hearing on Plaintiff’s Motions for Preliminary Injunction and Interpleader action for over two days. The Court’s deci- sion on the Motions for Preliminary Injunction and Inter- pleader was reserved until its consideration of Defendant’s Moiion challenging the jurisdiction of the Court. All of these motions were discussed in some fash- ion at the hearing. Plaintiff also has filed a Motion for Oral Argument on Defendant’s Motion to Dismiss and Defendant has filed a Motion to Dismiss Plaintiff’s Amended Complaint. By virtue of the Court’s ruling on App. 108 Defendant’s Motion to Dismiss for lack of subject matter jurisdiction, these Motions are hereby DENIED as MOOT. Plaintiffs, residents of Tennessee, filed this suit requesting that the Court issue a declaratory judgment pursuant to 28 U.S.C. § 2201, that an Arizona state court judgment, entered on March 14, 1995, granting dissolu- tion of the marriage of Plaintiff Robert Catz and Defen- dant Chalker is invalid the Full Faith and Credit Clause of Article IV, Section 1, and under the Due Process Clause of the Fourteenth Amendment of the United States Con- stitution. Plaintiffs also request that the Court perma- nently enjoin Defendant Fidelity Investments of the State of Massachusetts, Defendant Waterhouse Securities, and Defendant Teachers Insurance Annuity Association-Col- lege Retirement Equity Fund of the State of New York (collectively “Defendant Financial Institutions”) from transferring accounts in their custody titled in the name of Plaintiffs. Plaintiffs further request that the Ohio state court judgment of April 10, 1989, granting dissolution of the marriage between Plaintiff Robert Catz and Defen- dant Chalker be given full faith and credit under Article IV, Section 1 of the United States Constitution. Accepting all of Plaintiffs’ factual allegations as true, as the Court must at this stage in the litigation, the factual basis for Plaintiffs’ claims as stated in the Complaint is as follows: On April 13, 1980, Plaintiff Robert Catz and Defendant Chaiker were married in Washington, D.C. On April 10, 1989, the marriage of Plaintiff Robert Catz and Defendant Chalker was dissolved by a final decree entered by the Cuyahoga County Court of Common Pleas App. 109 in Cleveland, Ohio (“Ohio Court”).! Although Plaintiffs contend that the Ohio Court's decree is legally binding on Defendant Chalker, on November 4, 1994, Defendant Chalker filed a petition for dissolution of marriage in the Pima County Superior Court in Tucson, Arizona (“Ari- zona Court”), collaterally attacking the validity of the Ohio judgment. On December 1, 1994, the Arizona Court issued an ex parte temporary restraining order enjoining Defendant Financial Institutions from the payment, with- drawal, and/or disbursement of accounts in its custody and possession and titled in the name of the Plaintiffs. Thereafter, the Arizona Court entered a final decree and judgment on March 14, 1995, granting Defendant Chalker dissolution of marriage by default and invalidating the 1989 Ohio Court’s judgment upon a finding by the Ari- zona Court that the judgment was not entitled to full faith and credit under Article IV, Section I, of the United States Constitution because the Ohio divorce was obtained by fraud. The Arizona decree further ordered that all accounts in the custody and possession of Defen- dant Financial Institutions and titled in the name of Plain- tiffs be transferred to the sole ownership of Defendant Chalker.? 1 The Ohio Court’s decree purported to dissolve the marriage of Defendant Chalker and Plaintiff Robert Catz, awarding Plaintiff Robert Catz property located in the state of Ohio, and awarding Defendant Chalker property in her possession at the time of the decree. The Ohio Court declined to award alimony to either party. 2 The decree of the Arizona Court also purported to dissolve the marriage of and distribute the marital property. However, unlike the Ohio court, the Arizona Court awarded alimony to Defendant Chalker and further awarded sole App. 110 - According to the Complaint, the manner in which the Arizona state court proceeding was conducted deprived Plaintiffs of a full and fair opportunity to be heard. For instance, Plaintiffs Shawn and Jason Catz were never joined or named as parties in the Arizona state divorce action and did not receive notice of the proceedings in spite of the fact that each allegedly held an interest in some of the Tennessee investment accounts transferred to Defendant Chalker by the Arizona Court.? Furthermore, at a hearing held by this Court on October 26, 1995, Plaintiff Robert Catz testified that he did not receive adequate notice of the Arizona Court hearings that were held on February 6, 1995, March 2, 1995, and March 14, 1995, which resulted, among others things,‘ in the disso- lution of his marriage and distribution of his assets. custody of the parties’ minor child, Aaron Michael Catz, to Defendant Chalker. 3 Plaintiffs Shawn and Jason Catz are the sons of Plaintiff Robert Catz from a previous marriage. 4 After Defendant Chalker filed her divorce action on November 4, 1994, an ex parte Temporary Restraining Order was issued by the Court against Plaintiff seizing his assets until further order of the Court. Plaintiff filed an Emergency Motion to Dismiss on December 14, 1994, alleging that the had been divorced from Defendant Chalker in Ohio. On December 19, 1994, Plaintiff filed a notice of removal of the Arizona state case to the United States District Court in Arizona. He also filed an action in the District Court in Arizona against Defendant Chalker and her attorneys under 42 U.S.C. § 1983. On January 12, 1995, the District Court remanded the state divorce suit back to the Arizona state court. On January 27, 1995, Plaintiff mailed a notice of change of address to the state court, but it was returned to him. App. 111 Defendant Chalker filed this Motion to Dismiss pur- suant to Federal Rule of Civil Procedure 12(b)(1) contend- ing that the Court lacks subject matter jurisdiction and, further, that pursuant to Federal Rule of Civil Procedure 12(b)(2), the Court lacks personal jurisdiction over Defen- dant Chalker. In their response, Plaintiffs contend that the Court has subject matter jurisdiction to consider their claims because: 1) there is complete diversity and the Afterwards, the Arizona state court held three hearings in Defendant Chalker’s divorce case, on February 6, 1995, March 2, 1995, and March 14, 1995. Plaintiff was not present at any of said hearings. Plaintiff alleges that he did not receive adequate notice of any of them. Furthermore, he alleges that the state court hearing on March 14, 1995 was improper because he filed a second notice of removal in the United States District Court in Arizona on March 13, 1995. On March 14, 1995, the District Court remanded the case back to the Arizona state court and ordered the Clerk not to accept further pleadings from Plaintiff without permission of the Court. As a result of the three state court hearings, the Arizona state court found as follows: 1) Plaintiff was guilty of abusive and obstructive conduct, 2) Plaintiff had violated the court’s order to participate in discovery, 3) Plaintiff’s Emergency Motion to Dismiss should be stricken, 4) Plaintiff was not allowed to file an Answer, oppose his wife’s claim or introduce evidence, 5) Defendant Chalker was entitled to default judgment against Plaintiff, 6) the Ohio divorce was null and void because it was obtained by Plaintiff through fraud, 7) Plaintiff had secreted community marriage funds and assets, 8) Defendant Chalker was awarded sole custody of the child of the parties with Plaintiff’s visitation rights to be at Defendant Chalker’s sole discretion, 9) Plaintiff was to pay Defendant Chalker $700 per month in child support and $1000 per month in spousal maintenance, and 10) Defendant Chalker was awarded sole ownership of all investments, bank accounts and investment accounts of Plaintiff. App. 112 amount in controversy exceeds fifty thousand dollars; 2) the claims presented arise under the Due Process Clause of the United States Constitution, thereby granting the Court federal question jurisdiction;5 3) certain claims per- taining to the property settlement arise under Employees’ Retirement Income Security Act, (“ERISA”), 29 U.S.C. §§ 1001-1461; and 4) certain claims arise under the Sup- plemental Jurisdiction Act, 28 U.S.C. § 1367(a). All of Plaintiffs’ claims arise out of the decrees of two state courts, one in Ohio and one in Arizona, each of which purported to grant a divorce to Plaintiff Robert Catz and Defendant Chalker and distribute their assets. The threshold issue to be decided by this Court is that of subject matter jurisdiction. At the outset, we note that federal courts traditionally have declined to exercise jurisdiction over domestic matters where jurisdiction is based on diversity even where the parties are diverse and the amount in controversy requirement has been met. Bennett v. Bennett, 1992 WL 357026, No. 91-56177 at *1 (9th Cir. Dec. 3 1992) (holding that divorce and related matters are traditionally not within the subject matter jurisdiction 5 Plaintiffs’ Complaint includes allegations of constitutional violations under the Due Process Clause of the Fourteenth Amendment and under the Full Faith and Credit Clause of Article IV. However, Plaintiffs referred only to the due process claim in support of their assertion that the Court may exercise its federal question jurisdiction over Defendants. Presumably, Plaintiffs have raised only the due process claim in support of the claim that the Court may exercise federal question jurisdiction in this case because “[t]he Supreme court has held that . . . the full faith and credit clause .|. . [does not provide] a source of federal-question jurisdiction.” Evans v. Evans, 668 F. Supp. 639, 644 (M.D. Tenn. 1987). App. 113 of the federal judiciary); Firestone v. Cleveland Trust, 654 F.2d 1212, 1215 (6th Cir. 1981) (same); Huynh Thi Anh v. Levi, 586 F.2d 625, 632 (6th Cir. 1978) (same); Karlson v. Karlson, 1993 WL 616447, No. CA93-0129113 at *1 (D.R.I. Dec. 15, 1993) (same); Evans v. Evans, 668 F. Supp. 635, 645 (M.D.Tenn. 1987) (same). The “subject of domestic rela- tions of husband and wife, parent and child, belongs to the laws of the States and not to the laws of the United States.” In Re Burns, 136 U.S. 586, 594 (1890). Further- more, the so called “domestic relations exception” to federal subject matter jurisdiction applies to claims that involve federal questions where the dispute would deeply involve the court in domestic matters. Thompson v. Thompson, 798 F.2d 1547, 1558 (9th Cir. 1986), (citing cases) (stating that “[e]ven when a federal question is presented, federal courts decline to hear disputes which would deeply involve them in adjudicating domestic mat- ters.”) aff'd, 484 U.S. 174 (1988); Firestone, 654 F.2d. at 1215 (noting that “[e]ven when brought under the guise of a federal question action, a suit whose substance is domes- tic relations generally will not be entertained in federal court”) (citing Denman v. Leedy, 479 F.2d 1097, 1098 (6th Cir. 1973)); Karlson, 1993 WL 616447 at *1 (noting that the domestic relations exception applies to cases arising under federal question jurisdiction). The primary rationale for the domestic relations exception to subject matter jurisdiction stems from princi- ples of comity and respect for state sovereignty. Huynh, 586 F.2d at 632 (“[S]trong policies of federal-state comity and deference to state expertise in the area are the theo- retical underpinnings of federal courts’ refusal to con- sider [domestic relations] cases.”). As the United States App. 114 Court of Appeals for the Sixth Circuit has recognized, “[t]he field of domestic relations involves local problems peculiarly suited to state regulation and control, and peculiarly unsuited to control by federal courts.” Fire- stone, 654 F.2d at 1215 (quoting Buechold v. Ortiz, 401 F.2d 371, 373 (9th Cir.1968)). Furthermore, federal courts should decline to exercise jurisdiction over domestic mat- ters in order “to prevent friction with states and avoid interfering in state proceedings particularly where the federal questions presented are closely intertwined with issues of strong local interest.” Huynh, 586 F.2d at 633. In addition to respecting a state’s interest in resolving its own domestic matters, federal courts refrain from consid- ering such cases because of the strong state interest in adjudicating domestic matters, the relative expertise of state courts in the area of family law, the ability of state courts to provide ongoing supervision, the availability of professional support services, the undesirability of poten- tially incompatible federal and state decrees, the danger that parties invoived in domestic disputes will play one court system off against another,and the congested fed- eral dockets. Brown v. Hammonds, 747 F.2d 320, 322 (5th Cir. 1984) (citing Crouch v. Crouch, 566 F.2d 486, 487 (5th Cir. 1978)); Firestone, 654 F.2d at 1215; Huynh, 586 F.2d at 632. In the present case, the gravamen of Plaintiffs’ claim is that they were denied due process during the Arizona Court’s proceedings, which led to the divorce decree of March 14, 1995. Although Plaintiffs have characterized their claims as alleged constitutional violations, the relief sought is to void the Arizona state court decrees men- tioned above, which, among other things, voided a prior App. 115 Ohio divorce decree, granted a separate divorce, along with child custody, alimony and child support to Defen- dant Chalker, and transferred his assets to her. Said relief directly implicates the aforementioned principles of com- ity. Plaintiffs request that the Court declare the dissolu- tion decree entered by the Arizona Court invalid. Any such finding by this Court would necessarily involve the Court in the core of a domestic dispute between husband and wife seeking to obtain a declaration of their marital status, a declaration of rights or obligations arising from said marital status, and to enforce that declaration of status, rights, or obligations. This Court adjudication of Plaintiffs claims will directly impact the marriage status and rights between the husband Plaintiff [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_0322%3A2. Public record. Not legal advice.