Petition for Writ of Certiorari — Smith v. Los Angeles Metropolitan Transit Authority, (2006) (No. 1425)

Supreme C

p ay Sut U.S.

No, 061425DEC 1 1 2006

OFFICE OF THE CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

DELANEY E, SMITH JR.,M.D. PRO SE

PETITIONER

V.

LOS ANGELES METROPOLITAN TRANSIT AUTHORITY,

HERTZ CLAIM MANAGEMENT CORPORATION, ET. AL.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

DELANEY E. SMITH JR.,M.D.

P.O. BOx 78-159

LOS ANGELES, CALIFORNIA 90008

(323) 395-9911

QUESTIONS PRESENTED

(1.) Whether, United States Constitution Article Ill

section 2., extends subject matter jurisdiction

for the United States Court of Appeals, and District

courts to make rulings, in state workers compen-

sation law related cases that have been removed to

District court in violation of 28 U.S.C. section 1445 (

c ), or should all such cases be remanded to the

court from which it was removed, as statue ap-

pears to read.

Whether, rights when based upon subject matter

jurisdiction defense can be waived, when civil case

is state workers compensation law related, and

protected from removal under 28 U.S.C. sec. 1445 (

c ); thereby creating jurisdictional authority for

District/ Appeals Courts to rule on merits of case.

PARTIES TO THE PROCEEDINGS

Petitioner is Delaney E. Smith Jr. Pharm.D.,M.D.,

proceeding pro se [Supreme Court Rule 33.2(a)|

Respondents are the employer Los Angeles Metropolitan

Transit Authority, and it’s workers compensation third

party administrators and or insurers, and agents, Hertz

Claim Management Corporation; Presidium _ Inc.

Cambdridge Integrated Services, Travelers Indemnity;

Travelers Indemnity Company of Illinois; Constitution

State Services Co., Affordable Medical Network/ First

Health Corp. and AON Corporation

TABLE OF CONTENTS

Page

Question Presented................... lieiasan ene i.

Parties 6b PIGGRNGING. 0.05... 2<ccsiccecccscs-.-s.. i.

National Conhann and Importance of Case...... 1,2

MIOCICHONE PUBIOPEY.. ..00. 0c ccccveccccccccsccescoes 2,3,4,5

REGRESS REED ois ck pe Hive Ana 5

Constitutional and Statutory Provisions..... 2,3,4,5,6,7

8,9,10,11

Workers Compensation Laws and Regs....... 10,11,21,24

25 ~=[aiso see appendix]

Reason For Granting Petition..................... 15,16,17

RNIN ans dine fasaasdanncasvscienniecerdgenteckins 23

RI ics iasave/ditusluionenediatiads arsabaneeke: 27,28,29

Appendix Page 1a

District Court Order Vacating Plaintiffs’,,,,,,,., 2a

Motion For Remand And Request For

Rule 11 Sanctions

District Court Order Re: Plaintiffs’...... See eT 4a.

Motions Set For 8/11/03

District Court Order to Show Cause.............. 7a.

Re: Failure to Arbitrate

Distict Court Order Denying........................ 8a.

Plaintiffs Motion to Vacate

Dismissal & Remand Original

Complaint

Ninth Circuit Court of Appeals.................... 11a.

Memorandum

Ninth Circuit Court of Appeals.................... 16a.

TABLE OF AUTHORITIES

Constitutional Provisions......... See Dea eS BP pp. 7,8

[ U.S Constitution Article Ill section 2]

G),

Federal Generali Order 5.8a........................ p.

Federal Statues

RO Be teas BN, WG occcccccncsccccsccestecs p. 14a

Title 28 U.S.C. sec. 1445 (c)............... pp.1,2,3,4,9,

10,14,17,18,19,20,23,24 27,28,29

Fee 2 itis BOC, SSG EG ) .00.0 0 ccecevccccccsess p. 11

FO BO UGG. COC. TZO7 «0. ccccccccccvcscccceoess p.7

rio gtk Cee. | anne p. 12a

FO Be UPd. BOG; TSST ev scccvcicccecscovesces p. 12a

Title 28 U.S.C sec 1441 (b)........ inxcunsvasil pp. 15

Title 28 U.S.C. sec. 1447 (b) .................... p. 5a,9a

Title 28 U.S.C. sec. 2101 (C )...... cece ee p.2

Federal Regulations

Federal Rule of Civil Proced. 12 (h)(3)........ 0.4

Federal Rule of Civil Proced. 60 (b)(4)....... p.4

V.

State laws and Requlations

Title 8 California Code of Regulations

ha sg ty 2 , 7 SR ee npeneees p. 10

Title 8 California Code of Regulations

aia tenet oais caecglosid Watt basougaciee p.21,27

Title 9 California Code of

Civil Procedure sec. 1200 et. seq............. p.11

Labor Code

L.C. section 4603.2, 4609........................ p.10

Fe, SRR Da eae pee eat ore hy p. 24

ac CME cos. candy ncensdccinedsbuwesadeull p.24

Cases

State of California Workers Compensation

Division [James Belcher v. LACMTA c/o Con

stitution State Services — Opinion and Order

Approving Compromise and Release [on pen-

alties and intrest] Case Number(s) MON

206079; 215489; 230321; VNO 370718....p. 25

Los Angeles County Metropolitan Transportation

Authority v. Sedgwick Mc Cray [BC250377 —-

SITIO Sst Ie obese bncisee si skssdenscscccsaus p. 26

Akerbranat v. Richards, 504, U.S. 689, 697-99,

412 S. GE ZOUG, E212 (1GG!™).... 5 cccccdcsvccscce p.7

Vi.

Arco Environmental Remediation, LLC v. Dept.

of Health and Environmental Quality of Montana,

Be Ae FE Ciditinsticsesdeer ence p.18

Arizonians for Official English v. Arizona, 520

U.S. 43, 73, 117, S. Ct. 1055, 1071-1072, 137,....p. 5

Attorneys Trust v. Videotape Computer Products Inc.,

93 F 3d 593-95 (9" Cir. 1996)................ p.4

Attorneys Trust v. Videotape Computer Products

Inc. 93 F. 3d 593-95 (9"" Cir. 1996)

Bender v. Williamsport Arena School District,

475 U.S. 534, 541, 106, S. Ct. 1326, 1331, 89 L.

Ed. 2d 501 (1986) (brakets in original} See Steel

Co. v. Citizens For A Better Environment 118 S. Ct.

1008, TOTS, CIGD). vise veseissiicdcaccceses hb

California ex..rel. Sacramento Metro. Air Quality

Mat. Dist. v. United States 215 F 3d 1005, 1009,

a Ses Birks didvesdicnsowicn ue p.9

Caterpiliar inc. v. Williams, 482 U.S. 366, 392-393

(1987)

Cone Memorial Hospital v. Mercury Construction

Corp. 460 U.S. 1,24,25, (1983)............. p. 14a

Desert Palace Inc. v. Costa 123 S. Ct. 2148

(2003)

District of Columbia Court of Appeals v. Feldman

460 U.S. 462, 482-86, 75 L. Ed. 2d 206, 103 S. Ct.

EE I ooion cies nove duccks va s¥e0iv eds vveriee p.6

Feldman 460 U.S. at 484-86................. 0.7

Fiester v. Turner, 783 F 2d 1474, 1475 (9" Cir.

GE aan ddd distuk vane Gibveuva el Meekaankens p. 10

Finley v. United States (1989) 490 U.S. 545,

gg aw Ee Se: p. 17

Hart, 328 F. 3d 45

Hibbs v. Winn, 54c2 U.S. 88, 97-98, 124 S. Ct.

2276, 2283-2284 (2004).......cccccccceeeeee. 9. 3

Humphrey v. Sequentia Inc., ............... p. 27

(8" Cir. 1995) 58 F. 3d 1238, 1245

Kokkonen v. Guardian Life Insurance Co.

of America (1994) 511 U.S., 375, 377, 114,

Me Pan: WERE i WOOT Fo ovnccvevsevscvecvaces p, 17

NEE TNT, FOV ve cevicctstecsesccecenscees p. 28

Manoa Finance Co. inc. 781 F 2d 1370, 1373

ec savenunasbepe’ p.12

Mc Nair, 805 F. 2d at 892-93.............. p.7

Mendoza v. Block 27 F 3d 1357, 1363

BT SO occ ccsvecncecyeddcavenenss p. 13a

vill,

Miller v. Marriott Intl, inc. 300 F 3¢°1061,

SO i, Faves sspstesisinccones p. 10

People v. Kerr Mc Gee Chemical Corp,

(7" Cir. 1982) 677. F 2d 575, 671

Pumphrey v. K.W. Thompson Tool Co.

62 F 3d 1128, 1131 (9" Cir.1995) p. 14a

Rooker v. Fidelity Trust Co., 263 U.S. 413,

415-16, 415 — 16, 68 L. Ed. 362, 44 S. Ct.

8 ERRREFR ECD te ines er" p.6

Sherman v. Berlin d/b/a JOB Properties

et. al. U.S. Appeals Court No. 94-55441

(1994) unpublished........................... p.12

Sherrod v. American Inc. 132 F 3d 1112

(5 Cir. 1998)

Steel Co. v. Citizens for Better Environment,

supra, 523 U.S. at 101-102, 118 S. Ct. at

WEP tian cs As hissaietciie hankestseseaaaia p.18

United States v. Carignan 600 F 2d, 762,

764 (9" cir. 1979)

United States v. Corrick, 298 U.S. 435, 440 [56

S. Ct. 829, 831, 80 L.d. 1263](1936)....p. 5

United States v. Scholl 166 F 3d 964, 977

(9" cir. 1999)

Vacanti v, State Compensation Insur-

ance Fund 24 Cai 4" 800 (2001) ...... p.6,8,16,20

Vasquez v. North County Transit District.,

292 F. 3d 1049, 1061, (9" Cir. 2002)...p. 8,18,20

22,9a,13a

Vasquez v. City of San Diego 292 F 3d 1049, 1061

es ik cciiohas cues vuscccav na p. 5a

Watts v. Pickney, 752 F 2d 406, 409 (9" Cir.

RIE IE Sole eT ROLL POR M EEN DERE Rm PAE: p.4

Williams v. AC Spark Plugs 985 F 2d 783m, 786

ae Feee aa p. 19,21,22

9a

Wiscounsin Dept. of Corrections v. Schact, 524 U.S.

Ee NE fa. iscs co cewos dikecsrcencen: p. 5a,9a

“References to Appeal all relate to Amended Appeal

filed and accepted by Ninth Circuit Court of Appeals.

Petition for Writ of Certiorari

Petitioner Delaney E. Smith Jr.,.M.D., respectfully

petitions for a writ of certiorari to review the judgement of

the United States Court of Appeals for the Ninth Circuit

Case No. 05-055370 and Los Angeles District Court for

the Central District of California - Western Division, Case

No. CV-00-05986-NM (CWx) .

Opinions Below

The opinion and denials of Petitions For Rehearing by

the U.S. Ninth Circuit Court of Appeals in this case are

unreported and reproduced in the Appendix

The opinions of the District Court are unreported and are

reproduced in the Appendix at App. 2a_s + _=10a ..

National Importance

The rulings of the United States Supreme Court in

this case are of national importance and there is great

urgency, in that the “jurisprudence” of Ninth Circuit

pertinent to “non-removable cases” , and forum selection

protection, provided under Title 28 U.S.C. section 1445(c),

contravenes this statue, and conflicts with other U.S.

Circuit Appeal Court rulings, including but not limited to

the... Third, Fourth, Fifth, Sixth, Seventh, Eighth... U.S.

Circuit Courts of Appeal, and done so with great waste to

the tax payers of the United States of America.

1

Additionally, the rulings by the Ninth Circuit Judicial

Panel of Farris, Boochever, and Leavy contradict prior

rulings of the State of California Supreme Court, the

State of California Workers Compensation Appeals

Court, and... even their own past rulings as set forth

herein. The rulings of other Circuit Courts also contradict

the rulings of one another pertinent to 28 U.S.C. section

1445 (c ), thereby necessitating a clear, and unequivocal

ruling by the United States Supreme Court as set forth

herein.

Jurisdictional Authority of the Supreme Court

The Memorandum of the United States Court of

Appeals for the Ninth District was filed in this case on

August 4, 2006.Document entitled Petition For Rehear-

ing (FRAP 40); With Request to Vacate All Rulings and

Judgements, and to Remand to Superior Court, and For

Appellate Commissioner to Award All Available Sanctions

(including Sanctions for Appellees Failure to Send

Notification of Their Decision Not to Respond to Appeal)

[Lack of Subject Matter Jurisdiction], was timely filed via

U.S. express mail on August 17, 2006, and filed by the

Appeals court on August 21, 2006 with grant for

extension of filing at that time. The court did not address

the issue of lack of subject matter jurisdiction, before

denying the petition. The same Petition for Rehearing

etc... included a Petition for Hearing En Banc and was

denied by the Court on September 15, 2006. The Petition

for writ of certiorari was timely mailed on December 11,

2006, under 28 U.S.C. sec. 2101 ( c ); Supreme Court

13.1 (2)., but was returned, by the Clerk with a 60 day

extension in that inadvertantly, no check was enclosed,

and format the was not correct.

2

“The time for filing the certiorari petition

begins running anew from the date rehearing is

denied..... [Supreme Court rule 13.3; Hibbs v. Winn, 54c2

U.S. 88, 97-98, 124 S. Ct. 2276, 2283-2284 (2004).

Document entitled, Petition For Full Court Hearing -

Lack of Subject Matter Jurisdiction to Rule on Merits;

Failure to Rule on Appellate issues; Alternatively Request

for Certification of Orders and Appellants Filings For

Certiorari Appeal [U.S.C. sec. 1445 ( c )] with Request for

Judicial Notice Attachments A and B [under General

Order 5.8.a}, was timely filed via United States overnignt

mail on September 28, 2°06, and filed by the court on

September 29, 2006. The Ninth Circuit court did not

address the issue of lack of subject matter jurisdiction,

before denying the petition. The Petition was denied by

the Court on October 30, 2006.

Document entitled Addendum to Petition for Full Court

Hearing; Lack of Subject Matter Jurisdiction to Rule on

Merits; Failure to Rule on Appellate Issues: Alternatively,

Request for Certification of Orders and Appeliant’s Filings

For Certiorari Appeal [28 U.S.C. sec 1445 ( c )] was filed

via U.S. express mail on October 19, 2006., and filed by

the court of Appeals on October 20, 2006. The document

was returned by the clerk with the instructions that it must

be resubmitted within 60 days, when the filing cost of

$300.00 inadvertantly was not included. The format has

been revised,

Subject Matter Jurisdiction can be raised at anytime

during the Appeals process, and the Petition for Rehear-

ing and Petition for Full Court Review opened the

question of Lack of Subject Matter Jurisdiction, which the

court had an obligation to review before the dismissal.

The Ninth Circuit had previously found that lack of

subject matter jurisdiction is never waived and may be

raised at any time by either party or by the court.

See Attorneys Trust v. Videotape Computer Products, Inc

93 F. 3d 593-95 (9"" Cir. 1996). Because it affects the

court’s very power to adjudicate, delay in raising lack of

subject matter jurisdiction does not waive ground. The

objection can be raised initially at trial, or even on appeal.

[FRCP 12 (h)(3) ]

The rulings of the district/ appeals court are a legal

nullity, in that a decision reached without jurisdiction is a

legal nullity, and therefore “not a decision at all. The

jurisdictional defect prevents the defective decision from

ever becoming final. See Watts v. Pickney, 752 F 2d 406,

409 (9"" Cir. 1986) decision reached by district court

lacking jurisdiction is “void” for purposes of Fed. R. Civ.P

60 (b)(4).

United States Supreme Court has the jurisdictional

authority to determine jurisdiction of inferior courts.

Whether, case should have been remanded to the state

court from which it was removed, upon determination by

District? Appellate courts that they lacked jurisdictional

authority to adjudicate state of California workers

compensation law related causes of action is within the

jurisdictional authority of the United States Supreme

Court. The Supreme court has found that, if the record

discloses that the lower court was without jurisdiction

this court will notice the defect, even if the parties make

no contention concerning it.. When the lower court lack{s]

jurisdiction, the Supreme court has jurisdiction on appeal,

not of the merits but merely for the purpose of correcting

the error of the lower court in entertaining the suit.” See -

United States v. Corrick, 298 U.S. 435, 440 [56 S. Ct. 829,

831, 80 L.d. 1263] (1936) . Arizonians for Official English v.

Arizona, 520 U.S. 43, 73, 117, S. Ct. 1055, 1071-1072, 137

L.Ed.2d 170 (1997), Also see Bender, v. Williamsport Arena

School Dist., 475 U.S. 534, 541, 106, S. Ct. 1326, 1331, 89

L.Ed.2d 501 (1986) (brakets in original) See -Steel Co. v.

Citizens For A Better Environment 118 S. Ct. 1003, 1013,

(1998).

ADDITIONAL GROUNDS FOR U.S. SUPREME COURT

JURISDICTION:

The ruling of the Ninth Ciricuit, contradicts earlier

rulings of the State of California Supreme Court as well

as U.S. Court of Appeals rulings in other Circuits as set

forth above. Under Rule 10 (a) the Supreme Court may

consider cases in which, a United States court of appeals

has entered a decision in conflict with the decision of

another United States Court of Appeals on the same

important matter; has decided an important federal

question in a way that conflicts with a state court of last

resort.

Case Presently Before U.S. Supreme Court Is Unique

Unlike the plaintiff medical groups in the California

Supreme court case Vacanti v. State Compensation

Insurance Fund, the petitioner in the case that is

presently before this court, submitted some of the same

issues that had been filed in state court [Superior Court]:

and were later reviewed in Federal Court, to the State of

California Workers Compensation Appeals Court [WCAB]

for review. The related opinion of WCAB judge Pamela

Faust was attached to the Second Amended Complaint

as Exhibit 20, and to the Appeal filed at the U.S. Court of

Appeals as ER 331-336. Thus it can be seen that prior to

most of the rulings of the federal court the WCAB judge

had already ruled on the matter of MTA’s Laches

argument, and the judge set forth the reasons in her

opinion that “said claim is not barred by the doctrine of

laches or equitable estoppel” which was _ later

contradicted by the ruling of federal court judge Manela.

Outside of the state Superior Court from which it was

removed, the United States Supreme Court ts the only

forum, available to the Petitioners because it is the only

federal court that can review the particulars of this case,

because the District court and U.S. court of Appeals have

limited jurisdiction that do not allow them to review or

weigh the decisions of a state appeals court [WCAB).

Federal district courts may exercise only original

jurisdiction, they may not exercise appellate jurisdiction

over state court decisions. See District of Columbia Court

of Appeals v. Feldman, 460 U.S. 462, 482-86, 75 L. Ed. 2d

206, 103 S. Ct. 1303 (1983); Rooker v. Fidelity Trust Co.,

263 U.S. 413, 415 — 16, 68 L.Ed. 362, 44 S. Ct. 149 (1923).

The United States Supreme court has exclusive

jurisdiction to review state appellate [WCAB] decisions.

Feldman, 460 U.S. at 486; also see 28 U.S.C. sec. 1257.

The case presently before the U.S. Supreme Court is one

in which the Ninth Circuit Panel of Browning, Farris , and

Leavy... directly contradict themselves, and the Panel of

Farris, Boochever, and Leavy in that they earlier ruled

that because the resolution of the claims at issue would

require a review of the merits of the WCAB’s and the

state court’s decision, the district court did not err by

concluding that it lacked subject-matter jurisdiction over

the claims. The Appeals court cited Feldman. 460 U.S.

at 484-86; Mc Nair, 805 F. 2d at 892-93.[ Leonard

Sherman, Plaintiff-Appellant v. Joan D. Berlin, d/b/a JDB

Properties et. al.] U.S. Appeals Court No. 94-55441

filed October 6, 1994.]} (unpublished)

The case presently before the Supreme court is one in

which following removal, both the plaintiffs and

defendants repeatedly advised the court that it lacked

jurisdictional authority over the case. The District court

even acknowledged it’s lack of jurisdictional authority, but

then failed to remand, but chose instead to dismiss those

causes of action “with prejudice”.

CONSTITUTIONAL AND STATUTORY PROVISIONS

INVOLVED

1. United States Constitution Article Ili section

provides that the judicial power of the United States is

vested in the Supreme Court, “and such inferior Courts

as the Congress may from time to time ordain and

establish” Congress therefore confers jurisdiction upon

federal district courts, as limited by U.S. Constitution

Article ill section 2., See Ankenbrandt v. Richards, 504,

U.S. 689. 697-99, 112 S. Ct. 2206, 2212 (1992).

2. Title 28 U.S.C. section 1445(c) provides that a

civil action in any state court arising under workers

compensation laws of such state may not be removed to

any district court inthe United States.

STATEMENT

Petitioner seeks review of the Ninth Circuit Court

ruling whicn in addressing petitioner's Appeal that was

based upon Lack of Subject Matter Jurisdiction, and 28

U.S.C sec. 1445 ( c ), the Appeals court cited Vasquez v.

North County Transit District., 292 F. 3d 1049, 1061, (9"

Cir. 2002) and held that.. Moreover, Smith failed to timely

object to removal and thus waived any objection on that

basis. The court also ruled that even if sec. 1445 (c )

otherwise applies here, its bar against removal of

workers compensation claims is nonjurisdictional and

may be waived”. See Appeals Court Memorandum p. 3 .

The fatter of which is the primary issue before the

Supreme court, though the court is reminded that the

petitioner also contends that the initial motion for remand

was timely filed within 30 days of receipt of notice of

removal as set forth herein.

Petitioner seeks review of the Ninth Circuit Court of

Appeais ruling because it is in conflict with the rulings of

the State of California Supreme Court in Vacanti v. State

Compensation Insurance Fund et. al., which identifies the

State of California Workers Compensation Appeals court

as having the exclusive right to make jurisdictional

determinations pertinent to state of California workers

8

compensation law related cases. See California Supreme

Court No. BC116099, Filed January 4, 2001; Court of

Appeals 2/5 Los Angeles County No. 68114190.

Accordingly the District/_ Appeals court had no

jurfisdictional authority to dismiss any causes of action

frorn the complaint, or to make any decisions in the case

except for the decision to remand.

|

Petitioner seeks review of the Ninth Circuit Court of

Appeals rulings because it is conflict with federal statue

Title 28 U.S.C. section 1445 (c). Petitioner seeks review

of the Ninth Circuit Court of Appeals ruling because it is

in conflict with rulings of State of California Workers

Court of Appeais [WCAB}; State of California statues and

regulations as set forth herein.

Petioner seeks review of Ninth Circuit Court of

Appeals ruling because it is conflict with it's own prior

rulings, in that the Ninth Circuit has ruled that,

jurisdictional Issues are generally not waivable. The court

went on to explain that consequently, parties can

ordinarily challenge both district court’s and the Ninth

Circuit’s jurisdiction at any time during the appeal

process. See- [California ex rei. Sacramento Metro. Air

Quality Mgt. Dist. v. United States 215 F3d 1005, 1009 (9"

Cir. 2000)}. Simularly in other cases the Ninth circuit has

previously ruled that jurisdiction over an appeal is open to

chalienge at any time, and that a party cannot waive it's

right to challenge the appellate court’s jurisdiction.

[Fiester v. Turner, 783 F2d 1474, 1475 (9" Cir. 1986); also

see Miller v. Marriott Intl, inc., 300 F 3d 1061, 1063 (9" Cir.

2002).

The Employer Los Angeles MTA, and it's agents acting

9

as it’s workers compensation third party administrators,

reinsurer, and or as a PPO Network, took PPO

deductions illegally from medical providers, and or

hospitals who treated injured workers, in that they were

not authorized Adminstrative Director approved, workers

compensation Healthcare Organizations (HCO.s) as

required under Title 8 Cal. Code of Reg. 9770, 9771. The

Appellees, each of them, had made, or recommended

the making payments for medical services rendered,

below those established and required in the State of

California Industrial Fee Schedule, which was never

disputed. See labor code sec, 4609.[Appeal p.31].

Additionally, in the instant case, after referring

employees to the petitioner for treatment, the Employer

[MTA] oftentimes failed to pay any portion of the medical

bills for many years and then failed to pay 10% penalty

and 10% per annum interest as required under labor

code section 4603.2, and Title California Code of

Regulations 9792.5. \t is through these acts and various

other acts that MTA and it’s contractors engaged in State

of California workers compensation related faud, as set

forth in the Original Compiaint filed in state court. In a

scheme to avoid paying employee benefits. which

included the payment of medical bills, in 1998 MTA

claimed it was no longer “self insured” and that it's

workers compensation program was “fully insured by

Travelers”. Travelers later denied MTA’s claim in it’s

Admissions, contradicting the MTA’s Admissions, which

under federal law was enough by itself to defeat related

Motion for Summary Judgment.{[See Appeal p. 29-33]

Additionally, the case involved the fraudulent award of

10

workers compensation related contracts, judicially forced

arbitration with respondent First Health without a hearing,

to determine the parties, and related threats of case

dismissal for failure to arbitrate. District court lacked

jurisdictional authority, over arbitration matters that

require state law for adjudication [California Code of Civil

Procedure, Title 9, section 1280 et. seq.] as set forth in the

workers compensation related [Occupational Urgent Care

Healthcare “OUCH” (later known as First Health) sec.

10.3] contract between the parties, attached to the

Original Complaint [ER 138, 159]; and the Second

Amended Complaint [ER 272].

A third party to the case, the mediator who was himself

a retired judge told Dr. Smith that he should settle the

case for $100,000.00 offered by MTA, and $30,000.00

offered by each of the defendants... because the

petitioner Dr. Smith “had been a victim of MTA

corruption, to a greater extent than racial discrimination”,

and that the District court judge Nora Manella had no

intention of allowing the case to go to trial. Petitioner, Dr.

Smith requested her self recusal, a protection provided

under 28 USC sec. 455 (a), but in violation of the statue,

the judge refused “self recusal” when a second district

court judge ....Judge Lew’ intervened on_ her

behalf...thereby interfering with, and providing an avenue

by which she circumvented the “self recusal” process.

Interference in the self recusal process, is the standard of

practice in the Los Angeles district, in that Judge Lew’s

clerk explained to Dr. Smith that ...“self recusals do not

occur in this court"????

Although 28 U.S.C section 455 (a) is stated in terms of

11

a judge's self-enforcing obligation, it may be invoked by a

party. See [in re Manoa Finance Co. Inc., 781 F2d 1370,

1373, 9" Cir.1986)] In still another case Dr. Smith had

requested the self recusal of Judge Lew under 455 (a).

However, consistent with his clerk’s claim, Judge Lew

failed to recuse himself, and the self recusal process was

ultimately interupted by another judge. The related case

U.S Court of Appeals Docket Number CV 06-03918-

RSW, had been removed to federal court from Superior

court in Monterey Park, California by petitoner Dr. Smith.

Instead of recusing himself, as requested by Petitioner

Dr. Smith in that case, because of his perception of past

judicial improprieties, in the MTA case, presently before

the U.S. Supreme Court ... judge Lew ignored the

petition for recusal entitled Notice of and Motion for

Reconsideration of, Order Denying Motion to Remove

and Remanding to State Court; Request for Self Recusal

of District Court Judge Ronaid S.W. Lew [Re: Forfeiture

of Superior Court's Subject Matter Jurisdiction —Failure to

Rule], filed in District Court on August 28, 2006, and he

remanded the case on September 5, 2006, according to

the court’s docket. [but unsuccessfully]

Judge Lew.’s remand effort to Superior court in that

particular case failed. After first misidentifying guardian

and grandparent Dr. Smith as a... defendant, rather than

Plaintiff... a misrepresentation that was_ reflected

throughout the Court Docket... in his haste, to rid himself

of that case the district court mailed the remand related

documents to the... wrong Superior Court, which then

returned the case to federal court [jugde Lew] at about

the same time that an Appeal was being filed with the

U.S. Court of Appeals.[Related documemtents available. ]

12

Now, pertinent to the case that is presently before this

court, in confirmation of the petitioner's perception of

impropriety, Judge Manella refused to remand the case,

even though several Motions for Remand based upon

lack of subject matter jurisdiction were filed by the

petitioner, and the issue of lack of subject matter

jurisdiction was at times even raised by the Appellees,

each of them, for purpose of having “causes of action”

dismissed with prejudice, which was eventually granted.

Ultimately, judge Manella would award the

Respondents Motions for Summary Judgement, even

though their filed Statements of Undisputed Facts were

so badly flawed, that the clerk stamped them as “not

used”, and they were not entered into the record. Judge

Manella is no longer a judge in the federal system. The

Appeals court failed to rule on the issues presented in the

Appeal that were raised by judge Manella’s rulings.

Instead of ruling on the issues, identified in the Appeal,

...the U.S. Appeals Court ruled on the merits of the case,

but pertinent to only one Appellee, the MIA _...while

failing to make rulings pertinent to the other Appellees.

The Appeals Court ruling suggested that violations of

federal statue sec. 1445 ( c ), created “procedural”

defects that are “nonjurisdictional”. The U.S. Appeals

court did not explain how it arrived at the conclusion that

“Smith failed to timely object to removal...”.

The initial Motion for Remand was timely filed, for Dr.

Smith by his attorney Robert Ramsey Jr. To the contrary

the MTA’s Motion for remand was served late on

Petitioner/ Plaintiffs. Petitioner's Original Summons and

Complaint was served on the MTA [removing party] on

13

May 5, 2000. MTA’s Motion for Removal was filed on

June 2, 2000 but MTA failed to serve the Petitioner or

Plaintiffs in the case, or to include them on the servce list.

The court is reminded that in removals based upon a

“federal question as in this case, there is no 30 day

requirement to file Motion for Remand. There were

several subsequent Motions for Remand,each of them,

was based based upon “lack of subject matter

jurisdiction”, for which there is no 30 day limitation.

Removing party’ [MTA’s] Proof of Service on Notice of

Removal of Action under 28 U.S.C. sec. 1441 (b) (Federal

Question) was served on the Plaintiffs late [not until June

30, 2000]. [See Appeal ER 449; and Court docket # 12- ER

448]. Petitioner's response, while it might have appeared to

have been filed late, a careful review reveals that Petioner's

Notice of Motion and Motion to Remand to State Court,

Request for Sanctions was timely filed on Monday July 31,

2000 [within 30 days of being served with removal notice].[See

docket # 25-ER 448] Once the Petitioner / Plaintiffs were

finally served, MTA had an obligation to file a new Notice

of Removal, on all parties in that the earlier Notice of

Removal was void, in that it had not been served on the

Petitioner/ plaintiffs prior to filing the document with the

court, and of course any such later filing for removal

would have been untimely. Confirmation of the late

service on Petitoner /Plaintiffs can be found in District

Court Docket #12. Additionally, the MTA failed to identify

the alleged “federal question”. Review of the Original

Complaint revealed that no “federal question” was raised

by Petitioners/Plaintiffs in the 128 allegations of Com-

plaint, a requisite for federal jurisdiction.[see-Appeal p 12.]

Additionally, the removal was in violation of 28 U.S.C

sec. 1445 (c ), which prohibits removal of of a nonremova-

14

ble case, as defined therein. On such basis the district /

appeals court had no jurisdictional authority to make any

rulings in this case. A federal question is not created by

defendant’s assertion of an issue of federal law in

defedant’s pleadings or in the notice of removal. (See

People v. Kerr-McGee Chem. Corp. (7"" Cir. 1982) 677 F2d

571, 575. [Also see Appeal p. 17]

The court is reminded that MTA failed to Answer most

of the allegations of the Second Amended Complaint

[Allegations # 45 to 134]., which was never denied.

REASON FOR GRANTING THE PETITION

A. This case underscores the fact that the federal

judges were clearly not familiar with, or chose to ignore

current State of California workers compensation related

laws and regulations required to adjudicate workers

compensation law related related claims. Especially, in

light of recent budgetary cuts to the federal court system,

for cost containment purposes it would appear to be most

prudent, that the lower courts judiciary’s time, and court

resources, would be better spent, entertaining cases over

which the district / appeals courts hold clear jurisdictional

authority, and where in question such cases should be

remanded.

This is especially true in light of the Supreme court's

ruling that the district) appeals courts cannot create

jurisdiction to rule on merits where subject matter

jurisdiction is lacking as set forth herein. Continued

circumvention of the Supreme Court's ruling will continue

15

to cause an unnecessary drain upon the taxpayers of the

United States. For example, the present case is now

entering it's seventh year, in the federal court system,

whereby there have been repeated attempts to substitute

and apply federal law.... in a case that requires state

laws and regulations for adjudication, as provided in the

state’s constitution, the rulings of the state’s Supreme

Court, and supporting case law including the leading

case on the state’s exclusivity, [Vacanti v. State Comp.

insurance Fund].

B. Because of the arbitrary rulings, and oftentimes

contradictory rulings amongst Appellate cicuits

pertinent to the issue of lack of subject matter

jurisdiction, and “non-removable cases” as defined

by 28 U.S.C. sec. 1445 ( c ), this case presently before

the Supreme Court is very important, in that a clear

ruling will serve as a hallmark, and guide for future

district / appeals court jurisprudence, to prevent this

type of waste for which the taxpayers must ultimately

foot the bills.

C. The Appellate cirucuits are presently struggling to

such _an_ extent, that the instant case serves to

underscore the fact that... different and totally opposite

rulings pertinent to 1445 (c) have been applied...by two

different circuits, to the same “interested party” in this

case.

As the owner of Hertz Claim Management in this

case, American Airlines is an interested party, which in

this case benefited from the ruling of the Ninth Circuit

Panel in that it ruled that protection under sec. 1445 (c )

16

is a nonjurisdictional “waivable” right.

This ruling is contradicted by the 5" Circuit’s ruling

that, removal of claim arising under workers com-

pensation laws of a state is prohibited by statue

regardiess of whether jurisdiction is based on diversity or

federal question. 28 U.S.C. section 1445 ( c ) Sherrod v.

American Airlines Inc 132 F 3d 1112 (5™ Cir. 1998)

¢ By inference the latter would clearly raise the issue of

subject matter jurisdiction if such a case was to be

removed and raising such an issue is “nonwaivable”

as set forth herein, and clearly “jurisdictional” in

nature.

D. The rulings of the Ninth Circuit, whereby there is an

attempt to “create subject matter” for jurisdiction for itself

and federal court, contradict the rulings of the United

States Supreme Court, including but not limited to the

court's finding that, a federal court is of limited

jurisdiction, and may adjudicate only those cases

authorized by the Constitution and by Congress, Unlike

states they have no inherent or general subject matter

jurisdiction (See Kokkonen v. Guardian Life Insurance Co.

of America (1994) 511 U.S., 375, 377, 114, S.Ct. 1673, 1675,

1677 (994); Finley v. United States (1989) 490 US 545, 109

S. Ct. 2003, 2008).

The Supreme court found that Article Ill jurisdiction

will not be assumed for the purpose of deciding a case

on the merits (hypothetical) jurisdiction, even where the

legal issues could be readily resolved. -See [Steel Co. v.

Citizens for Better Environment, supra, 523 U.S. at 101-

102, 118 S. Ct. at 1016].

17

Consistent with the United States Supreme Court

related rulings, the Montana Court of Appeals has clearly

decided that if a case is improperly removed, the federal

court must remand because... it has no subject matter

jurisdiction to decide the case. — Arco Environmental

Remediation, LLC v. Department of Health and

Environmental Quality of Montana, 213, F. 3d 1108.[ As set

forth in Petition For Full Court Hearing by Petitioner

Delaney E. Smith Jr.,M.D.]

E. The Ninth District Court decisions, pertinent to sec.

1445 (c) imposes the burden on District court of having

to entertain cases in which they have no jurisdictional

authority to adjudicate the causes of action, when facts of

the case: are inextricably interwined in state workers

compensation laws and regulations, and done so at great

waste and expense to our taxpayers and the affected

petitioner, who should be entitled to sanctions, including

attorney fees for illegal defense [in district court], and

wrongful removal.

The Ninth Circuit's primary error which led to it’s

present position, concerning whether violations of the

federal statue Title 28 U.S.C. section 1445 ( c), which

defines workers compensation law reiated cases as

being “non jurisdictional” was plainly set forth for the

Ninth Circuit Appeals court, in the Petitioners petition en-

titled “Addendum to, Petition for Full Court Hearing; Lack

of Subject Matter Jurisdiction etc.....”

As set forth therein, the Appeals Court Memorandum

overlooked the fact that in citing Vasquez v. North County

Transit Dist. 292 F 3d 1049, 1061 (9"" Circ. 2002),

18

the Ninth Circuit's ruling was also based upon an earlier

ruling [Williams v. AC Spark Plugs Div. of General Motors

Corp., 985 F 2d 783m 786 (5 Circ. 1993)]. In that 1993

ruling the 5" Circuit Court found that due to diversity of

citizenship, the Williams v. AC Spark Plugs case was

within the jurisdiction of the federal court. There is no

such diversity issue in the instant case that was

presented to the Ninth Circuit Court of Appeals, and

which in now presently before this most distinguished

body.

In the earlier case of 1993... Williams v. AC Spark

Plugs the 5" Circuit court did rule, as the Ninth circuit

would rule in this case, that ....even if 1445 applies... it’s

bar against removal of workers compensation claims is

nonjurisdictional and may be waived. Regarding the case

now before for the court, even more important than the

fact there is no diversity issue to create federal

jurisdiction, is that the Ninth Circuit Panel overlooked the

fact that the 5" Circuit Appeals Court had later changed

it’s position regarding 28 U.S.C. sec. 1445 (c)...but the

Ninth Circuit continued to cite the earlier 5" Circuit ruling.

In 1998, the finding of the 5" Circuit was that a plain

reading of the statue lends credence to the proposition

that sec. 1445 (C) prohibits the removal of any state

workers compensation claims. The court held that sec.

1445 (c) prohibits removal of any state workers compen-

sation claims whether jurisdiction is based on diversity or

federal question. Sherrod v. American airlines tnc., 132 F

3d 1112 (5 Circuit 1998) [See Petition for Full Court

Hearing; Lack of Subject Matter Jurisdiction....etc p. 7.

19

Stated another way, outdated rulings of the 5" Circuit

Appeals Court were directly and or indirectly applied to

the instant case, when the Ninth Circuit Court of Appeals

overlooked the fact the 5" Circuit Appeals Court had

since reversed itself on the earlier 5” Circuit (1993)

ruling as set forth above,

Regarding the matter of subject matter jurisdiction,

and it’s application to the matter of State of California

workers compensation law based cases, the lead state of

California Supreme Court case which established the

“exclusivity of state court’...Vacanti v. State

Compensation Ins. Fund, 24 Cal. 4" 800 (2001) was cited

by judge Nora Manella of the District Court- See Order

Granting in Part and Denying in Part Defendant Presidium/

Cambridge’s Motion to Dismiss.- An excerpt was attached

as Exhibit A to Petition for Full Court Hearing...etc.

In recognizing the exclusivity of the Workers

Compensation Appeals Board WCA [WCAB], as set forth

in Vacanti...the District Court at that point was obligated

to address the issue of it’s subject matter jurisdiction, in

light of the State of California's Supreme Court ruling, as

well as it jurisdictional authority under such

circumstances to dimiss any aspect of a state of Cali-

fornia workers compensation law related case. The ruling

of the Appeals court, in supporting the rulings of the

District court, contradicted it’s own earlier ruling, whereby

the 9" District had found that, when interpreting state

law, the Court of Appeals is bound to follow the decisions

of the state’s highest court, See Vasquez v. North County

Transit Dist. 292 F 3d 1050 (9" Cir. 2002).

Additionally, the Ninth Circuit Court of Appeals

overlooked the fact, that since the MTA’s removai to

federal court was based upon an alleged... “federal

question”, there is no 30 day time waiver. While the Ninth

Circuit's Memorandum ruled that..."Smith failed to timely

object to removal and thus waived any objection on that

20

basis” citing Vasquez v. North County Transit Dist., the

Appeals court overlooked the fact that the same case

makes it clear that, a motion to remand the case on the

basis of any defect other than lack of subject matter juris-

diction must be made within 30 days after the filing of the

Notice of Removal. See Vasquez v. North County citing N.

Cal. Dist. Council of Laborers v. Pittsburg-Des Moines

Steel Co. 69 F 3d 1034, 1038 (9"" Circ. 1995).

Finally, the U.S. Ninth Circuit Court of Appeals made

rullings in an illegally removed case, that was inextricably

intertwined in State of California workers compensation

law. State of California law specifically prohibits filing

petitions for rulings on the pleadings and thus requires a

hearing for judgement on the pleadings, as set forth in

Title 8, California Code of Regulations section 10490

which prohibits even the filing of demurrers, petitions for

judgement on the pleadings, and petitions for summary

judgement, as such defenses are not permitted under

this California law. Only the United States Supreme Court

can enter rulings that might otherwise appear to

contradict state law. If there is any question as to whether

such a case should have been remanded to state court,

the U.S. Court of Appeais is obligated to remand the

case under existing federal law, as clearly set forth in the

Amended Appeal filed with the U.S. Ninth Circuit Court of

Appeals by this petitioner.

In the 1993 earlier mentioned, 5" Circuit case, Circuit

court judge Jerry E. Smith held that (1) wrongful removal

of civil action arising from state’s workers compensation

laws was a procedural defect that was waived when

plaintiff failed to move for remand within 30 days. See

Williams v. AC Spark Plugs 985 F 2d 783 (5™ Cir. 1993).

21

As stated above, the U.S. Ninth Circuit Court of Appeals

overlooked the fact that the 5” circuit had already

reversed itself (1998) at the time of the 2002 Ninth Circuit

ruling, whereby in Vasquez v, North County Transit...cit-

ing Williams v. AC Spark Plugs in that case...the Ninth

circuit ruled [1445 ( c ) ], it’s bar against removal is non-

jurisdictional and may be waived. See Vasquez v. North

County Transit Dist. 292 F 3d 1049, 1062.

The basis for the Petioner’s Motion for Remand was

was repeatedly, “lack of subject matter jurisdiction’.

Unlike other defenses, and in contradiction to the

Memorandum, the defense of lack of subject matter

jurisdiction is never waived. Accordingly, issue of subject

matter jurisdiction should have been adequately

addressed prior to the disposition of the case by the U.S.

Court of Appeals, that is in a manner that is consistent

with sec. 1445 (c ), as the expressed intent of Congress.

The 5" Circuit Court of Appeals has ruled that, courts

must presume that a legislature says in a statue what it

means, and when the words of a statue are

unambiguous, the first canon is also the last, and judicial

inquirie is complete — In re-Hart, 328 F. 3d 45.

it is hereby respectfully requested, that the United

States Supreme Court intervene at this time to clarify the

intent of the United States Congress, as expressed

through federal statue Title 28 U.S.C. section 1445 ( c ) to

repair the present split between the Circuits, as to

whether violations are “procedural” and_ therefore

waivable after 30 days, or is “jurisdictional” and therefore

a non-waivable right to protection of forum selection in

state of workers compensation law related cases.

22

—_ ~

Conclusion

For the foregoing reasons, a Writ of Certiorari prayer-

fully will be granted. A clear and final statement from the

United States Supreme Court, that strongly prohibits re-

moval and offers clear sanctions of attorney fees, and all

other payments of retribution deemed apppropriate, for

wrongful removals and violations of 1445 ( c ), will serve

as a disincentive for those who now frequently attempt to

circumvent governing state laws and regulations, for the

purpose of delaying and or evading payments of

uncontested bills for medical services rendered, by

deliberately contravening the law.

The district / appeals courts in this case attempted to

substitute federal law for state of California workers

compensation regulations. For instance in the case of

workers compensation related fraud... “intent” is not a

prong, or element that must be proven to establish fraud,

and the ruling. of the Appeals court would. heighten the

bar needed to establish workers compensation fraud.

Under existing California law workers compensation

law, fraud can be established by merely demonstrating

that false statements were made, to avoid making

workers compensation related payments for benefits, that

include payment for medical services rendered to injured

workers. In this case the petitioner presented the conflict-

ing Admissions, of the MTA and Travelers, and the |

related contract when the MTA made the claim that in

1998 Travelers insured the MTA’s workers compensation

program. In actuality Travelers began offering only “re-

insurance coverage”, for the MTA’s self insured workers

23

compensation program. [See Appeal p. 25, ER p. 120, 342-

350]. There should be no question as to whether the

issues of the case are workers compensation law related.

[See Appeal 29,30,31,32,33,38,39,40] Appeal ER p.

7,100,102} The MTA and Travelers had earlier claimed

that because of an alleged insurance contract with

Travelers, the Baldwin Hills Medical Group (BHMG) had

to be deleted from MTA'’s Panel of treating physicians.

After deleting BHMG from MTA's medical panel, MTA

continued to take PPO deductions from payments made

for services rendered by BHMG's medical providers,

including the petitioner Dr. Smith, at fees well below

those required by the state’s industrial fee schedule as

set forth in labor code 5307.1.

The case was workers compensation law based and

both the Petitioner, the Respondents and even the judge

all aluded to to specific workers compensation laws and

regulations required to adjudicate the case, such as

those set forth herein. Presidium attorney Eric

Schnurpfeil and Travelers attorneys Holmes and Crawley

made false claims, and or inferences that Presiidium /

and Travelers, were not bound by labor code 4603.2, and

that the code was not applicable, at about the same time

respondent Presidium/ Cambridge was being fined by the

the State of California Department of Industrial Relations

for this same code violation in still another case..., and

such evidence was provided for judicial review [See

Stipulation to Corrective Action, Remdial Measures, and

Assessment of a Civil Penalty (Labor Code sec. 129.5)

and Order Re Findings by the Administrative Director

Based Upon Stipulations — Attached as a part of Exhbibit

24

B to Objection to Notice of Appearance filed by Attorney

Eric Schnurpfeil to Make Appearance for Presidium;

Cambridge Integrated Services; AON and Request for

Judicial Notice- which Appeals court had an obligation to

review]. The U.S. Appeals court failed to consider

evidence of attorney fraud submitted for judicial review,

for the purpose of establishing, “fraud upon the court’.

In still other cases the employer MTA has been sanc-

tioned for as much as $75,000.00...specifically for failing

to pay monies owed to the Baldwin Hills Medical Group

for services rendered to MTA’s injury workers [ See

James Belcher v. LACMTA_ c/o Constitution State

Services [Travelers] -Opinion and Order Approving

Compromise and Release [on penalties and interest]

Case Number(s) MON 206079; MON 215489; MON

230321; VNO 370718- State of California Division of

Workers Compensation. In one such case in which a pa-

tient Sedgwick Mc Cray, chose to exercise his right to de-

signate Dr. Smith/BHMG as his physician, only to have

counse! for MTA the file false documents with the WCAB

to facilitate the transfer, alluded to in allegation 21 SAC

{See Appeal ER p. 184].

After the WCAB Administrative Director determined

that counsel had made false claims in an attempt to

facilitate transfer of care, counsel for MTA then made

false claims in a complaint filed against Mr. Mc Cray, in

Superior Court, which included the assertion that Mr. Mc

Cray had been seen on video tape performing activites in

violation of his physician’s restrictions. As orthopedic

specialist William Simpson M.D. reported, his review saw

no such violations, because at the time of the video there

25

were no physicial restrictions except that the patient

should not yet drive a bus due to public safety concerns.

The employer and counsel made false claims to support

the wrongful termination of the injured worker Sedgwick

Mc Cray, and thereby engaged in workers compensation

fraud. The case was dismissed by Superior Court,

because it was a WCAB law related matter that did not

allege a civil conspiracyor RICO violations and

accordingly should not have been filed in state court

[Superior Court] as set forth in the Vacanti case. The

employer and counsel used the United States Postal

Service- See Los Angeles County Metropolitan

Transportation Authority v. Sedgwick Mc Cray. [BC250377

Superior Ct.] (2001). Retalliation because the patient

refused to be transferred to MTA’s physicians was

improper.

Still other related WCAB rulings were attached to the

Second Amended Complaint as Exhibits 20, 21,

overwhich the district / appeals courts had no authority to

weigh, evaluate, or change according to prior rulings of

the Ninth Cicuit. Lacking the authority to review or weigh

a state appeals court findings, the district ./ appeals court

had an obligation to remand the case to the court from

which it had been removed.

The district / appeals courts had no jurisdictional

authority and should have remanded the case to state

court from which it had been removed in violation of 1445

( c ). No court in the United States, except for the United

States Supreme court can rule on merits of a state of

California workers compensation law related case based

26

upon the pleadings, and for any court to do so is a viola-

tion of Title 8 California Code of Regulations 10490,

which prohibits rulings on the pleadings [without a trial].

Consistent wiih State of California Supreme Court

rulings in the Vacanti case, the case before the Supreme

court was appropriately filed in state court [superior court]

because the causes of action were intertwined with

allegations of “conspiracy”. The antics of counsel that be-

gan with the wrongful removal of the case from state

court, has caused a nearly 7 year delay in adjudication of

perfectly valid claims for restitution, through a variety of

undeserved, demonstrations of “bad faith” and illegal

attorney conduct, as set forth herein. Only one Appellee

the MTA filed a response to the Appeal, and the

petitioner, requests all appropriate related sanctions,

including attorney fees incurred while in the district court.

SUMMARY

The district / appeals courts have no jurisdictional

authority to make rulings where subject matter jurisdiction

is lacking, except for the authority to make the decision to

remand the case to the court from which it has been

illegally removed. State law workes compensation claims

cannot be removed to federal court, regardless of

whether removal jurisdiction is based on diversity or a

federal question. {28 U.S.C. sec. 1445 (c); Humphrey v.

Sequentia, Inc (8" Cir. 1995) 58 F. 3d 1238, 1245].

There is no related 30 day statue of limitations waiver

of rights in such cases, or matters that include allegations

of fraud upon the court, or extrinsic fraud. Under Califor-

27

nia law, if judgment is obtained through extrinsic fraud,

time limitations contained in statue governing motions to

vacate judgments do not apply. West's Ann. Cal, Civ.

Code sec, 473 In re Lake, 202 B.R. 751. Rulings on the

pleadings, and merits of case by district / appeals courts

was done in violation of state of California law C.C.R

10490, which prohibits the filing of Motions for rulings on

the pleadings and for summary judgment.

Issues of credibility, and related causes of action for

fraud, and fraud upon the court, and workers

compensation related fraud require a trial, under

California state and or federal law. The district / appeals

court lack the jurisdictional authority to make rulings on

merits of case in the absence of a trial.

Distict / appeals court lack the jurisdictional authority to

order parties into arbitration, or to confirm, or enter the

results without a hearing or trial to first determine the

parties to such arbitration. Delaney and Stephanie Smith

as non-parties refused to arbitrate, the court lacked the

jurisidictional authority to order the parties to arbitrate as

did occur in this case. Jurisdictional authority to order

arbitration does not extend to district courts, when the

arbitration agreement specifically requires that state law

is to govern the proceeding, as set forth herein.

Original Submitted, 12/11/06

Change of Format, 2/4/07

Next Revision, 4/23/07

By Petitioner:

Delaney E. Smith Jr.,Pharm.D.,M.D.

P.O. Box 78159

Los Angeles, California 90016

28

APPENDIX page 1a.

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CASE NO. CV 00-5986 NM (CWx)

BALDWIN HILLS MEDICAL

GROUP CORPORATION, a

California Medical Corporation,

DELANEY E. SMITH JR.,M,D, an

individual, STEPHANIE SMITH, an

individual,

Plaintiffs, ORDER VACATING PLAINTIFFS’

MOTION FOR REMAND AND

V. REQUEST FOR RULE 11

SANCTIONS

LOS ANGELES METROPOLITAN

TRANSIT AUTHORITY, et. al.

Defendants,

Plaintiffs filed a Motion for Remand and Request for

Rule 11 Sanctions on July 31, 2000. In this motion, plain-

tiffs failed to allege compliance with Local Rule 7.4.1,

which requires a pre-filing conference of counsel.

Plaintiiis are reminded that Rule 7.4.1 requires not only

this prefiling meeting but also a statement to the following

effect; “This motion is made following the conference of

2a.

counsel pursuant to Local Rule 7.4.1 which took place on

(date).” Local Rule 7.4.1. Because of its failure to allege

compliance with the meet and confer requirements of the

Local Rules, plaintiffs’ Motion for Remand and Request

for Rule 11 Sanctions is vacated and taken off calendar,

with leave to refile at a later date following compliance

with Local Rule 7.4.1.

DATED: August 7, 2000

Nora Manella

United States District Judge

3a.

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES — GENERAL

CASE NO. CV00-05986-NM(CWx)

TITLE: Baldwin Hills Medical Group et al

V.

First Health

PRESENT: HON, NORA M. MANELLA, JUDGE

Judith Hurley N/A

Deputy Clerk Court Reporter

ATTORNEY FOR PLAINTIFF ATTORNEY FOR DEFENDANT

N/A N/A

PROCEEDINGS: IN CHAMBERS

(Re Plaintiffs motions set for 8/11/03)

On June 25, 2002, Plaintiffs filed a motion to remand the

instant action on the ground that it was improperly

removed from Los Angeles Superior Court over two

years ago. The instant action was properly removed from

Los Angeles Superior Court over two years ago. The

instant action was properly removed to this court, as

Plaintiffs asserted federal claims under 42 U.S.C. sec

4a.

1983 and 1985 for alleged violations of their civil rights.

see Caterpillar Inc., v. Williams, 482 U.S. 386, 392-393

(1987). Although Plaintiffs other claims would not have

invoked the jurisdiction of this court, the presence of

Plaintiffs’ federal civil rights claims allowed Defendants to

remove the entire case. See Wiscounsin Dept. of

Corrections v. Schact, 524 U.S. 381, 386 (1998). That

Plaintiffs’ claims included allegations of regarding the

workers system is immaterial, as Plaintiffs’ claims did not

“arise under” California workers compensation law. See

Vasquez v. City of San Diego, 292 F. 3d 1049, 1061 (9

Cir. 2002). Moreover 28 U.S.C. sec. 1445 (c) prohibition

against removal of workers compensation claims is non-

jurisdictional and may be waived. See id at 1063. As

Plaintiffs did not file a motion to remand the case within

30 days after the notice of removal, as required by 28

U.S.C. sec. 1447 (c), Plaintiffs waived any objection to

the removal of the action.

Accordingly, the court DENIES Plaintiffs’ motion to

remand the action to Los Angeles Superior Court.

On July 8, 2003, Plaintiffs filed a motion for a

rehearing of the Court Clerk's entry to tax costs and for a

stay of judgment pursuant to Fed. R. Civ. P. 54(d)(1).

Plaintiffs’ motion challenges the awarding of costs to

Defendants Travelers Indemnity Co., Travelers Indemnity

Co. of Illinois and Constitution State Service Company

(collectively, “Travelers’). Plaintiffs assert that they

should not have been billed for a videotaped deposition;

(2) the deposition exceeded seven hours; (3) more than

one deposition form the same person was obtained; and

(4) this court lacked jurisdiction to enter judgment.

5a.

Plaintiffs motion is Denied.First Travelers sought costs

for the written transcripts of Dr. Smith's deposition only.

See Holmes Decl. Ex., A. Second, Rule 30(a)(2)(B)

allows a deposition to exceed 7 hours if parties so

stipulate. See Reyna Decl. para. 5 Moreover, each of the

nine Defendants was entitled to depose Dr. Smith. As his

deposition lasted only three days, it is unlikely that each

party's portion of the deposition exceeded the seven hour

limit. Third, Dr. Smith’s deposition was twice continued,

not “renoticed” as Plaintiffs assert. See Reyna Decl. para

2-4. Fourth, for the reasons set forth above, this action

was properly removed to this court; accordingly, the court

had jurisdiction to enter judgment.

included in Plaintiff's motion to retax costs is a motion

for reconsideration of the court's order granting the Los

Angeles MTA’s motion for Summary Judgment. Plaintiffs

rely on the Supreme Court's recent decision in Desert

Palace, Inc. v. Costa 123 S. Ct. 2148 (2003). See Motion

para. 14. There, the Supreme Court held that a plaintiff

may establish a mixed motive employment discrimination

claim based on circumstantial evidence. Contrary to

Plaintiffs’ assertion, Desert Palace, does not stand for the

proposition that a plaintiff may rely on conclusory

allegations to defeat motion for summary judgment. As

set forth in the court’s order of April 29, 2003, the record

was devoid of evidence supporting Plaintiffs conclusory

allegations that the Los Angeles MTA maintained a policy

or custom of discriminating against Plaintiffs or other

DBE medical providers. See 4/29/03 Order. Accordingly,

Plaintiffs Motion for reconsideration is DENIED.

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL

CASE NO. CV 00-05986-NM (CWx) DATE: 8/27/03

TITLE: Baldwin Hills Medical Group, et al

Vv.

Los Angeles Metropolitan Etc., et al

PRESENT: HON. NORA MANELLA, JUDGE

Judith Hurley N/A

Deputy Clerk Court Reporter

Attorney For Plaintiff Attorney For Defendant

N/A N/A

PROCEEDINGS iN CHAMBERS

Plaintiffs are Ordered to Show Cause, in writing no

later that 9/4/03, why this action should not be dismissed

for failing to arbitrate any claims against First Health,

pursuant to this Court's order of 4/20/01.

7a.

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT COURT OF CALIFORNIA

CIVIL MINUTES — GENERAL

CASE NO. CV 00-05986- NM(CWx) DATE: 2/9/05

TITLE: Baldwin Hills Etc. - v Los Angeles Metropolitan,

Etc,, et al

PRESENT: HON. NORA M. MANELLA, JUDGE

Judith Hurley

Deputy Clerk N/A

Court Reporter

ATTORNEY FOR PLAINTIFF ATTORNEY FOR DEFENDANT

N/A N/A

PROCEEDINGS: Order Denying Plaintiff's Motion to

Vacate Dismissal & Remand Original

Complaint.

On December 17, 2004 Plaintiff Delaney E Smith Jr.,M.D.

(“Plaintiff’), filed a Motion to Vacate Dismissal and

Remand Original Complaint. Although Plaintiffs motion is

at times incoherent and disjointed, the motion essentially

seeks to vacate all rulings in this matter and to remand

the action to Los Angeles Superior Court, because this

court allegedly lacks subject matter jurisdiction. Plaintiff

reasserts the same arguments the previously raised in

8a.

his Motion to Remand filed on June 25, 2003, which the

court denied on August 5, 2003.

As the court stated on it’s August 5 order, the instant

action was properly removed to this court, as Plaintiffs

asserted federal claims under 42 U.S.C. sec. 1983 and

1985 for alleged violations of their civil rights. See

Caterpillar Inc. v.Williams, 482 U.S. 386, 392 (1987) 1

Although Plantiffs’ other claims would not have invoked

the jurisdiction of this court, the presence of Plaintiffs’

federal civil rights claims allowed Defendants to remove

the entire case. See Wisconsin Dept. of Corrs. v.

Schacht, 524 U.S. 381, 386-87 (1998). That Plaintiffs

claims included allegations regarding the workers

compensation system is immaterial, as Plaintiffs’ claims

did not “arise under” California workers compensation

law. See Vasquez v. North County Transit Dist (NCTD)

292 F. 3d 1049, 1061,, (9 Cir. 2002). Moreover, 28

U.S.C. sec. 1445 (c)’s prohibition against removal of

workers compensation claims is non jurisdictional and

may be waived, See id at 1062; Williams v, AC Spark

Plugs Div. of Gen. Motors Corp., 985 F 2d 783, 786 (5"

Cir. 1993) (1445 (c)’s “statutory restriction against

removal is not a matter of substantiative jurisdiction, but

rather a procedural defect that the [plaintiff] waived”). As

Plaintiff did not file a motion to remand the case within 30

days after the notice of removal, as required by 28 U.S.C.

sec. 1447 (c). Plaintiff waived any objection to the

removal of the action.

Plaintiff further argues, based on vague references to

fraud on the court, that the court's prior orders granting

9a.

summary judgment to various defendants should be

vacated. The court granted summary judgment to: (1)

Hertz Claims Management on February 5, 2003; (2) Los

Angeles County Metropolitan Transit Authority on April

29, 2003; (3) Presidium iInc., Cambridge Integated

Services Group, Inc and AON Corporation on May 21,

2003; and (4) Travelers indemnity Company, Travelers

Indemnity Company of Illinois, and Constitution States

Service Company on May 28, 2003. Pursuant to Federal

Rule of Civil Procedure 60 ( b ),, a motion for relief from

from a final judgment or order based upon fraud must be

made within a reasonable time. but not more than one

year after judgment or order was entered. Fed. RI Civ P.

60 (b) Plaintiff's instant motion wa filed more than one

and a half years after the summary judgement orders

were entered, and is therefore time barred.

1. This action was originally filed by Plaintiffs Baldwin Hills

Medical Group Corporation, Delaney E. Smith Jr.,M.D.,

and Stephanie Smith (collectively, Plaintiffs”).

Accordingly, the court DENIES Plaintiffs Motion to

Vacate Dismissal and Remand Original Complaint.

Plaintiff is reminded that a person “who multiplies the

proceeding in any case unrreasonably and vexatiously

may be required by the court to satisfy personally the

excess costs, expenses, and attorneys fees reasonably

incurred because of such conduct. 28 U.S.C. sec. 1927.

While the court declines, in it's discretion, to award

sanctions for the instant motion, in the future, any

similarly frivolous motions will be subject to sanctions.

10a.

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FILED AUG 04 2006

No. 05-55370

D.C. No, CV-00-05986-NM

MEMORANDUM*

BALDWIN HILLS MEDICAL GROUP, a

California Medical Corporation;

STEPHANIE SMITH, an individual,

Plaintiffs, and }

DELANEY E. SMITH JR.,M.D.

Plaintiff-Appellant, v.

LOS ANGELES COUNTY METROPOLITAN

TRANSPORTA-TION AUTHORITY et. al.

defendant/appelle

and

TRAVELERS INDEMNITY COMPANY;

TRAVELERS INDEMNITY COMPANY OF ILLINOIS;

CONSTITUTION STATE SERVICE CO; AFFORDABLE

MEDICAL NETWORK; FIRST HEALTH,

defendants,

Appeal from the United States District Court

for the Central District of Califonia

Nora M. Manella, District Judge, Presiding

Submitted April 6, 2006**

Before:

FARRIS, BOOCHEVER, and LEAVY, Circuit Judges

Delaney E. Smith Jr.,M,D.: (hereinafter “Smith") appeals

pro se the district court’s judgment in favor of defendant-

appellee Los Angeles County Metropolitan Transit

Authority (“MTA”). We have jurisdiction pursuant to 28

U.S.C. sec. 1291 and we affirm.

The parties are familiar with the procedural history.

Smith first argues that the district court lacked jurisdiction

because his claims arise under California workers

compensation law, and therefore, 28 U.S.C. 1445 (c) 1

bars removal to federal court. We disagree.

Smith's complaint alleged violations of 42 U.S.C. sec.

1983 and 1985. Therefore, the district court had

jurisdiction pursuant to 28 U.S.C. sec. 1331. (“The district

** This case unanimously finds this case suitable for

decision without oral argument. See Fed. R. App. P. 34

(a)(2).

1. U.S.C. sec. 1445 (c) “ A civil action in any State court

arising under the workmen's compensation laws of such

State may not be removed to any district court of the

United States”.

12a.

courts shall have original jurisdiction of all civil actions

arising under the Constitution, laws, or treaties of the

United States”). Removal was available because the

district court had original jurisdiction to the claim under

federal law. Removal was available because the district

court had original jurisdiction to decide the claim arising

under federal law. 28 U.S.C. sec. 1441 (b). Assuming,

only for the purpose of argument, that Smith’s claims are

ones “arising under” California Workers Compensation

law, Smith filed an amended complaint in federal court. In

these circumstances, Smith's claims may be properly as

having been initiated in federal court. Vasquez v. North

County Transit Dist. 292 F. 3d 1049, 1061 ( 9" Cir. 2002)

Moreover, Smith failed to timely object to removal and

thus waived any objection on that basis. Id. at 1062

(“Even if sec. 1445 (c) otherwise applies here, it's bar

against removal of workers’ compensation claims is

nonjurisdictional and may be waived.”)

Smith argues that the district court erred in granting

summary judgment to MTA. The district court determined

that Smith failed to establish a prima facie case of racial

discrimination, therefore the issue is waived. See

Mendoza v. Block 27 F. 3d 1357, 1363 (9" Cir. 1994)

(stating that failure to raise an issue in an opening brief

results in waiver of the issue on appeal). Our review of

the record leads us to conclude that the district court did

not improperly weigh the evidence, determine credibility,

or apply erroneous legal standards in granting motion for

summary judgment.

Smith argues that the district court lacked authority to

compel arbitration with one defendant. The record

13a.

discloses that several of Smith's contracts contained

clauses requiring arbitration of “any problems or

disputes” arising under the contracts. We have construed

such clauses as extending to every dispute with a

significant relationship to the agreement. “ The existence

of an agreement to arbitrate establishes a_ federal

presumption in favor of arbitration and “any doubts

concerning the scope of arbitrable issues should be

resolved in favor of arbitration." Moses H. Cone

Memorial Hosp. v. Mercury Construction Corp., 460 U.S.

1, 24-25 (1983). Accordingly the district court did not err

in ordering arbitration.

We reject Smith’s contention that the district court

erred in denying the motion to recuse Judge Nora

Manella for personal bias or prejudice, pursuant to 28

U.S.C. sec. 144. We review the denial of a motion for

recusal for an abuse of discretion. See United States v.

Scholl, 166 F. 3d 964, 977 (9" Cir. 1999). Judge Ronald

Lew determined that the statements of the mediator were

insufficient to ascribe a political leaning to Judge Manella

and were not, in any event, directed at Smith individually.

See United States v. Carignan, 600 F. 2d 762, 764 (9"

Cir. 1979). There was no abuse of discretion in the denial

of the motion for recusal.

Finally, we reject Smith’s contention that the judgment

should be vacated based upon fraud upon the court,

Fraud upon the court “must involve an unconscionable

plan or scheme which is designed to improperly influence

the court in it's decision.” Pumphrey v. K.W. Thompson

Tool Co., 62 F. 3d 1128, 1131 (9" Cir. 1995)(internal cita-

tion omitted). The record does not support Smith's

14a.

contention of fraud or misconduct that harmded the

integrity of the judicial process or resulted in a

miscarriage of justice. The district court did not abuse its

discretion in denying Smith’s motion. We deny Smith’s

motions for judicial notice and we deny the motion to

notice newly discovered evidence, No further motions for

judicial notice or sanctions in this case will. be considered

by this court without the permission of the Appellate

Commissioner.

AFFIRMED.

15a.

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 05-55370

D.C. No CV-00-05986-NM

Central District of California

Los Angeles,

Baldwin Hills Medical Group Corp., a Califorjnia

Medical Corporation; Stephanie Smith, an indivi-

dual

Plaintiffs, ORDER

and tiled September 15, 2006

Delaney E. Smith Jr.,M.D.

Plaintiff — Appellant

V.

Los Angeles County Metropolitan Transportation

Authority; Hertz Claim Management Corporation;

Presidium Inc; Cambrdige, e/s/a Cambridge Inte-

grated Services Group Inc; AON Corporation,

Defendants ~ Appellees

and Travelers Indemnity Company;

Travelers Indemnity Company of Illinois;

Constitution State Service Co; Affordable

Medical Network; First Health,

Defendants,

Before:FARRIS, BOOCHEVER, and LEAVY, Circuit

Judges.

The panel has voted to deny appellant's petition for

panel rehearing and recommends denial of the petition

for rehearing en banc.

The full court has been advised of the petition for

rehearing en banc and no active judge has requested a

vote on whether to rehear the matter en banc. Fed. R.

App. P 35.

The petition for panel rehearing and petition for

rehearing en banc are DENIED.

17a.