Petitioners Brief — Kirkland v. Wayne County, Michigan (No. 09-114)

Supreme Court brief2009

Ask Donna

What actually matters in this document.

Text

mee” ee #

Supreme Court, U::

FILED i

\\ <0 O9- 114 MAY 21 2999

In The

Supreme Court of the Anited States

OTIS KIRKLAND, JR., CAROL KIRKLAND

AND VIVIAN KIRKLAND,

Petitioners,

COUNTY OF WAYNE, ETAL.,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Sixth Circuit

PETITION FOR WRIT OF CERTIORARI

Otis KIRKLAND, JR., pro se

CAROL KIRKLAND, pro se

VIVIAN KIRKLAND, pro se

25325 SHIAWASSEE COURT

STE. 203

SOUTHFIELD, MI 48033

(248) 746-0007

Becker Gallagher - Cincinnati, OH - Washington, D.C. - 800.890.500]

QUESTIONS PRESENTED FOR REVIEW

WHETHER THE LOWER COURT ERRED WHEN

{tT DISMISSED THE CORPORATION, AND ITS

MAJORITY OWNER’S NOTICE OF APPEAL

BECAUSE IT HAD BEEN SIGNED AND FILED

BY A NON-ATTORNEY CORPORATE

EMPLOYEE WHO WAS AUTHORIZED TO ACT

ON BEHALF OF THE CORPORATION AND ITS

OWNERS?

WHETHER THE CIRCUMSTANCES

ATTENDANT TO THE FILING OF THE NOTICE

OF APPEAL CONSTITUTE “EXCUSABLE

NEGLECT” OR GOOD CAUSE SUCH AS TO

PERMIT LATE FILING?

PARTIES TO THE PROCEEDING

The individual Petitioners, in this consolidated

proceeding, are members of the Kirkland Family. Otis

and Carol are husband and wife, and Vivian is their

daughter-in-law. Audio Visual Equipment and

Supplies, a small closely held Michigan Corporation, is

wholly owned by Vivian and Carol Kirkland, and

managed by Otis Kirkland, who generally performs

any tasks necessary to promote corporate interest.

Respondents are The County of Wayne, Edward H.

McNamara, Brendan Dunleavy, Rosalyn Gibson,

Herman G. Petzold, Ill, Clarence McNeal, in his

individual and official capacity of Purchasing Director,

Conrad Renteria, Andrew Soves, Victoria C. Innis,

John Snider, Linda Pearson, Ear] D. Ollila, and Lynn

Lesnick, Jointly and Severally.

RULE 29.6 STATEMENT

There is no parent or publicly held company owning

10% or more of the stock of Audio Visua] Equipment

and Supplies.

ili

TABLE OF CONTENTS

Questions Presented for Review ................ i

Parties to the Proceeding ..... 1.05.60. ssaenes i

Mule 20.6 SURves kw ce ccc cceceeewens il

Tee Or Ce gs ok ka eho eee ill

Temes OF Rie 6 os sh sk a eee Vv

CI TOW og ss co wee ee eee ey tae 1

Penne 3. oe we re es eee ee eee ]

Statensentor Ge Ce. ook oe ne cece ee }

I. Background Facts and Issues ........... 1

II. Decision of the District Court ........... 6

III. Decision of the Sixth Circuit .......... 6

Reasons for Granting the Petition ............. |

J. The Circuits Are Split

A. There Is an Acknowledged Split among

the First, Fifth, Sixth, Ninth, and Tenth

Circuit Courts of Appeal as to Whether a

Corporate Officer, Who Is Not an

Attorney, May Sign and File a Notice of

Appeal on Behalf of the Corporation. . ..

B. The Discharge of Petitioner's Attorney

Immediately after Summary Judgment

Was Granted Against Them, Coupled

with Their Inability to Locate

Replacement Counsel to Assist with Post

Judgment Proceedings, and Their

Unfamiliarity with the Proper

Procedures or Methods for Perfecting a

Notice of Appeal, Constituted Excusable

Neglect or Good Cause to Permit Late

a eg | rr 16

II. This Case Is an Excellent Vehicle to Resolve

or Clarify an Important Question of Federal

re ee rca Pan 10 ag pening DE ee LN) 19

i EI DEL AE ies FI PR PAE POS 20

Appendix

Appendix A: Sixth Circuit Order dismissing two

prmitetes (Oct. 26, SOUS) «wc ce ee ee es la

Appendix B: Sixth Circuit Order denying

reconsideration (Dec, 23, 2008) ............ 4a

Appendix C: Affidavit of Brendan G. Dunleavy

Ce es ee oo oe Os ee 7a

Appendix D: Affidavit of Rosalyn Gibson dated

ee ks oss oe ee eee 10a

Appendix E: Check and United States District

Court Receipt Dated Feb. 7, 2008 ......... l4a

TABLE OF AUTHORITIES

Cases

Becker v Montgomery,

§32 U.S. 757, 121 S.Ct 1801 (2001) ........ 16

Commercial & R.R. Bank of Vicksburg v Slocomb,

Richards & Co.,

38 U.S. (14 Pet.) 60 (1640)... we ee cee. 17

Edlund v Los Altos Builders,

106 Cal. App. 2d 350, 235 P.2d 28 (1951) .... 138

Ginger v Cohn,

426 F238 1366 (6" Cir 1970) .............. 15

Harrison v Wahatoyas, LLC,

953 F.2a 662 (10" Cir. 2001) ........ 11, 12, 15

Hernandez Rivera v INS,

G50 7.96 1962" Cir. 2065) ...... 2... .5.. 12

In re Bigelow,

179 F.3d 1164 (9" Cir. 1999) .. 10,11,12,15, 16

In Re Cosmopolitan Aviation Corp.,

763 ¥.24 G07 (2 Cir. 1085) ............... 17

Instituto de Educacion Universal Corp v U.S. Dept.

of Educ.,

209 F.3d 18 (1* Cir eer et 10, i5

K.M.A., Inc. v Gen. Motors Acceptance Corp. (In re

K.M.A.),

652 F.2d 398 (5 Cir. 1981) ......... 10, 11, 15

Mennen Co. v Gillette Co.,

Tie Base Dee te Gat 1968) ..... 2c cece

Osborn v Barik of the U.S.,

22 U.S. (9 Wheat.) 738 (1824)

Pioneer Inv. Servs. Co. v Brunswick Assocs.

P’ship,

507 U.S. 380, 113 S.Ct. 1489 (1993) .....

Rowland v Cal. Men’s Colony,

506 U.S. 194, 113 S. Ct. 716 (1993) .....

United States v 919 Acres of Land,

416 F.2d 1244 (6"™ Cir 1969)

Constitution

U.S. Const. amend. XIV

Statutes

28 U.S.C. § 1254(1)

RS Ee ee

42 U.S.C. § 1981(a)

42 U.S.C. § 1953

42 U.S.C. § 1985

Rules

Fed. R. App.

|b ES ee area ee

P. 3(b)(1) .

a ee ee

P. 3(c)(3) .

P. 3(c)(4)

P. 4

Ltd.

17,18

Fed. R. App. P. 4(a)

Fed. R. Civ. P. 7

Fed. R. Civ. P. 11a)

Fed. R. Civ. P. 60(b)

Fed. R. Civ. P. 73(a) (former)

Other Authorities

“What Constitutes “Excusable Neglect” Which Will

Permit Federal District Court to Extend Time for

Filing Notice of Appeal from Civil Judgment

under Rule 4(a) of Federal Rules of Appellate

Procedure and under Former Rule 73(a) of

Federal Rules of Civil Procedure, 26 ALR Fed

569

OPINIONS BELOW

On October 4, 2008, in an unreported order, the

Court of Appeals dismissed the appeal by Vivian

Kirkland and Audio Visual Equipment. (Apx. A, pp.

la-3a.)

On December 23, 2008, in an unreported order, the

Court of Appeals denied a motion for reconsideration.

(Apx. B, pp. 4a-6a.)

JURISDICTION

The Order of the Court of Appeals dismissing the

appeal as to two of the Plaintiffs, i.e., Vivian Kirkland

and Audio Visual Equipment was entered on

December 23, 2008. The Notice of Appeal was filed on

February 7, 2008. This Court has jurisdiction pursuant

to 28 U.S.C. $ 1254(1). An application to extend the

time to file a petition for a writ of certiorari was

granted extending the time to file until May 22, 2009.

STATEMENT OF THE CASE

I. BACKGROUND FACTS AND ISSUES

The Parties and Their Relationship

Audio Visual Equipment & Supplies, Inc. (“AVE”)

a Michigan close corporation, which is owned and

operated by the Kirkland family, is functionally the

alter ego of the Kirkland Family. AVE is a supplier of

goods to customers, including the County of Wayne.

[District Court Docket Entry No. 1, 797 5-6]. AVE had

been a supplier of goods to Wayne County for

approximately eight years. /District Court Docket

Entry No. 1, J 11]. AVE is owned by Carol Kirkland

and Vivian Kirkland. [District Court Docket Entry No.

1,997 7,12,14/]. Otis Kirkland is employed by AVE, and

performs many functions for AVE. [Docket Entry No.

1, 7 13]. AVE’s owners testified that Otis Kirkland,

Carol’s husband and Vivian’s father-in-law, is the

individual most knowledgeable of the facts underlying

Petitioners’ allegations in this lawsuit, and that he is

authorized to speak and testify on behalf of AVE.

(Vivian Kirkland Dep. TR., p. 91; Carol Kirkland Dep.

TR., pp. 80-81). He was also specifically authorized to

sign and file the Notice of Appeal at issue herein, on

behalf of the closely held family owned corporation,

and on behalf of Vivian, his daughter-in-law and

majority owner. Carol, who was with Otis when he

completed and filed the Notice of Appeal, paid the

filing fee with a personal check. (See Apx. E, p. 14a.)

This lawsuit arises out of Petitioners’ allegations

that the named Respondents unlawfully deprived

Petitioners of public contracts that Petitioners bid on,

denied Petitioners the opportunity to bid on other

contracts, and unlawfully initiated debarment

proceedings against them. /Docket Entry No.1,

Introduction pp. 2-4]. Petitioners were being punished,

and made an example of, for declining to engage in a

“pay to play” contracting environment which

Petitioners allege existed under the then incumbent

county executive.

The Instant Lawsuit

On February 28, 2006, Petitioners filed their

Complaint against Wayne County and ten current and

former County employees and elected officials, in

which Petitioners alleged, inter alia, that Respondents

are liable to them under (1) 42 U.S.C. $ 1983 for an

unlawful conspiracy to deprive Petitioners of contracts

based on racial animosity (Count I - Complaint, 77 75-

76); (2) 42 U.S.C. § 1981 for discriminating against

Petitioners based on their race; to impair Otis

Kirkland’s employment contract with AVE (Count ITI -

Complaint, 7 81,85); (3) 42 U.S.C. $ 1983 for violating

Petitioners’ due process and equal protection rights

guaranteed under the U.S. Constitution by depriving

them of their property interest in their contracts with

Wayne County (Count III - Complaint, 7 87; (4) for

depriving them of the equal protection of the laws

guaranteed to them under the U.S. Constitution

(Count V-Complaint, 99 98-102); (5) for common-law

invasion of privacy (Count VI - Complaint, 79 108-

111); (6) for violating their due process rights under

the United States and Michigan constitutions; and (7)

for violating their substantive due process rights under

the United States Constitution.

This case has a state court antecedent, and was

also an administrative debarment proceeding in

Wayne County, which still remains open after 8 years.

Mistreatment at the hands of the county and its

officials has been contested by the Kirkland family for

over 8 years in administrative proceedings, and in

Michigan courts.

The gravamen of Petitioners Complaint ts that

Respondents, while acting under color of law conferred

by their status as officials, agents, or employees of

Wayne County, individually and in concert, acted so as

to impair Petitioners’ ability to make and enforce

contracts in violation of 42 U.S.C. § 1981, to impede,

deny, or prevent AVE from doing business with Wayne

County in violation of 42 U.S.C. $$ 1981], 1983, and

1985, to prevent Otis Kirkland from making and

enforcing contracts with Wayne County on behalf of

AVE, in violation of 42 U.S.C. $$ 1981 and 1985.

Petitioners contend that Respondents have misused

their power, and authority, which they hold under

color of state law, in an arbitrary, capricious, malicious

and unlawful manner, to violate’ Petitioners’

constitutional rights. The acts complained of herein

were done by Respondents, intentionally and with

malice, to cause the Kirklands’ emotional and financial

distress.

Respondents have also. interfered with

advantageous contractual relationships enjoyed by

AVE. Respondents colluded to prevent Petitioners

from earning a living, insofar as revenues earned from

doing business with Wayne County, pursuant to

servicing competitively awarded contracts for various

goods, contributed to their livelihood. The activities

complained of violate Petitioners’ liberty interest,

protected by the 14” Amendment, in their right to earn

a living.

Respondents have refused, without good reason or

legal grounds, to deal honestly or fairly with AVE or

the Kirklands, have breached existing contracts, and

have gone to great lengths to avoid informing AVE of

contracts being let for bids. In addition, Respondents

have refused to consider bids submitted by AVE, or in

the rare (of late) case where a bid was awarded, the

county, through pretext, ruse, dissembling, or other

untruthful or devious means, has prevented AVE from

performing under existing contracts, and reaping any

profits to be made by completion.

The Respondents misused their authority, as

county oificials, to commence baseless debarment

proceedings, which they never intended to carry to

final disposition, and which remain open to date.

According to remarks by Mr. Petzold, the assistant

Wayne County Corporation counsel, who was point

man on the initial debarment proceedings against

AVE, they were filed primarily in order to drain

Petitioners’ financial resources by forcing them to

incur ruinous legal expenses in order to defend against

the spurious proceedings. The Affidavit by Mr.

Dunleavy, the Wayne County Auditor General,

confirms that the impetus to go after AVE came

directly from Mr. McNamara. The affidavit of Rosalind

Gibson, Deputy Auditor General, confirms that she

initiated an investigation of AVE pursuant to orders

from Mr. Dunleavy. See Apx. D, pp. 10a-13a. Rather

than honor existing contracts, the Respondents refused

to place orders, or accept deliveries, or returned goods

without a valid basis and in violation of procedures or

timetables previously agreed to or tollowed by the

parties. Such actions, which were taken under color of

law but for improper purposes, violated Petitioners

rights under 42 U.S.C. $ 1981(a). Respondents have

concocted spurious reasons for not honoring contracts,

or for rejecting goods from AVE. Respondents, have

acted intentionally in order to vex, harass, annoy,

distract, defame, harm financially, or for other

improper motives wholly unrelated to any failure to

perform on Plaintiffs part, as to any contract for goods

or services that AVE ever had with Wayne County

The wrongful actions have violated Plaintiffs civil

rights, cost Petitioners a great deal of money, and has

caused deep mental anguish to the Kirkland family,

which has now lasted for 8 years, with no end ia sight.

On November 27, 2007, the district court issued its

order granting Respondents Summary Judgment as to

all of Petitioners’ claims. Petitioners thereafter

dismissed their attorney Mr. Whitfield, after which the

District Court permitted counsel to withdraw.

Petitioners were thereafter unrepresented by counsel,

and were without guidance. There was a very tight

deadline to file their Claim of Appeal. There is no

indication of record that they were informed by

withdrawing counsel, or the Court, of the tight

deadlines, nor of the manner in which to file a Notice

of Appeal.

Il. DECISION OF THE DISTRICT COURT

The District Court granted Summary Judgment as

to all of Petitioners claims on November 27, 2007. On

December 7, 2007, Petitioners filed a Motion for

Reconsideration that was denied on January 18, 2008.

A Motion for Recusal was denied on the ground that

the Court lacked jurisdiction over it and also over any

Rule 60(b) motions that Petitioners might file.

Ili. DECISION OF THE SIXTH CIRCUIT

On October 24, 2008, the Court of Appeals

dismissed the appeal “as to Vivian Kirkland and

AVES, which was taken from the lower Court order of

January 18, 2008.” See Apx. A., pp. la-3a. Said order

denied Petitioners Motion for Reconsideration of the

district court’s order of November 27, 2007 which

granted summary judgment on four motions filed by

Defendant, while a motion for leave to amend their

Complaint was pending. The Sixth Circuit, however

retained jurisdiction over the appeal of Otis and Carol

Kirkland, while dismissing the Notice as to Vivian and

AVE on the ground of untimeliness, and because Otis,

who is not an attorney, could not file a Notice of

Appeal on behalf on AVE.

REASONS FOR GRANTING THE PETITION

Appellants, the Kirkland Family, respectfully

submit that there are sound reasons why this Court

should grant its Petition for Writ of Certiorari and

review the Sixth Circuit’s decision, the effect of which

was to prevent the family owned business which has

suffered greatly due to Respondents’ wrongful behavior

committed under color of law over the past 8 years,

from pursuing its claims before the federal Court.

Similarly, the decision also prevented Vivian Kirkland,

the majority owner, from pressing her claim against

the county, and other Respondents.

First, there is a conflict between the circuits on the

question whether as occurred herein, a Notice of

Appeal signed and filed by a corporate officer, or as in

our case, employee, who is not an attorney, is invalid?

The First, Fifth, Ninth and Tenth hold that the notice

is valid, and confers jurisdiction. The Sixth Circuit

takes a contrary view. This Court has not addressed

the precise issue. As the Sixth Circuit and other

Circuits have recognized, FRAP Rules 3 and 4 tolerate

a “common sense approach to timely filing and do not

insist upon literal compliance in cases in which it

cannot be fairly exacted,” and there is no prejudice to

opposing parties.’ Considerations of fairness dictate

‘What Constitutes “Excusable Neglect” Which Will Permit Federal

District Court to Extend Time for Filing Notice of Appeal from

Civil Judgment under Rule 4(a) of Federal Rules of Appellate

that a strict literal compliance is not always required,

and a commonsense approach permitting filing is

required, when a well intended, good faith, and

unequivocal, effort to comply has been made. Where

there is no prejudice as to the Appellee, then the

Notice of Appeal should not be dismissed. This is

particularly so when excusable neglect prevented the

timely filing.

Secondly, after having been dismissed, Petitioners’

attorney was discharged by the Court after Judgment

was entered but before a Notice of Appeal was filed. In

the very brief window, Petitioners were without

counsel or advice as to how to proceed in order to

perfect their appeal. Cases from other circuits have

held that the failure timely to file a Notice of Appeal

under such circumstances falls within the “excusable

neglect” exception, and can be cured retroactively.

I. THE CIRCUITS ARE SPLIT

A. There Is an Acknowledged Split among the

First, Fifth, Sixth, Ninth and Tenth Circuit

Courts of Appeal as to Whether a

Corporate Officer Who Is Not an Attorney

May Sign and File a Notice of Appeal on

Behalf of the Corporation.

The Notice of Appeal which was signed and filed by

a corporate employee in the presence of Carol

Kirkland, his wife, one of its co-owners, is valid despite

not having been signed and filed by counsel, and

Procedure and under Former Rule 73(a) of Federal Rules of Civil

Procedure, 26 ALR Fed 569

therefore conferred jurisdiction in the court of appeals.

Carol paid the filing fee with a personal check. See

Apx. E., p. 14a. The Notice of Appeal herein was filed

by Mr. Kirkland on behalf of AVES, his daughter-in-

law Vivian (majority owner of the business), his wife

Carol (the minority owner) and himself. Said owners

of the closely held corporation, Plaintiffs throughout

the life of the case, had designated Otis Kirkland as

spokesperson or the best qualified to act on behalf of

AVE. The County has always been clear on this point.

See, V. Kirkland Dep Tr., p. 91; C. Kirkland Dep Tr.,

pp. 80-81 After the district court granted summary

judgment against the Kirklands and AVES, they

dismissed their attorney, and so were unrepresented

during the time in which their claim of appeal had to

be filed. Unable to locate appellate counsel before the

deadline to file an appeal had passed, with authority

granted, Mr. Kirkland filed a Notice of Appeal on

behalf of all parties, including AVES. To all

appearances, the notice was properly filed and treated

accordingly by the clerk’s office in Cincinnati.

Respondents challenged the notice as to AVES on

the ground that it was defective because Mr. Kirkland

was not a lawyer and could not represent AVES. The

argument is wholly without merit because filing a pro

se Notice of Appeal for a corporation, with authority

granted by its officers, is not practicing law, or

representing a corporation in Federal Court Mr.

Kirkland is not a lawyer, and did not purport to

represent AVES in Federal Court. Accompanied by his

wife, the minority owner, he merely filed a Notice of

Appeal on behalf of AVES and his daughter-in-law,

who was majority owner and who had granted him

authority to file on her behalf and also AVES’.

The precise question, i.e., whether a corporation’s

Notice of Appeal was invalid because it was signed and

filed by a corporate officer or, as herein, employee (who

was not an attorney) has been decided in Petitioners’

favor in at least four other circuits. The Ninth Circuit

Court of Appeals reasoned In re Bigelow, 179 F.3d

1164 (9" Cir. 1999) as follows:

The law is clear that a corporation can be

represented only by a licensed attorney.

[citation omitted] However, nothing in. . . the

Federal Rules of Appellate procedure requires

dismissal of an appeal when a corporate officer

signs the Notice of Appeal for the corporation. A

Notice of Appeal is just that - - a notice. It is not

a motion or a pleading. See, Rule 7, Federal

Rules of Civil Procedure. We fail to see any

compelling reason to refuse to recognize a

corporation’s Notice of Appeal, signed and filed

by a corporate officer, so long as a lawyer

promptly thereafter enters a formal appearance

on behalf of the corporation and undertakes the

representation. K.M.A., Inc. v General Motors

Acceptance Corp., 652 F.2d 398, 399 (5 Cir.

1981).

(emphasis added).

The First Circuit, which subscribes to a similar

view reasoned as follows in Instituto de Educacion

Universal Corp vu U.S. Dept. of Education, 209 F.3d 18,

22 (1* Cir 2000):

It is a close question as to whether a Notice of

Appeal signed by a corporate officer has force

with respect to the corporation. On reflection,

however, we answer that question affirmatively.

Corporations, unlike natural persons, can act

only through agents. Moreover, appeal pertods

are notoriously brief and .. . a corporate litigant

whose counsel dies, becomes disabled, or

withdraws at an inopportune time would be

powerless to perfect an appeal. While it is true

that a non-lawyer may not represent a

corporation in ongoing proceedings, see In re Las

Colinas Dev. Corp., 585 F.2d 7, 13 (1* Cir.

1978), we believe that a valid distinction can be

drawn between ongoing legal representation and

the essentially ministerial action involved in the

filing of a Notice of Appeal . Thus, we hold that

a corporate officer may sign and file a Notice of

Appeal on behalf of the corporation, as long as

the corporation then promptly retains counsel to

take up the cudgels and prosecute the appeal.

Accord Bigelow vu Brady, 179 F.3d 1164, 1165-66

(9 Cir. 1999) (“We fail to see any compelling

reason to refuse to recognize a corporation’s

Notice of Appeal, signed and filed by a corporate

officer, so long as a lawyer promptly thereafter

enters a formal appearance on behalf of the

corporation and undertakes the representation. ”)

K.M.A., Inc v GMAC, 652 F.2d 398, 399 (5" Cir

1981) (similar). That condition is satisfied here.

The law in the Tenth Circuit is in accord with that

in the First and Ninth. See Harrison v Wahatoyas,

LLC, 253 F.3d 552, 557 (10" Cir. 2001):

We find the reasoning of these cases persuasive

and thus fail to see any compelling reason to

refuse to recognize a corporation’s Notice of

Appeal , signed and filed by a corporate officer,

so long as a lawyer promptly thereafter entered

a formal appearance on behalf of the corporation

and undertakes the representation.

Bigelow, 179 F.3d at 1165; accord, Harrison 253 F.3d

at 557. Mr. Kirkland, a corporate employee, who was

authorized to do so, signed and filed a Notice of Appeal

on behalf of AVES, and all other members of his family

on November 7, 2008. The clerk’s office docketed the

appeal and advised Mr. Kirkland to have counsel, as

soon as one was retained, to contact the court

regarding the appeal. See Court of Appeals Docket

Entry dated March 4, 2008. On March 17, 2008, Mr.

Kirkland complied with the clerk’s instructions to

provide the court with the name of any attorney who

would be representing the Appellants.* Mr. Nutt, an

attorney, filed an Appearance on behalf of all

Petitioners shortly thereafter.® As far as Petitioners

knew, and without any indication from the clerk to the

contrary, they had done everything necessary to file an

appeal. Indeed, the clerk’s instructions were consistent

with the law in the Ist, 5th, 9th and 10th Circuits.

* Where omission occurs because party has been misled by action

of court or one of its officers, such neglect may be excusable. See,

Hernandez-Rivera v Immigration & Naturalization Service, 630

F.2d 1352 (9 Cir. 1985); Mennen Co. v Gillette Co., 719 F.2d 568

(2¢ Cir 1983).

‘In a very brief period of representation, i.e., 30 days and with

precious little to show for all of the time billed, counsel has billed

petitioners the sum of $ 3,000 exclusive of any work on this

petition, which we have been forced to tackle on our own because

we simply cannot afford to pay the sort of fees we are being billed.

Given more time, we will locate affordable Appellate counsel to

handle our claims.

Mr. Whitfield could not have signed the notice

because he had been dismissed by Petitioners and

discharged by the Court. Therefore he lacked authority

to act on Petitioners’ behalf. Edlund v Los Altos

Builders, 106 Cal. App. 2d 350, 235 P.2d 28 (1951)

Moreover, the Notice of Appeal form that Mr. Kirkland

completed, signed, and filed on 2/7/08 indicates that he

did so in a representative capacity as to AVES because

the business address, telephone number and email

address are set forth on the Notice. Also, the form

itself is not a model of clarity. Where it says name of

parties, the addition of a simple phrase, “or parties”

would put pro se litigants on notice, perhaps, that

other Petitioners should also be listed. And there is

only room for one signature.

FRAP 3(b)(1) and (c)(2)-(3) and in particular (4)

evinces a strong policy that favors preservation of the

right to Appeal.

(4) An appeal must not be dismissed for

informality of form or title of the Notice of

Appeal , or for failure to name a party whose

intent to appeal ts otherwise clear from the

Notice.

Federal Rule of Civ P 11(a) further demonstrates

the policy in favor of matters being heard on their

merits because, while it requires papers filed with the

court to be signed by an authorized person, it cannot

strike an unsigned paper unless the party, after

having the omission called to his/her attention, did not

promptly correct it. The 1993 Amendments to

subdivision (a) makes clear that the policy is strongly

favored. “Unsigned papers are to be received by the

Clerk .. .”, but may be “stricken if the omission of the

signature is not corrected promptly after being called to

the attention of the... pro se litigant. Correction can be

made by signing the paper on file or by submitting a

duplicate that contains the signature.” No one ever

called any omission to Petitioners’ attention as Rule

11(a).

Thus, the rules appear to impose upon the Clerk a

clear duty to call any omitted signature, where one is

necessary, to the attention of the pro se litigant. And

this is where papers noticing an appeal must be

signed. There is no requirement in the Federal Rules

of Appellate Procedure that all Petitioners sign a

Notice of Appeal. Under Rule 3(c)(2), the policy of

leniency in favor of preservation of the right of appeal

is once more reflected because it recognizes that a

spouse may file on behalf of his wife and family. In this

case, Otis, Vivian’s father-in-law, who was also

authorized to file on her behalf as well as that of the

Corporation, signed and filed the notice. Since the

cases suggest that a person may be authorized to file

on behalf of another, and that notice is valid absent

indications to the contrary, Mr. Kirkland’s signature

was sufficient as to all Plaintiffs. Sub-paragraph (4)

prohibits dismissal “.. . for failure to name a party

whose intent to appeal is otherwise clear from the

notice.” Vivian has not suggested that she objects to

her father-in-law having filed a Notice on her behalf,

and that of the corporation in which she is the

majority sharcholder, and her mother in law, Carol is

the sole minority shareholder.

Mr. Kirkland was authorized to sign and file a

notice on his behalf, and that of his spouse, Carol, by

operation of FRAP 3(c)(2), and on behalf of Vivian and

AVES by express verbal authority. Accordingly, no

lawful basis existed to dismiss the Notice of Appeal as

to the corporation and Vivian. Yet, that is exactly what

the Sixth Circuit did in its order appealed from herein.

With all due respect to the Clerk, Petitioners

suggest that he conflated the filing of a Notice of

Appeal with actually representing the corporation in

federal court, which is clearly proscribed in the Sixth

Circuit. See, e.g., U.S. v 919 Acres of Land, 416 F.2d

1244 (6 Cir 1969) (a corporation cannot appear

otherwise than through an attorney); Ginger v Cohn,

426 F.2d 1385, 1386 (6 Cir 1970). To the extent the

dismissal states controlling law in the 6™ Circuit, it is

in direct conflict with that of the First. See, e.g.,

Instituto de Educacion Universal Corp v U.S. Dept of

Education, 209 F.3d 18 (“We hold that a corporate

officer may sign and file a Notice of Appeal on behalf of

the corporation.”) p. 22; the Ninth, In Re Bigelow, 179

¥ 3d 1164 (9 Cir 1999), which holds that a Notice of

Appeal is not a pleading nor a motion, and there is no

basis for refusing to recognize notice when counsel for

corporation entered his appearance of record before

any briefs, motions, or responses were due. A

corporation’s Notice of Appeal signed and filed by a

corporate officer, is valid even though it ts not signed

and filed by counsel; and the Tenth, Harrison v

Wakatoyas, LLC, 253 F.2d 552; the Fifth, Jn re K.M.A.,

Inc., 652 F.2d 398 (5 Cir 1981) (“it is not clear,

however, whether the filing of the corporation’s Notice

of Appeal by someone who is not an attorney tis

sufficient to divest this Court of its jurisdiction to

consider this appeal”).

Accordingly, the Notice of Appeal signed and filed

by Mr. Kirkland on behalf of all Petitioners with their

express consent was valid. Therefore jurisdiction over

the appeal as to AVES lies under the holding in

Bigelow v Brady (In re Bigelow), 179 F.3d 1164, 1165

(9"* Cir 1999) (a Notice of Appeal is not a pleading)

citing Fed. R. Civ. P. 7). See also, Becker v

Montgomery, 532 U.S. 757, 121 S.Ct 1801 (2001)

(“(Umperfections tn noticing an appeal should not be

fatal where no genuine doubt exists about who is

appealing, from what judgment, to which appellate

court.”)

B. The Discharge of Petitioner’s Attorney

Immediately after Summary Judgment

Was Granted Against Them, Coupled with

Their Inability to Locate Replacement

Counsel to Assist with Post Judgment

Proceedings, and Their Unfamiliarity with

the Proper Procedures or Methods for

Perfecting a Notice of Appeal, Constituted

Excusable Neglect or Good Cause to

Permit Late Filing of the Appeal

If the Notice of Appeal filed by Carol and Otis

Kirkland on behalf of the corporation (copy of cancelled

check and receipt #200 567246 from U.S. District

Court, dated February 2, 2009, see Apx. E, p. 14a) and

his daughter-in-law is deemed invalid, their reliance

upon the actions of the clerk’s office should constitute

excusable neglect and permit a notice with nunc pro

tunc effect to be filed upon remand. Once summary

judgment had been entered, and trial counse!

disinissed, the Kirklands were without representation

After having fought for so long, they were not about to

accept defeat until all possible avenues had been

exhausted. The search for replacement counsel

commenced immediately, but time was running

Fearful lest their right to appeal be lost while

searching for a new lawyer, Petitioners did what they

could, as best they could, to protect their right to

appeal, by filing the Notice of Appeal at issue herein.

Once the notice was filed, the Clerk proceeded as if all

was in order, except that Appellate counsel had to

enter an Appearance. Petitioners relied upon the

cierk’s actions, and followed his instructions to the

letter.* In Pioneer Investment Services Co. v Brunswick

Associates Ltd. Partnership, 507 U.S. 380, 113 S.Ct.

1489 (1993), this Court established a test for

evaluating whether neglect is excusable so as to permit

late filing of a Notice of Appeal . The four factors are:

(1) the danger of prejudice to the non-moving party, (2)

the length of delay and its potential impact on judicial

proceedings, (3) the reason for the delay, including

whether it was within the reasonable control of the

movant, and (4) whether the moving party’s conduct

was in good faith.

If we examine the factors, in light of the facts of our

case, it becomes apparent: (1) there is absolutely no

danger or prejudice to the non-moving party. Given the

‘In Re Cosmopolitan Aviation Corp., 763 F.2d 507 (2° Cir. 1985)

(The excusable neglect standard will generally be satisfied where

a party acting in good faith was entitled to and did rely on actions

of the district court of its officers and consequently misses the Rule

4 deadline. E.z., Mennen Co., 719 F.2d at 571); Rowland |:

California Men’s Colony, 506 U.S. 194, 201-02, 113 S. Ct. 716

(1993) (“It has been the law for the better part of two centuries

that a corporation may appear in federal court only through

licensed counsel.” ); Commercial & R.R. Bank of Vicksburg v

Slocomb, Richards & Co., 39 U.S. (14 Pet.) 60, 65 (1840) (‘JA

Corporation cannot appear but by attorney )! Osborn v Bank

of the United States, 22 U.S. (9 Wheat.) 738, 830 (1824) (“A

corporation, tts true, can appear only by attorney, while a natura!

person may appear fol Airmsel

relationship between the parties and the unceasing

battle that Petitioners have waged against the county

over the past eight years, there was no uncertainty as

to its continuance. Further, since the Notice of Appeal

was effective as to Otis and his wife, Carol, the county

has to defend an appeal. Since the parties are already

before the Court there will be no prejudice if it has to

defend against AVE and Vivian as well on the same

claims, or facts. (2) There was not any delay because

the notice was timely filed. The problem is a technica)

one, i.e., was the notice, while valid as to Otis and

Carol, invalid as to the corporation and Vivian? (3) The

reason for the delay, which was not within the

reasonable control of the Petitioners, is that

Petitioners were misled into believing that their Notice

of Appeal had been perfected by the actions of the

Sixth Circuit Clerk’s office. (4) Petitioners’ conduct was

in good faith. Petitioners have been waging their battle

for a very long time, and fully intend to see it through

to some final disposition on the merits if at all

possible. The pro se Notice of Appeal had one purpose,

i.e., to preserve the right to appeal as to all

stakeholders in the family owned and operated close

corporation. The Petitioners’ reliance upon the Clerk’s

actions was in good faith.

Petitioners meet the Pioneer test and should,

therefore, be permitted to file the Notice of Appeal as

to AVE, and Vivian on a nunc pro tunc basis, if the

Court ultimately concludes that the notice already

filed was invalid as to them.

Il. THIS CASE IS AN EXCELLENT VEHICLE TO

RESOLVE OR CLARIFY AN IMPORTANT

QUESTION OF FEDERAL LAW

The Petitioners are in an uncharted place where

their ability to vindicate their substantial rights to an

appeal are subject to a ruling which has invalidated

the appeal of the family owned and operated

corporation, and its majority shareholder. The Sixth

Circuit ruling is at variance with rulings from at least

four other circuits which, beyond dispute, would

permit Otis, a designated corporate employee, and

non-attorney, to file a Notice of Appeal on behalf of

AVE. What law is to govern? The outcome will vary,

depending upon the circuit. Will varying outcomes on

the same question of law continue to be permitted,

depending upon circuit, to the effect that appeals

which should be handled in a consistent manner, are

not. Rather, the ability of litigants to vindicate their

rights will continue to depend on the circuit in which

they reside. The rights will be subject to vindication in

the First, Fifth, Ninth and Tenth Circuits, which a)!

permit a non-lawyer corporate officer, or employee

such as Otis, to file a Notice of Appeal because, unlike

the Sixth, they do not regard a mere act of signing and

filing a Notice of Appeal on behalf of a corporation, as

practicing law

Further, the application of the Excusable Neglect

Doctrine needs to be clarified in a case where

unrepresented litigants who are under extreme time

pressure to file their Notice of Appeal, manage to do so

and rely upon signals from the Clerk’s office, that all

is in order until, it is too late. In this regard, Clerks

will benefit from clarification as much as litigants

Further. there needs to be a clarification as to whether

the Courts have a duty to inform unrepresented or pro

se litigants of their rights to appeal and also of the

very tight deadline for doing so.

CONCLUSION

For all of the reasons set forth above, the Kirkland

family respectfully submits that the Petition for Writ

of Certiorari should be granted.

Respectfully Submitted,

Otis Kirkland, Jr., pro se

Carol Kirkland, pro se

Vivian Kirkland, pro se

25325 Shiawassee Circuit, Ste. 203

Southfield, Michigan 48033

(248) 746-0007

Joel H. Kaufman, Esq.

Counsel of Record for

Audio Visual Equipment

& Supplies, Inc.

31275 Northwestern Hwy.

Ste. 140

Farmington Hills, MI 48334

(248) 851-3171

Dated: May 21, 2009

APPENDIX

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

No. 08-1267

[Filed October 24, 2008]

AUDIO VISUAL EQUIPMENT & SUPPLIES,

INC.; VIVIAN KIRKLAND,

Plaintiffs,

OTIS KIRKLAND; CAROL KIRKLAND,

¥.

COUNTY OF WAYNE, et al.,

)

Plaintiffs-Appellants, )

)

Defendants-Appellces. )

)

Before: KEITH, COLE, and COOK, Circuit Judges.

The district court entered summary judgment for

the defendants in this civil rights action on November

27, 2007. The plaintiffs filed a timely motion for

reconsideration, which was denied on January 18,

2008. On February 7, 2008, Plaintiff Otis Kirkland

filed a pro se notice of appeal, purportedly on behalf of

all of the plaintiffs. The defendants have filed a motion

for an order requiring that Plaintiffs Audio Visual

Equipment & Supplies, Inc. (“AVES”), Carol Kirkland,

and Vivian Kirkland obtain permission to appeal. The

plaintiffs oppose the motion. The defendants move to

strike the plaintiffs’ reply to their reply as not

authorized by the rules. The plaintiffs oppose the

motion to strike.

The notice of appeal is captioned “Audio Visual et

al v. Wayne Countyet al” and states that Audio Visual

et al. appeals from the judgment. The notice is signed

pro se by Otis Kirkland. The notice of appeal is

sufficient to perfect an appeal by Otis Kirkland and his

wife, Carol Kirkland. See Fed. R. App. P. 3(c)(2).

Plaintiff Vivian Kirkland, Otis Kuirkland’s

daughter-in-law, does not fall within the ambit of Rule

3(c)(2). Plaintiff AVES, as a corporation, may not be

represented in court by a non-attorney officer,

shareholder, or employee. Taylor Steel, Inc. v. Keeton,

417 F.3d 598, 603 (6th Cir. 2005) (noting that “neither

a corporate officer nor a sharehc!der may appear on

behalf of the corporation”); see also Rowland v. Cal.

Men’s Colony, 506 U.S. 194, 201-02 (1993) (stating that

“lilt has been the law for the better part of two

centuries, for example, that a corporation may appear

in the federal courts only through licensed counsel”).

Because neither Vivian Kirkland nor AVES filed a

timely notice of appeal, the court lacks jurisdiction

over their appeal.

The defendants’ motion to strike is DENIED. The

appeal by AVES and Vivian Kirkland is DISMISSED

for lack of jurisdiction. The appeal will proceed on

behalf of Otis and Carol Kirkland.

ENTERED BY ORDER OF THE COURT

/s/ Leonard Green

Leonard Green

Clerk

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

No. 08-1267

[Filed December 23, 2008]

AUDIO VISUAL EQUIPMENT & SUPPLIES,

INC.; VIVIAN KIRKLAND,

Plaintiffs,

OTIS KIRKLAND; CAROL KIRKLAND,

COUNTY OF WAYNE, et al.,

)

Plaintiffs-Appeliants, )

)

Defendants-Appellees. )

)

Before: KEITH, COLE, and COOK, Circuit Judges.

On October 24, 2008, the court dismissed this

appeal as to two of the plaintiffs because the pro se

notice of appeal filed by Plaintiff Otis Kirkland was

not sufficient to perfect an appeal on their behalf. The

plaintiffs move for reconsideration of the October 24

motion and move for leave to file the motion for

reconsideration out of time. The defendants oppose the

motion for reconsideration.

The plaintiffs attempted to file electronically the

motion for reconsideration on November 3, 2008, which

was ten days after the entry of the partial] dismissal.

An addendum to the motion for reconsideration was

filed on November 4, 2008. Because the wrong entry

code was used, counsel was instructed to redocket the

motion for reconsideration. The motion was refiled on

November 12, 2008. Under the circumstances, the

motion for leave to file the motion for reconsideration

out of time will be granted.

In seeking reconsideration, the plaintiffs argue that

Piaintiffs Audio Visual Equipment & Supplies, Inc.

(“AVES”) and Vivian Kirkland functionally complied

with the requirements of Fed. App. P. 3(c) based on

two entries made by the case manager on the appellate

docket sheet on March 4, 2008. To be timely, a notice

of appeal by these parties had to be filed by February

19, 2008. Moreover, “a notice of appeal must

specifically indicate the ltigant’s intent to seek

appellate review.” Smith v. Barry, 502 U.S. 244, 248

(1992): see also United States v. Means, 133 F.3d 444,

450 (6th Cir. 1998). AVES and Vivian Kirkland did not

file anything in either the district court or this court,

within the time period for filing an appeal, indicating

their intent to seek appellate review. See Persyn v.

United States, 935 F.2d 69, 72 (5th Cir. 1991) (noting

that the “fortuitous decision of the district court clerk

to include all of the original plaintiffs in the docketing

sts ‘ement does not release the landowners from the

requirements of Rule 3(c)”).

The motion for leave to file the motion for

reconsideration out of time is GRANTED. The motion

for reconsideration of the order dismissing the appeal

as to AVES and Vivian Kirkland is DENIED.

ENTERED BY ORDER OF THE COURT

/s/ Leonard Green

Leonard Green

Clerk

T7a

APPENDIX C

STATE OF MICHIGAN

IN THE CIRCUIT COURT

FOR THE COUNTY OF WAYNE

No. 01-137624 CZ

[6th Cir. 08-1267 ROA pgs. 680-681]

AUDIO VISUAL EQUIPMENT )

AND SUPPLIES, INC.

Plaintiff,

COUNTY OF WAYNE,

Defendant.

a a A ae a a a

[List of Counsel omitted here]

AFFIDAVIT OF BRENDAN G. DUNLEAVY,

WAYNE COUNTY AUDITOR GENERAL

STATE OF MICHIGAN _)

COUNTY OF WAYNE )

Brendan G. Dunleavy, first being sworn, deposes

and says:

I am presently employed by Wayne County as

its Auditor Genera.

As Wayne County Auditor General, I am

appointed by the Wayne County Board of

Commissioners.

In my capacity as Legislative Auditor General,

I preside over an audit staff which assist me in

carrying out my duties.

Among my responsibilities is the performance of

independent audits at the direction of the

Wayne County Board of Commissioners and

other elected officials.

I was directed by the County Chief Executive

Officer to investigate the contracting practices

of Audio Visual Supplies and Equipment, Inc.

(“AVE”).

I appointed Rosalyn Gibson, Senior Principal

Auditor, to perform this investigation of AVE.

During the course of Ms. Gibson’s investigation,

Vivian Kirkland was identified as a shareholder

of AVE and, on information and belief, Otis

Kirkland, Jr., as its co-owner and chief

operating officer through which AVE conducts

all of its business.

After reviewing that information, I directed Ms.

Gibson to include Vivian and Otis Kirkland in

her investigation of AVE and its principals.

9. Upon the completion of Ms. Gibson’s

investigation of AVE, I turned over the results

of the investigation to the Wayne County

Corporation Counsel and recommended that

debarment procceding commence pursuant to

the Wayne County Ordinance that authorizes

debarment of vendors.

10. At no time during the course of the

investigation or since have I discussed AVE or

its principals with Walter Beard, Wayne County

Director of Purchasing, or any of his staff.

The foregoing statement is based upon my personal

knowledge and if called to testify I could competently

testify to all of this statement.

Dated: 4-22-02

Brendan G. Dunleavy

Wayne County Auditor General

Subscribed and sworn to before me on

this _22. day of April, 2002.

Notary Public /s/ ee

County of Wayne, State of Michigan

My Commission Expires_2-17-04_

10a

APPENDIX D

STATE OF MICHIGAN

IN THE CIRCUIT COURT

FOR THE COUNTY OF WAYNE

No. 01-137624 CZ

[6th Cir. 08-1267 ROA pgs. 683-685]

AUDIO VISUAL EQUIPMENT )

AND SUPPLIES, INC.

Plaintiff,

COUNTY OF WAYNE,

)

Defendant. )

)

{List of Counsel omitted here]

AFFIDAVIT OF ROSALYN GIBSON,

SENIOR PRINCIPAL AUDITOR,

OFFICE OF THE WAYNE COUNTY

LEGISLATIVE AUDITOR GENERAL

STATE OF MICHIGAN _ )

COUNTY OF WAYNE )

lla

Rosalyn Gibson, first being sworn, deposes and

says:

1. Il am presently employed by Wayne County as a

Senior Principal Auditor in the Office of the

Wayne County Legislative Auditor General.

2. Among my duties is to conduct investigations at

the direction of Brendan Dunleavy, the Auditor

General, his deputy or a senior manager.

3. I was directed to conduct a investigation of the

contracting practices of a vendor identified as

Audio Visual Supplies and Equipment, Inc.

(“AVE”).

4. During the course of my investigation, I

ascertained from corporate records files with

the State of Michigan that a shareholder and

the president of AVE was Vivian Kirkland.

Based upon a review of Wayne County records

and correspondence and interviews of County

employees who do business directly with AVE,

I ascertained that Otis Kirkland, Jr.,

represented AVE exclusively when doing

business with Wayne County and consequently,

I formed the belief that Mr. Kirkland was the

defacto, if not dejure, owner of AVE.

6. 1 reported my findings to the Auditor General!

who subsequently directed me to include Vivian

and Otis Kirkland, Jr., in the scope of my

investigation.

10.

L2a

In the course of my investigation, I interviewed

employees in the Wayne County Purchasing

Department, including the Director, Walter

Beard.

Although I reviewed documents and data and

interviewed Purchasing Department staff, I

never discussed any aspect of my investigation

with any of the Purchasing Department staff

including its Director, Walter Beard.

At the conclusion of my investigation, I

forwarded the results of my investigation to the

Auditor General. I agreed with his

recommendation that debarment proceedings

should be commenced against AVE. My

investigation was based solely upon facts and

information gathered in an objective manner.

No person influenced my investigation or

recommendations in any manner or form

whatsoever.

{ prepared a letter to the Wayne County Board

of Commissioners stating my recommendation

that the County should initiate proceedings

against AVE and its principals. After preparing

the letter recommending debar ient of AVE, the

letter was discussed with Brendan Dunleavy

and Thomas Naughton, Wayne County Chief

Financial Officer. Walter Beard, Barry

Alexander and other staff persons were present

for that discussion. The discussion was about

the content of my letter and the specifics of my

investigation were not discussed at this

meeting.

13a

The foregoing statement is based upon my personal

knowledge and if called to testify I could competently

testify to all of this statement.

Dated: 4/22/02

/s/ Rosalyn D. Gibson

Rosalyn Gibson

Senior Principal Auditor

Subscribed and sworn to before me on

this 22 day of April, 2002.

Notary Public /s/

County of Wayne, State of Michigan

My Commission Expires_2-17-04

APPENDIX E

CHECK AND UNITED STATES DISTRICT

COURT RECEIPT DATED FEBRUARY 7, 2008

|[Fold-out exhibit, next page|

View Fro

ot | View Back

=m . Re 2 oP Wyre ae pe pe Llos "

— <a De ny iad

NOV, MI ea

Pact toy} he

Ya srw.

scans YO oa Or

eatin: a —

tel. 7s Ok nd

qh)

— S955 o

£0 A

we 66h

4) So

O-+-r-s

av Oe

own

wat

es) Fs

o .

> “Y 4 j

_- «

s o

a rows

os ee

- 4 KS wt

> rcQw

' 2

’ . --

£3 °c

-6r

oe ;

3 :

‘

)

; oo.

+ wo

, Pw

‘ 7

? Ae

wo 7

= se si

: «

G *

t &

rey

& &

a«<

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.