Appendix — Windsor v. Maid of the Mist Corp.

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Supreme Court, U.S.

FILED

09-859 °° 15 2010

No. OFFICE OF THE GLERK

Wiltam K. Suter, Clerk

In The

Supreme Court of the United States

WILLIAM M. WINDSOR,

Petitioner

Vv.

MAID OF THE MIST CORPORATION and

MAID OF THE MIST STEAMBOAT COMPANY, LTD.,

Respondents

On Petition for Writ of Certiorari

To The United States Court of Appeals for The

Eleventh Circuit

APPENDIX TO

PETITION FOR WRIT OF CERTIORARI

William M. Windsor

Pro Se

3924 Lower Roswell Rd

Marietta, GA 30068

770-578-1094

APPENDIX CONTENTS

Kleventh Circuit Order dated September 9, 2009....4

Kleventh Circuit Order dated November 20, 2009...6

N.D. Ga. Order dated May 22, 2009..... civcreseunoanienes 8

N.D. Ga. Order dated July 2, 2009....... cawesadetenenae 29

DEFENDANT WILLIAM M. WINDSOR’S MOTION

TO REOPEN CASE filed April 24, 2009...............32

REPLY TO PLAINTIFFS’ RESPONSE IN

OPPOSITION TO DEFENDANT WILLIAM M.

WINDSOR’S MOTION TO REOPEN CASE filed

DEFENDANT WILLIAM M. WINDSOR’S

MOTION TO RECUSE JUDGE EVANS filed

PGT BE, BO Oe vic okie cincccovassoeevieeee eee 80

REPLY TO PLAINTIFFS’ RESPONSE IN

OPPOSITION TO DEFENDANT WILLIAM M.

WINDSOR’S MOTION TO RECUSE JUDGE

EVANS Sied May 20, 2008. oc ccccvecccsexscsvcwcseusns 110

APPELLATE BRIEF OF DEFENDANT /

APPELLANT WILLIAM M. WINDSOR

APPEALING N.D.GA. ORDER DATED

MAY 22, 2009 filed August 17, 2009....... icaaeaoeen 129

MOTION FOR RECONSIDERATION OF

ELEVENTH CIRCUIT ORDER DATED

SEPTEMBER 9, 2009 filed September 15, 2009...228

EE) AY) OE VS 259

RM cccnssccscccccecccccccccccscces erties 259

Nee ccc ccsccsccccceccoccscecccccccces: 259

Nisan scepnccccccscnccssscccseccccess 263

Constitution of the United States — Article VI......265

Constitution of the United States — First

lo cncccnccucceccuccocceccecs 266

Constitution of the United States — Fifth

| ae 1 Gk 266

Constitution of the United States — Sixth

Amendment......-............... ol, 266

Constitution of the United States — Eighth

Amendment 267

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Constitution of the United States - Ninth

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Constitution of the United States Fourteenth

es ncuwccceccccecccevcees 267

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 09-13086-DD

MAID OF THE MIST CORPORATION.

MAID OF THE MIST STEAMBOAT COMPANY,

LTD.,

Plaintiffs-Counter-Defendants- Appellees,

Versus

WILLIAM M. WINDSOR,

Defendant Counter Claimant-Appellant.

On Appeal from ae United States District Court for

the Northern District of Georgia

BEFORE: HULL, MARCUS and PRYOR, Circuit

Judges.

BY THE COURT:

After review of the Appellant’s motions below,

the District Court’s Order and Appellant’s brief, we

DISMISS this appeal AS FRIVOLOUS sua sponte.

See Eleventh Circuit Rule 42-4.

All remaining pending motions are DENIED

AS MOOT

FLTLED

U.S.COURT OF APPEALS

KLEVENTH CIRCUIT

SEP 09 2009

THOMAS K. KAHN

CLERK

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 09-13086-DD

MAID OF THE MIST CORPORATION.

MAID OF THE MIST STEAMBOAT COMPANY,

LTD.,

Plaintiffs-Counter-Defendants-Appellees,

Versus

WILLIAM M. WINDSOR,

Defendant Counter-Claimant- Appellant.

On Appeal from the United States District Court for

the Northern District of Georgia

BEFORE: HULL, MARCUS and PRYOR, Circuit

Judges.

BY THE COURT:

Appellant’s motion for reconsideration of our

September 9, 2009, Order dismissing this appeal as

frivolous sua sponte is DENIED.

Appellee’s Rule 38 motion for sanctions is

DENIED.

6

KILLED

U.S.COURT OF APPEALS

KLEVENTH CIRCUIT

OCT 20 2009

THOMAS K. KAHN

CLERK

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

MAID OF THE MIST CORPORATION

And MAID OF THE MIST STEAMBOAT

COMPANY, LTD.,

Plaintiffs

Vv. CIVIL ACTION NO.

1:06-CV-0714-ODE

ALCATRAZ MEDIA, LCC, ALCATRAZ

MEDIA, INC. And WILLIAM M.

WINDSOR

ORDER

This closed case is before the Court on

Defendant William M. Windsor’s motion for recusal

[Doc. 361], motion to reopen the case [Doc. 362],

motion for sanctions under Federal Rule of Civil

Procedure 37 and the Court’s inherent power |Doc.

3631, and motion for discovery [Doc. 374]. With the

exception of Defendant Windsor’s motion for

discovery, Plaintiffs have filed responses in

opposition to each of these motions. [Docs. 366, 367,

370, and 371]. For the reasons stated below,

Defendant's motion for recusal [Doc . 361], motion to

reopen the case [Doc . 362], motion for sanctions

pursuant to Rule 37 and this Court's inherent power

[Doc . 363], and motion for sanctions pursuant to

Rule 11 [Doc . 364] are DENIED . Defendant's

motion for discovery [Doc . 374] is DISMISSED AS

MOOT.

|. Background

The Court will not recount an entire history of

this case here. A complete factual background of the

case can be found in this Court's Order dated August

9, 2007. [Doc . 251]. On August 9,

2007, the Court granted Maid of the Mist

Corporation's and Maid of the Mist Steamboat

Company, Ltd.'s ("Plaintiffs') Motion for Summary

Judgment on Plaintiffs' claims for tortious

interference with business relations, and granted

Plaintiffs a permanent injunction against Alcatraz

Media, LLC, Alcatraz Media, Inc ., and William M.

Windsor, (collectively "Defendants") prohibiting their

sale of vouchers or e-tickets for rides on Plaintiffs’

boats at Niagara Falls, among other things. The

Court denied Defendants' Motion for Summary

Judgment, and granted summary judgment for

Plaintiffs on Defendants’ counterclaims . The Court

held that Plaintiffs were entitled to recover

attorneys’ fees and expenses

pursuant to O.C.G.A. § 13-6°11, finding that

Defendants had been "stubbornly litigious” as

defined under the Act . Plaintiffs filed a motion for

entry of a separate judgment on August 20, 2007,

and judgment was entered on October 16, 2007. On

December 3, 2007, the Court awarded Plaintiffs

attorneys’ fees and expenses in the amount of

$421,773.84. [Doe . 325).

On September 7, 2007, Defendants filed a

notice of appeal of this Court's summary judgment

rulings and its injunction order to the United States

Court of Appeals for the Eleventh Circuit [Doc .

254], and on December 13, 2007, Defendants filed a

notice of appeal as to the award of attorneys' fees

and expenses. (Doc. 329].

On September 19, 2008, the Court of Appeals

affirmed this Court's grant of summary judgment to

Plaintiffs, its denial of summary judgment to

Defendants, and its issuance of a permanent

injunction. [Doc. 344] . The Court of Appeals also

affirmed the Court's decision to grant Plaintiffs

attorneys’ fees and expenses under Section 13-6°11

of the Georgia Code, although the Court of Appeals

vacated the award of attorneys' fees and expenses

and remanded to the district court for

reconsideration of the award with a full and explicit

explanation of the amounts awarded. [Doc.

344]. On October 28, 2008, this Court issued an

Order making the Court of Appeals' Mandate the

judgment of this Court. [Doc. 346]. The parties later

entered into a Consent Final Order and Judgment to

resolve all remaining claims in the case, including

claims for attorneys’ fees, expenses, and costs. [Doc.

354]. The Consent Final Order and Judgment was

entered on December 9, 2008. It was

signed by counsel for all parties.' [Doc. 354].

Il. Discussion

! While Windsor did not have counsel of record for most

of the proceedings, he did when the Consent Order and

Judgment was prepared. Counsel's signature is on the Order.

[Doe. 354].

10

A. Windsor's Motion for Recusal [Doc. 361]

On April 24, 2009, Defendant William M.

Windsor ("Windsor") filed a motion for the recusal of

Judge Evans pursuant to 28 U.S.C. § 144 and 28

U.S.C. § 455, as well as Canons 1, 2, and 3 of the

Code of Judicial Conduct, "all other relevant

statutory and state and federal case law, as well as

the Fifth, Sixth, Eighth and Fourteenth

Amendments to the United States Constitution, and

the Constitution of the State of Georgia." [Doc. 361,

at 1]. Windsor also requests an evidentiary hearing

on the motion to recuse. [Doc. 361, at 1.] His motion

cites numerous reasons why he believes that recusal

is appropriate, all of which are based on prior rulings

in this case in Plaintiffs’ favor. Plaintiffs have filed a

response in opposition. [Doc. 367]. Windsor has filed

a reply. [Doe. 3811.

Title 28, Sections 144 and 455 of the United

States Code provide the applicable legal standards

for recusal in this case and are each discussed

separately below.

1. 28 U.S.C. § 455

Section 455 provides that:

(a) Any justice, judge, or magistrate judge of

the United States shall disqualify himself in

any proceeding in which his impartiality

might reasonably be questioned.

(b) He shall also disqualify himself in the

following circumstances:

11

(1) where he has a personal bias or

prejudice concerning a party, or

personal knowledge of disputed

evidentiary facts concerning the

proceeding;

28 U.S.C. § 455(a), (b) C1) "Judicial rulings alone

almost never constitute a valid basis for a bias or

partiality motion." Liteky v. United States, 510 US.

540, 555 (1994). The Eleventh Circuit has also held

that "prior adverse rulings do not provide a basis for

holding that a court's impartiality is in doubt."

Smith v. Hildebrand, 244 Fed. Appx. 288, 289 (11th

Cir. 2007) (unpublished opinion) (citing Byrne v.

Nezhat, 261 F.3d 1075, 1102-1103 (1 1" Cir. 2001)).

Windsor's motion for recusal is based solely on

this Court's prior rulings in favor of Plaintiffs on a

variety of matters. Windsor fails to enumerate any

meritorious reasons for anyone to doubt the

impartiality of the undersigned other than a general

disagreement with the Court's prior rulings.”

Contrary to Windsor's contentions, the undersigned

harbors no animosity toward Windsor and has no

bias or prejudice concerning him. In addition, as

explained above, adverse rulings, without more, do

not constitute a sufficient basis on which to move for

recusal. While the issues of law and fact in this case

’(The only extra-judicial bias that Windsor cites in his

motion ts his belief that Judge Evans discriminated against

Windsor because he is male and he is pro se. [Doe. 361. at 20).

Windsor's affidavit gives no foundation for this contention other

than that he felt that Judge Evans' rulings are unfair. For the

reasons cited above, this contention is insufficient to support a

motion for recusal.)

ultimately were not difficult, the litigation produced

a very large volume of filings, such that transferring

the case to another judge would place a heavy

burden on him or her, and would ultimately make no

difference as to the outcome of the pending motion to

reopen.

2. 28 U.S.C. § 144

In his motion for recusal, Windsor also cites

Title 28, Section 144 of the United States Code,

which provides:

Whenever a party to any proceeding in a

district court makes and files a timely and

sufficient affidavit that the judge before whom

the matter is pending has a personal bias or

prejudice either against him or in favor of any

adverse party, such judge shall proceed no

further therein, but another judge shall be

assigned to hear such proceeding.

The affidavit shall state the facts and the

reasons for the belief that bias or prejudice

exists, and shall be filed not less than ten days

before the beginning of the term at which the

proceeding is to be heard, or good cause shall

be shown for failure to file it within such time.

A party may file only one such affidavit in any

case. It shall be accompanied by a certificate

of counsel of record stating that it is made in

good faith.

28 U.S.C. § 144. In addition to the reasons already

cited, Windsor's motion to recuse must be denied as

13

untimely under 28 U.S.C. § 144, which requires that

an affidavit claiming bias must be filed "not less

than ten days before the beginning of the term at

which the proceeding is to be heard."? Windsor

waited until after the final judgment in this case was

issued to file a motion to recuse, claiming that the

delay was due to the fact that Windsor just received

and reviewed Plaintiff's "Canadian lease and New

York license." [Doc. 361, at 19-20]. This contention

does not relieve Defendant of his failure to file the

motion to recuse near the beginning of the case,

rather than after judgment.

In addition, Section 144 explicitly requires the

movant to file along with an affidavit, a certificate of

counsel of record stating that the affidavit is made in

good faith. 28 U.S.C. § 144. Windsor has failed to file

any certificate of counsel of record. On this basis

alone, his motion under Section 144 fails.

For the foregoing reasons, Plaintiff's motion

for recusal under both 28 U.S.C. §§ 144 and 455 is

DENIED. [Doc. 353].

B . Windsor's Motion to Reopen Case [Doc. 362].

Windsor has also filed a motion to reopen the

case pursuant to Federal Rule of Procedure 60 (b) (1)

- (6). [Doc. 362] Plaintiffs filed a response in

opposition. |[Doc. 366.] Windsor has filed a reply.

[Doc. 385].

*“Proceeding” does not include a Rule 60 (b) motion for

relief from judgment. Such an interpretation would

inappropriately undermine the finality of judgments.

Federal Rule of Civil Procedure 60%) governs

relief from a final judgment or order. Rule 60(b)

provides:

On motion and just terms, the court may

relieve a party or its legal representative from

a final judgment, order, or proceeding for the

following reasons: (1) mistake, inadvertence,

surprise, or excusable neglect; (2) newly

discovered evidence that, with reasonable

diligence, could not have been discovered in

time to move for a new trial under Rule 59(b):

(3) fraud (whether previously called intrinsic

or extrinsic), misrepresentation, or

misconduct by an opposing party; (4) the

judgment is void; (5) the judgment has been

satisfied, released or discharged; it is based on

an earlier judgment that has been reversed or

vacated; or applying it prospectively is no

longer equitable; or (6) any other reason that

justifies relief.

F.R.C.P. 60(b). Rule 60 also provides that "A motion

under Rule 60(b) must be made within a reasonable

time--and for reasons (1), (2), and (3) no more than a

year after the entry of the judgment or order or the

date of the proceeding." Fed. R. Civ. P. 60(c)(1).

Plaintiffs argue that with respect to Windsor's

claims under Rule 60 (b)(), (b)(2) and (b)(3), his

motion is untimely under Rule 60(c), as it was

brought over a year after the date of the entry of the

judgment from which he seeks relief. While Windsor

does not specifically state which order or judgment

15

he seeks relief from, it does appear from his motion

that he is seeking relief from the Court's August 7,

2007 order granting Plaintiffs summary judgment

and a permanent injunction, and the Clerk's

subsequent entry of judgment pursuant to this order

on October 16, 2007. [Doe. 281]. 4

Defendants appealed this order on September 7.

2007. [Doc. 254]. Windsor filed his motion to reopen

the case on April 24, 2009, over one and a half years

after the entry of the district court's judgment.

There is legal authority that supports

Plaintiffs’ position that Windsor's motion is untimely

as to any claim he has under Rule 60(b) (1)-(3). Rule

60(c) explicitly states that motions under Rule

60(b)(1)-(3) must be brought within one year from

the date of entry of the judgment or order or the date

of the proceeding . Fed. R. Civ. P. 60(c). The

Eleventh Circuit has held that this one-year

limitation is not tolled by an appeal. United States v.

One Million Four Hundred Forty-Nine Thousand

Four Hundred Seventy-Three Dollars and Thirty-

Two Cents ( $1,449,473 .32) In United States

Currency, 152 Fed. Appx. 911, 912 (11th Cir. 2005)

(unpublished opinion); Gulf Coast Bldg and Supply

Co. v. Int'l Bhd of Elec. Workers, Local No. 480,

AFL-CIO, 460 F.2d 105, 108 (5th Cir . 1972). 5 The

First Circuit has found that this time limitation runs

* A separate judgment was entered by the Clerk of the

Court as to the Court's award to Plaintiffs of reasonable

attorney's fees and expenses on December 3, 2007. [Doc. 327].)

>In Bonner v. City of Prichard 661 F 2d 1206, 1207

(11 Cir . 1981), the Eleventh Circuit adopted as binding

precedent decisions of the former Fifth Circuit handed down

prior to October J, 1981.

16

from the date of the entry of judgment in the district

court, even where such judgment is appealed, so long

as the ruling on appeal does not alter that portion of

the judgment that is the subject of the Rule 60(b)

motion. See Simon v. Navon, 116 F.3d 1, 3 (st Cir.

1997). The fact that an attorney representing

Windsor signed a jointly submitted Consent Final

Order and Judgment, which was signed by the Court

on December 9, 2008, also supports Plaintiffs’

argument that Windsor's Rule 60(b) motion is

untimely. That Order explicitly states that the Order

of the Court dated August 9, 2007 [Doc. 251] and the

judgment of the Court dated October 16 , 2007 (Doc.

28 1| would remain in full force and effect. [Doc. 353,

at 1-2].

It is unnecessary to resolve the question of

whether Windsor's Rule 60 (b) motion is timely,

however, because his motion has no merit as to any

of the claims he has brought under each subsection

of Rule 60 (b). In order to obtain relief for excusable

neglect under Rule 60(b) (1), Windsor must show

that he had a meritorious defense, that Plaintiffs

would not. be prejudiced if the order was vacated,

and that he had a "good reason" for the neglect. Sloss

Indus. Corp. v. Eurisol, 488 F.3d 922, 934 (11*h Cir.

2007).

Windsor claims that the relevant "mistakes"

in the case are that the Court withheld relevant

documents from Defendants and that counsel for co-

defendant Alcatraz failed to file the deposition of

Carolyn Ballard Bazzo. [See Doc. 362, at 4].

Windsor's failure to file the Bazzo deposition is not

excusable, viven that Plaintiffs twice requested that

Defendants file this deposition before this Court

granted summary judgment. [See Docs. 187, 233].

Windsor's claim that this Court withheld evidence

from Defendants during discovery merely seeks to

rehash a discovery issue that this Court has

previously ruled on when it denied Defendants’

motion to compel, a decision with which Windsor

disagrees. [Doc. 209]. Therefore, Windsor's

arguments under Rule 60(b)(1) have no merit.

In order to obta’ 1 rehef based on newly

discovered evidence under Rule 60(b)(2), Windsor

must show the following elements: (1) the evidence is

newly discovered since the trial: (2) the movant

exercised due diligence in discovering the new

evidence; (3) the evidence is not merely cumulative

or impeaching; (4) the evidence is material; and (5)

the evidence 1s such that a new trial would probably

produce a new result. Toole v. Baxter Healthcare

Corp., 235 F.3d 1307, 1316 (11th Cir. 2000). Windsor

claims that the "new evidence" he has discovered

since the judgment consists of two contracts that this

Yourt allegedly "withheld" from Windsor, a fax

Windsor received from Sandra Carlson on March 3,

2005, documents 1n the record that counsel for

Alcatraz failed to point out to the Court, and

declarations of Aleatraz employees and customers

that counsel for Alcatraz failed to file with the Court.

Windsor's claims as to the two contracts against

seeks to rehash the merits of this Court's prior

discovery orders, which, as discussed above, is an

inappropriate basis for a Rule 60(b) motion. The

declarations of Alcatraz employees and customers,

and the fax that Windsor received on March 3, 2005,

do not constitute "new evidence" that could not have

18

been discovered with due diligence, as Windsor

admits that this evidence was in Windsor's

possession before this Court's ruling on summary

judgment and it was simply not filed or emphasized

to the Court.

Windsor's arguments under Rule 60(b)(3), (4)

and (5) are also without merit, as they constitute

cursory allegations of dishonesty with no evidentiary

support or contentions that the Court should revisit

its prior rulings in this case. [See Doc. 362, at 16-22]

Such arguments are not proper grounds for relief

under Rule 60.

In addition, Windsor's only argument that the

judgment is void under Rule 60(b)(4) is his

contention that the undersigned did not act in a

manner consistent with due process of law, that

documents were “withheld” from him, and that

Plaintiffs lied. [Doc. 362, at 18]. His allegations are

cursory and, while they evidence Windsor’s

disagreement with the outcome of the case, they do

not provide a basis for finding that the judgment is

void.

Finally, Windsor is not entitled to relief under

Rule 60(b)(6), as his arguments under Rule 60(b)(6)

merely rehash the arguments that he presents under

the other five subsections of Rule 60(b). Where a

party's claim falls under one of the other enumerated

sections listed in 60(b), a party has no recourse to

Rule 60(b)(6). See Hall v. State of Alabama, 700 F.2d

1333 (11h Cir. 1983) (stating "a court may not

consider as reasons justifying relief under clause (6)

any of the reasons justifying relief under the other

five subsections of the rule") (citing Klapprott v.

United States, 335 U.S. 601, 614-15 (1949)) . As

Windsor here has raised his claims under Rule 60 (b)

(1) - (5), Windsor has no recourse under Rule

60(b)(6).

For the foregoing reasons, Windsor's motion to

reopen this case is DENIED. [Doc. 352] .

C . Windsor's Motions for Sanctions Under Rule 37

and the Court's "Inherent Powers" [Doc . 363]

Windsor has also filed a motion for sanctions

against Plaintiffs and Plaintiffs’ counsel under

Federal Rule of Civil Procedure 37 and the Court's

"inherent powers," based on Plaintiffs’ alleged failure

to make disclosures and failure to cooperate in

discovery. |Doc. 363]. Plaintiffs filed a response in

opposition. [Doc. 370].

1. Rule 37

The Local Rules for the Northern District of Georgia

provide that a motion to compel a disclosure or

discovery under Rule 37 "must be filed within the

time remaining pnor to the close of discovery, or, if

longer, within ten (10) days after service of the

disclosure or discovery response upon which the

objection is based." N.D. Ga. L.R. 37.1.B. Windsor's

motion under Rule 37, filed on April 27, 2009, does

not comply with this requirement, as it was filed

long after this Court's final judgment. Nor does

Windsor's motion comply with the formatting

requirements of Local Rule 37.1, which require a

motion to compel a disclosure or a response to

20

discovery to quote verbatim each discovery request

at issue, state the specific objection, the grounds for

the objection, and cite authority and a discussion of

reasons assigned as supporting the motion. N.D. Ga.

I, R.37.1.A. For the foregoing reasons, Windsor's

Motion under Rule 37 is DENIED. [Doc. 363].

2. Inherent Authority

"A court may impose sanctions for litigation

misconduct under its inherent power." Eagle Hosp.

Physicians, LLC v. SRG Consulting, Inc., 56 1 F.3d

1298 (11th Cir. 2009) (citing Chambers v. Nasco,

Inc., 501 U.S. 32, 43-44 (1991); In_re Sunshine Jr.

Stores, 456 F.3d 1291, 1304 (1th Cir. 2006)) . This

power, however, "must be exercised with restraint

and discretion." Roadway Express, Inc. v. Piper, 147

U.S. 752, 764 (1980). A court's inherent power to

sanction for litigation misconduct 1s dependent upon

finding bad faith. Eagle Hosp. Physicians, LLC, 561

Fo38d at 1306.

Windsor's arguments in support of his motion

consist of cursory allegations regarding the discovery

process. Many of these allegations have already been

heard and ruled upon by the Court. The Court finds

that there is not any evidence that Plaintiffs acted in

bad faith in the course of this litigation, and the

Court. therefore declines to use its inherent powers to

sanction Plaintiffs. Further, Windsor's motion is too

late. For the foregoing reasons, Windsor's motion to

sanction Plaintiffs pursuant to the Court's inherent

authority is DENIED.

21

1) . Windsor's Motions for Sanctions Under

Rule 11 [Doc. 3641

Windsor has also filed a motion for sanctions

and a motion to dismiss under Rule 11 against

counsel for Plaintiffs for their allegedly false filings.

Windsor filed this motion on April 27, 2009. [Doc.

3&4] Plaintiffs filed a response in opposition. [Doc.

371]. In his motion, Windsor complains about a large

number of Plaintiffs’ filings, including the

Complaint, affidavits, responses to interrogatories,

document productions, as well as motions and briefs

filed by Plaintiffs during the course of the litigation

in this case.

Windsor's motion is entirely lacking in

substantive merit.

The Court also must deny Windsor's motion

for sanctions because it is untimely and because it

fails to comply with Rule 11's safe harbor

requirements. "A motion for sanctions under Rule 11

should be dented when the moving party fails to

act promptly.” Price v. Hawau, 789 F. Supp. 330,

335-36 (D. Haw. 1992). The Advisory Committee on

the Rules commented as follows:

Ordinarily the motion should be served

promptly after the inappropriate paper is

filed, and, if delayed too long, may be viewed

as untimely... Given the "safe harbor"

provisions...a party cannot delay serving its

Rule 1] motion until conclusion of the case (or

judicial rejection of the offending contention).

Fed. R. Civ. P. 11 (Notes of Advisory

Committee on Rules to 1993 Amendment). Rule 11's

"safe harbor" provision provides that "A motion for

sanctions ... must be served under Rule 5, but it

must not be filed or be presented to the court. if the

challenged paper, claim, defense, contention, or

denial is withdrawn or appropriately corrected

within 21 days after service or within another time

the court sets." Fed. R. Civ. P. 11(¢)(2). This rule

requires that the party seeking sanctions "must

serve the Rule 11 motion on the opposing party at

least twenty-one days before filing the motion with

the district court, and sanctions may be sought only

if the challenged pleading ts not withdrawn or

corrected within twenty one days after service of the

motion." Brickwood Contractors, Inc. v. Datanet

Eng, Inc., 369 F. 3d 385, 389 (4th Cir. 2004).

Due to this safe harbor provision, several

circuits have held that a court cannot grant a motion

for sanctions filed after the conclusion of the

proceedings, because the opposing party 1s thereby

deprived of a chance to cure or withdraw the

offending filing. "[A] party cannot wait to seek

sanctions until after the contention has been

judicially disposed. A party must now serve a Rule

11 motion on the allegedly offending party at least

twenty-one days prior to the conclusion of the case or

judicial rejection of the offending contention." Ridder

v. Springfield, 109 F.3d 288, 295 (6th Cir. 1997 ); see

also Brickwood Contractors, Inc., 369 F.3d at 389-90

(holding that a district court lacks authority to

impose requested sanctions where the movant files a

motion for sanctions after the close of proceedings):

In re Pennie & Edmunds LLP, 323 F.3d 86, 89, nn.1,

23

2 (2d Cir. 2003); see also Price, 789 F. Supp. at 335-

36 (denying a motion for sanctions under Rule 11

due to untimeliness where the motion was filed more

than two years after the dismissal of the case, and

after the dismissal was affirmed on appeal). In both

Brickwood and Ridder, the Courts of Appeal held

that a party's motion for Rule 1) sanctions was

untimely because it was filed after the entry of

summary judgment and therefore deprived the

offending party of its chance to withdraw or cure the

offense. Brickwood, 369 F.3d at 390; Ridder, 109

F.3d at 297.

In a case involving a motion for sanctions

under Rule 9011 of the Bankruptey Code,® the

Eleventh Circuit agreed with the reasoning of these

courts and held that "the service and filing of a

motion for sanctions ‘must occur prior to final

judgment or judicial rejection of the offending’

motion." In re Walker, 532 F.3d 1304, 1309 (11th

Cir. 2008) (quoting Ridder, 109 F.3d at 297). In

Walker, the Court upheld the district court's denial

of a motion for sanctions because the offending

motion, on which the motion for sanctions was

* Federal Rule of Bankruptcy Procedure 9011 contains a

similar safe harbor provision as Federal Rule of Civil Procedure

Li. Rule 9011 (C)\C)(A) provides in part: A motion for sanctions

under this rule shall be made separately from other motions or

requests and shall describe the specific conduct alleged to

violate subdivision (b). It shall be served as provided in Rule

7004. The motion for sanctions may not be filed with or

presented to the court unless, within 21 days after service of

the motion (or such other period as the court may prescribe),

the challenged paper, claim, defense, contention, allegation, or

denial is not withdrawn or appropriately corrected Fed. R

Bankr. P. 9011 (ce) (1) (A),)

based, had already been denied by the court when

the motion for sanctions was filed. 532 F.3d at 1308-

1309.

Given this legal authority, the Court finds

that it lacks authority to grant Windsor's motion for

sanctions under Rule 11 because it was filed after

the Court's entry of summary judgment and after

that ruling was affirmed by the Court of Appeals.

Considering Windsor's motion on the merits would

deprive Plaintiffs of the safe harbor provisions in

Rule 11 as they have had no opportunity to cure any

of their allegedly sanctionable filings. Windsor states

in his motion that "Mr. Anderson was long ayo

advised of Windsor's intent to file a Motion for

Sanctions under Rule 11," but an informal warning

does not satisfy the safe harbor provision in Rule 11.

See Barber v. Miller, 146 F.3d 707, 710 (9th Cir.

1998) ("It would... wrench both the language and

purpose of the amendment to the Rule to permit an

informal warning to substitute for service of a

motion").

lor the foregoing reasons, Windsor's motion

for sanctions under Rule 11 is DENIED. [Doc. 364].

K. . Windsor's Motion for Discovery [Doc . 37.4

Windsor has aiso filed a Motion for Discovery,

whereby Windsor argues that he must be able to

depose counsel for Plaintitis in order to support his

various pending motions before the Court. [Doc.

374). Because the Court has denied Windsor's

motion to reopen the case, his Motion for Discovery

is now DISMISSED AS MOOT. [Doc. 374].

F. Plaintiffs’ Requests for Attorneys’ Fees and

hixpenses

1. Section 13-6°11 of the Georgia Code.

In their responses to each of Windsor's

motions, Plaintiffs argue that they are entitled to

costs and attorneys’ fees under Section 13-6°11 of the

Georgia Code. Section 13°-6°11 provides that

expenses of litigation may be allowed as part of the

damages “where the defendant has acted in bad

faith, has been stubbornly litigious, or has caused

the plaintiff unnecessary trouble and expense.” Ga.

Code Ann. § 13:6 11. While it appears Windsor filed

his meritless motions only to cause Plaintiffs

unnecessary trouble and expense, Plaintiffs’

expenses in defending against his motions were not

incurred in their prosecution of their own claims.

Section § 13-6-11 contemplates that fees and

expenses will only be recovered as part of the

damages tn a plaintiffs prosecution of their own

claims. ‘Therefore, the Court may not award such

expenses for Plaintiffs’ defenses of these motions

under Section 13-6-11. See Lineberger v. Williams,

393 S.E.2d 23, 26 (Ga. Ct. App. 1990) (holding that

O.C.G.A. 13-6-11 does not provide for the recovery of

attorneys’ fees incurred in defending against a

defendant’s counterclaim).

2. Federal Rule of Civil Procedure 37(a)(5)(b)

Plaintiffs have requested that they be

awarded attorneys’ fees and expenses for defending

against Windsor’s Rule 37 motion under Federal

Rule of Civil Procedure 37(a)(5)(B), which provides

that if a motion to compel brought under Rule 37 is

denied, the court “must, after giving the opportunity

to be heard, require the movant, the attorney filing

the motion, or both to pay the party of deponent. who

opposed the motion its reasonable expenses incurred

in opposing the motion, including attorneys’ fees.

But the court must not order payment if the motion

was substantially justified or other circumstances

make an award of expenses unjust.” Fed. R. Civ. P.

37(a)(5)(B).

While Windsor’s motion under Rule 37 clearly

lacks merit, Plaintiffs’ request for sanctions must be

denied. Plaintiffs’ request simply is not apt. Rule 37

provides sanctions for abusive discovery, and also for

resisting abusive discovery. However, the

applicability of Rule 37 assumes that some form of

discovery is otherwise appropriate. Here, the case is

over; no discovery is appropriate.

111. Conclusion

The Court has carefully considered the

parties’ filings. In summary, Windsor’s motion for

recusal [Doc. 361] and Windsor's motion to reopen

the case [Doc. 362] are DENIED. In addition,

Windsor’s motion for sanctions pursuant to Rule 37

and the Court's inherent power [Doc. 363] and

motion for sanctions pursuant to Rule 11 [Doc. 364]

are DENIED. Windsor’s motion for discovery |Doc.

374] is DISMISSED AS MOOT. Plaintiffs’ requests

27

for attorneys’ fees and expenses incurred in

responding to Windsor’s motions are DENIED.

SO ORDERED, this 22 day of May, 2009.

s/

ORINDA D. EVANS

UNITED STATES DISTRICT

JUDGE

FILED IN CHAMBERS

U.S.D.C. — ATLANTA

MAY 22 2009

JAMES N. HATTEN, CLERK

BY: S/ DEPUTY CLERK

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

MAID OF THE MIST CORPORATION

and MAID OF THE MIST STEAMBOAT

COMPANY, LTD.

Plaintiffs

CIVIL ACTION NO.

V. 1:06-CV-0714-ODE

ALCATRAZ MEDIA, LLC, ALCATRAZ

MEDIA, INC. And WILLIAM M.

WINDSOR

Defendants

ORDER

This civil suit is before the Court on

Defendant William M. Windsor's Motion for

Reconsideration of Motion for Discovery filed June 8,

2009.

The record reflects that Judgment was

entered in Plaintiffs’ favor on October 16, 2007. On

December 3, 2007, the Court awarded Plaintiffs

attorneys fees and expenses in the amount of

$421.773 .84. Defendants filed a Notice of Appeal:

on September 19, 2008, the Court of Appeals

affirmed the grant of summary judgment to

Plaintiffs, but vacated the award of attorneys fees

and expenses and remanded to this Court for

reconsideration of the award of attorneys fees and

29

expenses with a full and explicit explanation of the

amounts awarded. On October 28, 2008, this Court

issued an Order making the Court of Appeals’

mandate the judgment of this Court. Subsequently,

all parties entered into a Consent Final Order and

Judgment which resolved claims for attorneys fees,

expenses and costs. The Consent Final Order and

Judgment was entered on December 9, 2008.

On April 24, 2009, Defendant Windsor filed a

Motion to Reopen this case pursuant to Rule 60

(b)(1)-(6) of the Federal Rules of Civil Procedure. He

simultaneously filed other motions, including a

motion for Discovery.

On May 22, 2009, the undersigned entered an

Order denying Defendant Windsor's Motion to

Reopen the Case and denying certain other motions

as well. Because the motion to reopen judgment was

denied, the motion for discovery was dismissed as

moot on May 22, 2009.

Defendant Windsor filed the instant Motion

for Reconsideration of Motion for Discovery on June

8, 2009. He filed his Notice of Appeal concerning this

Court ‘s Order denying the Motion to Reopen the

case, plus other motions, on June 15, 2009. A letter

notice to Mr. Windsor of the status of the appeal, a

copy of which was sent to the undersigned, contains

this notation: "This Court [the Court of Appeals]

awaits District Court's ruling on 6/8/2009 Motion for

Reconsideration of Motion for Discovery by William

M. Windsor."

30

Because the instant case is a closed case, and

the Court has denied Windsor's Motion to Reopen

Case, there is no need for discovery. Accordingly,

Defendant Windsor's Motion for Reconsideration of

Motion for Discovery [#410] is hereby DISMISSED

as moot.

The Clerk is directed to forward a copy of this

order to the United States Court of Appeals for the

Kleventh Circuit.

SO ORDERED, this 2 day of July, 2009.

Is

ORINDA D. EVANS

United States District Judge

FILED IN CHAMBERS

U.S.D.C Atlanta

JUL 2 2009

dames N. Hatten, Clerk

BY: S/ DEPUTY CLERK

3]

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

MAID OF THE MIST

CORPORATION

and MAID OF THE MIST

STEAMBOAT COMPANY, LTD.,

ee a a

Plaintiffs,

CIVIL ACTION NO:

v.

1:06-CV-0714-ODE

ALCATRAZ MEDIA, LLC,

ALCATRAZ MEDIA, INC. and

WILLIAM M. WINDSOR,

Defendants.

MOTION TO REOPEN CASE

Comes Now Defendant William M. Windsor

(“Windsor”), and under Rule 60 (b) of the Federal

Rules of Civil Procedure, files DEFENDANT

WILLIAM M. WINDSOR’S MOTION TO REOPEN

CASE (“Motion to Reopen”). In support of this

Motion, Windsor relies upon his Memorandum of

law in Support of Defendant William M. Windsor’s

Motion to Reopen Case and the First, Second, and

Fourth Declaration of William M. Windsor in

Support of the Motion to Reopen Case, as well as on

Defendant William M. Windsor’s Motion to Recuse

and affidavits and exhibits thereto.

32

1. Three managers of Maid of the Mist are

guilty of hundreds of counts of perjury and have

committed a conspiracy to commit fraud.

Christopher Glynn, Timothy P. Ruddy, and Robert JJ.

Schul have lied repeatedly under oath and have

conspired to commit fraud against Alcatraz Media

and William M. Windsor. This proceeding began in

August 2005 with a sworn Verified Complaint that

consisted of perjured testimony by Christopher

Glynn (“Glynn”), President, of Maid of the Mist

Corporation (“Maid US”) and Maid of the Mist

Steamboat Company, Ltd. (“Maid Canada”) Gointly

“Plaintiffs” or “Maid”). 46 of the 50 paragraphs were

false or incorrect and/or not based upon the personal

knowledge of Glynn as he swore. The lies, false

sworn pleadings, false pleadings, and discovery

abuse continued throughout this proceeding. This

deprived the Defendants of any opportunity for a fair

trial. The dishonesty of Maid and Maid’s attorneys

was compounded by the mistakes of Judge Orinda I.

Evans (“Judge Evans”) who after reading, hearing,

and apparently believing the hes of Maid, withheld

documents from the Defendants, violated the legal

rights of the Defendants by denying the most basic

discovery, and acted without the impartiality

required of a judge. The attorney for Alcatraz Media

(“Alcatraz”) added to the seemingly impossible task

of litigating against dishonest Plaintiffs and a biased

judge by failing to file the most important deposition

in the case as well as other important proof.

2. This case is a travesty of justice. It is so

bad that a new judge will likely look at the facts and

33

have trouble believing that there was so much

wrongdoing. But Windsor has documented it all

after spending months of his life in the process. The

First Declaration of William M. Windsor in Support

of Motion to Reopen Case (“First Windsor Dec”) is

attached as Exhibit A.

"8 Fortunately, Federal Rule of Civil

Procedure 60 (b) provides that on motion and just

terms, the Court may relieve a party or its legal

representative from a final judgment, order, or

proceeding for the following reasons: (1) mistake,

inadvertence, surprise, or excusable neglect; (2)

newly discovered evidence that, with reasonable

diligence, could not have been discovered in time to

move for a new trial under Rule 59(b); (3) fraud

(whether previously called intrinsic or extrinsic),

misrepresentation, or misconduct by an opposing

party; (4) the judgment is void; (5) the judgment

has been satisfied, released, or discharged; it is

based on an earlier judgment that has been reversed

or vacated; or applying it. prospectively is no longer

equitable; or (6) any other reason that justifies relief.

A. Rule 60(b) is designed to serve the ends

of justice. There has been no justice in this case for

a variety of reasons. ‘his Motion is based on Rule

60(b)(1), Rule 60(b)(2), Rule 60(b)(3), Rule 60(b)(),

and Rule 60(b)(5); or Rule 60(b)(6).

5. Windsor will demonstrate that the

grounds set forth in Rule 60(b) exist. There are very

unusual circumstances in this case. The mere

magnitude of the wrongs makes this a most unusual

circumstance. Exhibit 16 to the First Declaration of

34

William M. Windsor is questions that a new judge

may want to ask as this Motion 1s considered.

6. Rule 60(b)(1) -- mistake, inadvertence,

surprise, or excusable neglect.

7. Mistakes in this case include the

following: (1) Judge Evans withheld relevant

documents from the Defendants, and (2) G. Brian

Raley (“Mr. Raley”), attorney for Alcatraz, failed to

file the most important deposition in the case, the

Deposition of Carolyn Ballard Bazzo (“Bazzo Depo”).

[First Windsor Dec 4] 7.]

8. The Defendants discovered in March

2009 that Judge Evans withheld important

documents from the Defendants during Discovery.

(First Windsor Dec -- 4 8.] This new evidence is

detailed in paragraphs 77 to 123.

9. The failure to timely file the Bazzo

Depo may be considered under Rule 60(b)Q1) as

“excusable neglect.” The Supreme Court has

“established a four-part balancing test” to determine

“excusable neglect.” Pincay v. Andrews, 389 F.3d

853, 855 (9th Cir. 2004) (en bane), cert. denied, 125

S.Ct. 1729 (2005), citing Pioneer Inv. Servs. Co. v.

Brunswick Assocs. Ltd. P’ship, 507 U.S. 380 (1993).

Proneer established an equitable approach which

considers “all relevant circumstances,” including “(1)

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

the... 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 1n good

faith.” Pioneer, 507 U.S. at 395.

10. The Bazzo Depo provides evidence of

what actually happened in this case and will serve

justice in this case and should not be viewed as

prejudicing the Plaintiffs. The case will proceed on

the merits. Having to incur the risk and cost of a

contested hearing does not constitute prejudice.

This will simply restore the parties to an even

footing. [First Windsor Dec -- 4] 10.]

11. The impact on the proceedings should

be to give the Defendants the opportunity to have

their case heard by a jury. Windsor hopes this will

change the outcome of the trial, because Carolyn

Ballard Bazzo (“Bazzo”) confirms the oral contract

for the 2005 season that Judge Evans improperly

ruled did not exist. The failure to file the Bazzo

Depo was not done out of bad faith. It was simply a

most unfortunate mistake. The Bazzo Depo was

taken by Windsor while acting pro se, and Windsor

was followed in a separately noticed deposition by

Carl Hugo Anderson (“Mr. Anderson”) for the

Plaintiffs. There was one transcript rather than

two. ‘There was confusion over who was going to file

the transcript. On January 22, 2007, Mr. Anderson

filed a motion stating that he intended to file the

Bazzo Depo when he received it from the court

reporter. [Docket # 145.]. Windsor thought Mr.

Anderson or Mr. Raley would file the deposition with

the Court. Windsor never had the transcript

because the court reporter sent it to the offices of Mr.

Anderson and Mr. Raley. Windsor was unaware

that the deposition had not been filed until he read it

36

in the Summary Judgment Order. Mr. Anderson

attended the Bazzo Depo conducted by Windsor, and

he conducted his own deposition of Bazzo

immediately thereafter, so he was well aware of her

testimony. Maid’s attorneys had been in possession

of all 91 of the documents used in the Bazzo Depo for

many months, and they knew about the oral contract

even prior to the filing of the lawsuit. Mr. Raley’s

summary judgment filings included facts with

citations to the Bazzo Depo, so the content existed in

the summary judgment filing — just not the backup.

[Docket #- Page __, Lines | A party should not

lose a lawsuit over the failure to file a deposition

that both parties participated in. Windsor’s conduct

was certainly in good faith. [First Windsor Dec 4

11.]

12. The Bazzo Depo detailed Bazzo's

conversation with Sandra Carlson (“Carlson”) on

March 3, 2005 when Carlson entered into an oral

contract to allow Alcatraz to sell “for the entire 2005

season.” Bazzo represents a vital second witness

testifying to the most important fact in the case.

[First Windsor Dec 4 12.]

13. Worst case, the oral contract between

the parties should have been a fact issue for the jury

to decide. There are three witnesses. Bazzo and

Windsor have reported the God's honest truth while

attorneys for Maid have not. The law says that

when there is a fact issue, the case cannot be decided

on surnmary judgment. If there was a contract, then

nothing the Defendants did could be wrong, and

everything that the Plaintiffs did was wrong. [First

Windsor Dee 4 13.)

37

14. Unfortunately, the deposition was not

filed. It should now be considered. This isn't totally

new evidence, but evidence never considered because

of a mistake. [First Windsor Dec 4 14.]

15. Rule 60(b)(2) -- newly discovered

evidence that, with reasonable diligence, could not

have been discovered in time to move for a new trial

under Rule 59(b).

16. Since the Court entered a Final Order

and Judgment in this matter on December 9, 2008,

Windsor has learned of compelling new evidence

that was concealed from the Defendants by Maid

and Judge Evans. This requires that this matter be

reopened. Judge Evans withheld two contracts from

the Defendants that provide the motive for the

wrongful actions of Maid, Windsor also found a fax

that disproves a key ¢laim of Maid in disputing the

existence of an oral contract. Accordingly, the Court

should reopen this matter and allow the Defendants

to develop a full and complete record through

discovery, including the deposition of relevant

people. [First Windsor Dec 4 16.]

7% In this proceeding, the Court has

issued various orders including a Preliminary

Injunction Order [Docket # 33], a Summary

Judgment Order [Docket # 251], and a Final Order

and Judgment entered on December 9, 2008.

[Docket # 354.] The Defendants reluctantly settled

the case in December 2008 after the case was

remanded after the Defendants’ appeal. The

Defendants shouldn’t have to pay Maid a cent, but

38

they settled to avoid the risk of Judge Evans

making the Defendants pay even more. [First

Windsor Dec 4 17.]

18. The Defendants have never wavered

from the position that Judge Evans was

hoodwinked by Maid and Maid’s attorneys. The

Defendants have been working for the last six

months with people in Niagara Falls who have

been investigating various matters relating to

Maid. This has enabled the Defendants to discover

important new evidence. [First Windsor Dec 4 18.|

19. The new evidence includes (1) two

contracts that change the entire case and prove

dishonesty by Maid and Maid’s attorneys (Exhibits 1

and 2 to the First Windsor Dec), (2) a fax from

Sandra Carlson for Maid that proves dishonesty by

Maid and must force the Court to reconsider the

position that there was no oral contract (Exhibit 3 to

the Windsor Dec), (3) Declarations of Alcatraz

employees and customers, and (4) information about

fraud and misrepresentations of Maid and improper

actions of Maid’s attorneys. [First Windsor Dec 4

19.]

20. NEW EVIDENCE #1 -- The first new

evidence has to do with contracts with The Niagara

Parks Commission and New York State Parks.

21. Important new information has been

discovered that was concealed from the Defendants

by Maid. This evidence revealed one of the most

important facts that could have been discovered in

this case. If this information had been shared with

the Defendants rather than concealed by Maid, there

39

likely never would have been a lawsuit, and the

Defendants would not have spent a fortune in legal

fees. [First Windsor Dec ¥ 21.1]

22. The Defendants’ Requests for

Production of Documents in 2005 and 2006 included

contracts with The Niagara Parks Commission

(“NPC”) and New York State Parks (“OPRHP”).

Maid refused to produce those documents claiming

“irrelevant, immaterial, ill-defined, and not

reasonably calculated to lead to the discovery of

admissible evidence.” [Docket # _.] Maid further

claimed that these agreements represented

“confidential, proprietary business information” and

were “irrelevant to this proceeding” even though

these are documents with two government entities

that have provided them freely in other legal actions.

Furthermore, these documents were most relevant.

[Exhibit 1 and Exhibit 2 to the First Windsor Dec.|

[First Windsor Dec 4} 22.|

23. dJdudge Evans ruled in response to

Defendants’ Motion to Compel [Docket # 135 and

209.| that these documents were not relevant to the

case. Maid misrepresented the facts and deceived

Judge Evans with false claims. [First Windsor Dee 4

23.]

24. Ata hearing in chambers on February

2, 2007, Judge Evans required that Maid produce

the NPC Lease and the New York License under sea]

for an in camera inspection to determine if the

documents contained information that would be

40

relevant to the Defendants tn this proceeding.

[Docket # 174.|

25. Maid produced documents for the in

camera inspection on February 15, 2007. [Docket #

168.]

26. dudge Evans failed to respond to

Windsor’s February 26, 2007 motion or to provide

the Defendants with any indication of the results of

her examination until she issued an Order on April

20, 2007. In that Order [Docket # 209], Judge Evans

stated: “Production 1s not warranted.” Judge Evans’

failure to respond to the Defendants on this in

camera inspection for two months while the

Defendants were answering Maid’s summary

judgment motion was unfair and shows bias for the

Plaintiffs. [First Windsor Dec 4 26.]

27. The Defendants finally obtained copies

of these contracts in late March 2009 through other

legal actions. The lease (“Canadian Lease”) between

The Niagara Parks Commission (“NPC”) and

Plaintiff Maid of the Mist Steamboat Company

Limited (“Maid Canada”) is attached as Exhibit 1 to

the First Windsor Dec. The license contract (“New

York License”) between New York State Office of

Parks, Recreation and Historic Preservation

(“OPRHP") and Plaintiff Maid of the Mist

Corporation (Maid US) ts attached as Fxhibit 2 to

the First Windsor Dec. [First Windsor Dee 4 27.]

28. Immediately upon reviewing these

documents, it was apparent to the Defendants that

41

the documents did include information that was

relevant to the Defendants’ case. The documents

include information that Maid did not have a valid

basis for excluding from the discovery process. [First

Windsor Dec 4 28.]

29. This information provides an

explanation for the lies and deceit of Maid in this

matter. This information establishes a motive for

the wrongful actions of Maid. This information

establishes that Maid had unclean hands. This

information establishes additional proof of the fraud

and dishonesty of Maid as these facts were concealed

throughout the litigation. |First Windsor Dec { 29.]

30. This new information should change

the way the Court looks at this case. [First Windsor

Dec 4 30.]

31. The new information explains why

Maid was lying when they claimed complaints about

pricing with Alcatraz and demanded that Alcatraz

lower its retail prices to match the Plaintiffs’ retail

prices. Maid had a pricing problem, but it was with

NPC and OPRHP; Maid was in breach of contract.

[Kirst Windsor Dec ¥ 31.|

32. The Plaintiffs concealed information

because the Defendants would have conducted

discovery with NPC and OPRHP that would have

revealed that the Plaintiffs were in breach of

contract, had obtained a trademark improperly, and

had made a material misrepresentation to obtain the

New York License. A $1.3 billion dollar business

42

was at risk, so Maid hed — again and again and

again. [First Windsor Dec 4 32.]

33. NEW EVIDENCE #2 -- The second

piece of new evidence is a fax from Sandra Carlson

to Bill Windsor dated March 3, 2005.

34. Carlson sent Windsor a fax on March 3,

2005. In the remarks section of the Fax Cover

Sheet, Carlson wrote “as requested.” [Exhibit 3 to

First Windsor Dec.] This establishes that Carlson

spoke to Windsor on the date that he testified they

entered into a contract for the entire 2005 season.

Maid and Carlson stated that no such conversation

ever took place and that Carlson didn’t even know

Windsor’s name “until much later in 2005,” but this

document proves that she was lying. She clearly

knew who Bill Windsor was on March 3, 2005 as she

addressed a fax to him on that date. Maid’s entire

case hinged on trying to claim there was no oral

contract for the 2005 season. [First Windsor Dec 4

34.]

ao. The newly obtained evidence directly

contradicts findings of fact presented to the Court by

Maid. [First Windsor Dec 4 35.]

36. NEW EVIDENCE #38 -- Mr. Raley failed

to inform the Court of the importance of documents

that were in the record.

37. Documents in the record defeat any

claim of damages that Maid has alleged on tortious

interference. Exhibit S-11 to the Deposition of

Robert J. Schut ‘Schul Depo”) includes copies of the

43

checks that Alcatraz paid to Maid. These checks and

Maid’s accounting records (Exhibits S-12 to S-18 to

the Schul Depo) will show that Alcatraz paid Maid

$10,249.46 more than was due to Maid based upon

Maid’s invoices. Alcatraz did not request a refund,

but Maid returned the money to Alcatraz

unannounced a month after this lawsuit was filed.

This was more than enough money to cover the costs

of all of the Alcatraz customers who Maid refused to

serve in August and September 2005. Maid had no

damages as they had the money to cover all costs,

and if there was any monetary damage, it was

caused by Maid’s actions. [First Windsor Dec 4 37.]

38. NEW EVIDENCE #4 — Mr. Raley failed

to file declarations of Alcatraz employees. ‘These

declarations provide important evidence on various

aspects of this case. [First Windsor Dec 4 38.]

39. One of the most important is the

Weclaration of Sonya Chase (“Chase”). Chase has

been employed by Alcatraz as Bookkeeping Manager

and Ticketing Manager since February 2005. [First

Windsor Dec 4 39.]

AO. Ms. Chase’s declaration (Chase Dec”)

details payments made to the Plaintiffs with check

copies and invoice copies. [First Windsor Dec 4 40.]

Al. Mr. Raley failed to file the Chase Dec,

and he failed to inform the Court of the importance

of several of the items included therein. Chase

states: “On September 27, 2005, Maid of the Mist

issued check 10405 to Alcatraz Media in the amount

44

of $3,577.50. [Exhibit 23 to the Chase Dec.] On

September 30, 2005, Maid of the Mist issued check

93667 to Alcatraz Media in the amount of $588.60.

Check #11484 date August 2, 2005 in the amount of

$3,916.21 and check #12199 dated September 24,

2005 in the amount of $2,167.15 were returned by

Maid of the Mist. [Exhibit 24 to the Chase Dec.]

These checks total $10,249.46. The lawsuit was filed

on August 29, 2005. At the time the lawsuit was

filed, the Plaintiffs held $10,249.46 of Alcatraz’s

money, more than enough to cover the cost of every

K-Ticket that Alcatraz issued. Maid returned this

money a month after this lawsuit was filed. The

first check returned was #11484 dated August 2,

2005 in the amount of $3,916.21. August 2 was

before the Plaintiffs started denying the E-Tickets of

Alcatraz’s customers. [First Windsor Dec 4 41.]

42. In addition, the Defendants established

that Maid billed and collected $495.80 from Alcatraz

for customers who were improperly denied the use of

E-Tickets purchased before the so-called

“termination date.” [First Windsor Dec 4 42 and

Exhibit 13.] Alcatraz also had to refund

approximately 80 customers with valid E-Tickets

“Termination Date.”

purchased prior to the so-called

43. The Declarations of Alcatraz’s

employees are attached to the Fourth Declaration of

Defendant William M. Windsor (“Windsor Dec 4”) as

Exhibits 1 to 10. [Fourth Windsor Dec 4 43.1

44. NEW EVIDENCE #5 — Mr. Raley failed

to file the declarations of Alcatraz Media customers.

[First Windsor Dec § 44.]

45

ADB. In total, the Defendants obtained

affidavits from 169 people representing 762

customers of 1,802 customers before Maid

terminated the contract. These declarations provide

convincing proof that the complaints alleged by Maid

did not take place. The Court is reminded that Maid

did not produce any declarations from any customers

prior to the termination date stating that they had

complaints against Alcatraz, but the Verified

Complaint stated that there were daily complaints.

{First Windsor Dec 4 45.]

46. The Declarations of Alcatraz’s

customers are attached to the Fourth Windsor Dec

as Exhibits 67 to 213 [Windsor Dec #4]. [First

Windsor Dec -- 4 46.]

47. Rule 60(b)(3) -- fraud (whether

previously called intrinsic or extrinsic),

misrepresentation, or misconduct by an opposing

party; [First Windsor Dec 4 47.]

48. Judgment was obtained by Maid due to

fraud, misrepresentation, and misconduct. This

conduct prevented the Defendants from being able to

fully and fairly presenting their case. This Court’s

judgment was tainted by fraud, misconduct, and

misrepresentation. [First Windsor Dec 4 48.]

AQ. Maid withheld documents, fabricated

evidence, gave perjured testimony, and abused the

legal system in a wide variety of ways. Judge Evans

denied the Defendants relief from judgment because

she did not stop Maid from committing perjury,

46

withholding documents, fabricating evidence, and

perverting the legal system. The actions of Maid

and Judge Evans deprived the Defendants of the

opportunity to be heard. [First Windsor Dec 4 49.|

50. Windsor provided details about the

fraud and misconduct of Maid to the attention of

Judge Evans on February 2, 2007 [Docket # 174], but

she never did anything about it. [Docket # 174, Page

34 Lines 4 to 6.] Windsor provided additional details

in an affidavit dated November 19, 2007, attached as

Exhibit 14 to the First Windsor Dec. [First Windsor

Dec ¥ 50.]

51. Windsor details the fraud,

misrepresentation, and misconduct in the Third

Declaration of Defendant William M. Windsor

(Windsor Dec #3), attached as Exhibit 2. This is

clear and convincing evidence. Maid’s managers

gave false testimony in affidavits, depositions, and at

the Preliminary Injunction Hearing. {First Windsor

Dec 9 51.1

52. Summary judgment and Final

Judgment were granted based upon

misrepresentations so egregious as to amount to a

fraud upon the court. [First Windsor Dec 4 52.

53. Windsor also submits that a hearing

is needed with Judge Evans as a witness so the

Defendants may tnquire into what documents Judge

Evans was given under seal for an in camera

inspection. Did Maid submit false documents, or did

47

Re ee aL Se Ph Raw” 8 Se VS ae a PD ae SD Ve

Judge Evans withhold the evidence? [First Windsor

Dee 9 53.

54 Mr. Raley failed to file a Rule 1} motion

with proof of hundreds of lies and perjury by the

Plaintiffs. Exhibits 1 to 23 to Windsor Dec # 3 detail

the Rule 11 violations, hes, and perjury. [First

Windsor Dec 4 54_|

HD. Windsor prays that the Court will

reopen the case so the truth can come out. [First

Windsor Dee 4 55.)

56. Rule 60 (b) (3) provides that a court

may relieve a party or a party's legal representative

from a final judgment, order, or proceeding based

upon fraud (whether heretofore denominated

intrinsic or extrinsic), misrepresentation, or other

misconduct of an adverse party.

57. The Defendants can show that Maid

committed fraud, misrepresentation, and perjury,

and Maid’s attorneys participated knowingly in

these wrongs and suborned perjury. [First Windsor

Dec 4 57.]

58. This is a case where the Defendants did

not act improperly but have incurred a fortune in

legal fees due to the wrongful actions of Maid. [First

Windsor Dec 4] 58.)

59. Rule 60(b)(4) -- the judgment is void.

60. The Final Judgment in this case should

be void because Judge Evans did not act in a manner

48

=e he 6 2 Oe ae se ee. ae ee MSO OW OF 2

consistent with due process of law. Judge Evans

withheld documents from the Defendants, denied

reasonable discovery to the Defendants, allowed the

legal process to be perverted with all forms of

dishonesty by Maid. [First Windsor Dec 4 60.|

61. Rule 60(b)(5) -- the judgment has been

satisfied, released, or discharged; it is based on an

earlier judgment that has been reversed or vacated;

or applying it prospectively is no longer equitable.

62. The Final Judgment in this case

includes an injunction. Rule 60(b)(5) authorizes a

court to grant relief from final judgment if “applying

it prospectively is no longer equitable.” [First

Windsor Dec 4 62.]

63 There were clearly erroneous factual

findings in this case as well as erroneous legal

findings, and a manifest injustice. [Iirst Windsor

Dec 4 63]

64. One additional piece of new information

has to do with the idea that Alcatraz didn’t have the

right to sell the Plaintiffs’ tickets. [First Windsor

Dec 4 64.|

65. Judge Evans claimed this was a “simple

case” because she felt that Maid had the right to

refuse to let Aleatraz sell Maid tickets. Aleatraz

argued that it had the mght to sell any tickets

lawfully obtained. Alcatraz even became a

registered ticket broker in Georgia, which legally

allows tickets to be purchased from any source and

resold. Judge Evans held to that misguided notion

49

and ruled against the Defendants on the basis of

that belief with no legal justification. [First Windsor

Dec 9 65.]

66 Judge Evans asked in Chambers on

February 2, 2007 how Alcatraz felt it had the nght

to sell tickets. For starters, Aleatraz was granted

the right to sell tickets "on credit" by the Plaintiffs tn

a written contract. Then there was an oral contract

for the entire 2005 season that Alcatraz obtained

because of concerns over strange behavior by Maid

It is also clearly established that anyone can sell a

ticket for any event or attraction without the

authorization of the event or attraction. Tens of

millions of tickets are sold each year by ticket

brokers and individuals online, on eBay, in the

newspaper, etc. None of these sellers are

“authorized.” So, Alcatraz did not need any

authorization from Maid to sell its tickets. In

addition, travel agents and other types of

reservations services sell tickets and handle

reservations for their clients without any authorized

agent relationship with the events, attractions, or

services. The effect of Judge Evans’ ruling would be

to make a new law that makes the actions of ticket

brokers, consumers, and travel agents illegal, AND

subjects them to pay the legal expense of the events,

attractions, and services that choose to sue them.

This is not right! [First Windsor Dec 4] 66.]

67. Windsor believed that Alcatraz had the

legal right to sell tickets that it obtained from lawful

sources, but he felt the practice is so universally

accepted that there 1s no law about it and there was

no need to cite any cases. Windsor has now learned

50

ee eH 4A Co FTF FP aw & 6 hh “Tr am. oe OF

that there is an applicable legal doctrine — the “first

ale doctrine.” [See Citizens of Humanity, LLC vs

Costco Wholesale Corporation in the Court of

\ppeals ot the State of California Second Appellate

District Division Three No. B204117 (2/11/2009). |

The Costco decision was rendered in 2009, so the

Defendants did not have this to reference during

these proceedings prior to now. [First Windsor Dec §

Oo /.]

68 When a manufacturer (Plaintiffs) parts

with his goods (tickets), and they go upon the

market, any third person (Alcatraz) has the right to

purchase and sell them as he pleases, without the

consent of the manufacturer (Maid); and the courts

will not aid the manufacturer (Maid), under the

ruse of protecting his trade-mark or the suppression

of unfair competition, by permitting him in such

litigation to discover the sources from which an

objectionable merchant — to him (Alcatraz) — obtains

his supply. [First Windsor Dec 4 68.]

69 The “competition privilege” should have

provided a complete defense to Maid’s claim of

intentional interference with prospective economic

advantage, as Aleatraz did not commit an unlawful

or illegitimate act. [First Windsor Dec 4 69.|

70. The ruling in this case could establish a

major number of precedents that change important

laws in Georgia. As Windsor sees it, no one can

legitimately fight a lawsuit without expecting to pay

all legal fees if they lose. Tortious interference docs

not require damages. Tortious interference does not

have to meet the tests that have long been used

Sworn complaints do not have to have a shred of

truth. There are no penalties for discovery abuse,

you can tamper with witnesses, conceal documents

alter documents, refuse to produce documents, and

produce your important documents after discovery

has closed. You do not have to produce your

Witnesses for depositions, but you can then use

affidavits from them and deny the opposing party

the ability to cross-examine. The legal basis for

counterclaims 1s irrelevant, and the courts don't

have to even deal with those issues. Slander 1s

acceptable. No one is allowed to make a factual

complaint to the Better Business Bureau. Court

may stop people from doing perfectly legal things

Courts do not have to go by the law. Courts do not

have to consider the facts. Fact issues are no longe)

issues for a jury to consider; judges are allowed to

handle jury trials themselves without tnvolviny

actual jurors. The Georgia ticket broker laws are

null and void, and no company or individual may

ever sell a ticket or anything else that they acquired

from someone else. Appeals have been eliminated as

the law and the facts are not going to be considered

by the Court. of Appeals. [First Windsor Dee 4 70.]

71 Rule 60(b)(6) -- any other reason that

justifies relief

72 There are certainly exceptional

circumstances in this case. ‘l’his 1s a case where

relevant documents have been withheld from the

Defendants by both Maid and the Court. There have

been too many wrongs to list them again. [First

Windsor Dec 4 72.|

133 Judge kvans actions prevented the

Defendants from being able to handle this lawsuit a

they needed while dealing with dishonest Plaimtilf

and dishonest attorneys. This 1s an unusual and

extreme situation where principles of equity

mandate relet) The “exceptional circumstance” in

this case is the totality of the mistreatment of the

Defendants. [First Windsor Dec 4 73.|

iA Please consider Rule 60(b)(6) 1

io The First Windsor Dec states the facts

and the reasons tor the behef that this case should

be reopened, This declaration was not filed earlier

because the Defendants have just received and

studied the Canadian Lease and the New York

License, and this is good cause for failure to file thi:

earlier. | hereby state that my motions and

declarations are made in good faith. James W

Penland has filed a motion to withdraw as Windsor

counsel. ‘Thus Windsor ts filing this “Motion to

Reopen pro se [Kirst Windsor Dee 4 75 |

76 Every once ina while, we get a second

chance. Every once ina while, we get the

opportunity to right a wrong. The Defendants were

terribly wronged in this case. Windsor knows that if

the Court will reopen the case, the Defendants will

be able to show what really happened. Windsor

believes the Court will turn to the Defendants and

apologize. [First Windsor Dec 4 76.]

53

e Court grant DEFENDANT WILLIAM

M. WINDSORS MOTION TO REOPEN THI

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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF GEORCIA

ATLANTA DIVISION

MAID OF THE MIST

CORPORATION

and MAID OF THE MIST

yTEAMBOAT COMPANY, LED, )

Plaintiff )

CIVIL ACTION NO

L:O6CV O71-ODE

\LCATRAZ MEDIA, LLC

VLLCATRAZ MEDIA, INC. and

WILLIAM M. WINDSOR

)

Defendant }

)

CERTIFICATE OF SERVICE

| hereby certify that on April 24, 2009 I served

DEFENDANT WILLIAM M. WINDSOR’S MOTION

TO REOPEN CASE by depositing the same in an

envelope with proper postage affixed thereto and

sent by certified mail return receipt and addressed

as follows

Carl Hugo Anderson, Jr., kisq

Sarah Bright, Msq

Brett Mendell, Esq

AWKINS & PARNELL, LLP

1000 SunTrust Plaza

303 Peachtree Street, NE

Atlanta, Georgia 30308

Marc A. Brown

Phillips Lytle, LLP

3400 HSBC Center

Buffalo, NY 14203

G. Brian Raley, Esq.

RALEY & SANDIFER, P.C.

2650 Resurgens Plaza

945 East Paces Ferry Road

Atlanta, Georgia 30326

Facsimile: (404) 995-9100

This 24 day of April 2009.

William Windsor

Pro Se

3924 Lower Roswell Road

Marietta, GA 30068

56

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

MAID OF THE MIST

CORPORATION

and MAID OF THE MIST

STEAMBOAT COMPANY, LTD.,

Plaintiffs,

CIVIL ACTION NO:

V.

1:06-CV-0714-ODE

ALCATRAZ MEDIA, LLC,

ALCATRAZ MEDIA, INC. and

WILLIAM M. WINDSOR,

Defendants.

Ne eee ee ee”

REPLY TO PLAINTIFFS’ RESPONSE IN

OPPOSITION TO DEFENDANT WILLIAM M.

WINDSOR’S MOTION TO REOPEN CASE

Comes Now Defendant William M. Windsor

(“Windsor”) and files this REPLY TO PLAINTIFFS’

RESPONSE IN OPPOSITION TO DEF#NDANT

WILLIAM M. WINDSOR’S MOTION TO REOPEN

CASE (“Reply”). In support of this Reply, Windsor

rehes upon Defendant William M. Windsor’s Motion

to Reopen Case (“Motion to Reopen”), Memorandum

of Law in Support thereof (Docket #362), and the

Kirst (“Dec #1"), Second (“Dec #2”), Third (“Dee #3”),

Fourth (“Dec #4”), Fifth (“Dec #5”), Sixth (“Dee #6”),

and Seventh (“Dec #7”) Declarations of William M.

Windsor in Support of the Motion to Reopen and

declarations and exhibits thereto and in support

thereof, the amended exhibits to the Third

Declaration of William M. Windsor filed May 13,

2009, as well as on Defendant Wiliam M. Windsor’s

Motion to Recuse (“Motion to Recuse”) and

declarations and exhibits thereto, Reply to Plaintiffs’

Response in Opposition to the Motion to Recuse, and

the Customer Declarations (Docket #368).

o The main purpose of our legal system is

to make sure that justice is served. The legal system

has been abused by the Plaintiffs and by Judge

Orinda D. Evans so that the Defendants were

treated unfairly and justice was denied. [Dec #6 94.]

a Windsor learned early tn his 40-year

business career that it is often more important to

consider what isn’t said than to focus on what is

said. Windsor waited with great anticipation to see

how in the world the Plaintiffs’ attorney would

respond to the Motion to Reopen. There would be no

way for Maid to address the hes, false sworn

pleadings, and other wrongs because Windsor had

cited and organized the evidence to prove the

wrongs. Surely Mr. Carl Hugo Anderson (“Mr.

Anderson”) couldn’t risk having more false affidavits

signed. [Dec #6 94.]}

sf Review the Plaintiffs’ Response in

Opposition to Defendant William M. Windsor’s

Motion to Reopen Case (“Response”). Consider what

hasn’t been said. Mr. Anderson did not even address

the fact presentation of Windsor. He filed no

affidavits in support of Plaintiffs’ Response. L.R. 7.1

(A) (1) and (b) provide that “if allegations of fact are

relied upon, supporting affidavits must be attached.”

Windsor submits that the Court must therefore

grant the Motion to Reopen because the Plaintiffs

have provided no facts to support their Response,

and the Plaintiffs cannot dispute the facts shown by

Windsor. [Dec #6 95.]}

4. Windsor filed the Motion to Reopen

citing Rule 60(b) of the FRCP and asks the Court to

also rule on this Motion to Reopen based upon the

Court’s inherent powers. Bronson v. Schulten, 104

U.S. (14 Otto) 410, 417 (1881). |Dec #6 46.1

5. It is well established that a Court may

take such action in the interest of justice. It hkewise

can grant relief from an unjust judgment under

KRCP 60(b). “In simple English,” Rule 60(b) vests

power in courts “adequate to enable them to vacate

judgments whenever such action is appropriate to

accomplish justice.” Klaprott v. United States, 335

U.S. 601, 615. 69 S.Ct. 384. 390 1949). [Dec #6 46.1

6. Mr. Anderson has made statements of

alleged facts within the Response that are false and

are not supported by affidavit as required. Windsor

has addressed the false statements in Exhibit #1 to

the Sixth Declaration of Wilham M. Windsor (Dec

#6) which is attached hereto as Exhibit A. [Dec #6

7.1

¥ The Response is all about procedural

issues related to Rule 60(b). A few of the procedural

points might even be valid based upon some cases

59

that Windsor has reviewed. The Court’s inherent

powers trump all procedural points. [Dec #6 47.|

8. The Response ignores the point of the

Motion to Reopen. The point is that the totality of

the lies, false sworn pleadings, Rule 11 and Rule 37

violations, and errors by Judge Evans provide an

exceptional circumstance so severe that justice

demands that the case be reopened. As the attorney

said before the high court in the movie, The Castle,

“it’s the vibe of it.” [Dec #6 48.]

9. The proof of the lies/perjury is detailed

in Amended Dec#3 — Exhibits #1 to 14. The three

Plaintiffs (“Maid”) managers are guilty of hundreds

of counts of perjury. [Dec #6 99.]

10. The false sworn pleadings and false

pleadings are detailed in Amended Dec #3 — Exhibits

1, 3, 5, 7, 13, 22, and 23. The Rule 11 violations are

detailed in Amended Dec #3 — Exhibits 23, 1, 3, 5, 7,

13, and 22. The Rule 37 violations are detailed in

the Motion to Recuse and Dec #2 and Exhibit 16

thereto. [Dec #6 910.]

a: The errors by Judge Evans are detailed

in the Motion to Recuse and Dec #2 and exhibits

thereto as well as in the entire Docket. Errors by

Judge Evans are summarized in Exhibit #2 to Dec

#6. So, “It’s the vibe of it.” [Dec #6 4911.]

12. Windsor asks that the Court consider

every point raised in the Motion to Reopen, the

Motion to Recuse, and the First, Second, Third,

Fourth, Fifth, Sixth, and Seventh Declarations of

60

William M. Windsor as the basis for granting the

Motion to Reopen the Case under Rule 60(b) or the

Court's inherent powers. [Dec #6 912.]

13. WINDSOR’S MOTION IS

PROCEDURALLY PROPER UNDER RULE 60(b)

OR UNDER COURTS INHERENT POWERS. [Dec

#6 913.)

14. Windsor’s accusations have not

previously been given proper consideration by the

Court. Exhibit #3 to Dec #6 provides the relevant

portions of the transcript from the February 2, 2007

Hearing when Windsor first raised the hundreds of

lies and false sworn pleadings. Judge Evans did

absolutely nothing about the claim presented at the

hearing that the Plaintiffs had hed hundreds of

times and had committed perjury. The Defendants

asked their attorneys to raise these issues at

summary judgment and on appeal, but they failed to

do so. [Dec #6 414.]

15. Windsor has asserted valid grounds

under Rule 60(b) and under the Court’s inherent

powers to re-open this litigation and obtain relief

[Dec #6 915.]

16. THE GROUNDS FOR RELIEF CITED

IN WINDSOR’S MOTION DO CONSTITUTE

MISTAKE, INADVERTANCE, SURPRISE OR

EXCUSABLE NEGLECT UNDER RULE 60(b)(1).

(Pioneer Inv. Servs. Co. v. Brunswick Assocs, 507

U.S. 380, 113 S. Ct. 1489 (1993).) [Dec #6 916.)

17. The Supreme Court says “excusable

neglect” encompasses negligence and carelessness.

[In making the determination whether a particular

instance of neglect is “excusable,” a court must take

account of all relevant circumstances. These have

been detailed in the Motion to Reopen, and the basic

issues are stated in Motion to Reopen §| 10 and Dec

#1, 9 10. [Dec #6 417.1

18. Windsor submits that much of what

happened in this case should be considered as a

mistake. Judge Evans made many mistakes. The

Plaintiffs and their attorneys did many improper

things. Defendants’ attorney Brian Raley (“Mr.

Raley”) made many mistakes. (Exhibit 4 to Dec #6.)

[Dec #6 418.]

19. The failure to file the Bazzo Deposition

was a monumental mistake. This entire case hinges

on the oral contract. There was an oral contract for

the entire 2005 season, and the Bazzo Deposition

provided a second set of evidence in this regard.

Exhibit #5 to Dec #6 shows the evidence provided by

Carolyn Ballard Bazzo that relates to the oral

contract issue alone. [Dec #6 919.]

20. ‘The failure to file the Bazzo Deposition

transcript should be considered “excusable neglect”

as to Windsor and Alcatraz. Mr. Anderson clearly

did request twice that the Deposition transcript be

filed. Windsor and Alcatraz asked Mr. Raley to be

sure everything needed was filed. Mr. Raley failed

to do so. The Defendants did not make the mistake.

(Exhibit #6 to Dec #6.) [Dec #6 920.]

62

21. ‘The Bazzo Deposition should provide

sufficient evidence of the oral contract by Sandra

Carlson (“Carlson”) that Alcatraz could sell Maid

tickets for the entire 2005 season. Contrary to Mr.

Anderson and the Summary Judgment Order,

Alcatraz did provide excerpts or quotations from the

deposition. (Docket # 221-3.) The backup evidence of

the quotations/citations was simply missing. [Dec #6

21.1

22. The Bazzo Deposition should have

changed the outcome of this case if the judge had

been fair and had followed the law. (Exhibit #24 to

Amended Dec #3.) [Dec #6 422.]

23. The conduct of the Defendants was

certainly in good faith. This case should not be

reduced to a malpractice claim against Mr. Raley

when compared to the lies, perjury, false sworn

pleadings, Rule violations, and errors by Judge

Kvans. ‘The scales of justice weigh heavily in favor of

Windsor and Alcatraz. [Dec #6 423.]

24. Windsor’s claim that there was an oral

promise that gave Alcatraz the right to sell tickets

for the entire 2005 season was not properly

considered throughout the entire litigation. [Dec #6

424.]

25. ‘The Response cites the Affidavit of

Sandra Carlson, but that affidavit 1s not admissible

in this case. [Dec #6 925.|

26. The reasoning articulated in the Court's

Auvust 8, 2007 order shows that Windsor’s claims

63

would have prevailed as a matter of law with Bazzo’s

Deposition testimony. The Court claimed there was

no proof. While that was clearly erroneous, Bazzo’s

Deposition provides 117 pages of proof. The filing of

the deposition would change the outcome of this case

with a fair judge. [Dec #6 426.]

27. The failure to file the deposition is

mistake/excusable neglect. [Dec #6 427.]

28. The determination is an equitable one,

taking account of all relevant circumstances

surrounding the party's omission. (Motion to Reopen

4 10 and Windsor Dec #1 4 10.) [Dec #6 4/28.|

29. ‘The Court is asked to consider the

errors of Mr. Raley listed in Exhibit #4 to Dec #6 for

more mistakes to consider as “excusable neglect.”

[Dec #6 429.]

30. Windsor’s assertion that the Court

withheld relevant documents from the Defendants

definitely has merit. Maid’s Attorney ignores the

reality that the withheld documents contained

extremely important information for the Defendants.

Judge Evans had an obligation to review those

documents and provide them to the Defendants since

they were relevant to the case. [Dec #6 930.]

31. That Judge Evans expressed concern

that information of a confidential or semi

confidential nature could be used is irrelevant when

the documents were vitally important to the case.

Judge Evans continued to display her bias against

Windsor. ‘The fact that the Court ruled against

Windsor on this discovery request 1s proof of bias

and wrongdoing by Judge Evans. Judge Evans ruled

against the Defendants on 40 of 41 contested

motions. [Dec #6 q31.|

32. THE GROUNDS FOR RELIEF CITED

IN WINDSOR’S MOTION DO CONSTITUTE

NEWLY DISCOVERED EVIDENCE. [Dec #6 432.|

33. Reasonable diligence was used to

attempt to obtain the Canadian Lease and the New

York License, as is detailed in Dec #6. These

documents were absolutely “newly discovered” in

March 2009. Discovery takes place when a party

sees or hears information, not when a party knows of

the existence of evidence that it cannot obtain. [Dec

#6 933.]

34. Windsor did “discover” a fax from

Sandra Carlson to Windsor dated March 3, 2005. Mr.

Anderson improperly cites Atkinson v. Prudential

Prop. Co., Inc., 43 F.3d 367. 371 n.3 (8th Crr. 1994)

and claims the law is clear that a party may not

“discover” evidence already in its possession.

Windsor did not know he had this fax. Windsor did

not even remember that there was such a fax. [Dec

#6 934.]

Ob. The Carlson Fax is clearly material. It

supports the Defendants’ sworn claims about what

happened on March 3, 2005, and it established that

Maid’s alleged statement of facts was false in this

regard. It also proves that Carlson’s inadmissible

affidavit (Docket #147) was false. [Dec #6 935.|

36. The substantial likelihood that the

newly discovered evidence would change the

outcome of the case is not always most important.

This fax alone does not change the outcome of the

case. But it’s part of “the vibe of it.” It is a key piece

of evidence about the central issue to this case. It

does not prove the existence of an oral contract for

the entire 2005 season, but it certainly documents

the contact and the follow-up on that critical date,

and it must eliminate any weight given to the

Plaintiffs’ claims on this issue. [Dec #6 936.]

aT. “NEW EVIDENCE # 3 - - Mr. Raley

failed to inform the Court of the importance of

documents that were in the record.” [Dec #6 437.|

38. Windsor asks the Court to consider this

under any aspect of Rule 60(b), such as excusable

neglect, and under the Court’s inherent powers. The

issue is: There were there no damages under

tortious interference since the Plaintiffs had received

prepayments of over $10,000. Maid manufactured

the allegation of a financial loss by refunding this

money over a month after the lawsuit was filed

Windsor asked Mr. Raley to include this at summary

judgment, but he did not. [Dec #6 438.]

39. “NEW EVIDENCE #4 -- Mr. Raley

failed to file declarations of Alcatraz employees.

These declarations provide important evidence on

various aspects of this case.” [Dec #6 939.|

AQ. Mr. Anderson’s argument on this seems

to be well made. It does seem fair that a party

cannot “discover” evidence that existed prior to the

66

summary judgment filings. Windsor asks the Court

to consider this as another mistake and to consider

this under all aspects of Rule 60(b) and the Court's

inherent powers. Note that these declarations were

signed in early 2007 before the summary judgment

filings. (Docket #362.) The Defendants asked Mr

Raley to file these declarations, but he failed to do

so. [Dec #6 940.]

11. Mr. Raley was replaced as counsel to

Alcatraz on all matters shortly after the Final Order

was issued in this case. [Dec #6 941.]

12. “NEW EVIDENCE # 5 - - Mr. Raley

failed to file declarations of Alcatraz Media

customers.” |Dec #6 442.|

43. Mr. Anderson's argument on this seems

to be well made. Windsor asks the Court to consider

this as another mistake and to consider this under

all aspects of Rule 60(b), including excusable

negligence, and the Court's inherent powers. Note

that these declarations were signed before summary

judgment. (Docket #368.) The Defendants asked Mr

Raley to file these declarations, but he failed. [Dec #6

43.1

44. THE GROUNDS FOR RELIEF CITED

IN WINDSOR’S MOTION DO CONSTITUTE

FRAUD UNDER RULE 60(b)(3). [Dec #6 444.

AD. Mr. Anderson falsely claims “Windsor's

fraud accusations against Maid and tts counsel were

leveled throughout this litigation and the Court

found no merit in them.” He cites an opposition to

attorney's fees filed September 17, 2007 well after

the Summary Judgment Order was issued and at the

time of the appeal. This was over two years after

the lawsuit was filed and after the Summary

Judgment Order. This ts not “throughout the

litigation.” [Dec #6 445.|

Ab The Court has not ruled against

Windsor on virtually every matter that he

complained about in Windsor’s Opposition Brief as

Matd's Attorney claimed. The Court ignored the hes,

perjury, and false sworn pleadings. (Docket #174.)

The Court was biased and made improper rulings on

many issues. [Dec #6 946.|

47. Mr. Anderson did not deny that Maid or

its attorneys engaged in unethical conduct. They

did. |Dec #6 447.|

AS. Windsor’s accusations were never fully

briefed until the Motion to Reopen Case and Motion

to Recuse Judge Evans. This was another error of

Mr. Raley. The Defendants provided much of this

detailed information to Mr. Raley for a Rule 11

motion that he promised he would vet filed. He

failed to do so. [Dec #6 9448.]

AQ. Mr. Anderson falsely claims that

Windsor’s “accusations are patently false.” Maid has

no such proof. The Court must not consider this

statement as Maid provided no affidavit in support.

Maid cunnot establish that Windsor’s accusations

are “patently false,” because they are patently true

and documented. |Dec #6 449.]

50. Just as he did in the underlying

litigation, Windsor still vehemently asserts that he

should not have been a named defendant. [Dec #6

450.|

51 Mr. Anderson's response on this point is

especially interesting. His justification for including

Windsor in this case ts that “The underlying record

in this case is replete with examples of Windsor’s

outrageous behavior in contacting Maid customers

(such as Susan Molck and Fran Marlatt) and

threatening to have them criminally prosecuted after

they attempted to seek refunds through their credit

card companies. (Affidavits of Susan Molck and Fran

Marlatt, Docket Nos. 147-22, 147-23, respectively).

These are the events, reflected in the record before

this Court, that gave rise to Maid’s Yortious

Interference claim.” [Dec #6 451.1

52. Windsor’s behavior was not outrageous.

Windsor never sold anything, never had any

PERSONAL business dealings with Maid or any

Alcatraz or Maid customers, and he never did

anything that generated any damages to Maid, so

there is absolutely no basis to claim he was hable for

tortious interference. In fact, Judge Evans did not

find against Windsor for tortious interference in her

Summary Judgment Order. She found only against

Aleatraz. Judge Evans found Windsor jointly lable

for attorneys’ fees after failing to find against him on

the sole cause of action in the case. Since one may

not sue another for attorney's fees, Judge Evans was

wrong to find Windsor liable. [Dec #6 952.|

69

§3. Alcatraz’s dealings with Judy Berry

(“Berry”), Susan Molck (“Molck”), and Fran Marlatt.

(“Marlatt”) came only after each had been to Niagara

Falls and paid Maid for boat rides. None of the three

complained while they were there. There were no

damages, and there was no tortious interference

with three people who were not honest. after they

returned from Niagara Falls. Berry is a liar, and the

affidavits of Molck and Marlatt do not say what. Mr.

Anderson claims, and they are proof of nothing.

(Exhibits #6, 7, and 8 to Dec #6.) [Dec #6 953.]

54. Mr. Anderson falsely claims that

Windsor has made inappropriate and false

accusations against Maid and its attorneys. |Dec #6

154.)

55d. Maid’s attorneys have provided neither

evidence nor affidavits to dispute Windsor’s

accusations. The accusations are appropriate and

true. [Dec #6 955.1

56. Windsor did not previously raise many

of these allegations with the Court in various

pleadings throughout this litigation as has been

documented above in paragraphs 45 to 48. The

Court never properly considered this. [Dec #6 956.]

57. Windsor did not have a full opportunity

to litigate fairly. [Dec #6 457.]

58. Windsor has clearly shown that the

actions of Maid, Maid’s Attorneys, and Judge Evans

interfered with the full and fair presentation of the

case. The “fraud” allegations were not leveled

70

throughout the underlying proceeding, and Judge

Evans wrongly ignored the allegations and did

absolutely nothing about it. [Dec #6 458.]

59. UNDERLYING JUDGMENT IS VOID

UNDER RULE 60(b)(4). [Dec #6 959.]

60. Due process is the principle that the

government must respect all of the legal rights that

are owed to a person according to the law of the land.

The Fifth Amendment to the U.S. Constitution

reads: “No person shall be ... deprived of life, liberty,

or property, without due process of law. Procedural

due process 1s essentially based on the concept of

"fundamental fairness.” The person or panel making

the final decision over the proceedings is supposed to

be impartial in regards to the matter before them.

There was no fundamental fairness in this case, and

Judge Evans was not the least bit impartial. [Dec #6

460.]

61. The Final Judgment in this case should

be void because Judge Evans did not act in a manner

consistent with due process of law. Judge Evans

withheld documents from the Defendants, denied

reasonable discovery to the Defendants, and allowed

the legal process to be perverted with dishonesty.

[Dec #6 961.]

62. Windsor’s Motion to Reopen is not “a

rambling recitation of his often-repeated and

completely unsubstantiated invective against Maid

and its attorneys” as Mr. Anderson claims. Maid

and its attorneys engaged in fraudulent and

71

unethical conduct. It’s a fact, and it is well

substantiated. [Dec #6 462.|

63. Mr. Anderson stated in the Response:

“Maid and its attorneys fully deny each and every

allegation made against them here and in past briefs

throughout this litigation.” The Court must ignore

this statement because it is false and because

neither Maid nor its attorneys provided affidavits in

support of this. Maid did not file affidavits in

support of these claims because the claims are true

and they apparently were not prepared to lie even

more. [Dec #6 963.]

64. WINDSOR’S MOTION IS NOT

PROCEDURALLY IMPROPER UNDER RULE

60(b)(5). [Dec #6 964.]

65. This rule says that a party “may be

relieved from a final judgment if ... applying it

prospectively is no longer equitable....”. [Dec #6

165.1

66. Alcatraz did have the right to sell the

Plaintiffs’ tickets. This was always stated in this

case. Windsor did not use the term “first sale

doctrine” previously because he had never heard it

until a few months ago. Windsor and Alcatraz

merely stated that Alcatraz had the right to sell

tickets because it 1s the law in Georgia and it 1s the

practice everywhere in the country. [Dec #6 466.|

67. The injunction is against the law.

Georgia Law provides that licensed ticket brokers

such as Alcatraz Media and Windsor are licensed

72

under Georgia law to sell tickets that they lawfully

obtain without any permission of any type from the

originator of the tickets. [Dec #6 467.]

68. Proper application of this law would

have changed the outcome of this case. The

injunction is not prospectively equitable, and there

was no tortious interference with Maid in 2006,

because Alcatraz was merely doing what it is

allowed to do as a licensed ticket broker. There were

also no damages even asserted in 2006. The First

Sale Doctrine should also apply. [Dec #6 968.]

69. WINDSOR’S MOTION IS NOT

PROCEDURALLY IMPROPER UNDER RULE

60(b)(6). [Dec #6 469.]

70. Please note what is missing in Mr.

Anderson’s response. He made no argument as to

why this would not qualify as an “extraordinary

circumstance,” and he provided no affidavits to

support his false assertions. Mr. Anderson makes

false statements in his Response that are proven

false. [Dec #6 970 and Exhibit #1.]

71. | WINDSOR’S MOTION IS TIMELY.

[Dec #6 471.]

72. The appeal was filed on September 7,

2007. A ruling on the appeal came over a year later

on September 19, 2008. Rule 60(b) is broad. It

simply says “On motion and just terms, the court

may relieve a party or its legal representative from a

final judgment, order, or proceeding....” [Dec #6

172.1

73

Ta The “Final Order and Judgment” was

December 9, 2008, so this Motion to Reopen is timely

under Rule 60. Windsor seeks relief from

everything. The Temporary Restraining Order was

improper; the Preliminary Injunction Order was

improper; and the Summary Judgment Order was

improper. Orders regarding discovery were also

improper. An 11 Circuit decision seems to provide

that a Rule 60(b) motion must be filed within one

year after “final judgment.” D. C. Docket No. 03-

00086-CV-OC-10GRJ, JANICE BRADFORD v.

UNUM LIFE INSURANCE COMPANY OF

AMERICA, Appeal from the United States District

Court for the Middle District of Florida (May 14,

2007). [Dec #6 473.1

74. Windsor’s Motion to Reopen Case has

been made within a reasonable time. Windsor asks

the Court to consider the sections of Rule 60(b) that

do not have a one year limit, and Windsor asks the

Court to consider this Motion under the Court’s

inherent powers. [Dec #6 974.]

75. THE DECISION ON WHETHER TO

SET ASIDE IS DISCRETIONARY. [Dec #6 4|75.]

76. Windsor prays that an impartial judge

will consider this Motion, use discretion, and grant

the Motion. [Dec #6 476.]

77. RELIEF MAY NOT BE FAVORED

FROM CONSENT JUDGMENTS IN SOME CASES,

BUT THIS IS NOT ONE OF THEM. [Dec #6 477.]

74

78. The Defendants did enter into a

Consent Final Order and Judgment. (Docket No.

354). That decision was made BASED UPON FEAR.

Judge Evans had been so biased and so unfair that

the Defendants feared that she would mistreat the

Defendants yet again. Settlement was reached in an

effort to stop the financial bleeding. This case has

always been a travesty of justice. [Dec #6 478.1

79. Case law provides quite clearly that a

party has the right to file a Rule 60(b) motion after

entering into a consent judgment. [Dec #6 479.]

80. WINDSOR HAS MADE A SHOWING

OF MERITORIOUS CLAIM AS PRECONDITION

FOR RELIEF FROM JUDGMENT. [Dec #6 480.)

81. Mr. Anderson cites Pease v. Pakhoed

Corp., 980 F.2d 995, 998-1000 (5th Cir. 1993) as his

legal justification. In that case, the party merely

made a bare assertion in his affidavit that the cause

of action was with merit, and that was ruled

insufficient. There were no facts presented.

Contrast that to Windsor’s Motion and declarations

where the issues with the contract, tortious

interference, perjury, and false pleadings have been

detailed with evidence and new declarations to back

these statements up. (Dec #4 especially Exhibits #24

and 25.) [Dec #6 481.|

82. Note this quote from Mr. Anderson:

“Hlere, Windsor’s First, Third, and Fourth Affidavits

in support of his Motion are conclusory opinions not

substantiated by facts.” Talk about a false pleading.

75

How could Mr. Anderson make such a patently false

statement? It’s his vibe —a false vibe. [Dec #6 482.|

83. Windsor has not acted in bad faith, has

acted reasonably, has not been stubbornly litigious,

and has not caused Plaintiffs unnecessary trouble

and expense. Plaintiffs are not entitled to recover

costs of litigation. [Dec #6 483.]

84. Plaintiffs have made no attempt to

resolve this matter amicably with Windsor and have

not been met with abuse and/or harassment on the

part of Windsor since Plaintiffs have made no

attempt to resolve this. There is no Rule 11 violation

by Windsor, but see Exhibit 23 to Amended Dec #3.

[Dec #6 484.]

85. Windsor asks that the Court GRANT

Windsor’s Motion to Reopen Case under Rule 60(b)

and under the Court’s inherent powers. [Dec #6

185.]

86. WHEREFORE, Windsor prays that:

(a) the Court GRANT Windsor’s Motion to

Reopen Case;

(b) the Court issue an order to vacate the

Final Order and Judgment;

(c) the Court issue an order to vacate all

other orders and judgments deemed

appropriate;

(d) the Court issue an order to have the

Plaintiffs repay the money received into

the registry of the Court,

76

(e) the Court reopen this case so justice can

be done; and

(f) the Court grant such other and further

relief as justice requires in association

with this Motion.

Respectfully submitted, this 22nd day of May

2009.

Is

William M. Windsor

Pro Se

3924 Lower Roswell Road,

Marietta, GA 30068

770-578-1094

Facsimile: 770-578-1057

//

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

MAID OF THE MIST

CORPORATION

and MAID OF THE MIST

STEAMBOAT COMPANY, LTD.,

ee a a

Plaintiffs,

CIVIL ACTION NO:

Vv.

1:06-CV-0714-ODE

ALCATRAZ MEDIA, LLC,

ALCATRAZ MEDIA, INC. and

WILLIAM M. WINDSOR,

Defendants.

— SS = “~

CERTIFICATE OF SERVICE

I hereby certify that on the 22nd day of May

2009, | served REPLY to PLAINTIFFS’ RESPONSE

IN OPPOSITION TO DEFENDANT WILLIAM M.

WINDSORS’ MOTION TO REOPEN CASE by

sending by courier and addressed as follows:

Carl Hugo Anderson, Jr., Esq.

Sarah Bright, Esq.

Brett Mendell, Esq.

HAWKINS & PARNELL, LLP

4000 SunTrust Plaza

303 Peachtree Street, NE.

Atlanta, Georgia 30308

78

Marc W. Brown

Phillips Lytle, LLP

3400 HSBC Center

Buffalo, NY 14203

G. Brian Raley, Esq.

RALEY & SANDIFER, P.C.

2650 Resurgens Plaza

945 East Paces Ferry Road

Atlanta, Georgia 30326

Facsimile: (404) 995-9100

This 22nd day of May 2009.

/s

William M. Windsor

Pro Se

3924 Lower Roswell Road

Marietta, GA 30068

770-578-1094

Facsimile: 770-578-1057

19

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

MAID OF THE MIST

CORPORATION

and MAID OF THE MIST

STEAMBOAT COMPANY, LTD., )

)

)

Plaintiffs.

CIVIL ACTION NO

1:06-CV-0714 ODE

ALCATRAZ MEDIA, LLC, )

ALCATRAZ MEDIA, INC. and )

WILLIAM M. WINDSOR, )

)

Defendants. )

)

DEFENDANT WILLIAM M. WINDSOR’S

MOTION TO RECUSE JUDGE EVANS

Comes Now Defendant William M. Windsor,

and asks that Judge Orinda D. Evans be recused

from the above entitled matter under 28 U.S.C.

SECTION 144, 28 U.S.C. SECTION 455 of the

United State Code, Canons 1, 2, and 3 of the Code of

Judicial Conduct, all other relevant statutory and

state and federal case law, as well as the Fifth,

Sixth, Kighth and Fourteenth Amendments to the

United States Constitution, and the Constitution of

the State of Georgia. Windsor also requests an

evidentiary hearing on the matter before another

judge. Windsor shows the Court as follows:

80

1. dudge Orinda D. Evans (“Judge Evans”)

has a personal bias in favor of the Plaintiffs and a

prejudice against the Defendants. Judge Evans

has withheld evidence from the Defendants. Judge

Evans has not demonstrated the impartiality

required of a judge, and this case needs to be

transferred to another judge. Defendant William

M. Windsor (“Windsor”) files this Motion (“Motion

to Recuse”) contemporaneously with the filing of a

Motion to Reopen the Case (“Motion to Reopen”)

under Rule 60(b). A copy of the Motion to Reopen

and the exhibits thereto are incorporated herein for

all purposes.

2. Windsor hereby gives Judge Evans

notice that she will be called to testify.

3. In support. of this Motion, Windsor

relies on two sections of Title 28 of the United States

Code (the Judicial Code) that provide standards for

judicial disqualification or recusal. Section 455, a

federal judge "shall disqualify himself in- any

proceeding ain which his) impartiality might

reasonably be questioned." The same section also

provides that a judge is disqualified "where he has a

personal bias or prejudice concerning a party, or

personal knowledge of disputed evidentiary facts

concerning the proceeding.”

A An objective observer, lay observer,

and/or disinterested observer must entertain

significant doubt of the impartiality of Judge Evans.

81

“A judge shall disqualify himself or herself in

a proceeding in which the judge’s impartiality

might reasonably be questioned.”

“Disqualification is required if an objective

observer would entertain reasonable questions

about the judge’s impartiality...to conclude

that a fair and impartial hearing is unlikely,

the judge must be disqualified.” [Emphasis

added|. Liteky v. U.S., 114 S.Ct. 1147, 1162

(1994)

“..an objective, disinterested, lay observer

fully informed of the facts underlying the

grounds on which recusal was sought would

entertain a significant doubt about the judge's

impartiality”. See Parker v. Connors Steel

Co., 855 F.2d 1510 (11 Cir.) (988) citing

Potashnick v. Port City Const. Co., 609 F.2d

1101, 1111 (5 Cir.), cert. denied, 449 U.S.

820, 101 S.Ct. 78, 66 L.Ed. 2d 22 (1980).

5. 28 U.S.C. sec. 144, captioned "Bias or

prejudice of judge," provides that under

circumstances, when a party to a case in a United

States District Court files a "timely and sufficient

affidavit that the judge before whom the matter is

pending has a personal bias or prejudice either

against him or in favor of an adverse party," the case

shall be transferred to another judge.

6. This Motion and the Second

Declaration of Defendant William M. Windsor

(“Windsor Dec #2”), attached as Exhibit A, will show

grounds for recusal of Judge Evans who has behaved

82

Ina manner inconsistent with that which ts needed

for a full, fair, impartial decision. Questions for an

“objective observer” to ask are in Exhibit 1 to

Windsor Dec #2

7. 13 categories of judicial rights

violations that Judge Evans committed against the

Defendants are detailed herein

a. A Judicial Misconduct Action filed by

Windsor is pending Against Judge Evans with the

Judicial Council of the 11% Circuit. Judge Evans

will be called as a witness at the hearing on this

Motion. [Windsor Dec #2, 4 8.]

CATEGORY # 1 — Judge Evans withheld evidence

from the Defendants.

9, Judge Evans concealed relevant

information from the Defendants when she ruled

following an in camera inspection that two contracts

included nothing relevant to the case and would not

be provided to the Defendants. "The Court had by

previous action required these documents to be

turned over to the Court for in camera inspection.

Production is not warranted." [Docket 209 - Page 9.|

|Windsor Dec #2, 4 9.1 The impartiality of Judge

Kvans must be questioned.

10. These contracts were the lease between

Maid of the Mist Steamboat Company Limited (Maid

Canada) and The Niagara Parks Commission

(“NPC”) (the “Canadian Lease”) and the license

contract between Maid of the Mist Corporation

(“Maid US") and New York State Office of Parks,

Recreation and Historic Preservation (““OPRHP”)

(the “New York License”). [Exhibits 2 and 3to

Windsor Dec #2.] [Windsor Dec #2, § 10.)

Ei. The Canadian Lease and the New York

License contain extremely relevant information as 1s

explained in Windsor Dec #2. [Windsor Dec #2,

11]

12. Among other things, these documents

reveal the motive for why the Plaintiffs (“Maid”) lied

and claimed pricing problems and complaints

directed at Aleatraz Media (“Alcatraz”). The central

issue 1n this case is the oral contract between the

parties. The second most important issue is was

there a different explanation for why Maid claimed

Alcatraz had caused many customer complaints.

Was there another reason why Maid terminated the

Alcatraz contract before the 2005 season ended? If

Maid lied, why did they lie? [Windsor Dec #2, 4 12.]

CATEGORY # 2 — Judge Evans made fact decisions

in a jury trial case.

a A jury was supposed to decide the facts.

{Windsor Dec #2, 4 13.]

14. On the key issue in the case, Judge

Evans ruled just the opposite of what the evidence

before the Court clearly showed the facts to be.

Judge Evans should not have been deciding the

facts, and an outstanding example of the improper

actions of Judge Evans and the necessity of her

recusal is how she treated the most important issue

in the case. [Windsor Dec #2, 4 14.]

84

15. The issue of the oral contract is

material, actually central, to the outcome of the case

that requires an interpretation of conflicting views

on the factual circumstances surrounding the case.

[Windsor Dec #2, 4 15.1

16. A careful examination of the record

indicates that the evidence is overwhelming that

there was an oral contract. Exhibit 4 to Windsor

Dec #2 1s a chart that Windsor prepared to visually

display the evidence that was before Judge Evans on

this issue. [Windsor Dec #2, 4 16.]

17. Maid presented no admissible evidence

to indicate there was not an oral contract. [Windsor

Dec #2, | 17.1

18. Sandra Carlson (“Carlson”) of Maid

entered into the oral contract with Alcatraz on

March 38, 2005. Carlson did not appear for a

deposition, and Judge Evans ruled on February 2,

2007 that her testimony would not be allowed.

Docket # 174 -- Page 62, Lines 4-5.] [Windsor Dec #2,

4 18.]

19. Inthe Summary Judgment Order,

Judge Evans stated that she did not consider the

Affidavit of Sandra Carlson that was submitted as

part of the Plaintiffs’ summary judgment filing.

[Summary Judgment Order, Vol. 17, Docket # 251, p.

44 |

20. In the 30(b)(6) deposition of Timothy P.

Ruddy, he stated that Carlson could not remember

85

any conversations in March 2005. {|Docket # 90 and

132 -- Page 206, Lines 15-17.]

21. So, Maid could not dispute that there

was an oral contract.

yo I Windsor testified in the Answer, in

deposition testimony, and in declarations that there

was an oral contract for the entire 2005 season.

Windsor makes this even clearer in the declaration.

[Windsor Dec #2, 4 22.]

23. Carolyn Ballard Bazzo testified that

there was an oral contract for the 2005 season.

[Docket # 269 -- Deposition of Carolyn Ballard

Bazzo, P 93: 11-25, P 94: 1-7, P 96: 22-25, P 97: 1-25,

P 98: 1-25, P 99: 1-25, P 100: 1-24 and Exhibit B-25.]

24. Yet Judge Evans wrote in the Summary

Judgment Order that the only proof was that

Alcatraz had an oral contract to buy and resell

tickets “in the 2005 season.” The Defendants never

used the word “in,” and Maid had no testimony

whatsoever. Judge Evans created these words, and

it demonstrates extreme bias. [Docket # 25land 252

-- Page 37.] [Windsor Dec #2, 4 24.]

25. This is one of the most significant

examples of the lack of impartiality of Judge Evans

in this case. This was the issue upon which the

entire case centered. If there was an oral contract,

the Defendants did nothing wrong. If there wasn’t

an oral contract, the Defendants were at fault.

[Windsor Dec #2, 4 25.]

86

26. When a reasonable person reviews the

record in this ease, the impartiality of Judge Evans

must be doubted. [Windsor Dec #2, {| 26.!

27. Windsor has discovered new evidence

that establishes that Carlson hed about what

happened on March 3, 2005, and it proves that

claims made by Maid in this regard were false.

[Windsor Dec #2, 4 27.]

28 Judge Evans granted a summary

judgment when there were other fact issues to be

decided as well. {Windsor Dec #2, 4 28.]

CATEGORY # 3 — Judge Evans established a fixed

view about substantive pending trial matters.

29. Judge Evans made several statements

that make it clear that she pre-judged Windsor and

the Defendants and decided the case before the

Defendants ever presented any evidence. [Windsor

Dec #2, 4 29.1

30. At the Preliminary Injunction Hearing,

Judge Evans indicated she was inclined to grant the

Preliminary Injunction though the Defendants

prevailed on the causes of action presented for the

hearing. [Docket # 37, Page 166, Lines 4 to 8.]

(Windsor Dec #2, 4 30.]

SL. In an Order dated January 19, 2007,

Judge Evans said this was a “simple case.” [Docket

#141, Page 2.] This statement clearly indicates bias

as this was far from a simple case. It shows that she

completely disregarded Alcatraz’s counterclaim

8/

before she heard any evidence. [Windsor Dec #2,

4q31.]

32. Judge Evans spoke at the Preliminary

Injunction with a clearly fixed view about

substantive pending trial matters, so this must raise

concerns about the “appearance of impropriety,” a

standard that must be safeguarded under applicable

recusal law. [Windsor Dec #2, 4 32.]

See, In re Murchison, 349 U.S. 133, 136, 755

S.Ct. 623, 99 L.Ed. 942 (1955); Liljeberg

v. Health Services. Acquisition Corp., 486 U.S.

847, 869-70 (1988); Rice v. McKenzie, 581 F.2d

1114, 1116-17 (4th Cir. 1978); accord Withrow

v. Larkin, 421 U.S. 35, 47 (1975).

"The neutrality requirement helps to

guarantee that life, liberty, or property will

not. be taken on the basis of an erroneous or

distorted conception of the facts or the law."

The above is applicable to this court by

application of Article VI of the United States

Constitution and Stone v Powell, 428 US 465,

483 n. 35, 96S. Ct. 3037, 49 L. Ed. 2d 1067

(1976).

33. The United States Constitution guarantees an

unbiased Judge who will always provide litigants

with full protection of ALL RIGHTS. Therefore,

Windsor respectfully demands that Judge Evans

recuse herself in hght of the evidence in the attached

declaration detailing conduct which gives Windsor

good reason to believe that Judge Evans was not fair

88

and cannot hear this case in a fair and impartial

manner.

34. Judge Evans changed her reasoning

when the Defendants proved key claims to be false.

Judge Evans initially expressed that Alcatraz did

not have a source for tickets. That was false; the

Defendants produced proof; and Judge Evans

changed to claiming that Alcatraz could not sell

tickets 1f Maid didn’t want them to. The law and

common practice indicate just the opposite to be

true. Then in Judge Evans’ Order Granting

Summary Judgment for the Plaintiffs, she states

that there was never any proof offered to show that

Alcatraz had obtained tickets. That simply isn’t

true. And furthermore, the issuance of tickets by

Aleatraz was not the subject of any pleadings or

motion before the District Court at any time. Maid

sought to have the Defendants restrained from

selling or attempting to sell Vouchers (defined as a

document presented to Maid in lieu of payment) for

tickets for Maid’s services. [Windsor Dec #2, 4 34.]

35. Judge Evans stated in the Order

Granting Preliminary Injunction that Windsor called

Maid on April 11, 2006 to try to “trick” Maid. This is

an outrageous statement for Judge Evans to make.

Windsor called to prove a lie of Christopher Glynn

(“Glynn”). [Windsor Dec #2, 4 35.]

36. Windsor has documentation that will

prove many of the lies using the deposition

testimony of Maid’s managers. {Windsor Dec #2, 4

36.

89

CATEGORY # 4 — Judge Evans denied discovery

needed by the Defendants.

37. Judge Evans denied the Defendants the

ability to obtain needed discovery. |Windsor Dec #2,

q 37.1

38. The Defendants were denied the most

basic discovery -- never even given the names and

contact. information for employees. [Windsor Dec #2,

q 38.]

3Y. Judge Evans repeatedly denied

discovery requests that were essential to the

Defendants’ defense and in support of the

Defendants’ case. [Chart showing Discovery Motions

and Orders -- Windsor Dec #2, § 39 and Exhibit 5.]

40. Then Judge Evans used the testimony

of people who never appeared for depositions after

she indicated on February 2, 2007 that she would

not allow affidavits or testimony at trial from those

people. |Windsor Dec #2, 4 40.]

41. The discovery treatment of the

Defendants demonstrates a SIGNIFICANT lack of

impartiality by Judge Evans. [Windsor Dec #2. 4

41.]

42. Maid committed terrible discovery

abuse over the production of documents. [Windsor

Dec #2, 4 42.]

43. Despite the Defendants’ strong

objections, Judge Evans closed discovery at the end

90

of December 2006. [Windsor Dec #2, 4 43.1]

44. ‘The short discovery period in this case

denied due process for the Defendants. [Windsor

Dec #2, 9 44.]

45. The short discovery period was

especially damaging in this case, because one of the

Plaintiffs and many of the needed witnesses were in

Canada. The need for Canadian depositions was

disclosed to Judge Evans in the Joint Preliminary

Report on May 26, 2006. [Docket #38.] If the

Defendants had started that day, it was unlikely

they could have deposed witnesses in time, and

Maid’s Attorneys refused to produce the witnesses or

even p

46. The Defendants sought the assistance

of the Court, but Judge Evans denied all of the

Defendants’ motions. Judge Evans ignored the time

restraints for arranging Canadian depositions.

Judge Evans ignored the abuses of Maid in discovery

matters. Judge Evans even issued an order that

blocked the Defendants from taking preservation of

evidence depositions that were absolutely essential

to the Defendants’ case and would have disproven

erroneous information included in the Court’s

Summary Judgment Order. [Windsor Dec #2, 4] 46.]

A7. Judge Evans denied Windsor the ability

to take a 30(b)(6) deposition, a basic right of a party.

[Docket # 174, P 59, L, 15-21. [Windsor Dec #2, 4

A7.|

|

48. Seven hours for depositions was totally

inadequate in this case. It was impossible to cover

all of the issues in that time period from the

perspective of one Defendant much less all. [Windsor

Dec #2, | 48.]

4Q. On January 19, 2007, after discovery

had closed, Judge Evans issued an Order on 9

discovery issues, and all 9 issues went against the

Defendants. [Docket # 141.] [Windsor Dec #2, 4 49.]

CATEGORY # 5 — Judge Evans refused to allow the

Defendants to depose Witnesses.

50. Judge Evans denied the ability of the

Defendants to take deposition testimony of any of

the Maid employees directly involved with

customers. |Windsor Dec #2, 4 50.|

51. Judge Evans denied the Defendants the

time needed to go through the Hague Convention to

take the depositions of Canadian employees of the

Maid who were important to the Defendants’ case.

(Windsor Dec #2, 4 51.]

52. The Court ordered the Defendants to

refrain from taking preservation of testimony

depositions with customers, and then Judge Evans

stated in the Summary Judgment Order that there

were many customer complaints. [Docket # 251.]

There weren't, and the Defendants could have

proven that with depositions. The Defendants have

affidavits from over 600 customers that disprove

such claims and prove the Defendants’ claims.

[Windsor Dec #2, 4] 52.)

92

53. Judge Evans completely compromised

the position of the Defendants by denying

depositions. |Windsor Dec #2, § 53.)

54. ‘The limit of 10 depositions for all

Defendants denied due process for the Defendants.

[Windsor Dec #2, 4 54.1

CATEGORY # 6 — Judge Evans ignored lies, perjury,

false sworn pleadings, false statements of fact, and

Rule 11 violations in the hundreds by the Plaintiffs.

55. There were lies, false sworn pleadings,

false statements of fact, and Rule 11 violations in the

hundreds in this case. The abuse of the legal

system and the Defendants in this case is

staggering. [Windsor Dec #2, 4 55.]

56. This was presented to Judge Evans in a

hearing in chambers on February 2, 2007. Judge

Evans did nothing. How can a judge hear that one

party has lied hundreds of times and do nothing?

Windsor told Judge Evans that he had prepared

documentation to prove the hes. Judge Evans did

nothing. She didn’t even respond to Windsor. The

les, false sworn pleadings, false sworn affidavits,

false court testimony, and false deposition testimony

are detatled in Willtam M. Windsor’s Third

Declaration in Support of Motion to Reopen Case

which is incorporated herein for all purposes. This

demonstrates a lack of impartiality by Judge Evans.

[Windsor Dec #2, 4 56.]

93

CATEGORY # 7 — Judge Evans favored the

Plaintiffs in most rulings.

57. Judge Evans did many things to favor

the Plaintiffs in this case. [Windsor Dec #2, 4 57.|

58. Judge Evans sided with Maid on just

about every issue. Judge Evans perverted the entire

legal process through her lack of impartiality.

Kxhibit 5 to Windsor Dec #2 is a chart that Windsor

created to show the various motions filed in the

District Court and the effect of the rulings of Judge

Kvans. This chart shows quite graphically how

biased Judge Evans has been. [Windsor Dec #2, 4

58. |

59. Maid was late in filing their response to

the Defendants’ Motion for Summary Judgment.

Maid did not have permission to file late, but Judge

Kvans allowed it. Maid failed to provide citations for

a significant number of what they falsely claimed to

be undisputed facts, but Judge Evans ignored it.

The Defendants made a mistake and failed to file the

Kazzo deposition though the testimony was cited in

detail in the summary judgment response, yet Judge

Kvans would not allow it to be late filed. Out of 4]

contested motions, Maid won 40. This demonstrates

a lack of impartiality by Judge Evans. [Windsor Dec

#2, 4} 59.|

60. Judge Evans included alleged facts in

her orders in favor of Maid that were “facts”

presented by neither Maid nor the Defendants. ‘This

demonstrates a lack of impartiality by Judge Evans

(Windsor Dec #2, 4] 60.!

94

61. Maid deceived Judge Evans with

complete, total fabrications that there were many

customer problems caused by Alcatraz. Exhibit 7 to

Windsor Dec #2 is a chart that Windsor created to

show the evidence before the District Court on

customer problems. [Windsor Dec #2, 4 61.]

62. The Defendants were not stubbornly

litigious in this case and did not act in Bad Faith as

Judge Evans falsely claimed. The Defendants

merely defended themselves, and Alcatraz presented

counterclaims that it felt were absolutely

appropriate. [Windsor Dec #2, 4 62.]

63 Judge Evans was unfair in denying

Alcatraz’s prompt request to amend its pleadings.

This demonstrates a lack of impartiality by Judge

Kvans. |Windsor Dec #2, 4 63.]

64. It seemed to Windsor that Judge Evans

showed bias to the Plaintiffs in the way she handled

document submissions at the Preliminary Injunction

Hearing. (Windsor Dec #2, 4 64.]

65. On January 24, 2007, Maid filed a

Corrected Brief in Support of their Motion for

Summary Judgment and Corrected Statement of

Material Fact. [Docket # 151.] [Windsor Dec #2, 4

65

66. The Plaintiffs made all kinds of

mistakes in their summary judgment motion, and

two days later, they tried to correct it. According to

Windsor’s reading of the Rules, it was too late.

95

Judge Evans let Maid get away with it. |!Windsor

Dec #2, 4 66.|

67. On February 15, 2007, Maid filed its

answer to Defendants’ Joint Motion for Summary

Judgment. It was filed late without permission.

According to the Rules, the response should not have

been allowed, and the Defendants should have been

granted summary judgment against Maid’s claim of

tortious interference. Judge Evans let Maid get

away with it. [Windsor Dec #2, 4 67.1

CATEGORY # 8 — Judge Evans considered

testimony that was not to be considered.

68. Judge Evans considered testimony and

proof from Maid that she said in her orders would

not be considered. This demonstrates a lack of

impartiality by Judge Evans. [Windsor Dec #2, 4

68.]

69. Judge Evans considered affidavits for

Maid that should not have been considered. This

demonstrates a lack of impartiality. [Windsor Dec

#2, 4 69.|

70. In one instance, Judge Evans tssued an

order in favor of the Defendants stating that the

motion to allow a late-filed affidavit to be considered

regarding the Preliminary Injunction was demied.

Yet in what proved to be a pattern for Judge Evans,

she then QUOTED FROM THE AFFIDAVIT in the

Order Granting Preliminary Injunction. |[Windsor

Dec #2, 4 70.)

96

CATEGORY # 9 — Judge Evans distorted the facts

and the law to make the rulings in favor of Maid.

71. The Verified Complaint failed to state

any cause of action or allege damages. It was not.

amended but Judge Evans accepted it. [Windsor Dec

#2, 4 71.)

72. The Preliminary Injunction was

improperly issued for many reasons. This

demonstrates a lack of impartiality by Judge Evans.

[Windsor Dec #2, 4 72.|

73. The Summary Judgment was totally

improper but especially as to of Maid of the Mist

Corporation, because this entity did not present any

damages. Damages are required in a tortious

interference claim. [Windsor Dec #2, 4 73.1

7A. Judge Evans stated that she felt this

wus a “simple case” because she felt that Maid had

the right to refuse to let Alcatraz sell its tickets.

Judge Evans held to that misguided notion and

ruled against the Defendants with no legal

justification. This demonstrates a lack of

impartiality by Judge Evans. (Windsor Dec #2, 4

7A.|

75. The “competition privilege” should have

provided a complete defense to Maid’s claim of

intentional interference with prospective economic

advantage, as Alcatraz did not commit an unlawful

or illegitimate act. [Windsor Dec #2, 4 75.1

97

76. ‘There was no bad faith by the

Defendants, and the Defendants were not stubbornly

litigious as Judge Evans so falsely claimed. [Windsor

Dec #2, 4 76.1

77. The constitutional rights of the

Defendants were violated repeatedly in this lawsuit.

This demonstrates a lack of impartiality by Judge

Evans. [Windsor Dec #2, § 77.]

78. The Summary Judgment Order in this

case could improperly establish a major number of

precedents that change important laws in Georgia.

Alcatraz already has one lawsuit filed against it

claiming this case as the precedent. [Windsor Dec

#2, 4 78.)

79. Judge Evans ruling on attorneys’ fees in

this case was overturned by the Court of Appeals. It

was wrong. Judge Evans denied a hearing and

ignored the law as she had done before in this

proceeding. [Windsor Dec #2, 4] 79.]

80. This demonstrates a lack of

impartiality by Judge Evans. [Windsor Dec #2, 4

80.]

81. Windsor feels that the Plaintiffs and

Judge Evans cheated the Defendants at every turn.

{Windsor Dec #2, § 81.]

82. The Second Declaration of William

M. Windsor states the facts and the reasons for the

belief that bias or prejudice exists. This Declaration

was not filed earlier because the Defendants have

just received and studied the Canadian Lease and

the New York License, and this is good cause for

failure to file this earlier. [Windsor Dec #2, 4 82.]

83. Judge Evans should disqualify

herself because her impartiality may be reasonably

questioned. [Windsor Dec #2, 4 83.]

CATEGORY # 10 — Judge Evans demonstrated bias

and prejudice against Windsor, a pro se party anda

male.

84. Judge Evans demonstrated that she did

not like that Windsor was pro se, and_= she

discriminated against Windsor. {Windsor Dec #2, §

84.

85. Judge Evans gave indication that she

discriminated against Windsor because he was a

male. [Windsor Dec #2, {| 85.1

CATEGORY # 11 — Judge Evans improperly

considered hearsay as evidence.

86. Judge Kvans has allowed significant

hearsay. {Windsor Dec #2, 486.]

87. Anything relative to customers will be

hearsay as none of the Maid deponents had customer

dealings (except. two customers that Ruddy spoke

with). [Windsor Dec #2, 4] 87.] Judge Evans created

facts and issues about the BBB.

CATEGORY # 12 -- Judge Evans failed to

provide due process and equal protection to the

Defendants

88. Denying the Defendants access to

important records is a violation of Equal Protection.

(Windsor Dec #2, 4 88.]

89. Judge Evans’ has_~ violated’ the

Defendants’ civil and constitutional rights under

color of law. [Windsor Dec #2, 4 89.]

“The Due Process Clause’ serves two

purposes...One is to produce, through the use

of fair procedures to prevent the wrongful

deprivation of interests; ...the other is a

guarantee of basic fairness, 1.e.: to make

people feel that they have been treated fairly.”

“Itlrial before an ‘unbiased judge’ is essential

to due process.” Johnson v. Mississippi, 403

U.S. 212, 216 (1971); accord Concrete Pipe &

Prods. V. Constr. Laborers Pension Trust, 508

U.S. 602, 617 (1993) “due process requires a

neutral and detached judge in the first

instance.” (citation omitted)

“justice must give the appearance of justice”

Levine v. United States, 362 U.S. 610, 80

S.Ct. 1038 (1960), citing Offutt v. United

States, 348 U.S. 11, 14, 75S. Ct. 11, 13 (1954).

See Mathews v. Eldridge, 424 U.S. 319, 344

(1976)..., by ensuring that no person will be

deprived of his interests in the absence of a

100

proceeding in which he may present his case

with assurance that the arbiter 1s not

predisposed to find against him.”

“even if there is now showing of actual bias”,

“due process is denied by circumstances that

create the likelihood or the appearance if bias”

Peters v. Kiff. 407, U.S. 493, 502 (1972)

90). Windsor has just cause to believe that

the Defendants have not been given a fair trial and

cannot have a fair trial due to the issues alleged.

[Windsor Dec #2, 4 90.]

CATEGORY # 13 — Judge Evans will be a witness in

this matter, and a Judicial Misconduct Complaint is

pending against her regarding this case.

91. Judge Evans should recuse herself

because Windsor has filed a Judicial Misconduct

Complaint against her with the Judicial Council of

the 11th Circuit. [Windsor Dec #2, 4 91.]

92. ‘This 1s not a case where one person has

told one lie, but a case where a group of people have

gotten together to perpetrate a massive fraud on the

Defendants and this Court. [Windsor Dec #2, 4 92.1

93. Windsor submits that Maid’s Attorneys

have committed a number of violations of the

Federal Rules of Civil Procedure as well as violations

of the Georgia Rules of Professional Conduct.

[Windsor Dec #2, § 93.]

94 ‘The standard of review in asking a

101

judge to recuse is defined by Canon 3(C) which

states:

Condu

"A judge should recuse in a proceeding in

which the judges impartiality might

reasonably be questioned..." This includes

when a judge has "displayed deep-seated and

unequivocal antagonism that would render

fair judgment impossible.” ‘The test under the

canon 1s whether a reasonable person would

have a factual basis to doubt the judge's

impartiality.

It is vital to public confidence in the legal

system that decisions of the court are not only

fair, but also appear fair. The standard of

review should be liberal construction in favor

of the right to disqualify.

Thus, whether the disqualification of a judge

hinges on a statute or on a rule, the Court

should adhere to the liberal construction of

that statute or rule in favor of the mght to

disqualify. A liberal construction is necessary

if we wish to promote and maintain public

confidence in the judicial system.

95. In addition, the Code of Judicial

ct provides that:

"...judge should disqualify himself in a

proceeding in which his impartiality might

reasonably be questioned, including but not

limited to instances" specified in the rule.

Thus, the canon is broader than the statute.

102

First, the four subparagraphs of Rule 2,

Canon 3C(1), which set forth the

circumstances for disqualification, are a clear

directive to disqualify. Berry, 654 S.W.2d at

163 (Dixon, J., concurring). When one of

these causes to recuse appears, a judge must

do so. Id. Moreover, the phrase, "including

but not limited," signifies that a judge's duty

to disqualify is not confined to the factors

listed in the subparagraphs, but is much

broader. Second, Rule 2, Canon 3C(1)

commands the disqualification of a judge if

"his impartiality might reasonably be

questioned." See Grant v. State, 700 S.W.2d

170, 171 (Mo. App. 1985). Thus, under the

canon, the test is not whether actual bias

and prejudice exist, but whether a

reasonable person would have factual

grounds to doubt the impartiality of the

court. Berry, 654 S.W.2d at 164 (Dixon, J.,

concurring). If, on the record, a reasonable

person would find an appearance of

impropriety, the canon compels recusal. Id.

The question is not whether the judge is

impartial in fact. It is simply whether

another, not knowing whether or not the judge

is actually impartial, might reasonably

question his impartiality on the basis of all

the circumstances.

When a party seeks to disqualify a judge for

cause, the judge should adhere to the

following procedures. First, the challenged

judge should determine if the motion 1s

103

procedurally adequate. Next, the judge

should determine whether the petition is

substantively adequate: Does the petition

allege facts which warrant disqualification

for cause pursuant to the statutes? If the

motion is procedurally and substantively

sufficient, the judge is faced with two

options: either to grant the motion; or, if the

facts in the motion are to be controverted, to

hold a hearing on the record, whether

requested or not, to determine the

disqualification issue. If the challenged judge

is to testify, the hearing must be held before

another judge. These minimal procedures are

necessary because, 1n the face of a proper

application for a change of judge because the

judge lacks jurisdiction to proceed in the

action in which his impartiality 1s

questioned.

96. The due process clauses of both the

Georgia and the United States Constitutions

guarantee a party an impartial and disinterested

tribunal in civil cases. Marshall v. Jerrico, Inc.. 446

U.S. 238, 242, 100 S.Ct. 1610, 1613 (1980).

97. Windsor contends that the average

reasonable person, knowing all the facts, would

easily conclude that Judge Evans’ impartiality could

be questioned. Windsor contends that any

reasonable person would conclude that Judge Kvans

cannot possibly give the Defendants a fair and

impartial hearing and that she should be removed

and replaced by an impartial judge. [Windsor Dec

#2, 4 97.|

104

(“The probability of actual bias on the part of

the judge... 1s too high to be constitutionally

tolerable”); Berger v. United States, 255 U.S.

22, 33°34 (1921); Potashnick v. Port City

Constr. Co., 609 F.2d 1101, 1111 (5th Cir.

1980) (“Any question of a judge’s impartiality

threatens the purity of the judicial process

and its institutions”); King v. State, 246 Ga.

386, 389-90, 271 S.E.2d 630 (1980); Hall v.

Small Bus. Admin., 695 F.2d 175, 179 (5th

Cir. 1983) (disqualification of a judge required

“if a reasonable person, knowing all the

circumstances, would harbor doubts about his

impartiality”); United States v. Columbia

Broad. Sys., Inc., 497 F.2d 107, 109 (5th Cir.

1974) (“The protection of the integrity and

dignity of the judicial process from any hint or

appearance of bias is the palladium of our

judicial system”); Stephens v. Stephens, 249

Ga. 700, 702, 292 S.K.2d 689, 691 (1982). (“All

parties before the court have the right to an

impartial judicial officer.); Isaacs v. State, 257

Ga. 126, 127, 355 S.E.2d 644 (1987) (“The fact

that a judge’s impartiality might reasonably

be questioned is sufficient for

disqualification.”; a judge may not be so

personally involved in a controversy “that his

objectivity could reasonably be questioned.”).

98. Judge Evans has demonstrated

orejudice against the Defendants and must be

removed from this case. Judge Evans’ orders must be

ruled void and a new trial ordered, otherwise the

Court will deprive the Defendants of a fair trial in

105

violation of the due process clauses of both the

Georgia and the United States Constitutions and in

violation of Federal Rules of Civil Procedure and the

Federal Rules of Judicial Procedure. [Windsor Dec

#2, | 98.1

WHEREFORE, having now filed this Motion

and sworn declarations, Defendant Windsor

respectfully requests as follows:

(1) that the presiding judge of this administrative

judicial district assign another judge to this

case or refer this Motion to the presiding judge of

this administrative district for a hearing;

(2) that the Court grant DEFENDANT WILLIAM

M. WINDSOR’S MOTION TO RECUSE JUDGE

EVANS;

(3) that the orders of Judge Evans be declared void;

(4) that the Court issue an order recusing Judge

Evans;

(5) that the Court issue an order requiring a new

judge to hear Defendant. Windsor’s Motion to

Reopen the Case,

(6) that the Court grant such other and further

relief as justice requires in association with this

Motion.

Respectfully submitted, this 24 day of April

2009.

ls |

William M. Windsor

Pro Se

106

3924 Lower Roswell Road

Marietta, GA 30068

770-578-1094

Kacsimile: 770-578-1057

1O/

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

MAID OF THE MIST )

CORPORATION )

and MAID OF THE MIST )

STEAMBOAT COMPANY, LTD., )

)

Plaintiffs, )

CIVIL ACTION NO:

V.

1:06-CV-071-ODE

ALCATRAZ MEDIA, LLC,

ALCATRAZ MEDIA, INC. and

WILLIAM M. WINDSOR,

)

)

)

)

Defendants. )

)

CERTIFICATE OF SERVICE

I hereby certify that on April 24, 2009 | served

DEFENDANT WILLIAM M. WINDSOR’S MOTION

TO RECUSE JUDGE EVANS by certified mail

return receipt to the following attorneys of record:

Carl Hugo Anderson, Jr., Esq.

Sarah Bright, Esq.

Brett Mendell, Esq.

HAWKINS & PARNELL, LLP

4000 SunTrust Plaza

303 Peachtree Street, N.E.

Atlanta, Georgia 30308

108

Mare A. Brown

Phillips Lytle, LLP

3400 HSBC Center

Buffalo, NY 142038

G. Brian Raley, sq.

RALEY & SANDIFER, P.C.

2650 Resurgens Plaza

945 Kast Paces Ferry Road

Atlanta, Georgia 30326

Facsimile: (404) 995-9100

This 24 day of April, 2009.

William M. Windsor

Pro Se

3924 Lower Roswell Road

Marietta, GA 30068

110-578 1094

Facsimile: 770-578-1057

109

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

MAID OF THE MIST

CORPORATION

and MAID OF THE MIST

STEAMBOAT COMPANY, LTD.,

i i id

Plaintiffs,

CIVIL ACTION NO:

V.

1:06-CV-0714-ODE

ALCATRAZ MEDIA, LLC,

ALCATRAZ MEDIA, INC. and

WILLIAM M. WINDSOR,

Defendants

a i i ed

REPLY TO PLAINTIFFS’ RESPONSE IN

OPPOSITION TO DEFENDANT WILLIAM M.

WINDSOR'S MOTION TO RECUSE JUDGE

EVANS

Comes Now Defendant William M. Windsor

(“Windsor”) and files this REPLY TO PLAINTIFFS’

RESPONSE IN OPPOSITION 'TO DEFENDANT

WILLIAM M. WINDSOR’S TO MOTION TO

RECUSE JUDGE EVANS (“Reply”). In support of

this Reply, Windsor relies upon Defendant William

M. Windsor’s Motion to Recuse (“Motion to Recuse”),

the Seventh Declaration of William M. Windsor

attached hereto (“Dec #7”), the First (“Dec #1”),

110

Second (“Dec #2”), Third (“Dec #3”), Fourth (‘Dec

#4”), Fifth (“Dec #5”), and Sixth (“Dec #6”)

Declarations of William M. Windsor in Support of

the Motion to Reopen or the Motion to Recuse and

declarations and exhibits thereto and in support

thereof, the amended exhibits to the Third

Declaration of William M. Windsor filed May 13,

2009, as well as on Defendant William M. Windsor’s

Motion to Reopen (“Motion to Reopen”),

Memorandum of Law in Support thereof (Docket

#362), and declarations and exhibits thereto, and the

Customer Declarations (Docket. #368).

1. Windsor asks the Court to delay a

decision on this Motion until Windsor has the

opportunity to depose Judge Orinda D. Evans. The

Clerk of the Court provided a signed subpoena to

enable Windsor to depose Judge Evans. It is unfair

to ask Windsor to prove the lack of impartiality of

Judge Evans without being afforded the opportunity

to ask her questions under oath. Windsor is

confident that he will be able to show bias from

deposition testimony. [Dec #7 44.|

2. A Judicial Misconduct Complaint filed

by Windsor is pending against Judge Evans. (Dec #7

- Exhibit #1.) This will surely cause bias. [Dec #7

44.

3. Windsor has also requested a hearing

on this Motion, and Windsor hereby repeats that

request. This is a matter that should be addressed

in open court. Judge Evans will be called as a

witness. [Dec #7 44.]

111

4. Windsor reluctantly submits that it is

possible that Judge Evans and/or a clerk for Judge

Evans may have been improperly influenced in this

case. Due process of law requires that Windsor be

given an opportunity to make the necessary

inquiries. [Dec #7 95.]

5. The standard of review in asking a

judge to recuse 1s defined by the Code of Judicial

Conduct. [Dec #7 46.]

6. The Motion to Recuse is procedurally

adequate. he Motion alleges facts which warrant

disqualification for cause pursuant to the statutes.

This is a proper application for a change of judge,

and Judge Evans no longer has jurisdiction to

proceed in the action in which her impartiality is

questioned. [Dec #7 47.]

7. Failure to follow proper procedure may

result in a violation of Windsor’s civil rights where

the Court will be acting in the absence of all

jurisdiction. [Dec #7 47.]

8. The Supreme Court has expressed that

Judge Evans may proceed no further in this case.

BERGER V. UNITED STATES, 255 U.S. 22 (1921).

Judge Evans is not the proper person to decide if

Windsor has asserted valid factual and legal grounds

to recuse Judge Evans. ‘l'his would be like letting

the fox guard the hen house. There could be nothing

fair about criticizing at length the actions and bias of

the Judge, and then letting the biased judge rule on

whether those criticisms were valid. {Dec #7 48.]

112

Q. Windsor has asserted valid factual and

legal grounds to recuse Judge Evans from this case.

WINDSOR’S MOTION SUCCEEDS UNDER 28

U.S.C. § 455. [Dec #7 49.]

10. Review the Plaintiffs’ Response.

Consider what hasn’t been said. Plaintiffs did not

even address the fact presentation of Windsor. They

filed no affidavits in support of Plaintiffs’ Response.

L.R. 7.1 (A) (1) and (b) provide that “if allegations of

fact are relied upon, supporting affidavits must be

attached.” Windsor submits that the Court must

therefore grant the Motion to Recuse because the

Plaintiffs have provided no facts to support their

Response, and the Plaintiffs cannot dispute the facts

shown by Windsor. Since the facts presented by

Windsor are uncontroverted, the Court must grant

the Motion to Recuse. [Dec #7 410.]

11. WINDSOR’S ASSERTION THAT THE

COURT WITHHELD EVIDENCE HAS MERIT. The

documents were withheld by Judge Evans, and this

fact is proven with a Court Order (Docket No. 209).

[Dec #7 411.]

7. The Court finally reviewed these

documents in camera and then claimed they were

irrelevant. This was false. Either the Plaintiffs did

not show the correct contracts to Judge Evans, or

Judge Evans improperly concealed these extremely

relevant documents from the Defendants. This

demonstrates the bias of Judge Evans. It also shows

that Judge Evans had personal knowledge of facts

that she withheld from the Defendants. Ifa

reasonable person examines the contracts with an

understanding of some of the basic issues 1n this

case — pricing, trademarks, and dishonesty, that

reasonable person would have to conclude that

withholding these documents was wrong and

demonstrated a lack of impartiality. The facts

presented by Windsor on this have not been

controverted. [Dec #7 412.]

13. The actions of Judge Evans in this case

demonstrate a deep-seated favoritism for the

Plaintiffs and antagonism toward Windsor and

Alcatraz that make fair judgment impossible.

Windsor cited facts supporting this contention.

Additional facts are cited in Dec #7 attached hereto

as Exhibit A. [Dec #7 413.]

14. THE CONTENTIONS THAT JUDGE

EVANS “MADE FACT DECISIONS IN A JURY

TRIAL CASE” AND “ESTABLISHED A FIXED

VIEW ABOUT SUBSTANTIVE PENDING TRIAL

MATTERS” HAVE MERIT. [Dec #7 4114.1

15. There is extensive factual evidence to

support Windsor’s contention that the Court’s

August 8, 2007 Order (Docket #251) demonstrates

the Court’s improper application of facts to law. The

ruling on the central contract issue demonstrates

Judge Evans’ “extreme bias.” (See Third

Declaration of William M. Windsor attached to

Motion to Reopen and Amended Exhibits #22 and 24

filed May 13, 2009.) [Dec #7 915.}

16. The Summary Judgment granted in

this case was wrong. Judge Evans invented facts

114

and twisted and ignored the law to make the ruling

that she did. 210 of the 410 sentences in the

Summary Judgment Order (Docket #251) were false.

It shows bias. [Dec #7 4}16.]

17. Judge Evans made improper fact

decisions in this case. The facts presented by

Windsor on this have not been controverted. [Dec #7

417.|

18. Judge Evans established a fixed view

about substantive trial matters. The facts presented

by Windsor on this have not been controverted. [Dec

#7 918.]

19. The award of attorney’s fees and

expenses to the Plaintiffs in this case definitely

demonstrates the bias of Judge Evans for Maid and

antagonism toward Windsor. The facts presented by

Windsor on this have not been controverted. [Dec #7

419]

20. The Defendants appealed the Summary

Judgment Order to the United States Court of

Appeals for the Eleventh Circuit. The Court of

Appeals had to accept that the facts presented by

Judge Evans were correct. The facts were not. 210

of the 410 sentences in the Summary Judgment

Order were false. The facts presented by Windsor on

this have not been controverted. [Dec #7 420.]

21. THE CONTENTIONS THAT JUDGE

EVANS DENIED CERTAIN NEEDED DISCOVERY

AND REFUSED TO ALLOW DEFENDANTS TO

115

DEPOSE WITNESSES ARE WITH MERIT. [Dec #7

21.1

22. Windsor was dented the opportunity to

take deposition testimony of any of the Maid

employees. Mr. Anderson claims Maid and its

attorneys have repeatedly addressed Windsor’s

arguments in their response briefs (Docket #194 and

245). Mr. Anderson always addressed everything,

but he abused the legal system in much that he did.

The fact that Judge Evans i¢nored the pleas of the

Defendants in discovery matters establishes her

bias. [Dec #7 9 22.]

23. Asis often the case, Maid’s Attorney

distorts reality. Mr. Anderson’s lame offers to

produce some witnesses for depositions had strings

attached that would deny the Defendants the

opportunity to depose other witnesses. Mr.

Anderson made it impossible for the Defendants to

depose witnesses, and Judge Evans aided him in his

improper efforts. Mr. Anderson presented no

affidavits, so there are no facts for the Plaintiffs.

The facts presented by Windsor have not been

controverted. This is detailed in Dec #7. [Dec #7

q23.]

24. Maid attempted to provide some of the

employees for depositions after discovery had closed

and after summary judgment motions had been filed.

This “generous offer” came after Judge Evans ruled

on February 2, 2007 (Docket #174) that Maid would

not be allowed to use the testimony of these

witnesses at trial or through affidavits. The Court

later claimed that, “Because the Court finds that

116

these declarations were not necessary for deciding

the parties’ motions for summary judgment, the

Court DISMISSES AS MOOT Alcatraz’s Motion to

Strike.” (Docket No. 251, p. 44). The truth of the

matter is that there is no way that Judge Evans

made the statements in the Summary Judgment

Order that she made without improperly using these

inadmissible affidavits. Judge Evans often said one

thing and did another, and it always favored the

Plaintiffs. [Dec #7 424.1

20. Windsor alleged in his Motion to Recuse

that he was denied the opportunity to depose

customer witnesses. This is a fact. Windsor made

the same allegation in Defendants’ Joint Emergency

Motion for Clarification (Docket No. 179). Judge

Evans issued an April 20, 2007 Order denying

depositions. (Docket #209). [Dec #7 9]25.]

26. What Judge Evans failed to state in

this order is that the attempts to take these

depositions had been made in 2006, and Judge

Evans did not promptly rule on the motions in that

regard. Maid’s Attorney took the position that the

Defendants were not allowed to take these

preservation of testimony depositions, so after

scheduling these, the Defendants were forced to go to

the Court for relief. No relhef was given as was the

practice of Judge Evans on every matter related to

the Defendants. Windsor addresses the various

discovery issues in Dec #7 and Exhibit #16 to Dec #2.

[Dec #7 9426.

9 The various discovery rulings

demonstrate bias for the Plaintiffs and antagonism

against the Defendants. Judge Evans denied

discovery for the Defendants because she had

decided in favor of the Plaintiffs before the

Preliminary Injunction Hearing, so it was a waste of

her time to consider anything new. As a matter of

law, Judge Evans must be recused. The facts

presented by Windsor on this have not been

controverted. [Dec #7 927.]

28. THE CONTENTION THAT JUDGE

EVANS IGNORED LIES, PERJURY, FALSE

SWORN PLEADINGS, FALSE STATMEMENTS OF

FACT, AND RULE 11 VIOLATIONS IS WITH

MERIT AND IS OUTSTANDING PROOF OF BIAS

FOR THE PLAINTIFFS AND ANTAGONISM

TOWARD THE DEFENDANTS. [Dec #7 428.|

29. Mr. Anderson falsely claims “Windsor’s

fraud accusations against Maid and its counsel were

leveled throughout this litigation and the Court

found no merit in them.” These claims are not

supported by affidavits, so these are not facts for the

Plaintiffs. The facts presented by Windsor have not

been controverted. [Dec #7 929.|

30. The Court did not rule against Windsor

on virtually every matter that he complained about

in Windsor’s Opposition Brief. ‘The Court ignored

the lies, perjury, and false sworn pleadings. (Docket

#174.) The Court was biased and made improper

rulings on many issues. [Dec #6 946.] [Dec #7 430.]

31. Windsor’s accusations were never fully

briefed until the Motion to Reopen Case and Motion

to Recuse Judge Evans. This was another error of

118

Mr. Raley. The Defendants provided much of this

information to Mr. Raley for a Rule 11 motion that

he promised he would get filed. He failed to do so.

[Dec #7 931.]

32. In the Response of Plaintiffs in

Opposition to Defendant William M. Windsor’s

Motion to Reopen Case, Mr. Anderson falsely

claimed that Windsor’s “accusations are patently

false.” Maid has no such proof. The Court must not

consider this statement as Maid provided no

affidavit in support. Maid cannot establish that

Windsor’s accusations are “patently false,” because

they are patently true and documented. ‘The facts

presented by Windsor on this have not been

controverted. [Dec #6 949.) [Dec #7 9432.|

oa. Windsor clearly disagrees with the

outcome of many of the Court’s rulings in this case.

There is clear and convincing evidence of fraudulent

and unethical conduct. ‘The facts presented by

Windsor on this have not been controverted. [Dec

#7 933.]

34, Neither Matd nor Maid’s Attorneys

have filed any affidavits in support of the statements

made in this Response. There is no proof of their

assertions. [Dec #7 434.]

36. ALL OTHER ALLEGATIONS OF BIAS

HAVE MERIT. Windsor has demonstrated the bias

and lack of impartiality of Judge Mvans with many

details and citations of facts. The facts presented by

Windsor on this have not been controverted. [Dec #7

135.]

119

36. Windsor has articulated facts and

legally cognizable grounds to disqualify Judge

Evans. A judge’s refusal to recuse him or herself is

reviewed under an abuse of discretion standard. See

United States v. Greenough, 782 F.2d 1556, 1558

(11th Cir. 1986). The standard “is an objective one,

whether a reasonable person knowing all the facts

would conclude that the judge’s impartiality might

reasonably be questioned.” Jd. [Dec #7 936.1]

37. Windsor has shown other grounds to

disqualify Judge Evans in addition to disagreement

with adverse rulings. [Dec #7 937.]

38. Georgia courts have defined

“impartiality might reasonably be questioned” as a

“reasonable perception, of a lack of impartiality by

the judge, held by a fair minded and impartial

person based upon objective fact or reasonable

inference.” King v. State, 246 Ga. 386 (1980). [Dec

#7 438.]

39. The bias of Judge Evans must be the

result of an opinion on the merits on some basis

other than what the judge learned from her

participation in this case. Judge Evans ignored the

facts in this case. [Dec #7 939.1]

AO. There is a lot of case law on recusal of

judges. [Dec #7 440.]

41. Dec #7 states under oath and based

upon personal knowledge the facts and reasons why

Windsor submits that Judge Evans was biased and

120

demonstrates the attitude of Judge Evans’ mind.

[Dec #7 441.]

A2.

In this case, the totality of what has

happened in this case must be considered to

“appreciate” the bias of Judge Evans. Most of tt is

demonstrated by rulings because there was limited

interaction with the Judge on any other basis. In

the Motion to Recuse, Windsor detailed 13 categories

of judicial rights violations that Judge Evans

committed against the Defendants:

b

h

Judge Evans ignored lies, perjury, false

sworn pleadings, false statements of fact,

and Rule 11 violations in the hundreds by

the Plaintiffs.

Judge Evans withheld evidence from the

Defendants. Judge Evans made fact

decisions in a jury trial case.

Judge Evans demonstrated bias and

prejudice against Windsor, a pro se party

and a male.

Judge Evans established a fixed view

about substantive pending trial matters.

Judge Evans denied discovery needed by

the Defendants.

Judge Evans refused to allow the

Defendants to depose Witnesses.

Judge Evans favored the Plaintiffs in most

rulings.

Judge Evans considered testimony that

was not to be considered.

Judge Evans distorted the facts and the

law to make the rulings in favor of Maid.

121

j). Judge Evans improperly considered

hearsay as evidence.

k. Judge Evans failed to provide due process

and equal protection to the Defendants.

|. Judge Evans will be a witness in this

matter, and a Judicial Misconduct

Complaint is pending against her

regarding this case.

Maid’s Attorney conveniently ignored a

number of these categories as they cannot be

denied. [Dec #7 942.]

43. Windsor prepared a list of questions for

an impartial observer to ask in evaluating whether

Judge Evans lacked impartiality. (Exhibit #1 to Dec

#2.) If these questions are answered properly, all

will be answered Yes and will prove a lack of

impartiality. [Dec #7 943.]

44. Windsor also asserts that Judge Evans

should be disqualified under 28 U.S.C. § 144 which

provides, in relevant part:

Whenever a party to any proceeding in a

district court makes and files a timely and

sufficient affidavit that the judge before whom

the matter is pending has a persona/ bias or

prejudice against him or in favor of any

adverse party, such judge shall proceed no

further therein, but another judge shall be

assigned to hear such proceeding. The

affidavit shall...be filed not less than ten days

before the beginning of the term at which the

122

proceeding 1s to be heard, or good cause be

28 U.S.C. § 144 (emphasis supplied). [Dec #7

444.)

45 Windsor has presented evidence that

Judge Evans harbored a “personal bias or prejudice

against him and in favor of the adverse party.” The

facts presented by Windsor on this have not been

controverted. [Dec #7 445.|

AG. Windsor had good cause for why he

waited to file his Motion to Recuse until after the

Court’s final judgment. [Dec #7 946.]

A7. Plaintiffs are not entitled to recover

attorney's fees and costs of litigation. [Dec #7 447.]

48. Plaintiffs never attempted to resolve

this matter amicably with Windsor and have not

been met with abuse and/or harassment on the part

of Windsor. Plaintiffs and Plaintiffs’ Attorneys have

not spoken with Windsor since 2007. The facts

presented by Windsor on this have not been

controverted. [Dec #7 448.|

AY. Windsor has not violated Rule L1, but

Maid’s Attorneys have done so repeatedly. [Dec #7

49.|

50. Windsor asks that the Court GRANT

Windsor’s Motion to Recuse Juaye Evans because it

articulates legally and factually coynizable grounds

for recusal. Just like Windsor’s Motion to Reopen

Case, this Motion ts valid. [Dec #7 950.|

WHEREFORE, having now filed this Motion

and sworn declarations, Defendant Windsor

respectfully requests as follows:

Z009

|

s)

Ite

that the presiding judge of this

administrative judicial district assign

another judge to this case or refer this

Motion to the presiding judge of this

administrative district for a hearing;

that the Court grant DEFENDANT

WILLIAM M. WINDSOR’S MOTION TO

RECUSK JUDGE EVANS;

that the orders of Judge Evans be declared

void,

that the Court tssue an order recusing

Judge Evans;

that the Court issue an order requiring a

new judge to hear Defendant Windsor’'s

Motion to Reopen the Case;

that the Court grant such other and

further relief as justice requires in

association with this Motion

‘spectfully submitted, this 20th day of May

William M. Windsor

Pro Se

3924 Lower Roswell Road

Marietta, GA 30068

770-578-1094

csimile: 770-578-1057

174

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

MAID OF THE MIST )

CORPORATION )

and MAID OF THE MIST )

STEAMBOAT COMPANY, LTD., )

)

Plaintiffs, )

CIVIL ACTION NO:

Vv.

1:06-CV-0714-ODE

ALCATRAZ MEDIA, LLC, )

ALCATRAZ MEDIA, INC. and )

WILLIAM M. WINDSOR, )

)

Defendants. )

—— - a ae

CERTIFICATE OF DEFENDANT

Defendant William M. Windsor hereby

certifies that he has prepared the within and

foregoing document in accordance with LR 5.1,

NDGa., and LR 7.1D, NDGa. Specifically,

Defendant certifies that he has used 14 point Times

New Roman as the font in these documents.

Respectfully submitted, this 20th day of May

2009.

/s

125

William M. Windsor

Pro Se

3924 Lower Roswell Road

Marietta, GA 30068

770-578-1094

Facsimile: 770-578-1057

126

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

MAID OF THE MIST

CORPORATION

and MAID OF THE MIST

STEAMBOAT COMPANY, LTD.,

a i i

Plaintiffs, |

CIVIL ACTION NO:

¥.

1:06-CV-0714-ODE

ALCATRAZ MEDIA, LLC,

ALCATRAZ MEDIA, INC. and

WILLIAM M. WINDSOR,

Defendants.

CERTIFICATE OF SERVICE

| hereby certify that on 20th day of May 2009,

I served REPLY to PLAITNIFFS’ RESPONSE IN

OPPOSITION TO DEFENDANT WILLIAM M.

WINDSORS’ MOTION TO RECUSE JUDGE

EVANS by depositing the same in the United States

Mail with sufficient postage paid and addressed as

follows:

Carl Hugo Anderson, Jr., Esq.

Sarah Bright, Esq.

Brett Mendel], Esq.

HAWKINS & PARNELL, LLP

4000 SunTrust Plaza

127

303 Peachtree Street, N.E.

Atlanta, Georgia 30308

Marc W. Brown

Phillips Lytle, LLP

3400 HSBC Center

Buffalo, NY 14203

G. Brian Raley, Esq.

RALEY & SANDIFER, P.C.

2650 Resurgens Plaza

945 East Paces Ferry Road

Atlanta, Georgia 30326

Facsimile: (404) 995-9100

This 20th day of May 2009.

een

William M. Windsor

Pro Se

3924 Lower Roswell Road

Marietta, GA 30068

770-578-1094

Facsimile: 770-578-1057

128

APPEAL DOC.NO. 09-13086-DD

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

MAID OF THE MIST CORPORATION and

MAID OF THE MIST STEAMBOAT COMPANY,

LTD., Appellees,

V.

ALCATRAZ MEDIA, LLC, ALCATRAZ MEDIA,

INC., Defendants; and WILLIAM M. WINDSOR,

Appellant and Defendant.

Appeal from the United States District Court

for the Northern District of Georgia, Atlanta

Division

Case No. 1:06-CV-00714-ODE-1

The Honorable Orinda D. Evans

BRIEF OF DEFENDANT/APPELLANT

WILLIAM M. WINDSOR

William M. Windsor

3924 Lower Roswell Road

Marietta, GA 30068

Telephone: 770-578-1094

129

Facsimile: 770-578-1057

Kmail: bill@billwindsor.com

PRO SE FOR DEFENDANT/APPELLANT,

WILLIAM M. WINDSOR

130

CERTIFICATE OF INTERESTED PERSONS

William M. Windsor, Pro Se, hereby certifies

pursuant to FRAP 26.1 and 11 Cir. Rule 26.1-1 that

the following persons, judges, associations of person,

firms, partnerships, or corporations may have an

interest in the outcome of this case:

e Aleatraz Media, Inc., and Alcatraz

Media, LLC, Defendants Qointly

“Alcatraz”)

e Carl H. Anderson, Jr. “Mr. Anderson”),

Counsel for Appellees, Maid of the Mist

Corp. and Maid of the Mist Steamboat

Company, Ltd.

e Judith lL. Berry (“Berry”), customer of

Aleatraz and Maid.

e Sarah Louise Bright (Ms. Bright”),

Counsel for Appellees, Maid of the Mist

Corp. and Maid of the Mist Steamboat

Company, Ltd.

e Marc W. Brown (“Mr. Brown”), Counsel

for Appellees, Maid of the Mist Corp.

and Maid of the Mist Steamboat

Company, Ltd.

e Sandra Carlson (“Carlson”), Assistant

Controller of Maid.

e Senator Saxby Chambliss.

e Judge Dubina, United States Appellate

Judge.

e Hon. William S. Duffey (“Judge

Duffey”), United States District Judge.

333

Hon. Orinda D. Evans (“Judge Evans”

or the “DC”), United States District

Judge.

Everybody Loves Travel, I.ILC, company

owned by the owners of Defendants

Aleatraz Media, Inc., and Aleatraz

Media, LLC.

Judge Fay, United States Appellate

Judge.

Federal Bureau of Investigation (‘FBI”).

Georgia Athletic and Entertainment

Commission (“GAEC”).

Christopher Glynn (“Glynn”), President

of Maid.

Hawkins & Parnell (“H&P”), Counsel

for Appellees, Maid of the Mist Corp.

and Maid of the Mist Steamboat

Company, Ltd.

Judge Hull, United States Appellate

Judge.

Judicial Council of the Eleventh

Circuit.

Maid of the Mist Corporation

(“Corporation”), Appellee, and Maid of

the Mist Steamboat Company, Ltd.

(“Steamboat”), Appellee, Gointly

“Maid”).

Brett A. Mendell (“Mr. Mendell”),

Former Counsel for Appellees, Maid of

the Mist Corp. and Maid of the Mist

Steamboat Company, Ltd.

National Association of Ticket Brokers.

New York State Bar Association.

132

New York State Office of Parks,

Recreation and Historic Preservation

New York State Comptroller's Office

Niagara County New York District

Attorney.

Niagara Parks Commission

James W. Penland (“Mr. Penland”),

Former Counsel for William M.

Windsor, Appellant.

Phillips Lytle (“Phillips”), Counsel for

Appellees, Maid of the Mist Corp. and

Maid of the Mist Steamboat Company,

Ltd.

G. Brian Raley (Mr. Raley”), Former

Counsel for Defendants Alcatraz Media,

Inc., and Aleatraz Media, LLC.

Reserve 123, Inc., a company owned by

the owners of Defendants Alcatraz

Media, Inc., and Aleatraz Media, LLC.

Reserve XL, Inc., a company owned by

the owners of Defendants, Alcatraz

Media, Inc., and Aleatraz Media LLC.

Round America, ILLC, a company owned

by William M. Windsor.

Timothy P. Ruddy (“Ruddy”), Vice

President of Maid.

Arthur Russ (“Mr. Russ”), Counsel for

Appellees, Maid of the Mist Corp. and

Maid of the Mist Steamboat Company,

Ltd.

Robert J. Schul (Schul”), Controller of

Maid.

State Bar of Georgia.

133

e Kathleen FE. Sullivan (“Ms. Sullivan”),

Former Counsel for Defendants

Alcatraz Media, Inc., and Alcatraz

Media, LLC.

e ‘Take 5 Tours, Inc., a company owned by

the owners of Defendants Alcatraz

Media, Inc., and Alcatraz Media, LLC.

e United States Attorney General.

e United States Attorney’s Office.

e United States Supreme Court.

e William M. Windsor (“Windsor or

Appellant”), Defendant and Appellant.

(Defendants Aleatraz and Windsor are

reflected herein as “A&W.”)

e ZZ 'lours, Inc., a company owned by

William M. Windsor.

No corporate disclosure

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