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
i ee ee ee ee |
Constitution of the United States - Ninth
ee Pee Pe ee 267
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
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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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