Opposition Brief — Michaud v. State Farm Insurance

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LIST OF PARTIES

[he parties to the action before the Ninth Circuit

Court of Appeals were:

1) Petitioner Gerald T. Michaud (“Michaud”).

2) Respondent State Farm Mutual Automobile

Insurance Company (“State Farm”). Pursuant to Supreme

Court Rule 29.6, Respondent states that State Farm Insur-

ance Companies is the parent of Respondent

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CONTENTS

Continued

ails To Support

A Writ Of Man

TABLE OF AUTHORITIES — Continued

Page

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Supreme Court Rule 10.............0............... 8

Supreme Court Rule 20..................... 1, 9, 16, 17

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Ninth Circuit Rule 34-4............................. 15

District Court Local Rule 235-3 ......0.0............ 5

OtHeR AUTHORITIES

| Moore’s Federal Practice 3d § 1.05 (1998) ......... 9

8 Moore’s Federal Practice § 41.50 .................. 13

8 Moore’s Federal Practice § 41.53 ................... 15

23 Moore's Federal Practice § 520.02................ 16

OPINIONS BELOW

The Judgment and Memorandum Order of the United

States Court of Appeals for the Ninth Circuit are unre-

ported and appear in Appendices “A” and “B” respec-

tively. The Judgment and Order of the United States

District Court are unreported and appear in Appendices

“C” and “D” respectively.

STATEMENT OF JURISDICTION

Petitioner Gerald Michaud has based jurisdiction

Olely on this Court’s authority under 28 U.S.C. § 1254(1)

to review cases from the United States Courts of Appeals.

Michaud’s Petition, however, also apparently attempts to

invoke this Court's discretionary power to issue a writ of

mandamus, which arises under 28 U.S.C. § 1651(a). Apart

from its many technical defects, Michaud’s Petition is

insufficient to trigger this Court’s discretionary power to

issue a writ of mandamus because the Petition fails to

meet the criteria of United States Supreme Court Rule

20).!

' Petitioner seeks a writ of mandamus from this Court

without properly invoking the Court’s jurisdiction under 28

U.S.C. § 1651(a). Michaud’s Petition suffers from further defects

under United States Supreme Court Rule 20. For example, the

Petition’s caption does not conform to Rule 20, and Michaud has

failed to “set out with particularity why the relief sought is not

available in any other court.” Supreme Court Rule 20

CONSTITUTIONAL AND STATUTORY PROVISIONS

28 U.S.C. § 1441 (West 1998) reads, in part, as follows:

Actions removable generally

(a) Except as otherwise expressly provided

by Act of Congress, any civil action brought in a

State court of which the district courts of the

United States have original jurisdiction, may be

removed by the defendant or the defendants, to

the district court of the United States for the

district and division embracing the place where

such action is pending. For purposes of removal

under this chapter, the citizenship of defendants

sued under fictitious names shall be disre-

garded.

28 U.S.C. § 1446 (West 1998) reads, in part, as follows:

Procedure for removal

(a) A defendant or defendants desiring to

remove any civil action or criminal prosecution

from a State court, shall file in the district court

of the United States tor the district and division

within which such action is pending a notice of

removal signed pursuant to Rule 11 of the Fed-

eral Rules of Civil Procedure and containing a

short and plain statement of the grounds for

removal, together with a copy of all process,

pleadings, and orders served upon such defen-

dant or defendants in such action.

(b) The notice of removal of a civil action

or proceeding shall be filed within thirty days

after the receipt by the defendant, through ser-

vice or otherwise, of a copy of the initial plead-

ing setting forth the claim for relief upon which

such action or proceeding is based, or within

thirty days after the service of summons upon

the defendant if such initial pleading has then

been filed in court and is not required to be

served on the defendant, whichever period is

shorter.

If the case stated by the initial pleading is

not removable, a notice of removal may be filed

within thirty days after receipt by the defen-

dant, through service or otherwise, of a copy of

an amended pleading, motion, order or other

paper from which it may first be ascertained

that the case is one which is or has become

removable, except that a case may not be

removed on the basis of jurisdiction conferred

by section 1332 of this title more than 1 year

after commencement of the action.

(d) Promptly after the filing of such notice

of removal of a civil action the defendant or

detendants shall give written notice thereof to

all adverse parties and shall file a c py of the

notice with the clerk of such State court, which

shall effect the removal and the State court shall

proceed no further unless and until the case is

remanded.

STATEMENT OF THE CASI

A. Nature of the Case

[his action originally arises from Michaud’s claims

for insurance benefits under an automobile insurance

policy issued by State Farm. On April 29, 1994, Michaud

contends that he was involved in an automobile accident

on the Island of Maui, State of Hawaii (“the accident”). In

his Complaint, Michaud alleges that State Farm failed to

provide no-fault benefits which he contends are due and

owing to him as a result of the accident. Michaud further

contends, inter alia, that State Farm failed to properly

investigate his claim and have improperly denied pay-

ment. (App. “E”).

In response, State Farm contends, inter alia, that Mic-

haud’s policy for his 1975 Mercedes — which was

involved in the accident — was properly canceled due to

non-payment of premiums. The policy had been canceled

approximately four months before the accident.

B. Proceedings Below

[his action was initially filed by Michaud on Novem-

ber 7, 1995 in the Circuit Court of the Second Circuit,

State of Hawaii (“Second Circuit Court”), docketed as

Civil No. 95-0844(1). The Complaint named as defendants

State Farm and numerous individual employees of State

Farm (“Individual Defendants”). Defendants subse-

quently brought a Motion To Dismiss Complaint against

the Individua! Defendants. At a hearing on February 13,

1996, the Second Circuit Court ordered dismissal of the

Individual Defendants. The only remaining defendant

was State Farm.

On February 15, 1996, State Farm filed a Notice of

Removal to the United States District Court for the Dis-

trict of Hawaii (“District Court”), where the case was

docketed as Civil No. 96-0155 SPK. Given the dismissal of

the Individual Defendants in the Second Circuit Court,

there was diversity of citizenship between the remaining

parties (Michaud and State Farm), and the case thus

the State of Hawaii's Second Circuit Court maintained

original jurisdiction in this action. Moreover, Michaud

retused to schedule or attend a requisite meeting of the

parties, and failed to submit a statement regarding meet-

ing of the parties.

On May 13, 1996, Michaud failed to appear for the

scheduling Conference before Magistrate Francis I.

Yamashita. As a result, an Order To Show Cause was

issued by Magistrate Yamashita. This Order warned Mic-

haud that failure to respond would result in dismissal of

the case (App. “H”)

On May 23, 1996, Michaud submitted Plaintiff Gerald

|. Michaud’s Response To Order To Show Cause, in

which he stated that he is “returning this Honorable

Court's Order to Show Cause WITHOUT DISHONOR’”.

(App. “I’). Michaud indicated that he refuted State

Farm’s authority to remove this case, and instead of

addressing the District Court’s Order To Show Cause, he

demanded certain information from State Farm and the

District Court

On May 28, 1996, Plaintiff Gerald T. Michaud’s

Demand For Proof Of Jurisdiction was filed. Therein,

Michaud asserted that “[t]his Honorable Court through

negligence per se is attempting to coerce Plaintiff into its

foreign jurisdiction”. (App. “J”). State Farm thereafter

tiled a response memorandum addressing the jurisdic-

tional issues. On July 5, 1996, the District Court issued an

Order Denying Plaintiff’s Demand For Proof of Jurisdic-

tion. (App. “K”). To address the issues raised by Mic-

haud, the District Court treated Michaud’s “Demand” as

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Motion Ilo Remand. In its Order, the District Court held

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\pp. “B"). Upon the Ninth Circuit’s decision to affirm.

Michaud filed his Petition to this Court

ARGUMENT

Michaud’s Petition appears to both appeal the Ninth

Circuit's decision and request a writ of mandamus. See

Petition at 19-22. Both Michaud’s Petition for Writ of

Certiorari and Petition for Writ of Mandamus rest upon

Michaud’s mistaken belief that the proceedings below

curtailed his constitutional rights. Neither Petition justi-

ties this honorable Court’s review.

United States Supreme Court Rule (“Supreme Court

Rule”) 10 requires a showing of “compelling reasons” to

justify the discretionary grant of a writ of certiorari. Such

reasons include, but are not limited to: (1) a conflict of

decisions among the federal appellate courts or between

tederal appeals court and the highest state court: (2) a

significant departure from usual proceedings; or (3) an

important question of federal law. Supreme Court Rule

\0. Michaud’s Petition for Writ of Certiorari fails to raise

compelling reason” under any of the above categories.

Michaud has cloaked his fundamentally flawed Peti-

tion under an array of constitutional attacks on the fed-

eral judicial system. These attacks stem from Michaud’s

belief that the legitimate procedures strictly followed by

the District Court and the Ninth Circuit somehow vio-

lated his constitutional rights. See Petition at 2-3. Not-

withstanding Michaud’s insistence to the contrary, the

procedures below were correctly applied in this case and

no way threatened Michaud’s constitutional] rights

| yan © |

ll12 L.Ed. 2d 1140 (1991)). For the reasons set forth

instant Petition for Writ of Certiorari should be

[The Removal Of The Instant Action To The

Federal District Court Proceeded Under

Both Statutory And Constitutional Author-

ity

Michaud has no legitimate basis to challenge federal

sdiction over the instant action. Even though Michaud

sinally filed his Complaint in the Second Circuit Court

t the State of Hawaii, once the State Court dismissed the

liverse defendants, State Farm properly sought

moval to the federal District Court on the basis of

ersity of citizenship. This Court has already deter-

ied that a plaintiff who opposes removal of a case

ma state court to a federal district court errs in relying

n the principle that a plaintiff, as master of the com

int, can choose to have the cause heard in state court

lege of Surgeons, 522 U.S. 156, 118

Ct. 523, 139 L.Ed. 2d 525 (1997). By filing a claim

ist a diverse party, Michaud subjected himself to the

ibility that State Farm would exercise its right to

ve the case to the federal court.

moval is specifically authorized pursuant t

S 1441, which states in pertinent part:

iny civil action brought in a State court of which

ne district courts of the United States have orig-

jurisdiction, may be removed by the defen

lant or the defendants, to the district court of

United States for the district and division

i stale

Accordingly, State Farm merely exercised its right to

resort to the District Court under diversity jurisdiction.

In an Eighth Circuit case factually similar to the

instant action, an insured brought suit against the insurer

In state court. Kithcart, 150 F.2d 997. The insurer removed

the case to federal court on diversity of citizenship

grounds. Id. In his appeal, the insured argued that the

removal statutes were unconstitutional. Id. at 1001. After

surveying the history and purpose of removal statutes,

the court concluded that “[t]he validity of [the removal

statutes]... . is not open to serious question, and the

provisions adopted have been recognized and followed

with scarcely an exception by the Federal and State courts

since the establishment of the government.” Id. The court,

therefore, rejected the insured’s claim that the removal

statutes abridged his constitutional rights. Id.

Likewise, Michaud’s Petition fails to raise any serious

constitutional attack on the removal procedures applied

by the lower court. Michaud filed his Complaint in the

State Court, but by naming a diverse defendant, he sub-

jected himself to the possibility that State Farm would

avail itself of federal jurisdiction once the non-diverse

parties were dismissed. Upon review, the District Court

found that the requirements for diversity had been met

and that removal was proper. The Ninth Circuit affirmed

the District Court’s decision. This Court need not grant

Michaud’s Petition only to reaffirm the legitimacy of the

removal procedure, which is historically unchallenged

and widely recognized as valid.

Michaud’s Intentional Refusal To Cooper-

ate With The District Court’s Orders

Prompted The Dismissal Of The Instant

Action.

Even after the District Court determined federal

jurisdiction to be proper, Michaud continued to refuse to

participate in the District Court proceedings. A district

court has discretion to dismiss claims “for failure to pros-

ecute or to comply with a court order or any federal

rule.” 8 Moore’s Federal Practice § 41.50. Indeed, Rule

41(b) of the Federal Rules of Civil] Procedure (“FRCP”)

authorizes involuntary dismissals under such circum-

stances. Additionally, FRCP, Rules 16(f) and 37(b) speci-

tically permit dismissal for failure to comply with

discovery rules.

Michaud’s consistent noncompliance and blatant dis-

obedience during the lower court proceedings justified

the District Court’s decision to dismiss under any of the

above rules. Michaud disobeyed the local and federal

rules requiring a prehearing meeting by refusing to meet

with State Farm’s counsel. Michaud further refused to

submit a proper scheduling conference statement. He

Knowingly disregarded the authority of the District Court

by failing to comply with two court orders and to appear

at hearings after being warned by the court that failure to

;

appear would result in dismissal.

In Magistrate Judge Yamashita’s Findings and Rec-

ommendation of September 3, 1996, he specifically held

that Michaud had twice failed to appear for hearings after

being ordered to do so (once on May 13, 1996 and once on

June 19, 1996). Magistrate Yamashita further found that

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Moreover, Michaud has sought an extraordinary writ

where alternative relief is available. “(Sjuch remedies

should be resorted to only where appeal is a clearly

inadequate remedy.” Ex parte Fahey, 332 U.S. 258, 260, 67

5. Ct. 1558, 91 L.Ed. 2041 (1947). “It is well settled that

where a party had the right to a writ of error or appeal,

resort may not be had to the extraordinary writ of man-

damus[.]” Ex parte Tiffany, 252 U.S. 32, 37, 40 S. Ct. 239, 64

L.Ed. 445 (1920). Michaud’s appeal to this Court from the

Ninth Circuit’s decision addresses the same concerns as

those raised in his Petition for a Writ of Mandamus. “(If

the complaining party has an adequate remedy[,].... the

writ will ordinarily be denied.” Ex parte Chicago, R.l. &

Pac. Ry., 255 U.S. 273, 41 S. Ct. 288, 65 L.Ed. 631 (1921).

Michaud’s ability to raise the instant appeal to this Court

deteats his request for a Writ of Mandamus. Michaud’s

Petition has failed to meet all four prerequisites to the

issuance of an extraordinary writ. This Court, therefore,

should deny his Petition.

CONCLUSION

Michaud has persisted in his unjustified rejection of

tederal jurisdiction over the instant case, despite the clear

mandate of the law and federal court practice. His insis-

tence has forced the federal judiciary and State Farm to

expend a great deal of resources in addressing his

unfounded objections and appeals. Michaud now asks

this Court to review the Ninth Circuit’s decision and

further requests a writ of mandamus against various

government officials and agencies without any legitimate

grounds for doing so. The proceedings below were lawful

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APPENDIX B

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

GERALD T. MICHAUD,

D.C. No.

CV-96-00155-SPK

Plaintiff-Appellant,

VS.

)

STATE FARM INS.: ROBERT

(BOB) YOSHINO; SCOTT A. /

GILMORE; KAREN PERREIRA: |

FRANCES YOST; A. DON SMITH. ?

MONIQUE CATCOTT; JOHN DOES ?

1-10, inclusive; JANE DOES 1-10 ?

inclusive; CORPORATION DOES ?

1-10; inclusive; PARTNERSHIP |

DOES 1-10 inclusive:

GOVERNMENTAL ENTITY DOES. ?

1-10 inclusive,

Defendants-Appellees. '

GERALD T. MICHAUD, | No. 97-1538'

‘ — ,eElloee / 1). ‘ No.

ee - CV-96-00155-SPK

VS.

STATE FARM INS.; ROBERT

(BOB) YOSHINO; SCOTT A.

GILMORE; KAREN PERREIRA

Sto YOST; A. DON

ITH, MONIQUE CATCOTT

[ efendants-Appellant

IDER ADOPTING M AGISTRATI

INDINGS AND RECOMMENDATION

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APPENDIX E

GERALD T. MICHAUD, Sui juris

P.O. Box 10236

Lahaina, Hawaii 96761

Telephone: (808) 669-0887

In Propria Persona

IN THE CIRCUIT COURT OF THE SECOND CIRCUIT

STATE OF HAWAII

GERALD T. MICHAUD, CIVIL NO. 95-0844 (1)

Plaintiff, COMPLAINT;

» AFFIDAVIT OF

a GERALD T. MICHAUD;

STATE FARM MUTUAL EXHIBITS A-B;

AUTOMOBILE DEMAND FOR JURY

INSURANCE COMPANY,

ROBERT (BOB) YOSHINO,

SCOTT A. GILMORE,

KAREN PERREIRA,

FRANCES YOST, A. DON

SMITH AND MONIQUE

CATCOTT; JOHN DOES

1-10; JANE DOES 1-10;

PARTNERSHIP DOES

1-10; GOVERNMENTAL

ENTITY DOES 1-10,

inclusive,

TRIAL; SUMMONS

Defendants.

ee ee Ne Ne eee Nee Ne ee ee ee ee Nee ee Ne Ne Se Ne

COMPLAINT

COMES NOW Plaintiff Gerald T. Michaud, hereinaf-

ter “Plaintiff” and for causes of action against Defendants

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above named, only, for breach of the duty of good faith

and fair dealing, allege and aver as follows:

COUNT I

1. Plaintiff Gerald T. Michaud was at all relevant

times herein mentioned, a resident of the County of Maui,

State of Hawaii.

2. Defendant STATE FARM INSURANCE COM-

PANIES (hereinafter STATE FARM) is, and was at all

relevant times herein mentioned, upon information and

belief, an Illinois corporation authorized to, and doing

business in the State of Hawaii including the County of

Maui.

3. That the true names or capacities, whether indi-

vidual, corporate, associate, or otherwise, of Defendants

JOHN DOES 1-10, JANE DOES 1-10, DOE CORPORA-

TIONS 1-10, DOE PARTNERSHIPS 1-10, AND DOE

GOVERNMENTAL ENTITIES 1-10 are sued herein under

their fictitious names and identities and are presently

unknown to Plaintiff, and their true names, identities,

capacities, activities, and/or responsibilities are presently

unknown to Plaintiff despite diligent efforts to determine

same, but said DOE defendants are in some manner

proximately responsible for the events and happenings

herein referred to, and legally caused injury and damages

proximately thereby to Plaintiff as herein alleged.

4. That at all times herein mentioned, Defendants,

and each of them, were the agents and employees of each

of the remaining Defendants, and were at all times acting

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within the purpose and scope of said agency and employ-

ment, and each Defendant has ratified and approved the

acts of his agent.

>. Prior to November 2, 1989, Defendant STATE

FARM issued to Plaintiff Gerald T. Michaud a No-Fault

Automobile insurance Policy No. $12 4235-D23-51A

which insured a certain vehicle belong [sic] to Plaintiff. A

copy of said Policy is marked as Exhibit “A,” attached

hereto, and incorporated herein by reference. Said Auto-

mobile insurance Policy was entered into by Plaintiff

within the jurisdiction of the above-entitled Court and

required the payment of benefits within the jurisdiction

of the above-entitled Court for a total amount to be

shown at the time of trial. The policy extended to plaintiff

no-fault benefits which insured a certain vehicle belong-

ing to Plaintiff.

6. Plaintiff has paid all premiums due under said

Automobile Insurance Policy to Defendant STAFE FARM

at all relevant times herein and has performed all obliga-

tions under said Automobile Insurance Policy on Plain-

tiffs’ part to be performed. _

7. On or about April 29, 1994, while Plaintiff was

driving his vehicle southbound in the southbound lane of

Pilani Highway, a northbound vehicle crossed over the

center lane into the center of the southbound lane and

negligently, carelessly and/or recklessly collided with the

vehicle driven by Plaintiff. Plaintiff suffered a loss com-

pensable under the terms of said Automobile Insurance

Policy in that Plaintiff sustained serious bodily injury.

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8. Plaintiffs’ accident occurred out of the operation

and use of the said vehicle insured by Defendant STATE

FARM.

9. On or about May 19, 1994, upon release from

Queen’s Hospital, Plaintiff filed a claim for insurance

benefits under said Automobile Insurance Policy due to

Plaintiffs’ serious bodily injuries.

10. All acts complained herein occurred within the

jurisdiction of the Circuit Court of the Second Circuit,

State of Hawaii.

11. As a result of the above-mentioned accident,

Plaintiff sustained serious and permanent bodily and

psychological injury, loss of income, medical expenses

and severe emotional distress and mental suffering.

12. That at the time of the above-referenced acci-

dent, the above-described automobile insurance policy

issued by Defendant STATE FARM was in full force and

effect.

joao

13. In due course, Plaintiff submitted his respective

applications for no-fault benefits to Defendant STATE

FARM.

14. Despite overwhelming evidence that Plaintiff

was entitled to no-fault benefits, Defendant STATE FARM

failed and refused to provide the no-fault benefits due to

Plaintiff pursuant to Plaintiffs’ policy of insurance.

15. Despite Plaintiffs’ continued demands for bene-

fits and Plaintiffs’ request for information regarding the

basis for Defendant STATE FARM'S denial, Defendant

STATE FARM continues to refuse to provide no-fault

benefits to Plaintiff and refuses to provide Plaintiff with

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any factual information, or legitimate documentation

supporting or otherwise explaining the denial.

l6. In disregard of its duties and obligations to

Plaintiff, Defendant STATE FARM, among other things,

tailed to adequately investigate Plaintiffs’ claims for no-

fault benetits as is its obligation, consciously and/or neg-

ligently disregarded and breached its duties and obliga-

tions to provide no-fault benefits to Plaintiff, and took

actions which were intended only to financefily benefit

Detendant STATE FARM.

17. Defendant's actions in denying Plaintiffs claims

were done wantonly, oppressively, and with such malice

as implies a spirit of mischief or criminal indifference to

their civil obligations to Plaintiff, and indicated a con-

scious indifference to the consequences of their actions,

and therefore Defendant STATE FARM has breached its

duty of good faith and fair dealing owed to Plaintiff in

the following respects:

(a) Failure to make insurance benefit payments

to Plaintiff at a time when Defendants knew that Plaintiff

was entitled to said payments under the terms of said

No-Fault Package Policy.

On or about May 19, 1994, Plaintiff submitted a claim

to Defendant STATE FARM for the losses due to the

accident. There was a substantial delay in investigating

Plaintiffs’ claim, as different individuals were assigned to

verify “check payments” made by Plaintiff, during which

time Plaintiff was unable to receive the proper medical

treatment needed for his serious injuries. Thereafter,

Defendant STATE FARM refused to pay plaintiff any

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benefits to which he was entitled, contending that Plain-

tiffs’ Policy was canceled for non-payment of premium.

Plaintiff disputed Defendant STATE FARM'S determina-

tion and requested a reconsideration of the denial with

the aid of the State of Hawaii, Insurance Division,

Department of Commerce and Consumer Affairs, here-

inafter DEPARTMENT. Defendant STATE FARM again

denied Plaintiffs’ claim by furnishing the DEPARTMENT

and Plaintiff with falsified documents (copies of said

documents are marked as Exhibit “B”), and such denial

has continued through the present time;

(b) Delaying payments to Plaintiff knowing

Plaintiffs’ claim for benefits under said Hawaii No-Fault

Automobile Insurance Package Policy to be valid for the

reasons stated above;

relating to Hawaii no-fault automobile insurance rules

pertaining to cancellation procedures, at a time when

Defendant knew that such representations were false;

(d) Failure to reasonably and promptly investi-

gate and process Plaintiffs’ claim for the reasons stated

above:

(e) Not attempting in good faith to effectuate a

prompt, fair and equitable settlement of plaintiffs’ claim

tor damage in which liability has become reasonably clear

for the reasons stated above;

(f) Failure to provide a reasonable explanation

of the basis relied upon in the Hawaii Revised Statutes

concerning “cancellation notices,” in relation to the appli-

cable facts, for the denial of Plaintiffs’ claim for the

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reasons stated above, as well as Defendant’s language as

used in the denials was positively vague and ambiguous

and is insufficient to justify refusal to pay the disputed

no-fault benefits;

(g) Plaintiff is informed and believes and thereon

alleye [sic] that Defendant STATE FARM has breached its

duty of fair dealing and good faith owed to Plaintiff by

other acts or omissions of which Plaintiff is presently

unaware. Plaintiff will seek leave of Court to amend this

Complaint at such time as Plaintiff discovers the other

acts or omissions of said Defendant constituting such

brea ch

18. Defendants’ conduct described herein was

intended by the defendants to cause injury to the Plaintiff

or Was carried on by the defendants with a conscious

disregard of the rights of Plaintiff, subjected Plaintiff to

cruel and unjust hardship in conscious disregard of Plain-

tiffs’ rights, and was an intentional misrepresentation,

deceit, or concealment of a material fact known to the

Detendants with the intention to deprive Plaintiff of legal

rights or to otherwise cause injury, such as to constitute

malice oppression or fraud under Hawaii Revised Stat-

utes § 480-2, thereby entitling Plaintiff to punitive dam-

ages In an amount appropriate to punish or set an

example of Defendants.

19. Defendants’ conduct described herein was

undertaken by officers or managing agents of the corpo-

rate Defendant, STATE FARM, identified herein as

ROBERT (BOB) YOSHINO, SCOTT A. GILMORE, KAREN

PERREIRA, FRANCES YOST, A. DON SMITH, MONI-

QUE CATCOTT, and JOHN DOES. 1-10, JANE DOES 1-10,

DOE CORPORATIONS 1-10, DOE PARTNERSHIPS 1-10,

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AND DOE GOVERNMENTAL ENTITIES 1-10, inclusive,

who were managing agents of Defendant, STATE FARM,

responsible for claims operations and/or decisions.

The aforesaid described conduct of ROBERT (BOB)

YOSHINO, SCOTT A. GILMORE, KAREN PERREIRA,

FRANCES YOST, A. DON SMITH, MONIQUE CATCOTT,

and said DOE individuals was therefore undertaken on

behalf of the corporate defendant, STATE FARM. Said

corporate Defendant further had advance knowledge of

the actions and conduct of ROBERT (BOB) YOSHINO,

SCOTT A. GILMORE, KAREN PERREIRA, FRANCES

YOST, A. DON SMITH, MONIQUE CATCOTT, and said

DOE individuals whose actions and conduct were rat-

ified, authorized, and approved by corporate officers,

directors or managing agents whose precise identities are

unknown to Plaintiff at this time and are therefore identi-

fied and designated as JOHN DOES 1-10, JANE DOES

1-10, DOE CORPORATIONS 1-10, DOE PARTNERSHIPS

1-10, AND DOE GOVERNMENTAL ENTITIES 1-10,

inclusive.

20. Defendant STATE FARM'S actions and omis-

sions as alleged herein were part of Defendant STATE

FARM’S company policy and claims practice designed to

utilize Defendant STATE FARM’S superior financial

strength and/or large insurance market share in order to

intimidate the injured victim in his time of need to do

without and/or accept less than what is due him, all of

which is in disregard of Defendant STATE FARM'S duties

and obligations as an insurer to its insured.

21. As a proximate result of the aforementioned

wrongful conduct of Defendants, Plaintiff has suffered,

and will continue to suffer in the future, damages plus

A20

interest, for a total amount to be shown at the time of

trial.

22. As a further proximate result of the aforemen-

tioned wrongful conduct of Defendants, Plaintiff has suf-

fered anxiety, worry, mental and emotional distress, and

other incidental damages and out-of-pocket expenses, all

to Plaintiffs’ general damage in an amount to be shown

according to proof at the time of trial.

23. The aforestated actions and omissions constitute

unfair claim settlement practices as set forth in H.R.S.

§ 431:13-103(a)(10).

24. The above alleged actions and omissions prox-

imately caused Plaintiff damages for which he seeks gen-

eral, special, consequential, compensatory, treble, and

punitive damages as set forth below.

COUNT II

25. Plaintiff reallege [sic] the allegations contained

in Paragraphs 1 through 24 above and incorporate same

by reference as though fully set forth herein.

26. Defendant STATE FARM’S wrongful failure to

provide no-fault benefits constitutes an express and/or

implied breach of insurance contract for which plaintiff

seeks damages as herein_set forth.

COUNT III

27. Plaintiff reallege [sic] the allegations contained

in Paragraphs 1-26 above and incorporate same by refer-

ence as though fully set forth herein.

A2]

28. The aforesaid acts and omissions of said Defen-

dants constitute negligent claims practices for which

Plaintiff seeks damages as herein set forth.

COUNT IV

29. Plaintiff reallege [sic] the allegations contained

in Paragraphs 1-28 above and incorporate same by refer-

ence as though fully set forth herein.

30. Defendants ROBERT (BOB) YOSHINO, SCOTT

A. GILMORE, KAREN PERREIRA, FRANCES YOST, A.

DON SMITH, MONIQUE CATCOTT, and JOHN DOES

1-10, JANE DOES 1-10, DOE CORPORATIONS 1-10, DOE

PARTNERSPS [sic] 1-10, AND DOE GOVERNMENTAL

ENTITIES 1-10, inclusive, and each of them, are

employees and agents of Defendant STATE FARM who

were responsible for processing Plaintiffs’ claim for bene-

fits under the No-Fault Automobile Insurance Package

Policy which is the subject matter of this action, and

Defendant STATE FARM authorized, directed and ratified

the acts of said Defendant employees and agents herein.

31. Defendants ROBERT (BOB) YOSHINO, SCOTT

A. GILMORE, KAREN PERREIRA, FRANCES VST, A.

DON SMITH, MONIQUE CATCOTT, and JOHN DOES

1-10, JANE DOES 1-10, DOE CORPORATIONS 1-10, DOE

PARTNERSHIPS 1-10, AND DOE GOVERNMENTAL

ENTITIES 1-10, inclusive, and each of them, as individ-

uals and entities engaged in the business of insurance in

Hawaii, are, and at all times herein mentioned were,

members of the class of persons and entities intended to

be regulated and in fact regulated by Hawaii Insurance

Code sections 431:13-102, and 431:13-103.

A22

32. Plaintiff, as an insured under a No-Fault Auto-

mobile Insurance Package Policy with Defendant STATE

FARM, is, and at all times herein mentioned was, a mem-

ber of the class of persons sought to be protected by

Hawaii Insurance Code sections 431:13-102, and 431:13-103.

33. By the aforesaid acts and omissions as alleged

herein, Defendants, and each of them, have violated their

statutory duties set forth in Hawaii Insurance Code sections

431:13-103 in the following particulars:

Committing or performing with such frequency as to

indicate a general business practice any of the following:

(a) Misrepresenting pertinent facts or insurance

policy provisions relating to coverages at issue [Ins. Code

§ 431:13-103(10)(A)];

(b) Failing to acknowledge and act reasonably

Promptly upon communications from Plaintiff with

respect to the claim arising under said No-Fault Auto-

mobile Insurance Package Policy [Ins. Code

§ 431:13-103(10)(B)(iii)];

standards for the prompt investigation of claims such as

Plaintiffs’ herein arising under said No-Fault Automobile

Insurance Package Policy [Ins. Code § 431:13-103(10)(C)];

(d) Refusing to pay claims without conducting

a reasonable investigation based upon all available infor-

mation such as Plaintiffs’ herein arising under said No-

Fault Automobile Insurance Package Policy [Ins. Code

§ 431:13-103(10)(D)];

(e) Failing to affirm or deny Plaintiffs’ coverage

of claims within a reasonable time after proof of

A23

loss statements have been completed, [Ins. Code

§ 431:13-103(10)(E)];

(f) Failing to provide the insured, such as Plain-

tiff, or when applicable the insured’s beneficiary, with a

reasonable written explanation for any delay, on every

claim remaining unresolved for thirty calendar days from

the date it was reported [Ins. Code § 431:13-103(10)(G)];

(g) Not attempting in good faith to effectuate

prompt, fair, and equitable settlements of Plaintiffs’

claims in which liability has become reasonably clear [Ins.

Code § 431:13-103(10)(H)];

(h) Compelling Plaintiff to institute litigation to

recover amounts due under an insurance policy by offer-

ing substantially less than the amounts ultimately recov-

ered in actions brought by the insureds [Ins. Code

§ 431:13-103(10)(1)];

(1) Attempting to settle Plaintiffs’ claim for less

than the amount to which a reasonable person, would

have believed the Plaintiff was entitled by reference to

written or printed advertising material accompanying or

made part of an application given Plaintiff [Ins. Code

§ 431 :13-103(10)(J)];

(j) Attempting to settle Plaintiffs’ claims on the

basis of an application which was altered without notice,

or knowledge or consent of the Plaintiff [Ins. Code

§ 431:13-103(10)(K)];

(k) Failing to promptly provide a reasonable

explanation of the basis relied on in the No-Fault Auto-

mobile Insurance Package Policy, in relation to the

A24

applicable facts and law, for the denial of Plaintiffs’ claim

[Ins. Code § 431:13-103(10)(P)].

34. As a proximate result of the Defendants’ breach

of their statutory duties as herein alleged, Plaintiff has

suffered damages under the terms of the No-Fault Auto-

mobile Insurance Package Policy involved herein, plus

interest, and for anxiety, worry, mental and emotional

distress, and other incidental damages as alleged herein.

35. Defendants’ conduct described herein was

intended by the Defendants to cause injury to the Plain-

tiff or was carried on by the Defendants with a conscious

disregard of the rights of Plaintiff, subjected Plaintiff to

cruel and unjust hardship in conscious disregard of Plain-

tiffs’ rights, and was an intentional misrepresentation,

deceit, or concealment of a material fact known to the

Defendants with the intention to deprive Plaintiff of

property, legal rights or to otherwise cause injury, such as

to constitute malice oppression or fraud under Hawaii

Kevised Statutes § 480-2, thereby entitling Plaintiff to

punitive damages in an amount appropriate to punish or

set an example of Defendants.

36. Defendants’ conduct described herein was

undertaken by officers or managing agents of the corpo-

rate Defendant, STATE FARM, identified herein as

ROBERT (BOB) YOSHINO, SCOTT A. GILMORE, KAREN

PERREDIA, FRANCES YOST, A. DON SMITH, MONI-

QUE CATCOTT, and JOHN DOES 1-10, JANE DOES 1-10,

DOE CORPORATIONS 1-10, DOE PARTNERSHIPS 1-10,

AND DOE GOVERNMENTAL ENTITIES 1-10, inclusive,

who were managing agents of Defendant, STATE FARM,

responsible for claims operations and/or decisions. The

A25

aforedescribed conduct of ROBERT (BOB) YOSHINO,

SCOTT A. GILMORE, KAREN PERREIRA, FRANCES

YOST, A. DON SMITH, MONIQUE CATCOTT, and said

DOE individuals was therefore undertaken on behalf of

the corporate Defendant, STATE FARM. Said corporate

Defendant further had advance knowledge of the actions

and conduct of ROBERT (BOB) YOSHINO, SCOTT A.

GILMORE, KAREN PERREIRA, FRANCES YOST, A.

DON SMITH, MONIQUE CATCOTT, and said DOE indi-

viduals whose actions and conduct were ratified, autho-

rized, and approved by corporate officers, directors or

managing agents whose precise identities are unknown to

plaintiff at this time and are therefore identified and

designated herein as JOHN DOES 1-10, JANE DOES 1-10,

DOE CORPORATIONS 1-10, DOE PARTNERSHIPS 1-10,

AND DOE GOVERNMENTAL ENTITIES 1-10, inclusive.

37. Defendant STATE FARM breached the implied

and/or expressed covenant of good faith and fair dealing

and willfully and/or wantonly and/or intentionally and/

or in bad faith breached the insurance contract for which

Plaintiff seeks damages as herein set forth.

COUNT V

38. Plaintiff reallege the allegations contained in

Paragraphs 1-37 above and incorporate same by reference

as though fully set forth herein.

39. The aforesaid acts and omissions of said Defen-

dant STATE FARM constitutes the tort of Bad Faith for

which Plaintiff seeks damages as herein set forth.

A26

COUNT VI

40. Plaintiff reallege the allegations contained in

Paragraphs 1-39 above and incorporate same by reference

as though fully set forth herein.

41. The aforesaid acts and omissions of Defendant

STATE FARM were unlawful, unfair, and deceptive and

thus violative of Hawaii Revised Statutes § 480-2 for

which Plaintiff seeks damages as provided by Hawaii

Revised Statutes § 480-13.

COUNT VII

42. Plaintiff reallege the allegations contained in

Paragraphs 1-41 above and incorporate same by reference

as though fully set forth herein.

43. The aforesaid acts and omissions of Defendant

STATE FARM constitute outrageous tortious conduct for

which Plaintiff seeks damages as herein set forth.

COUNT VIII

44. Plaintiff reallege the allegations contained in

Paragraphs 1-43 above and incor orate same by reference

- ,

as though fully set forth herein.

45. The aforesaid acts and omissions of Defendant

STATE FAKM constitutes the intentional and/or negli-

gent infliction of emotional distress for which Plaintiff

seeks damages as herein set forth.

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costs of suit incurred herein; and,

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other and further relief as

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WV lL Maui, Hawaii November 7, 1995

s/ Gerald T. Michaud

Gerald T. Michaud

Tila

Appearing In Propria Per

A29

APPENDIX F

McCORRISTON MIHO MILLER MUKA!

RICHARD B. MILLER #3729-0

LISA M. GINOZA #5154-0

DOUGLAS K. USHIJIMA #5897-0

Five Waterfront Plaza, 4th Floor

500 Ala Moana Boulevard

Honolulu, Hawaii 96813

Telephone: 529-7300

Attorneys for Defendants

STATE FARM MUTUAL AUTOMOBIL!

INSURANCE COMPANY, ROBERT YOSHINO

SCOTT A. GILMORE, KAREN PERREIRA

FRANCES YOST, A. DON SMITH AND

MONIQUE CATCOTT

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF HAWAII

GERALD T. MICHAUD CIVIL NO. 96-0

Plaintiff, DEFENDANTS’ NOT

OF REMOVAI

ve / VERIFICATION

STATE FARM MUTUA! ' EXHIBIT “A

AUTOMOBILE INSURANCE ? CERTIFICATI

COMPANY, ROBERT OF SERVIC!

YOSHINO, SCOTT A

GILMORE, KAREN

PERREIRA, FRANCES YOST

A. DON SMITH AND

MONIQUE CATCOTT; JOHN

DOES 1-10; JANE DOES 1-10

PARTNERSHIP DOES 1-10

GOVERNMENTAL ENTITY

DOES 1-10, inclusive

Defendants.

Pic}

A30

DEFENDANTS’ NOTICE OF REMOVAL

TO: THE UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF HAWAII

1. This Notice of Removal is made pursuant to 28

U.S.C. §§ 1441 and 1446.

2. Defendant STATE FARM MUTUAL AUTO-

MOBILE INSURANCE COMPANY (“STATE FARM”),

Movant herein, is and was at all times relevant hereto,

including without limitation the date on which Plaintiff

filed the instant Complaint, a Company organized and

existing under the laws of the State of Illinois, with its

principal place of business in Bloomington, Illinois.

3. Upon information and belief, Plaintiff Gerald T.

Michaud (“Plaintiff”) is and was at all times relevant

hereto, including without limitation the date on which

Plaintiff filed the instant Complaint and the date on

which this Notice of Removal is filed, a citizen of the

State of Hawaii.

4. On or about November 7, 1995, Plaintiff filed a

Complaint in Civil No. 95-0844(1) in the Circuit Court of

the Second Circuit, State of Hawaii, against Defendants

claiming, inter alia, that Defendants tortiously and in bad

faith breached an insurance contract with Plaintiff.

5. Upon information and belief, the Complaint was

mailed to a State Farm office in Westlake, California on

November 9, 1995, and was received on November 13,

1995.

6. On or about November 30, 1995, Defendants filed

an Answer to Plaintiffs’ Complaint in the Circuit Court of

the Second Circuit, State of Hawaii.

A3]

7. On January 17, 1996, Defendants State Farm

Mutual Automobile Insurance Company, Robert Yoshino,

scott A. Gilmore, Karen Perreira, Frances Yost, A. Don

Smith, and Monique Catcott filed a Motion to Dismiss

Complaint against Robert Yoshino, Scott A. Gilmore,

Karen Perreira, Frances Yost, A. Don Smith, and Monique

Catcott with Prejudice (“Motion to Dismiss Individual

Defendants”).

8. The Motion to Dismiss Individual Defendants

was heard on February 13, 1996 before the Honorable E.

John McConnell, Judge of the Second Circuit Court, State

of Hawaii. After considering the submissions and oral

argument, Judge McConnell granted Defendants’ Motion

to Dismiss with Prejudice, finding that Plaintiff’s Com-

plaint failed to state a cause of action against individual

Defendants Robert Yoshino, Scott A. Gilmore, Karen Per-

reira, Frances Yost, A. Don Smith, and Monique Catcott.

9. Judge McConnell’s decision confirmed that indi-

vidual Defendants Robert Yoshino, Scott A. Gilmore,

Karen Perreira, Frances Yost, A. Don Smith, and Monique

Catcott were improperly joined with State Farm as Defen-

dants in Civil No. 950844(1). See McCabe v. General Foods

Corp., 811 F.2d 1336, 1339 (9th Cir. 1987).

10. There is original jurisdiction in the United States

District Court for the District of Hawaii under 28 U.S.C.

§ 1332 (diversity of citizenship) because fraudulently

joined defendants, as defined in McCabe v. General Foods.

supra, do not destroy diversity jurisdiction.

11. As set forth in the Complaint, Plaintiff seeks

damages for general, special, consequential, compensa-

tory, treble, and punitive damages, as well as attornevs

7 Oo J

A32

fees, costs, and pre- and post-judgment interest. There-

fore, based on the amount and type of damages sought,

the attorneys’ fees involved, and the insurance benefits at

issue, the amount in controversy exceeds $50,000.

12. Pursuant to 28 U.S.C. § 1446(a), true and correct

copies of the process, pleadings, and orders served upon

Defendants in the Circuit Court of the Second Circuit,

State of Hawaii, are appended hereto as Exhibit “A”.

Pursuant to 28 U.S.C. § 1447(b), Movant is prepared to

file with the Clerk of the United States District Court for

the District of Hawaii copies of all records and proceed-

ings from the State court action.

WHEREFORE, Movant prays that the above-entitled

action be removed from the Circuit Court of the Second

Circuit, State of Hawaii, to the United States District

Court for the District of Hawaii.

DATED: Honolulu, Hawaii, February 15, 1996.

/s/ Douglas K. Ushijima

RICHARD B. MILLER

LISA M. GINOZA

DOUGLAS K. USHIJIMA

Attorneys for Defendants

A33

APPENDIX G

GERALD T. MICHAUD, Sui

P.O. Box 10236

Lahaina, Hawaii 96761

Telephone: (808)669-0887

In Propia Persona

GERALD T. MICHAUD,

Plaintiff,

STATE FARM MUTUAI

AUTOMOBILE INSURANCE

COMPANY, ROBERT (BOB)

YOSHINO, SCOTT A.

GILMORE, KAREN

PERREIRA, FRANCES YOST,

A. DON SMITH AND

MONIQUE CATCOTT; JOHN

DOES 1-10; JANE DOES 1-10;

PARTNERSHIP DOES 1-10;

GOVERNMENTAL ENTITY

DOES 1-10, inclusive,

Defendants

THE UNITED STATES DISTRICT ¢

FOR THE DISTRICT O!}

jur1s

OURT

HAWAITI

CIVIL NO. 96-00155 SPK

PLAINTIFF GERALD ]

MICHAUD’S NOTICE

NOT TO CONSENT TO

PROCEED BEFORE A

UNITED STATES

MAGISTRATE;

EXHIBIT A; AFFIDAVIT

OF GERALD

lr. MICHAUD

PLAINTIFF GERALD T. MICHAUD’S NOTICI

NOT TO CONSENT TO PROCEED BEFORE A

UNITED STATES MAGISTRATE

TO: THE UNITED STATES DISTRICT COURT CLERK

FOR THE DISTRICT OF HAWAITI

PLEASE TAKE NOTICE that Plaintiff Gerald T. Mic-

haud does not waive any rights, nor consents to proceed

Gerald T. Michaud

Gerald T. Michaud, Plaintiff

APPENDIX H

UNITED STATES DISTRICT COUR]

DISTRICT OF HAWATI

Plaintiff, ' ORDER TO

SHOW CAUSE

ATE FARM INSURANCI

OMPANIES, et al.,

I lefendants.

ORDER TO SHOW CAUS!

On February 15, 1996, State Farm Insurance Con

anies et al. (“Defendants”) removed this case from the

Second Circuit Court, State of Hawaii. Pursuant to Rule

16(a) of the Federal Rules of Civil Procedure, a pretrial

conference was set for May 13, 1996 at 8:30 a.m. Plaintiff

failed to appear and failed to file a meeting of the parties

statement as required by Local Rule 230-1(d)

IT IS HEREBY ORDERED that Plaintiff appear on

lune 4, 1996 at 9:00 a.m. to show cause, if any there be,

arth ti } ld t be j - od f l; » t ‘ile a

vhy sanctions should not be imposed [for faliure to rile a

meeting of the parties statement and failure to appear.

Plaintiff is warned that failure to respond will result in a

dismissal of the case.

IT IS SO ORDERED.

APPENDIX |

Gerald T. Michaud, Sui juris

P.O. Box 10236

Lahaina, Hawaii 96761

lelephone: (808) 669-0887

In Propria Persona

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF HAWAII

GERALD T. MICHAUD CIVIL NO. 96-00155 SPK

PLAINTIFF GERALD T.

MICHAUD’S

RESPONSE TO ORDER

TO SHOW CAUSE;

MEMORANDUM;

Plaintiff,

VS.

)

}

)

STATE FARM INS.; ROBERT ?

(BOB) YOSHINO; SCOTT A. ?

GILMORE; KAREN ) AFFIDAVIT OF

PERREIRA; FRANCES YOST; ) GERALD T. MICHAUD:

A. DON SMITH, MONIQUE ? CERTIFICATE OF

CATCOTT; JOHN DOES 1-10. 7 SERVICE

inclusive; JANE DOES 1-10

inclusive; CORPORATION _) DATE: June 4, 1996

DOES 1-10; inclusive; TIME: 70 3m.

PARTNERSHIP DOES 1-10 _) JUDGE: } |

inclusive; GOVERNMENTAL ) Francis I. Yamashita

ENTITY DOES, 1-10 |

inclusive,

Defendants. )

PLAINTIFF GERALD T. MICHAUD’S RESPONSE

TO ORDER TO SHOW C AUSE

WITH ALL DUE RESPECT, Plaintiff Gerald T. Mic-

haud is returning this Honorable Court’s Order to Show

A38

Cause WITHOUT DISHONOR. Plaintiff refutes the val-

idity of Defendant State Farm Insurance Companies, et al

(“State Farm”) authority to Remove the above entitled

suit. Plaintiff's only Remedy at Law regarding the afore-

mentioned suit is found in the Uniform Commercial Code

(“UCC”). Pursuant to UCC § 3-505, I demand that State

Farm provide Plaintiff, and this Honorable Court the

following information:

(a) Reasonable identification of the person(s) who

has/have made said Removal determinations,

including copies of the following:

(1) His/Her/Their Driver’s License

(2) His/Her/Their Social Security Card

(3) His/Her/Their State Farm Identification

Card

(b) Exhibition of the instrument, or agreement of

Removal which Plaintiff knowingly, voluntarily

and intentionally entered into with State Farm,

which created the alleged liability contained in

the above referenced presentment determina-

tions of Order to Show Cause.

State Farm the Power to Remove such suits ex

parse. If State Farm is conducting this Removal

for another; please include the names and titles

of person(s) delegating State Farm such author-

ity, back to the initial “Removal Order” issued

by which Court. Also include any authority,

within the law, that defines me as the “person”

liable for not conforming to such an Order to

Show Cause.

Plaintiff also requests that this Honorable Court man-

date that Sate [sic] Farm produce the original Consent signed

A39

by me under which this Court compels performance UCC

§ 1-203(3).

This Honorable Court is in possession of incomplete

instruments UCC § 3-115. These alleged Removal docu-

ments do not Evidence;

1) The statute and “implementing regulation” for the

aforesaid action,

2) Nor has this Honorable Court Evidence that it is

a Holder in Due Course UCC § 3302, providing

the statute and “implementing regulation” which

gives this Court authority to send the above

noted Order to Show Cause.

Therefore, this Honorable Court’s Presentment is

being returned by Plaintiff (with all due respect) Without

Dishonor, since this Court has sent incomplete instru-

ments UCC § 3-115 with which State Farm is trying to

induce the above, by Fraud UCC § 3-305(2)(B) & (C)

causing a violation.

State Farm’s on going Failure to provide me, and this

Court with the above requisites invalidates the Removal,

and/or Order to Show Cause that this Honorable Court

has made and/or (word is unreadable) UCC § 1-505(2).

State Farm, and this Honorable Court knew or

should have known that there is no immunity for any-

body when they deal in commercial paper under the Eric

and Clearfield Doctrine, see F.R.C.P. Evidence 902 para-

graph 9, but not limited to.

A40

DATED: Lahaina, Hawaii, May 22, 1996.

Respectfully Submitted With Explicit Reservation of All

Rights Without Prejudice U.C.C. § 1-207

/s/ Gerald T. Michaud

Gerald T. Michaud

PLEASE TAKE SPECIAL NOTICE

Your Honor, my use of (Without Prejudice U.C.C.

1-207) above my signature on this document indicates

that I have exercised the “REMEDY” provided for me in

the Uniform Commercial Code at Article L Section 207,

whereby I might reserve my Common Law Right not to

be bound by, nor compelled to perform under any con-

tract, commercial agreement or bankruptcy that I have

not entered into KNOWINGLY, VOLUNTARILY, and

INTENTIONALLY. That reservation serves NOTICE upon

all of the Administrative Agencies of government

NATIONAL, STATE & LOCAL, that I do not, and will not

accept the liability associated with the “COMPELLED

BENEFIT” of any unrevealed contract, commercial agree-

ment or bankruptcy. And that;

“An individual may be under no obligation to do a

particular thing, and his failure to act creates no liability,

but if he voluntarily attempts to act and do the particular

thing, he comes under an implied obligation in respect to

the manner in which he does it.”

Guardian T & D Co. vs. Fisher 26 S. Ct. 186 at 188

“Whatever the form in which the government func-

tions, anyone entering into an arrangement with the gov-

ernment takes the risk of having accurately ascertained

oe,

A42

APPENDIX J

GERALD T. MICHAUD, Sui juris

P.O. Box 10236

Lahaina, Hawaii 96761

Telephone: (808) 669-0887

In Propria Persona

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF HAWAII

GERALD T. MICHAUD, ) CIVIL NO. 96-00155 SPK

Piaintiff, ) PLAINTIFF GERALD T.

- | MICHAUD’S DEMAND

| FOR PROOF OF

STATE FARM INS.; ROBERT ?) JURISDICTION:

(BOB) YOSHINO; SCOTT A. ?) CERTIFICATE OF

GILMORE; KAREN | SERVICE

PERREIRA; FRANCES YOST: | :

A. DON SMITH, MONIQUE | hc perch

CATCOTT; JOHN DOES 1-10, JUDGE:

inclusive; JANE DOES 1-10 nnancig 1 Cana

inclusive; CORPORATION ? —@ncis 2. Yamashite

DOES 1-10; inclusive:

PARTNERSHIP DOES 1-10 _?

inclusive; GOVERNMENTAL. ?

ENTITY DOES, 1-10

inclusive, |

Defendants. )

wate )

PLAINTIFF GERALD T. MICHAUD’S

DEMAND FOR PROOF OF JURISDICTION

COMES NOW Plaintiff Gerald T. Michaud (Plaintiff)

averring that; On March 12,

1996, Plaintiff filed in the

above entitled court a Response to Defendant’s Notice of

Filing Notice of Removal, whereas Plaintiff made known

that this Honorable Court does not have jurisdiction i1

respect to this instant matter. On March 14, 1996 Plaintiff

filed in the above entitled court a Notice not to Consent

to Proceed Before a United States Magistrate as per tl

voluntary Rule. That on March 19, 1996 Plaintiff

Response Notice was filed in the Circuit Court of the

Second Circuit in the State of Hawaii. On April 24, 1996

Plaintiff filed a Scheduling Conference Statement within

the above entitled court again challenging jurisdiction

On May 13, 1996 Plaintiff filed a Response in the above

entitled court in regard to Defendant’s Scheduling Con

ference Statement, whereas Plaintiff challenged jurisdic-

tion once again. On May 15, 1996 the above entitled court

dishonored all of Plaintiff’s jurisdictional challenges, and

Ordered Plaintiff to Show Cause, and to appear on April

4, 1996. With the threat of Dismissing this suit, remiss the

jurisdictional issue previously raised, Plaintiff forthwith

mailed a Response to the Order to Show Cause on May

22, 1996. This Honorable Court through negligence per se

is attempting to coerce Plaintiff into its foreign jurisdi

tion.

Plaintiff avers that he has studied the law, and does

not believe that he is a person under the jurisdiction of

this Honorable Court, which is defined and limited by

Article I § 8 Clause 17, and Amendment 11 § 1 of the

Constitution for the United States of America. Plaintiff

contends that:

“It is a well established principle of law that all

federal legislation applies only within the terri-

torial Jurisdiction of the United States unless

aac ariai

A44

contrary intent appears.” Foley Brothers v. Fil-

ardo, 336, U.S. 281 (1948)

It is a principle of law that, once challenged, the person

asserting jurisdiction must prove that jurisdiction to exist

as a matter of law: Title 5 of the U.S. Codes § 556 (d) states

as follows:

“When jurisdiction is challen ed the burden of

J £

proof is on the government.”

Also: Please take notice of the following cases:

McNutt v. G.M., 56 S. Ct. 789, 80 L. Ed. 1135

Griffin v. Matthews, 310 Supp. 341, 423, F. 2d 272

Basso v. U.P.L., 495 F. 2d 906

Thomson v. Gaskiel, 62 S. Ct. 673, 83 L. Ed. 111.

Your jurisdiction over Plaintiff is hereby challenged on

the basis of the following Affidavit of Facts:

STATE OF HAWAII )

) SS.

COUNTY OF MAUI )

Plaintiff Gerald T. Michaud, being first duly sworn

upon oath, deposes and states that:

(1) I am the individual Demanding Proof of Juris-

diction;

(2) I have personal knowledge of the facts as con-

tained in this Demand, and Affidavit unless said

facts are alleged upon information and belief,

and in those instances I believe said facts to be

true;

(3) I am a natural born Preamble Citizen of the

Connecticut Republic. This is one of the 50

Bithiiaiii..

A45

Kepublic sovereign states, and not a Territory

over which the sovereignty of the United States

extends

+) 1am domiciled in the sovereign Hawai'i Kepub

lic. 1 do not reside in anv lerritory, Possession.

Instrumentality or Enclave which is under the

sovereignty of or subject to the jurisdiction ot

the United States:

lam not a citizen of the United States (District of

Columbia, Article I § 8 Clause 17 U.S. Const.)

subject to its jurisdiction;

6) lam nota federal government employee nor am

corporation

lf this Honorable Court feels that it has jurisdiction over

Plaintiff, please provide Plaintiff with the appropriate

jurisdictional authority. If this Honorable Court cannot

provide such authority, Plaintiff will respectfully expect

in Order Remanding the instant matter back into the

Circuit Court of the Second Circuit for the State of Hawaii

vhere it by law rightfully belongs

Further AFFIANT SAYETH naught

DATED: Lahaina, Maui, Hawaii, May 24, 1996

S/ Gerald T. Michaud

Gerald T. Michaud, Plaintiff-Affiant

subscribed and sworn to before

me this 24 day of May, 1996.

s/ Marilyn Maulin

Notary Public, State of Hawaii .

My commission expires: 6/29/96

A+6

APPENDIX K

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF HAWAII

GERALD T. MICHAUD, _ ) CIVIL NO. 96-0155 SPK

Plaintiff, ORDER DENYING

os. ) PLAINTIFF'S DEMAND

STATE FARM MUTUAL __ ) thet Sebastes

AUTOMOBILE y JURE

INSURANCE COMPANY, _ )

et al., )

Defendants.

Pursuant to Local Rule 220-2, the Court finds this

matter suitable for disposition without hearing. After

reviewing the motion, and other pleadings, the Court

reads Plaintiff's Demand for Proof of Jurisdiction as a

motion to remand for lack of subject matter jurisdiction

which this court DENIES.

On November 7, 1995, Plaintiff Gerald L. Michaud,

pro se, (“Plaintiff”) filed a complaint in the Circuit Court

of the Second Circuit, State of Hawaii, claiming that

Defendants breached their insurance contract with Plain-

tiff in bad faith. Defendants filed their Answer on

November 30, 1995.

Defendants later moved to dismiss the complaint

against Defendants Robert Yoshino, Scott A. Gilmore,

Karen Perreira, Frances Yost, A. Don Smith, and Monique

Catcott with Prejudice. Judge E. John McConnell, Judge

of the Second Circuit Court, State of Hawaii, granted the

motion and found that Plaintiff’s Complaint failed to

Wii

A 47

State a cause of action against the above-named individ

ual Detendants. The only remaining Defendant was State

Farm.

Defendants filed their Notice of Removal on Febru-

ary 15, 1996, claiming original jurisdiction under diver

sity of citizenship. 28 U.S.C. § 1332. On May 28, 1996,

Plaintiff filed a “Demand for Proof of Jurisdiction” in

which he claims that this court lacks jurisdiction. The

court interprets this as a Motion to Remand for Lack of

Subject Matter Jurisdiction. Defendant removed this

action from state court, pursuant to 28 U.S.C. § 1441

Defendant, in its petition for removal, stated that this

court has jurisdiction based on diversity of citizenship in

that the parties are citizens of different states and the

= te

amount in controversy exceeds $50,000. 28 U.S.C. § 1332

here is no dispute that Defendant is an Illinois

corporation, authorized to do business in Hawaii. Upon

reviewing the complaint in this action, however, it is

unclear what amount of damages Plaintiff is claiming. In

diversity cases, where the amount in controversy is in

doubt, the Supreme Court has drawn a sharp distinction

between original jurisdiction and removal jurisdiction

[here is a strong presumption that the plaintiff

has not claimed a large amount in order to con-

fer jurisdiction on a federal court or that the

parties have colluded to that end

Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992), citing

St. Paul Mercury Indem. Co. v. Red Cab C 303 U.S. 283

288-90 (1938).

In a case where the amount in controversy was not

made clear by the plaintiff, the defendant “bears the

A48

burden of actually proving the facts to support jurisdic-

tion, including the jurisdictional amount.” Gaus at 566-67.

It is not sufficient for the defendant to simply allege that

“the matter in current controversy ... exceeds the sum of

$50,000.” Id. at 567. The defendant has the burden of

setting forth, in the removal petition, the underlying facts

supporting its assertion that the amount in controversy

exceeds $50,000. Id.

Defendant has met its burden by submitting the Dec-

laration of Yvonne Saronitman, Claims Superintendent

and custodian of records for Defendant State Farm. She

attaches as an exhibit to her Declaration, a notarized

certificate of coverages for Plaintiff's policy with Defen-

dant. The certificate indicates that the coverages and

limits for Plaintiff’s policy (which is at issue in this

action) well exceed $50,000. Therefore, Defendant has

confirmed that the amount in controversy requirement

has been met.

Because this court has original jurisdiction under

diversity of citizenship, Defendant properly removed the

action to this court. 28 U.S.C. §§ 1332 and 1441. Plaintiff's

Demand for Proof of Jurisdiction is therefore DENIED.

IT IS SO ORDERED.

DATED: Honolulu, Hawaii, July 5, 1996.

/s/ Samuel P. King

SAMUEL P. KING

United States District Judge

MICHAUD v. STATE FARM MUTUAL AUTO-

MOBILE INSURANCE COMPANY; CV. NO.

96-00155 SPK; ORDER DENYING PLAINTIFF’S

DEMAND FOR PROOF OF JURISDICTION

A49

APPENDIX L

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF HAWAII

GERALD T. MICHAUD, ) CIVIL NO. 96-01155

SPK

Plaintiff, | PK

VS. ' FINDINGS AND

SECO SND ATION

STATE FARM MUTUAI RECOMMENDATION

AUTOMOBILE )

INSURANCE COMPANY,

et al., )

Defendants.

sn Ae A ee =

FINDINGS AND RECC IMMENDATION

On February 15, 1996, State Farm Insurance Com

panies, et al. (“Defendants”) removed this case from the

Second Circuit Court, State of Hawaii. Pursuant to Rule

l6(a) of the Federal Rules of Civil Procedure, a pretrial

conference was set for May 13, 1996 at 8:30 a.m. Plaintiff

tailed to appear and failed to file a meeting of the parties

statement as required by Local Rule 230-l(d). On May 15,

1996, Plaintiff was ordered to appear on June 4, 1996 at

7:00 a.m. to show cause, if any there be, why sanctions

should not be imposed for failure to file a meeting of the

parties statement and for failure to appear. Plaintiff was

warned that failure to respond would result in a dis-

missal of the case.

On April 24, 1996, this court was copied with a letter

from Plaintiff to Defendant. Plaintiff stated in his letter

that he would not participate in a conference with Defen-

dant until the issue of the “alleged fraud” gets resolved

untiff fallead fo comply with the order to show

ise filed on June 19, 1996. This court finds that Plain

tiff’s response to the order to show cause dated May 23

196 is inadequate. Plaintiff's responss fails to articulate a

imate reason for not complying with court orders. In

response, Plaintiff states that he “refutes the validit

t Defendant 1uthority to remove this suit from stat

rt [his ourt notes that the Honorable Samuel |!

. n Jul » 1996. held that his court has origi

risdiction under diversity of citizenship, thu Det

lants have properly removed this action to thi

ertheless, this court finds that whether |

reed with the removal or not, he still had an ol I

{ OT] ply W th the Federal Rules of Civil Pr eau

1.e Local Rules for this district. Plaintiff f

pDea®r al that the order to show Cause he iTil ex

‘ i? t rf “ »< ‘ 1eread r( pp } + 4

. Nf ] ) ild é {

\ ‘ tn} r » + I | (MAMI N\)

int be dist ed ti pre f

t ordet!

FOUND AN RECOMMI

tia ll septemt I

Francis |. Yamashit

Francis |. Yamashit:

United State Magistrat

l HAUD V. STATE FARM MUTUAL AUTO

MOBILE INSURANCE COMPANY, ET Al

IVIL NO. 96-00155 SPK; FINDID SA

NAG

A LNA

APPENDIX M

Gerald T. Michaud, Sui juris

P.O. Box 10236

Lahaina, Hawaii 96761

lelephone: (808) 669-0887

Citizen In Party

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF HAWAII

GERALD T.

MICHAUD

CIVIL NO. 96 00155 SPK

(Non-Motor Vehicle Tort)

~ PURSUANT TO F.R.C.P. RULE

38(a) MOTICN: UNDER THE

~ JURISDICTION OF THE

AMERICAN FLAG OF PEACE

[TITLE 4 U.S.C. § 1] OF THE

INSURANCE UNITED STATES OF

COMPANIES; AMERICA. NO

)

Citizen In Party, )

)

ROBERT (BOB) : JURISDICTION OF

)

Plaintiff,

Vs.

STATE FARM

YOSHINO; SCOTT A. ? ADMIRALTY OR MARITIME

GILMORE; KAREN WILL BE ALLOWED IN THE

PERREIRA; FRANCES? JURISDICTION OF THIS

YOST; A. DON CASE - PURSUANT TO

SMITH; MONIQUE ARMY REG. 840-10 CHAPTER

CATCOTT; ET AL, 2-1(a)(b); CERTIFICATE OF

SERVICE

INCORPORATED CASE NO

___) 96-00155 SPK

Defendants.

NOTICE OF REFUSAI

Plaintiff Swears to tell the truth and has first hand

knowledge ot the tacts.

ABBREVIATIONS

F.R.C.P. Federal Rules of Civil Procedures

AAS. - Amendment United States Consti-

tution

A.H. S. C. = Article Hawaii State Constitution

UCL. - Uniform Commercial Code

U.S.C. = United States Codes

U.S.C.A. = United States Codes Annotated

H.R.S. = Hawaii Revised Statutes

INC. CASE NO. = Incorporation Case Number

Title 18 Chapter 79 U.S.C.A. 1621 = “Perjury of Oath of

Office.” Person is replaced in all statue definitions by

Citizen In Party

RESPONSE

1. Plaintiff is REFUSING the brief titled: “DEFEN-

DANTS STATE FARM INSURANCE COMPANIES,

ROBERT (BOB) YOSHINO, SCOTT A. GILMORE, KAREN

PERREIRA, FRANCES YOST, A. DON SMITH and MON-

IQUE CATCOTT’S ANSWER TO THE COMPLAINT

FILED NOVEMBER 7, 1995.”

2. Plaintiff is REFUSING the brief titled: “DEFEN-

DANTS STATE FARM MUTUAL AUTOMOBILE INSUR-

ANCE COMPANY, ROBERT YOSHINO, SCOTT A.

GILMORE, KAREN PERREIRA, FRANCES YOST, A.

DON SMITH and MONIQUE CATCOTT’S MOTION TO

DISMISS COMPLAINT AGAINST ROBERT YOSHINO.

A54

SCOTT A. GILMORE, KAREN PERREIRA, FRANCES

YOST, A. DON SMITH and MONIQUE CATCOTT WITH

PREJUDICE” FILED ON JANUARY 17, 1996.

3. Plaintiff is REFUSING the brief titled: “DEFEN-

DANTS’ REPLY MEMORANDUM IN SUPPORT OF

MOTION TO DISMISS COMPLAINT AGAINST ROBERT

YOSHINO, SCOTT A. GILMORE, KAREN PERREIRA,

FRANCES YOST, A. DON SMITH and MONIQUE CAT-

COTT WITH PREJUDICE” FILED ON FEBRUARY 12,

1996

4. Plaintiff is REFUSING the brief titled: “DEFEN-

DANTS’ MEMORANDUM IN OPPOSITION TO PLAIN-

TIFF GERALD T. MICHAUD’S (1) MOTION TO

INTERVENE, (2) MOTION FOR A STAY, AND (3)

MOTION FOR A RULING FILED ON MARCH 18, 1996.

5. Plaintiff is REFUSING the ORDER titled: ORDER

DENYING PLAINTIFF GERALD T. MICHAUD’S (1) ~

MOTION TO INTERVENE, (2) MOTION FOR A STAY,

AND (3) MOTION FOR A RULING” FILED ON APRIL 1,

1996.

6. Plaintiff is REFUSING the NOTICE titled: “NOTICE

OF ENTRY OF ORDER” FILED ON APRIL 4, 1996.

7. Plaintiff is REFUSING the NOTICE titled: “NOTICE

OF REMOVAL” FILED ON FEBRUARY 15, 1996.

8. Plaintiff is REFUSING the NOTICE titled: “DEFEN-

DANTS’ NOTICE OF FILING NOTICE OF REMOVAL”

FILED ON FEBRUARY 20, 1996.

9. Plaintiff is REFUSING the ORDER titled: “ORDER

SETTING RULE 16 SCHEDULING CONFERENCE”

FILED ON FEBRUARY 15, 1995.

A55

10. Plaintiff is REFUSING the BRIEF titled: “DEFEN-

DANT’S SCHEDULING CONFERENCE STATEMENT”

FILED ON MAY 6, 1996.

11. Plaintiff is REFUSING the ORDER titled: “ORDER

TO SHOW CAUSE” FILED ON MAY 15, 1996.

12. Plaintiff is REFUSING the BRIEF titled: “STATE

FARM MUTUAL AUTOMOBILE INSURANCE COM-

PANY’S MEMORANDUM IN RESPONSE TO PLAINTIFF

GERALD {t. MICHAUD’S DEMAND FOR PROOF OF

JURIC’ 1CTION” FILED ON JUNE 14, 1996.

13. Plaintiff is REFUSING the BRIEF titled: “SUBMIS-

SION OF DECLARATION OF YVONNE SARONITMAN”

FILED ON JUNE 18, 1996.

14. Plaintiff is REFUSING the ORDER titled: “ORDER

DENYING PLAINTIFF’S DEMAND FOR PROOF OF

JURISDICTION” FILED ON JULY 5, 1996.

15. Plaintiff is REFUSING the BRIEF titled: “FINDINGS

AND RECOMMENDATION” FILED ON SEPTEMBER 3,

1996.

16. Plaintiffs refusing the briefs titled above (1), (2), (3),

(4), (5), (6), (7), (8), (9), (10), (11), (12), (13), (14) & (15)

pursuant to Title 42 U.S.C. 1986 for knowledge and

neglect under (F.R.C.P. 9(b)) “FRAUD”, (once a fraud

always a fraud), (F.R.C.P. 10(a)) “NAME OF PARTY”,

Note (Plaintiffs not a dead party), and (F.R.C.P. 12(b)(6))

DEFENDANT'S fail to state a claim, (F.R.C.P. 12(b)(7))

fails to join with COMMON LAW (7th A.U.S.C.) pursuant

to FER.C.P. Rule 38(a).

17. Plaintiffs REFUSING FOR “FRAUD” (F.R.C.P. 9(b))

the term of “Pro Se”, “Pro Per” or “In Propria Persona.”

A56

Plaintiffs not an attorney. Plaintiffs not acting as an attor-

ney.

18. Plaintiffs a “Citizen In Party” and the Movant.

19. The DEFENDANT JUDGE and the DEFENDANT

ATTORNEYS in the above Action, have caused the Plain-

tiff, with the “KNOWLEDGE OF THE LAW” under (Title

42 U.S.C.A. 1986) with a “DEPRIVATION” of U.S. Consti-

tutional Rights under the “COLOR OF LAW”, in and for,

(Title 18 U.S.C.A. § 242) “DEPRIVATION OF RIGHTS”

with “INTENT”, and “EXTORTION” of U.S. Constitu-

tional Rights under (Title 18 U.S.C.A. § 872), and (Title 18

U.S.C.A. § 241) “CONSPIRACY AGAINST RIGHTS”.

DEFENDANTS titled above together in their “SILENCE ”

causing “NEGLECT” (Title 42 U.S.C. § 1986), while wit-

nessing each other in turn, while at trial, as against the

Plaintiff in violation F.R.C.P. 38(a) of a guaranteed (7th

A.U.S.C.) common law trial, causing (5th A.U.S.C.) due

process.

20. The DEFENDANTS above, under “OATH” as offi-

cers of the court, swear an “OATH”, to uphold the U.S.

Constitution of the United States of America. That

“OATH OF OFFICE” is accused by the plaintiff, of “PER-

JURY” (Title 18 U.S.C.A. § 1621), and “FALSE SWEAR-

ING”: H.R.S. §§ 710-1060, 710-1062.

21. The court did not have a (Title 4 U.S.C. § 1) Ameri-

can Flag of Peace in the sanctuary of the bar, the same

Flag the attorneys and Judge swore an “OATH” and

signed an “AFFIRMATION” to certify the authority of the

court.

A57

22. The remedy lies in (F.R.C.P. 26(e)(2)) “DISCOVERY”

of the law and (Title 42 U.S.C.A. § 1986) for the

“KNOWLEDGE?” of the law, followed by (F.R.C.P. 9(b))

“FRAUD”, then (Title 18 U.S.C.A. § 242) “DEPRIVATION

OF RIGHTS UNDER THE COLOR OF LAW”: WHOEVER

UNDER COLOR OF ANY LAW, STATUTE, ORDI-

NANCE, REGULATION, OR CUSTOM, WILLFULLY

SUBJECTS ANY “CITIZEN IN PARTY” IN ANY STATE,

TERRITORY, OR DISTRICT TO THE “DEPRIVATION” OF

ANY RIGHTS, PRIVILEGES, OR IMMUNITIES SECURED

OR PROTECTED BY THE U.S. CONSTITUTION OR

LAWS OF THE UNITED STATES, OR TO DIFFERENT

PUNISHMENTS, PAINS, OR BY REASON _OF CITIZEN

IN PARTY’S COLOR OR RACE THAN ARE PRESCRIBED

FOR THE PUNISHMENT OF “CITIZENS IN PARTY”,

SHALL BE FINED UNDER THIS TITLE OR

IMPRISONED NOT MORE THAN TEN YEARS OR

BOTH.

23. The “NECESSARY ELEMENT”, being the

“NEGLECT” of the jurisdiction of the flag (Title 4 U.S.C.

§ 1) in the sanctuary of the bar. The failure of the court to

place an American flag of peace (Title 4 U.S.C. § 1) in the

court for the jurisdiction of a common law trial, shall be

preserved by the United States Constitution, Hawaii State

Constitution (7th A.U.S.C., 1 § 13 A.H.S.C.) and by the

(5th A.U.S.C., 1 § 5 A.H.S.C.) “DUE PROCESS OF THE

LAW” for a common law “OATH AND AFFIRMATION”,

that the judges and attorneys are sworn to uphold. This

“KNOWLEDGE” of the “DEPRIVATION OF RIGHTS”

under the color of law, is the necessary element to

“ACCUSE” the officer of the court of “PERJURY OF

OATH” of office. The “DEPRIVATION”, with intent, by

A58

the officers of the court, as against the Plaintiff, supports

the definition of “PERJURY” under (Title 18 Chapter 79

U.S.C.A. § 1621).

24. Plaintiff is the moving “CITIZEN IN PARTY”, to the

original motion for a jury trial before this court, to this

action.

25. The sovereignty that the Plaintiff is declaring is

under “THE AMERICAN FLAG OF PEACE” (Title 4

U.S.C. § 1) of “THE UNITED STATES OF AMERICA”.

26. If Plaintiff is “FRAUDED” of Plaintiffs rights, under

the United States Constitution, Hawaii State Constitution

to a (7th A.U.S.C., 1 § 13 A.H.S.C.) common law trial by

jury, Plaintiff will proceed forward under (Title 18

U.S.C.A. § 242) “DEPRIVATION” of rights under color of

law.

27. The time allowed for trial in federal court is growing

near. The Plaintiff now demands declaratory judgment

(F.R.C.P. 56) on the original pleadings.

28. (Example): In the same way as a lifeguard sits in his

chair and watches as a “WITNESS”, the child drown and

not stop or correct the “INJURY”, that being, the “WIT-

NESS” will cause injury or death. The lifeguard in his

official capacity can save the child and will be granted

immunity from any complaints of that saving. But let that

same lifeguard not do his job, and be a witness, then you

have your (Title 42 U.S.C.A. § 1986, and Title 42 § 1983)

injury. (Rodney King v. Cal. Highway Patrol). Those offi-

cers were found guilty as “WITNESSES” for not stopping

or correcting the U.S. Co; titutional injury under (Title 42

A59

U.S.C.A. §§ 1986, 1985, & 1983), (Title 18 U.S.C.A. §§ 242,

241, 872, & 1621).

29. (Title 18 U.S.C.A. § 242) Deprivation of Citizens

rights under color of law, “POLICY AND CUSTOM”

(Title 42 U.S.C.A. § 1983) at notes 319 and 337 explain the

“INTENT” to the violation of rights, “BEFORE THE

FACTS” and by the court and officer of the court.

30. Plaintiff will not traverse with statements of fraud

by the Defendants, or any of the subjects that dealt with

the original “FRAUD” or give the fraud credibility. Once

a “FRAUD” always a “FRAUD”. The Grand Jury will

learn of the “FRAUD”, how it was constructed, the

players, the remedies of law, the war powers act, sover-

eignty of nations act, use of flags for jurisdiction, and the

remedies that our forefathers built into our laws to pro-

tect against corruption in government.

31. The question before the people: “IS THE OATH OF

OFFICE FOR THE JUDGES AND ATTORNEYS BEING

UPHELD?”

32. Plaintiffs prayer for a (7th A.U.S.C., & 1 § 13

A.H.S.C.) common law trial “SHALL BE PRESERVED”

and the judges and attorneys swear an “OATH AND

AFFIRMATION”, to support the United States of America

Constitution and the Constitution of the State of Hawaii.

DATED: Lahaina, Hawaii, September 17, 1996.

/s/ Gerald T. Michaud

Gerald T. Michaud,

Citizen In Party, Plaintiff

A60

APPENDIX N

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

95 Seventh Street, P. O. Box 193939

San Francisco, CA 94119-3939

May 1, 1998

CA No. 96-17212 Michaud v. State Farm Ins.

97-15387 Michaud v. State Farm Ins.

To All Parties:

The United States Court of Appeals for the Ninth

Circuit is considering submission of your case without

oral argument. You have ten (10) days from the date of

this letter to present a statement setting forth the reasons

why oral argument should be heard in this case. See 9th

Cir. R. 34-4. Please send an original and three (3) copies of

your statement to Clerk’s Office in San Francisco, and |

show proof of service to opposing counsel.

The court welcomes additional citations, without

argument, of relevant decisions rendered since the filing

of a party’s last brief. See Fed. R. App. P. 28(j). Send an

original and three (3) legible copies to the Clerk’s Office,

on letter size paper, with proof of service on all parties.

Very truly yours,

Cathy A. Catterson

Clerk of Court

By: Mike Wheeler

Deputy Clerk

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