# Opposition Brief — Michaud v. State Farm Insurance

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386018_1222%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1999
- **Citation:** 526 U.S. 1050

## Text

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

Pi

ails To Support
A Writ Of Man

V1

TABLE OF AUTHORITIES — Continued

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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

12

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.

ae

No

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.

di
)
)
)
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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\ T) eT . 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.

Al5

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

Al6

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

Al7

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;

(c) Misrepresenting to Plaintiff pertinent facts
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

Al8

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,

Al9

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)];

(c) Failing to adopt and implement reasonable
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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to which the

leems just and proper, and to which Plaintiff shall

other and further relief as

f OT SuUu¢ h

tled pursuant to Rule 54 (c) of the Hawaii Rules of

y dA 1 a
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}

en

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

IN

GERALD T. MICHAUD,

Plaintiff,
2?

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.

(c) State Farm’s “Implementing authority” Granting
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

a

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,

a

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
I

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.

ae

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.”

OC

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

OO

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386018_1222%3A2. Public record. Not legal advice.