This is our final pleading in this case to which we simply received
a "no" from the clerk of the court.
That is was actually read, much less taken on merits is less than likely.
Then, what else could one expect from the Supremely Corrupt Court.
The history of federal injustices and the prelude to this last slap of
injustice by the cesspool that calls itself a judiciary can be found
in the
CASE DIARY.
in chronological order with links to appropriate documents.
No._01-5614_______
________________
IN THE
SUPREME COURT OF THE UNITED STATES
____________________________
WILLIAM C. HAMMEL, and
ALAN J. BELLAMENTE - PETITIONERS
vs.
STATE FARM MUTUAL AUTOMOBILE
INSURANCE CO.., and - RESPONDENTS
STATE FARM INDEMNITY COMPANY
ON A PETITION FOR A WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
PETITION FOR WRIT OF CERTIORARI
WILLIAM C. HAMMEL ALAN J. BELLAMENTE
A-11 Moose Branch Road A-11 Moose Branch Road
Apartment 1-A Apartment 8-A
Robbinsville, N.C. 28771 Robbinsville, N.C. 28771
(828) xxx-xxxx (818) xxx-xxxx
QUESTION(S) PRESENTED
1) Has the US Court of Appeals of the Fourth Circuit so
far departed from the accepted and usual course
of judicial proceedings, or sanctioned such a
departure by the US District Court, Western District
of North Carolina, as to call for an exercise of
this Court's supervisory power?
2) Has the district court, in its actions, including a pattern of
violations of FRCP, particularly 15(a), acted improperly and
abused its discretionary power, particularly regarding 8(a) and
8(e), and with a lack of appropriate judicial clarity in improprly
granting defendents' motion to dismiss under 12(b)(6), so as
to prejudice Petitioners in their rights, or in
their pursuit of justice?
3) Has the District Court, through its deliberate failure to
consider appropriate and correct law and fact which were
called to the court's attention, improperly dismissed the
action of Petitioners?
4) In its dismissal, with prejudice, of the action brought
by Petitioners, has the District Court violated their rights,
in fact:
a) under the First Amendment to
petition the courts for redress of grievences;
b) under the Fifth and Fourteenth Amendments to
equal protection of the laws.
c) under the Seventh Amendment to a trial by jury.
5) Has the US Court of Appeals failed in its its duty under
law, and specifically, 28 USC 1652, 1738, by affirming
the district court's order without addressing the significant
violations of procedure and law in US District Court, brought
to its attention by Petitioners, thereby violating Petitioners
rights under the same Constitutional provisions stated above?
6) Has the Fourth Circuit Court of Appeals, in denying Petitioners
a rehearing, again failed in its duty and once again violated
Petitioners' rights when such prior violations had been brought
to that court's attention in petition?
LIST OF PARTIES
[X] All parties appear in the caption of the case on the
cover page.
TABLE OF CONTENTS
OPINIONS BELOW.......................................
JURISDICTION.........................................
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED...
STATEMENT OF THE CASE................................
REASONS FOR GRANTING THE WRIT........................
CONCLUSION...........................................
INDEX TO APPENDICIES
APPENDIX A Decision of the U.S. Court of Appeals
for the Fourth Circuit
APPENDIX B Decision of the U.S. District Court,
Western District of North Carolina
APPENDIX C Memorandum and Recommendations of the Magistrate
APPENDIX D Denial of Petition for Rehearing by the U.S. Court
of Appeals for the Fourth Circuit
APPENDIX E Petitioners' Memorandum Attachment to Informal Brief
to the U.S. Court of Appeals for the Fourth Circuit
APPENDIX F Petitioners' Petition for Rehearing to the
U.S. Court of Appeals for the Fourth Circuit
Cases: Page Numbers
Campbell v. State Farm Mutual Automobile Insurance Co.,
No. 890905231, slip op. at 53 (Third Judicial Dist., Salt Lake
City, Utah, Aug. 3, 1998)
Fornoratto v. American Waterworks Co., Inc.
144 F.3d 276, 278 (3rd Cir. 1998)
Humana Inc. et al. v. Forsyth et al., No. 97-303,
Decided January 20, 1999.
Lawlor et al. v. National Screen Service,
1955.SCT.748 ,
349 U.S. 322, 75 S. Ct. 865, 99 L. Ed. 1122.
Mortgagelinq Corp. v. Commonwealth Land Title Insurance Co.,
662 A.2d 536, 142 N.J. 336 (N.J. 08/01/1995)
U.S. v. International Building Co., 345 U.S. 502 (1953)
Statutes and Rules:
28 U.S.C. 636
28 U.S.C. 1738
F.R.C.P. 8(a)
F.R.C.P. 8(e)
F.R.C.P. 12(b)(6)
F.R.C.P. 15(a)
Other:
U.S. Constitution, Amendment I
U.S. Constitution, Amendment V
U.S. Constitution, Amendment VII
U.S. Constitution, Amendment XIV
Petitioners' Memorandum Attachment to Informal Brief
U. S. Court of Appeals, Fourth Circuit, No. 00-2369
IN THE
SUPREME COURT OF THE UNITED STATES
PETITION FOR WRIT OF CERTIORARI
Petitioners respectfully pray that a writ of certiorari issue
to review the judgement below.
OPINONS BELOW
The opinion of the United States court of appeals appears at
appendix A to the petition and is unpublished.
The opinion of the United States district court appears at
Appendix B to the petition and Petitioners are unable to know
whether it is published, despite several calls to the court,
including speaking with judge's secretary.
JURISDICTION
The date on which the United States Court of Appeals decided
our case was March 27, 2001.
A timely petition for rehearing was denied by the United states
Court of Appeals on the following date: April 10, 2001, and a
copy of the order denying rehearing appears at Appendix D.
1.
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
The United States Constitution,
First Amendment in pertinent part provides:
"Congress shall make no law respecting ...
to petition the government for redress of grievences"
Fifth Amendment in pertinent part provides:
"No person shall ... ; ... ; ... , nor be deprived
of life, liberty, or property, without due process
of law; ...."
Seventh Amendment in pertinent part provides:
"In suits at common law, where the value in controversy
shall exceed twenty dollars, the right of trial by jury
shall be preserved, and no fact tried by a jury shall
be otherwise reexamined in any court of the United
States, than according to the rules of the common law."
Ninth Amendment:
"The enumeration in the Constitution, of certain
rights, shall net be construed to deny or disparage
others retained by the people."
Fourteenth Amendment in pertinent part provides:
..., no State shall make or enforce any law which shall
abbridge the privileges or immunities of citizens of the
United States; nor shall any State deprive any person of
life, liberty, or property, with out due process of law;
nor deny to any person within its jurisdiction the equal
protection of the laws.
The U.S. Supreme Court understands this as global in order to
maintain consistency with Fifth Amendment.
28 U.S.C. 636(b)(1)(C) in pertinent part provides:
A judge of the court shall make a de novo determination of
those portions of the report or specified proposed
findings or recommendations to which objection is made.
28 U.S.C. 1738
Sec. 1738. State and Territorial statutes and judicial
proceedings; full faith and credit
The Acts of the legislature of any State, Territory, or
Possession of the United States, or copies thereof, shall be
authenticated by affixing the seal of such State, Territory or
Possession thereto.
The records and judicial proceedings of any court of any such
State, Territory or Possession, or copies thereof, shall be
proved or admitted in other courts within the United States and
its Territories and Possessions by the attestation of the clerk
and seal of the court annexed, if a seal exists, together with
a certificate of a judge of the court that the said attestation
is in proper form.
Such Acts, records and judicial proceedings or copies thereof,
so authenticated, shall have the same full faith and credit in
every court within the United States and its Territories and
Possessions as they have by law or usage in the courts of such
State, Territory or Possession from which they are taken.
F.R.C.P. 8(a) in pertinent part provides:
Rule 8. General Rules of Pleading
(a) Claims for Relief.
A pleading which sets forth a claim for relief, whether an
original claim, counterclaim, cross-claim, or third-party claim,
shall contain (1) a short and plain statement of the grounds
upon which the court's jurisdiction depends, unless the court
already has jurisdiction and the claim needs no new grounds of
jurisdiction to support it, (2) a short and plain statement of
the claim showing that the pleader is entitled to relief, and
(3) a demand for judgment for the relief the pleader seeks.
Relief in the alternative or of several different types may be
demanded.
F.R.C.P. 8(e) in pertinent part provides:
(e) Pleading to be Concise and Direct; Consistency
(1) Each averment of a pleading shall be simple, concise, and
direct. No technical forms of pleading or motions are required.
(2) A party may set forth two or more statements of a claim or
defense alternately or hypothetically, either in one count or
defense or in separate counts or defenses. When two or more
statements are made in the alternative and one of them if made
independently would be sufficient, the pleading is not made
insufficient by the insufficiency of one or more of the
alternative statements. A party may also state as many separate
claims or defenses as the party has regardless of consistency and
whether based on legal, equitable, or maritime grounds.
All statements shall be made subject to the obligations set
forth in Rule 11 .
F.R.C.P. 12(b)(6) in pertinent part provides:
Rule 12. Defenses and Objections--When and How Presented--By
Pleading or Motion--Motion for Judgment on the Pleadings
(b) How Presented.
Every defense, in law or fact, to a claim for relief in any
pleading, whether a claim, counterclaim, cross-claim, or
third-party claim, shall be asserted in the responsive pleading
thereto if one is required, except that the following defenses
may at the option of the pleader be made by motion: ...
(6) failure to state a claim upon which relief can be
granted, ....
F.R.C.P. 15(a) in pertinent part provides:
Rule 15. Amended and Supplemental Pleadings
(a) Amendments.
A party may amend the party's pleading once as a matter of
course at any time before a responsive pleading is
served or, ....
STATEMENT OF THE CASE
Petitioners filed, under 18 USC 1964 Racketeering (RICO) Act,
an action against, State Farm Mutual Automobile Insurance Co.
(SFM) and State Farm Indemnity Company (SFI), a wholly owned
subsidiary of SFM, while Petitioners had a pending Personal
Injury Protection (PIP) action against SFI in the Superior
Court of the State of New Jersey.
The RICO action was filed in US District Court, Western District
of North Carolina, (Bryson City) on March 11, 1999, along with a
Petition to Proceed in forma pauperis. (Civil Docket #: 99-CV-44)
The basis for federal jurisdiction in the court of first
instance, the district court, was "Federal Question".
A district court order denied the pauperis petition June 10,
1999. Petitioners responded to that order on June 22, 1999,
asking for reconsideration, which was granted in an Order,
July 6, 1999, allowing Petitioners to submit additional
affidavits in support of their petition, to which Petitioners
responded on July 13, 1999. Their pauperis pettion was denied
for the second time on July 23, 1999. Petitioners submitted
the filing fee on August 3, 1999.
On September 21, 1999, Defendants SFM and SFI filed a Motion
to Dismiss and in the Alternative to Stay, moving the District
Court under FRCP Rule 12(b)(6) claiming that Petitioners had
not stated a claim upon which relief could be granted, and
that their action was barred by the doctrines of accord and
satisfaction, and res judicata.
On November 8, 1999, absent any responsive pleading by
Defendants in the RICO action, and in a clear misquoting of
Defendants' response to Plaintiffs' request for extended time
to respond to Defendants' Motion to Dismiss, the Magistrate
Judge issued an order compelling Plaintiff Petitioners to file
a motion to amend their complaint, abrogating Plaintiff
Petitioners' right under FRCP 15 (a), and stating that no
further extension of time would be granted.
Plaintiff Petitioners obeyed the letter of the Magistrate's
Order because time was of the essence, but later called that
error to the district court's attention.
On February 7, 2000 in timely compliance with the Magistrate's
Order Petitioners filed their Motion to Amend, the "proposed
Amended Complaint", along with several Affidavits and Memoranda
in support, as well as a Response to Defendants' Motion to
dismiss indicating why Defendants' arguments were vacuous, and
without merit.
On March 20, 2000, Defendants SFM and SFI filed a Renewed
Motion to Dismiss, moving the court under the same rules as
before, and additionally under FRCP 8(a). Complaints longer
than that of Petitioners have been accepted by the courts.
On April 4, 2000, Plaintiff Petitioners moved the court for
permission to correct their amended complaint, on the basis
of new evidence received during the period December, 1999 to
February, 2000. That motion was never responded to.
On April 11, 2000, the Magistrate Judge issued a Memorandum
and Recommendations, wherein he recommended denial of the very
motion to amend that he had ordered filed, as "unecessary under
Rule 15, Federal Rules of Civil Procedure.", thus contradicting
his own Order of November 8, 1999, and in so doing, severely
damaging Petitioners in their Remedies.
On April 27, 2000, Plaintiff Petitioners called attention to the
court's error in their Objections to the Magistrate's Memorandum
and Recommendation. With new evidence at hand as to previously
unknown criminal acts of Defendants SFM and SFI, Petitioners
once again showed the vacuousness of the application of all
preclusionary doctrines.
On September 21, 2000, the district court granted Defendants'
Motion to Dismiss, and dismissed, with prejudice, Plaintiff
Petitioners' RICO action, on the basis of Res Judicata and New
Jersey's Entire controversy Doctrine. Petitioners have shown in
their Memorandum Attachment to Informal Appeal Brief, that no
principle of preclusion claimed by Defendants or the District
Court applies to the facts of this case.
The district court also rejected Plaintiff Petitioners' amended
complaint under rule 8, FRCP. The proposed Amended complaint,
while apparently attached to the Record, was never docketed.
Rule 8 does not provide any limitation in page length for
complaints, nor has any court successfully imposed such a
limitation. This court has held that dismissal on the basis of
Rule 8 length is not with sufficient cause.
On October 19, 2000, Petitioners filed a timely Notice of Appeal
with the District Court.
On or before November 20, 2001, Petitoners filed, in a timely
manner, an appeal with the United States Court of Appeals for the
Fourth Circuit (No. 00-2369). Petitioners clearly demonstrated
the errors in the district court's dismissal, clearly showing
that neither Res Judicata nor New Jersey's Entire Controversy
Doctrine were applicable to their RICO litigation.
On March 27, 2001, the United States Court of Appeals for the
Fourth Circuit affirmed the district court by an unpublished,
per curiam, opinion, avoiding Petitioners' demonstrations of
errors in law, fact and Rules.
On April 10, 2001, Petitioners filed a petition for rehearing
with the United States Court of Appeals for the Fourth Circuit.
On May 8, 2001, the court of appeals denied, without explanation,
Petitioners' petition for rehearing.
REASONS FOR GRANTING THE PETITION
1) In conflict with the Supreme Court of the United States,
[International Building] and [Lawlor] The United States
Court of Appeals for the Fourth Circuit, by affirming the
district court's order, allows to stand, the district court's
decision based on a misapplication of the principle of Res
Judicata. The facts do not allow the application of any
preclusive principle, as we have adequately demonstrated
in our pleadings.
Petitioners, having been given no reason for the Fourth
Circuit's affirmation, must rely on their Memorandum
Attachment to Informal Brief. In that Brief Petitioners
clearly demonstrated that the tests for Res Judicata were
not met. The cause of action in the New Jersey suits was an
automobile accident; the cause of action in the present suit
is the violations of the Federal RICO statute(s) involving
acts unknown at the time of the New Jersey filings, and acts
uncommitted at that time. The filing of the federal suit
preceeded resolution of the New Jersey suits.
In [International Building], Mr Justice Douglas opines:
"The governing principle is stated in Cromwell v. County of
Sac, 94 US 351, 352-353. A judgement is an absolute bar to
a subsequent action on the same claim.
'But where the second action between the same parties is
upon a different claim or demand, the [345 U.S. 502, 505]
judgement in the prior action operates as an estoppel
only as to those matters in issue or points controverted,
upon the determination of which the finding verdict was
rendered. In all cases, therefore, where it is sought to
apply the estoppel of a judgement rendered upon one cause
of action to matters arising in a suit upon a different
cause of action, the inquiry must always be as to the
point or question actually litigated and determined in
the original action, not what might have been thus
litigated and determined. Only upon such matters is the
judgement conclusive in another action.' "
Judgements in the New Jersey actions were unaccompanied by
any findings. Chief Justice Warren, in [Lawlor] wrote:
"...judgement was unaccompanied by any findings and
hence did not bind the parties on any issue."
Allowing this decision to stand allows then also to stand
routine violations of the First, Fifth, Seventh and
Fourteenth Amendments of the U.S. Constitution which would
certainly not be in the general interest or good.
2) In conflict with The United States Court of Appeals for the
Third Circuit [Fornoratto], and in conflict with the New
Jersey Supreme Court [Mortagelinq], The United States Court
of Appeals for the Fourth Circuit, by affirming the district
court's order, allows to stand, the district court's decision
based on a misapplication of Section 1738 of Title 28, United
States Code, and Article IV, Section 1 of the United States
Constitution.
In deciding to honor New Jersey's Entire Controversy Doctrine
under the Full Faith and Credit clause, the district court
ignored the New Jersey Supreme Court's determination that:
"Maintaining a cohesive federal system (and the Full Faith
and Credit Clause melds the state courts into that system)
does not require that other parts of the federal system
honor our entire controversy doctrine." [Mortgagelinq]
Therefore, Petitioners' RICO action would not be barred by
that doctrine.
3) The Court should grant certiorari in the interest of the
public welfare, in that it would refine and further clarify
the Court's decision in [Humana] regarding the application
of RICO to insurers that have, with increasing regularity
been shifting their claims costs to the taxpayers through
their conducting of patterns of racketeering activities.
Many citizens similarly situated have had no choice, in an
effort to effect their remedies, but to file pro se, and
in that position have been discriminated against by the
courts, as have Petitioners in this case.
4) The Court should grant certiorari, not only to protect the
rights of Petitioners, but to protect the rights of an
estimated 20% of those who are forced to litigate against
their own insurers regarding the insurers' criminal conduct,
wherein, e.g., interactions in contractual and legal matters
are more than 50% systematically "mishandled" by the insurer,
as consistently estimated by several experts in the field.
These victims of insurance racketeering are captive through
the pervasive racketeering of the industry, and the mandates
by law and other instruments that they must buy and pay for
insurance.
5) The Court should grant certiorari, in order to protect the
the economic health of the United States of America.
Defendant SFM is, together with its incorporated, wholly
owned subsidiaries, the largest and wealthiest insurer in
the world. As judge Bohling in [Campbell] has pointed out,
this great economic advantage forces all other insurers to
adopt its own methods of doing business, and so
deleteriously affects interstate commerce.
6) The Court should grant certiorari, similarly to protect
the similarly situated citizens who find themselves denied
their day in court when they seek redress against the very
corporations who have pledged to protect them from
catastrophic loss, while through their racketeering
activities [Campbell] conspiring to deny that protection.
7) The Court should grant certiorari in the interest of the
public welfare, in that it provides the Court with the
opportunity of clarifying the proper considerations of the
lower courts regarding partial and full considerations of
law and fact, thus setting a precedent regarding the abuses
of power of the lower courts to dimiss on grounds contrary
to both law and fact, and then also clarifying futher than
it has so far, what is, and is not an abuse of discretion,
or an abuse of power.
8) The Court should grant certiorari in the interest of the
public welfare, in that it provides the Court with the
opportunity to clarify certain written inconsistencies in
the the Circuits' understandings of the RICO statutes
arising from failures to understand the deliberate intent
of Congress that RICO be broadly interpreted in order to
provide an appropriate legal tool with which to combat
powerful racketeering interests.
9) The Court should grant certiorari in the interest of the
public welfare, in that it provides the Court with the
opportunity of restoring to the people, the full magnitude
of their Constitutional rights to redress of grievences,
that seem to be greatly diminished in procedural fact,
of late.
10) The Court should grant certiorari since if it does not
Petitioners will be further damaged in their persons
and property, thus compounding the injuries already
inflicted upon them by defendents and the lower courts.
Petitioners claim under the Ninth Amendment that they
have the right not deliberately to be damaged by their
own government.
CONCLUSION
The petition for a writ of certiorari should be granted.
Respectfully submitted,
William C. Hammel
-----------------
Alan J. Bellamente
------------------
Date: August 2, 2001
--------------
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Created: February 10, 2002
Last Updated: February 10, 2002