UNITED STATES DISTRICT COURT
        WESTERN DISTRICT OF NORTH CAROLINA
	Bryson City Division

        ____________________________________________
                                                   |
             WILLIAM C. HAMMEL,                    |
             ALAN J. BELLAMENTE,                   |     OBJECTIONS TO
             et al.,                               |     MEMORANDUM AND
                                                   |     RECOMMENDATION 
                  Plaintiffs                       |      
                                                   |
                   vs.                             |
                                                   |     No. 2:99CV-44-T
             STATE FARM MUTUAL AUTOMOBILE          |
             INSURANCE CO., et al.;                |
                                                   |
                                                   |
             STATE FARM INDEMNITY COMPANY,         |
             et al.                                |
                                                   |
                  Defendants                       |
                                                   |
        ___________________________________________|



	1) The Magistrate Judge, Max O. Cogburn Jr. has submitted

	to the Court a "Memorandum and Recommendation" (Docket

	Entry #45) to which Plaintiffs object in its entirety, and



	specifically:



	2) Plaintiffs are genuinely perplexed by the Magistrate's

	Memorandum and Recommendation, (#45) filed April 11, 2000,

	and respectfully express their Objections, pursuant to

	28 USC, 636(b)(1)(C), and request that the Magistrate's

	recommendations not be followed, that Plaintiffs' action

	not be dismissed, and that their motions to the Court be

	granted.



	3) In so far as possible, Plaintiffs follow the sections and


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	flow of the Magistrate's Memorandum, noting their objections,

	in articulated form.



	                I. Procedural History



	4) Regarding Plaintiffs' Memorandum in Support of Their Motion

	Motion for Extension of Time (#23) the Magistrate states:

	"In their response defendants...did request that the court

	require plaintiffs to respond at the end of the second

	extension by filing either a responsive brief or a motion

	to amend their complaint." (#24)



	5) Defendants actually said in their Response To Plaintiffs'

	Second Motion for Extension Of Time To Respond To Motion

	(#24): "Accordingly, Defendants would request that the Court

	require Plaintiffs,...to either (1) respond to Defendants'

	Motion to Dismiss...or (2) file an Amended Complaint."



	6) While Defendants requested one or the other, the Magistrate's

	Order (#25) filed November 8, 1999, specifically required that:

	"...plaintiffs shall file with the court that day their response

	and/or their Motion to Amend accompanied by their proposed

	Amended Complaint."  Thus emphasizing the already inclusive

	nature of the English "or", and specifying a "Motion to Amend".



	7) Plaintiffs, simply complied with the letter of the Order,

	submitting, a Response, a Motion To Amend, and the proposed

	Amended Complaint together with its attachments and exhibits.

	In requiring a Motion to amend, when it was unnecessary,

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	Plaintiffs understand an error of the Court in violation

	of FRCP 15(a).



	8) The Response was written first and addresses matters of law

	regarding the inapplicability of Res Judicata and of Accord

	and Satisfaction; the proposed Amended Complaint was under

	construction while Plaintiffs were receiving thousands of

	pages of new evidentiary material, making the actual writing

	a Herculean task, even if Plaintiffs had not ultimately been

	disabled by Defendants.



	9) The issues of the Response are not suitable for a complaint,

	and belong in a separate document.  The Response and Amended

	Complaint have a lock and key relationship.  Together they

	show that the fundamental claims of the case are not based

	in insurance, nor as Defendants alternatively suggest in

	(#38, p. 21) "... at most, a breach of contract case ...",

	but are based on systematic, intentional and interrelated

	criminal acts of fraud, extortion and robbery, and conspiracies

	to commit those, in extracontractual criminal conduct that forms

	a pattern of racketeering damaging Plaintiffs in their business

	and property.  See attachment (a), Certification of Counsel,

	section 3.



	10) In 18 USC 3575(e), Congress states, "[C]riminal conduct

	forms a pattern if it embraces criminal acts that have the same

	or similar purposes, results, participants, victims, or methods

	of commission, or otherwise are interrelated by distinguishing


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	characteristics and are not isolated events." Cf. SEDIMA v.

	IMREX, 473 US 479 (1985), Footnote 14.  Plaintiffs have alleged,

	and to some extent demonstrated, such patterns which which go

	beyond damaging the two Plaintiffs.  To what extent their

	submissions in support of these patterns is not hearsay, and

	admissible depends of the production of expert witnesses who

	have personal knowledge of these patterns, and should not be

	considered in these preliminary pleadings.



	11) The pattern damaging Plaintiffs and the larger pattern

	from which it emanates fulfills the criteria of 18 USC 3537(e),

	as well as other RICO criteria as Plaintiffs show in their

	Memorandum (#30).



	               II. The Proposed Amended Complaint



	12) Plaintiffs were aware of F.R.C.P. Rule 15, and had assumed

	that they did not have to file a Motion To Amend, but did so

	to comply with the improper Order (#25) of the Magistrate.



	13) Plaintiffs respectfully call the Court's attention to their

	Memorandum In Support of Plaintiffs' Motion In Opposition To

	Defendants' Renewed Motion To Dismiss (#40), particularly

	Paragraphs 13) - 16) and 24) - 26), where Plaintiffs address

	the length of their Amended Complaint, and explain its

	necessity.



	14) "The Federal Rules reject the approach that pleading is a

	game of skill in which one misstep by counsel may be decisive

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	to the outcome and accept the principle that the purpose of

	pleading is to facilitate a proper decision on the merits."

	Conley v. Gibson, 355 U.S. 41 (1957), (http://laws.findlaw.com/

	US/355/41.html).  



	15) "Pleadings are intended to serve as a means of arriving at

	fair and just settlements of controversies between litigants.

	They should not raise barriers which prevent the achievement of

	that end." Maty v. Grasselli Chemical Co., 303 U.S. 197 (1938),

	(http://laws.findlaw.com/US/303/197.html).



	16) "Nevertheless, despite the more forgiving pleading

	standards, the essence of a claim remains its factual elements.

	See 5 Wright, et al. Section 1215 at 145 ('The rules do

	contemplate a statement of circumstances, occurrences, and

	events in support of the claim being presented.')."  "...and

	the claimant 'need not set forth any theory or demand any

	particular relief for the court will award appropriate relief

	if the plaintiff is entitled to it on any theory.' New Amsterdam

	Casualty Co. v. Waller, 323 F.2d 20, 24-25 (4th Cir. 1963) ...."

	Gilbane Building Company, et al.  v. Federal Reserve Bank of

	Richmond, et al.  (4th Cir.  No. 93-2448, No. 93-2449),

	(http://laws.findlaw.com/4th/932448p.html).



	17) "...so long as a plaintiff colorably states facts which,

	if proven, would entitle him to relief, the motion to dismiss

	should not be granted."  Adams v. Bain, 697 F.2d 1213 (4th Cir.

	12/30/1982), No. 82-1020, (1982.C04.40002 ; 697 F.2d 1213).



	18) In paragraphs 6) and 7) of (#40), Plaintiffs explain that

	they did not intend to serve, personally, the thirty-three State

	Farm employees, apologized for their zeal, and requested that

	Plaintiffs be allowed to remove those 'Defendants', and make

	necessary corrections, still being bound by the Court's Order

	that amendation required a motion.



               III. Motion to Dismiss the Original Complaint



                    B. Background       



	19) The magistrate states, "Plaintiffs' dispute with these

	defendants stems from an automobile accident, which was amicably

	settled and for which voluntary dismissals were taken" (#45, p. 4)



	or in words of the defendants,



	"Plaintiffs ... have filed this action pro se, literally seeking

	to transform a litany of complaints about the handling of their

	automobile accident claim into a federal case under the Racketeer

	Influenced and Corrupt Organizations Act, 18 U.S.C. 1962."

	(#18, p. 1)



	20) That Plaintiffs' litigation may "stem[s] from an

	automobile accident" is not germane.  The claims arise from

	the Plaintiffs' allegations, provable beyond a reasonable

	doubt, that: State Farm Mutual's management is engaged in

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	racketeering, has been engaged in racketeering for at least

	twenty-five (25) years, that Plaintiffs have suffered an

	instantiation of this racketeering, that this racketeering

	continues and shows no sign of abatement, and that this

	constitutes a monetary and social menace to the people of

	the United States of America.



	21) Any legal instrument stating amicable settlement with

	defendant SFI is a void farce.  SFI entered into those

	contracts with criminal intent and is still in breach of

	those contracts; Plaintiffs refuse to be bound by such

	contracts which were, in fact, immediately followed with

	further instances of fraud and robbery, and other criminal

	acts, from which some of Plaintiffs' claims arise.  



	                  III, C. - Discussion



	22) In (#28), Pages 16 through 25, Plaintiffs show why

	the principle of Accord and Satisfaction should not apply

	to bar the present actions, in light of Defendants' then

	on-going criminal activities which supersede and postdate

	the exhibited releases and stipulations.  Plaintiffs have

	alleged criminal intent on the part of State Farm Indemnity

	in entering these contracts of release.



	23) The Magistrate cites Sharpe v. Nationwide Mut. Fire

	Ins. Co., which states: " 'accord' is an agreement whereby

	one of the parties undertakes to give or perform, and the


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	other to accept...something other than or different from

	what he is or considered himself entitled to;'".  Such was

	not the situation when SFI paid Plaintiffs' medical bills.

	Plaintiffs were entitled to no more than that under the

	extant coverage, and so the payment of those bills was not

	an "accord", but rather simple performance.  Plaintiffs had

	no other claims at that time which they could release.

	

	24) Plaintiffs refused to sign 'releases' weeks after SFI

	had paid their medical bills, and did so because they had no

	choice but to sign, to advance to the UIM arbitration.  Their

	signing of the release should be held exculpatory since is was

	done under oppression and duress where SFI clearly held a

	higher and unequal bargaining power.



	25) In Alston v. Monk, 92 N.C. App.59, 373 S.E.2d 380 (1988),

	the Court held that a release was invalid because the

	defendant's services "may affect the health of the general

	public."  Certainly, an immense multinational insurance company

	which defrauds its policy holders and doesn't pay valid injury

	claims will "affect the health of the general public."



	26) New claims have arisen, that Plaintiffs discovered

	only in December of 1999, long after the filing of the

	original complaint and after the signing of the putative

	releases in the PIP action in New Jersey, at which time

	Plaintiffs were residents of North Carolina.  See attachment

	(a), Certification of Counsel, section 3.



                                       - 8 -








	27) In "North Carolina Torts", Logan and Logan, Carolina

	Academic Press, 1996, p. 216, the authors, citing Sims v.

	Gernandt, 341 N.C. 162, 459 S.E.2d 258 (1995), state "The

	party granting the release does not necessarily waive claims

	maturing or accruing at a later time."

	Again see attachment (a), Idem.



	28) Plaintiffs and their attorneys had reasonable expectations

	that SFI would not attempt to raise again, fraudulently, in UIM,

	those causative issues expected, regardless of legal

	technicalities, to have been resolved in the PIP releases, and

	they further had reasonable expectations that the attempt at

	reajudication would not be a series of complete knowing

	misrepresntations by SFI, Melli and Fremed in conspiracy to

	defraud Plaintiffs further.



	29) The conspiracy was abandoned.  Within days of Defendants

	having received Plaintiffs' proposed amended complaint,

	Plaintiffs' New Jersey attorneys received word that SFI wished

	to settle the UIM claim by paying the limits of the policy.

	The UIM claim has been settled and the policy limits paid.

	That settlement has no bearing on the present action.

	Plaintiffs note that if they had not accepted this offer,

	Defendants were entitled to move for dismissal.  The patterns

	of racketeering complained of and directed against Plaintiffs

	is now closed.

	

	30) Moreover, there is only the putatively valid "release of 


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	all claims", supposedly covering only one Defendant in this action. 

	The other Defendants have not been released from anything, and 

	State Farm Indemnity is a necessary Defendant in considering the 

	total pattern of racketeering activities, which was suspected but 

	unknown, in fact, to Plaintiffs until December 1999.  Plaintiffs 

	did not release State Farm Indemnity for claims arising from past, 

	present or future criminal conduct.

	

	31) Plaintiffs wish to bring to the Court's attention their

	Response To Defendants' Motion To Dismiss, Or In The Alternative

	To Stay (#28), particularly Pages 6 through 16, where Plaintiffs,

	in detail and with many citations not here repeated, show why

	Res Judicata should not apply to bar the present action.

	There, Plaintiffs use a careful analysis by the Court, In Re

	Varat Enterprises Inc., 81 F.3d 1310 (4th Cir. 1996) as well as

	opinions of the U.S. Supreme Court as guidance.  As stated later,

	this analysis has been dismissed, out of hand, with no

	substantive explanation by the Magistrate.  In support of

	Plaintiffs' argument, see attachment (a), Certification of

	Counsel, section 2, paragraph 2, and attachment (b), Certification

	of Counsel, paragraph 4.



	32) The Magistrate attempts to assert a definition of Res

	Judicata from HMK Corp. v. Walsey.  In HMK Corp. v. Walsey,

	828 F.2d 1071 (4th Cir. 1987), yet the Court states, "In

	reviewing HMK's appeal, we do not reach the issues of res

	judicata or the statute of limitations."  The dismissal was

	affirmed on the evidence not amounting to a pattern of

	racketeering, not on any asserted meaning or definition of

                                       - 10 -








	Res Judicata.  Plaintiffs again refer to their response (#28),

	and assert an error of law by the Magistrate.



	33) Plaintiffs' causes of action are of three classes, with

	different grounds upon which the Court's jurisdiction depends:

	statutory under RICO, diversity regarding other pendant State

	claims, and a federal question of violations of Plaintiffs'

	Constitutional rights.



	34) Neither Defendants, nor the Magistrate address or

	distinguish Res Judicata as understood by the Laws of State

	of North Carolina from Res Judicata as understood by the

	Fourth Circuit.  Plaintiffs have shown in detail why this

	litigation is not barred under Res Judicata in the 4th Circuit

	(#28).  For it to be barred similarly under the Laws of North

	Carolina, the defendants have to do more than simply assert

	their claim; they must prove:



		(1) the issues to be precluded are the same as those

		    in the prior action;

		(2) the issues were actually raised and litigated;

		(3) the issues were relevant to the disposition of

		    the prior action; and

		(4) the issues were necessary to resulting judgment.



	U.S. Fire Ins. Co. v. Southairmotive Corp., 102 N.C. App. 470,

	472, 402 S.E.2d 466, 468 disc. rev. denied, 329 N.C. 505, 407

	S.E.2d 553 (1991).  These have not been proven or even addressed;


                                       - 11 -







	They can not be proven, as they are not valid.



	35) In objection to the Footnote on Page 6 of the present

	Memorandum and Recommendation, Plaintiffs again cite their

	Memorandum In Support Of Plaintiffs' Motion To Correct Their

	Amended Complaint (#43), and the preceding paragraphs, here.



	36) Continuing to obey the Court's Order (#25), Plaintiffs moved

	for permission to correct their Amended Complaint (#42), after

	eliminating the confusion of the "employee defendants", even

	though such motion was not necessary.  This progeny of (#25)

	has been ignored even though it was filed before (#45).



	37) Plaintiffs' Motion To Correct (#42) was, to Plaintiffs'

	knowledge, not decided, and also not necessary since Defendants

	have not yet filed a responsive pleading.  Plaintiffs intention

	is still to amend and clarify their Complaint under Rule 15



	38) Plaintiffs do not understand and object to the gratuitous:



	"Plaintiffs do not gain causes of action by simply moving

	from New Jersey to North Carolina or attempting to file

	claims in federal rather that state courts." (#45, p. 6),



	or in Defendants' words,



	"Plaintiffs apparently believe that because they have moved

	to North Carolina from New Jersey, new opportunities for

	litigation have opened up to them." (#38, p. 20).

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	39) In reality, Plaintiffs fled unavoidable financial, physical

	and emotional ruin, which ruin was caused by the racketeering

	activities of Defendants; they fled to the mountains of North

	Carolina as a harbor of quiet and sanity, after which Defendants

	continued their their racketeering and other unlawful activities

	in an effective intercorporate RICO conspiracy of fraud, robbery

	and extortion, causing further damage to both Plaintiffs that now

	precludes business of any kind, except through extraordinary

	technological and human aid and intervention.  Many of the torts

	committed by defendants against Plaintiffs were committed while

	Plaintiffs were residents of North Carolina and some of those

	through and by State Farm Mutual acting through its employees.



	40) Regarding the matter of jurisdiction, Federal Rule 8(a)(1)

	requires only "a short and plain statement of the grounds

	upon which the court's jurisdiction depends, ....".  Plaintiffs

	are not required to go into lengthy arguments in furtherance

	of proof of those grounds.  With three grounds of jurisdiction

	and several interrelated defendants, Plaintiffs have complied

	with Rule 8(1) in their original Complaint stating the grounds

	thoroughly, and again in their proposed Amended Complaint with

	only a slight elaboration.  The Erie Doctrine suggests that the

	laws of the forum State be applied, and since Plaintiffs must

	choose some State upon whose laws they depend for pendant

	State claims, the choice of North Carolina is quite natural,

	however perverse Defendants and the Magistrate would have that

	choice appear.


                                       - 13 -









	41) Without lengthy argument to the point of jurisdiction in

	diversity of citizenship, Plaintiffs simply state: that both

	State Farm Mutual (SFM) and State Farm Indemnity (SFI) are

	legal corporate persons; SFI does the automobile insurance

	business of SFM in NJ; SFI is owned by SFM; SFM does business

	in NC; other Defendants as agents servants or employees of SFI,

	though they be in New Jersey, may be held also as agents,

	servants, or employees of SFM; and that SFM is responsible for

	the actions of of their agents, servants and employees within

	the scope of their employment, as may the employees in NC who

	acted in furtherance of the pattern of racketeering that

	damaged Plaintiffs while they were residents of NC.



	42) Most perplexing and objected to is that while the Magistrate

	considers, for his recommendations, Defendants' Renewed Motion

	to Dismiss (#37) and its Memorandum (#38), and deems that this

	is a response to Plaintiffs' Response (#28), this important

	response is not considered.  This Response ("brief") seems to

	have been read, but it is simply dismissed out of hand.  One may,

	of course, deem (#37, #38) to be a response to (#28), but, in

	substance, (#37, #38) primarily addresses the proposed Amended

	Complaint as Plaintiffs observe in their Motions and Memoranda

	(#39, #40) and (#42, #43).



	43) Further objected to is that also apparently not considered

	are: the alleged facts of the "proposed Amended Complaint", its

	attachments 3 and 4, its exhibits, as well as the filed memoranda

	(#30, #31), and filed affidavits, (#29), (#32), (#33) and (#34).

                                       - 14 -










	44) The only pleadings, filed by Plaintiffs, upon which the

	Magistrate's Recommendations are said to be based are

	Plaintiff's Motion to Amend (#26) and presumably the memorandum

	in support (#27).  This seems to Plaintiffs insufficient to

	support such a harsh recommendation as dismissal with prejudice.



	45) Finally, Plaintiffs understand these objections as

	objections and argumentation as if in oral hearing, and

	so move the Court in two respects:



		A. For a continuance of seven (7) weeks, beginning

		   May 1, 2000, formal written motion for which accompanies

		   this filing.  Plaintiff Bellamente was scheduled

		   for medically necessary spinal surgery in December

		   of 1999, and has postponed twice due to necessities

		   of this litigation.  His condition has become acute,

		   and the surgery cannot reasonably be postponed further.

		   From Plaintiffs' experience the recovery time is

		   approximately six (6) weeks, at which time a

		   postoperative check will be made during a return to

		   Durham.  Without Plaintiff Bellamente's physical

		   abilities, Plaintiff Hammel is helpless, particularly

		   with respect to the physical requirements of this

		   litigation.  During the recovery period, Plaintiffs

		   expect that enough work can be accomplished to produce

		   the Amended Complaint.  Plaintiff Bellamente's surgery

		   is now scheduled for May 3, 2000 at Duke University


                                       - 15 -







		   Hospital, and will be performed by Dr. Michael M.

		   Haglund, M.D., Ph.D.



		   Any proof of this, as, e.g., a letter or note from the

		   operating neurosurgeon can be obtained on meeting with

		   Dr. Haglund, if the Court so desires.



		B. That Plaintiffs be relieved of the Magistrate's Order

		   (#25) and have the Court's leave to submit and file their

		   corrected Amended Complaint at the end of the continuance

		   as should have be their right under Rule 15.





	Respectfully submitted


       This 26th day of April, 2000



        William C. Hammel                     Alan J. Bellamente
        A-11 Moose Branch Road,               A-11 Moose Branch Road,
	Sweetwater Apartments 1A,             Sweetwater Apartments 8A,
        Robbinsville, NC 28771                Robbinsville, NC 28771
        (828) 479-1547                        (828) 479-1547



        -------------------------------      ------------------------------
        William C. Hammel                     Alan J. Bellamente















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