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UNITED STATES CIRCUIT COURT OF APPEALS FOR THE EIGHTH CIRCUIT
______________________________________________________________________
Docket No. 08−03115 (8th Cir.) Appeal from
W.D. of Missouri Case No. 07-0849-CV-W-FJG W.D. of Missouri Case No. 06-0573-CV-W-FJG
Jackson County Missouri 16th Circuit Court, Case No. 0616−cv−07421 ______________________________________________________________________
SAMUEL K. LIPARI
(Individually and as Assignee of Dissolved Medical Supply Chain, Inc.)
Appellant
GENERAL ELECTRIC COMPANY, GENERAL ELECTRIC
CAPITAL BUSINESS ASSET FUNDING CORPORATION, GE TRANSPORTATION SYSTEMS GLOBAL SIGNALING, LLC,
JEFFREY R. IMMELT, SEYFARTH SHAW LLP, STUART FOSTER, HEARTLAND FINANCIAL GROUP, INC., CHRISTOPHER M.
MCDANIEL, BRADLEY J. SCHLOZMAN
Appellees ______________________________________________________________________
Appeal from the United States District Court
for the Western District of Missouri Hon. Judge Fernando J. Gaitan, Jr. presiding
______________________________________________________________________
OPENING BRIEF OF THE APPELLANT ______________________________________________________________________
Brief Prepared by Samuel K. Lipari
3520 NE Akin Blvd., #918 Lee's Summit, MO 64064 816-365-1306 [email protected] Pro se
Oral argument requested.
i
CORPORATE DISCLOSURE STATEMENT UNDER F.R.A.P. 26
The appellant is not a corporation but instead is a sole proprietor of a hospital
supply business and the assignee of all rights of the dissolved Missouri corporation
Medical Supply Chain, Inc. which had no parent companies, subsidiaries, or
affiliates that issued shares to the public.
TABLE OF CONTENTS
Table Of Authorities ii Corporate Disclosure Statement Under F.R.A.P. 26 i Oral Argument Statement Under F.R.A.P. 34(A)(1) 1 Prior Or Related Appeals 1 Certificate Of Appellate Jurisdiction 6 Statement Of The Issues 7
Statement Of The Case 7 Statement Of Facts 10 I. Whether The Trial Court Erred By Failing In Dismissing Lipari’s RICO Claims for Lack of Injury to a Recognizable Business Property Interest 19 II. Whether The Trial Court Erred By Denying Amendment 35 III. Whether The Trial Court Erred By Failing to Recuse Itself Over Directorship In Party in Interest And Concurrent Defendant St. Luke’s Health System 39 Prayer For Relief 47 Certificate Of Compliance 49 Certification Of Digital Submissions 49
ii
Addendum 51 Attachment 1, Memorandum And Order Of Dismissal 52 Attachment 2, Order Denying Reconsideration 62 Attachment 3, Amended Notice Of Appeal 69 Certificate Of Service 71
TABLE OF AUTHORITIES Cases
Table of Cases A/S Ludwig Mowinckles Rederi v. Tidewater Construction Corp., 559 F.2d 928, (2d Cir.1977) 23 Alexander Grant and Co. v. Tiffany Industries, Inc., 770 F.2d 717 (C.A.8 (Mo.), 1985) 29 American Fed. Teachers v. Oregon Taxpayers, 189 P.3d 9 (Or., 2008) 33 Armstrong v. Alabama Power Co., 667 F.2d 1385(11th Cir.1982) 23 Beck v. Prupis, 529 U.S. 494, 120 S.Ct. 1608, 146 L.Ed.2d 561 (2000) 20 Becker v. Univ. of Neb. at Omaha, 191 F.3d 904 (8th Cir.1999) 35 Bennett v. Berg, 685 F.2d 1053 (8th Cir.1982) 18 Bennett v. Berg, 685 F.2d 1053 (8th Cir.1982) 37 Bennett v. Berg, 685 F.2d 1053 (C.A.8 (Mo.), 1981) 29 Bennett v. Berg, 685 F.2d 1053 (C.A.8 (Mo.), 1981) 30 Bennett v. Berg, 685 F.2d 1053 (C.A.8 (Mo.), 1981) 34
iii
Bennett v. Berg, 685 F.2d 1053 at 1058 (C.A.8 (Mo.), 1981) 39 Bennett v. Berg, 710 F.2d 1361 (C.A.8 (Mo.), 1983) 29 Berg v. First State Ins. Co., 915 F.2d 460 (9th Cir.1990) 24 Bowman v. Western Auto Supply Co., 773 F.Supp. 174 (W.D. Mo., 1991) 29 Bowman v. Western Auto Supply Co., 773 F.Supp. 174 (W.D. Mo., 1991) 34 Bowman v. Western Auto Supply Co., 985 F.2d 383 (8th Cir.) 31 Bridge v. Phoenix Bond & Indemnity Co., No. 07-210 (U.S. 6/9/2008) 33 Bridge v. Phoenix Bond & Indemnity Co., No. 07-210 (U.S. 6/9/2008) 34 Bridge v. Phoenix Bond & Indemnity Co., No. 07-210 (U.S. 6/9/2008) 39 Bridge v. Phoenix Bond & Indemnity Company, __ U.S. __, 128 S. Ct. 2131, 170 L. Ed. 1012 (2008) 32 Brokaw v Mercer County, Brokaw et al (7th Cir., 2000) 45 Chaz Concrete Company, LLC v. Codell, No. 07-5870 (6th Cir. 10/21/2008) 33 De Lauder v. Balto. Co., 95 Md. 1, 6, 50 Atl. 427 26 Deck v. Engineered Laminates, 349 F.3d 1253 (10th Cir., 2003) 22 Della Penna v. Toyota Motor Sales, U.S.A., Inc., 11 Cal.4th 376, 45 Cal.Rptr.2d 436, 902 P.2d 740 (1995) 25 Diaz v. Gates, 420 F.3d 897 (Fed. 9th Cir., 2005) 24 Diaz v. Gates, 420 F.3d 897 (Fed. 9th Cir., 2005) 25 Doe v. Cassel, 403 F.3d 986 (8th Cir., 2005) 35 Doe v. Roe, 958 F.2d 763 (7th Cir. 1992) 20 Gagan v. American Cablevision, Inc., 77 F.3d 951 (7th Cir.1996) 20 Glass v. Pfeffer, 849 F.2d 1261 (C.A.10 (Kan.), 1988) 45
iv
Handeen v. Lemaire, 112 F.3d 1339 (C.A.8 (Minn.), 1997) 31 Heller v. Lutz, 254 Mo. 704, 164 S.W. 123 (Mo., 1913) 26 Hishon v. King & Spalding, 467 U. S. 69 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984) 20 Holmes v. Securities Investor Protection Corp., 503 U.S. 258, 112 S.Ct. 1311, 117 L.Ed.2d 532 (1992) 31 Kansas Public Employees Retirement System, In re, 85 F.3d 1353 (C.A.8 (Mo.), 1996) 44 Kulinski v. Medtronic Bio-Medicus, Inc., 112 F.3d 368 (8th Cir. 1997) 19 Lally v. Crawford County Trust & Sav. Bank, 863 F.2d 612 (8th Cir.1988) 32 Ledford v. Sullivan, 105 F.3d 354 (7th Cir.1997) 21 Lerner v. Fleet Bank, 318 F.3d 113 (2d Cir. 2003) 20 Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 108 S.Ct. 2194, 100 L.Ed.2d 855 (1988) 41 Lincoln House, Inc. v. Dupre, 903 F.2d 845 (1st Cir.1990) 23 Lincoln House, Inc. v. Dupre, 903 F.2d 845 (1st Cir.1990) 22 Little Rock School District v. Armstrong, No. 02-3867EA (8th Cir., 2004) 40 Logan v. Zimmerman Brush Co., 455 U.S. 422, 102 S.Ct. 1148, 71 L.Ed.2d 265 (1982) 22 Malley-Duff & Assocs., Inc. v. Crown Life Ins. Co., 792 F.2d 341, 354 (3d Cir.1986) 22 Martinez v. Winner, 771 F.2d 424 (C.A.10 (Colo.), 1985) 14 Martinez v. Winner, 771 F.2d 424 (C.A.10 (Colo.), 1985) 42 Martinez v. Winner, 778 F.2d 553 (10th Cir.1985) 42 McPherson v. U.S. Physicians Mut., 99 S.W.3d 462 (Mo. App., 2003) 41 Moran v. Clarke , 296 F.3d 638 (8th Cir. 2002) 39
v
Moran v. Clarke, 2002 C08 802 (USCA8, 2002) 43
Moran v. Clarke, 2002 C08 802 at 57-58 (USCA8, 2002) 47 Moses.Com Sec. v. Comprehensive Software, 406 F.3d 1052 (Fed. 8th Cir., 2005) 35 Motorola Credit Corp. v. Uzan, 322 F.3d 130 (2d Cir.2003) 22 Motorola Credit Corp. v. Uzan, 322 F.3d 130 (2d Cir.2003) 34 Nagle v. Merrill Lynch, Pierce, Fenner & Smith, 790 F.Supp. 203 at 210 (S.D. Iowa, 1992) 18 National Organization for Women, Inc. v. Scheidler, 510 U. S. 249 (1994) 19 National Organization for Women, Inc. v. Scheidler, 510 U. S. 249 (1994) 34 Natl. Telegraph News Co. v. W. U. Telegraph Co., 119 Fed. 294, 56 C. C. A. 198, 60 L. R. A. 805 26 Reeves v. Hanlon, 33 Cal.4th 1140, 17 Cal.Rptr.3d 289, 95 P.3d 513, 517 (2004) 25 Regions Bank v. J.R. Oil Co., LLC, 387 F.3d 721 (8th Cir., 2004) 29 Rhoades v. Avon Prods., Inc., 504 F.3d 1151 (9th Cir. 2007) 45 Riddle v. Dean Machinery Co., 564 S.W.2d 238 (Mo.App.1978) 26 Schaller Tel. Co. v. Golden Sky Sys., 298 F.3d 736 (8th Cir.2002) 35 Scheidler v. National Org. for Women, Inc., 537 U.S. 393, 123 S.Ct. 1057, 154 L.Ed.2d 991 (2003) 28 Scheidler v. National Organization for Women, Inc., 537 U.S. 393 (2003) 20 Scheidler v. National Organization for Women, Inc., 537 U.S. 393 (2003) 21 Scott v. U.S., 559 A.2d 745 (DC, 1989) 44 Sedima, S. P. R. L. v. Imrex Co., 473 U. S. 479, 481 (1985) 34
vi
Shaw v. Greathouse, 296 S.W.2d 151 at 153 (Mo. App., 1956) 26 Simmons Hardware Co. v. Waibel, 1 S. D. 488, 47 N. W. 814, 11 L. R. A. 267, 36 Am. St. Rep. 755 26 Slingerland v. Inter. Contr. Co., 43 App. Div. 215, 230, 60 N. Y. Supp. 12, affirmed 169 N. Y. 60, 61 N. E. 995, 56 L. R. A. 494 26 St. Louis Fire Fighters Ass'n v. City of St. Louis, 96 F.3d 323, 330 (8th Cir.1996) 35 Terra Nova Insurance Co. Ltd. v. Distefano, 663 F.Supp. 809 (D.R.I.1987) 23 Terra Nova Insurance Co. Ltd. v. Distefano, 663 F.Supp. 809 (D.R.I.1987) 24 Terre Du Lac Ass'n, Inc. v. Terre Du Lac, Inc., 772 F.2d 467 (C.A.8 (Mo.), 1985) 31 Tri-State Financial, LLC v. Lovald, No. 07-2430 (8th Cir., 2008) 43
Tyus v. Martinez, 475 U.S. 1138, 106 S.Ct. 1787, 90 L.Ed.2d 333 (1986) 42 U.S. v. Antico, 275 F.3d 245 (3rd Cir., 2001) 27 U.S. v. Antico, 275 F.3d 245 at 256 (3rd Cir., 2001) 17 U.S. v. Antico, 275 F.3d 245 at 261 (3rd Cir., 2001) 27 U.S. v. Gotti, 459 F.3d 296 (2nd Cir., 2006) 28 U.S. v. Gotti, 459 F.3d 296 (2nd Cir., 2006) 27 U.S. v. Kelley, 461 F.3d 817 (6th Cir., 2006) 17 U.S. v. Tucker, 82 F.3d 1423 (C.A.8 (Ark.), 1996) 41 U.S. v. Whitman, 209 F.3d 619 (6th Cir., 2000) 14 United Mine Workers v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 1138, 16 L.Ed.2d 218 (1966) 6 United States v. Diaz, 189 F.3d 1239 (10th Cir. 1999) 42
vii
United States v. Gallo, 763 F.2d 1504 (6th Cir. 1985) 44 United States v. Martinez, 667 F.2d 886 (10th Cir.1981) 42 United States v. Martinez, 667 F.2d 886 (10th Cir.1981) 14 United States v. Nardello, 393 U.S. 286, 89 S.Ct. 534, 21 L.Ed.2d 487 (1969) 21 United States v. Rybicki, 354 F.3d 124 (2d Cir.2003) 27 United States v. Sawyer, 85 F.3d 713, (1st Cir. 1996) 27 United States v. Woodward, 149 F.3d 46 (1st Cir. 1998) 27 Volume Services, Inc. v. C.F. Murphy & Associates, Inc., 656 S.W.2d 785 (Mo. App.W.D., 1983) 26 Walker v. Daly, 80 Wis. 222, 49 N. W. 812 26 Western Auto Supply Co. v. Gamble-Skogmo, Inc., 348 F.2d 736(C.A.8 (Minn.), 1965) 25 Statutes 18 USC § 1961 et seq pg. 9 18 U.S.C. Secs. 1961-1968 (RICO) pg. 7 18 USC § 1961 (1)(B) pg. 21, 32, 34 18 § 1962(c) pg. 21 1341 pg. 21 1343 pg. 21 1503 pg. 21 1951 pg. 21 18 USC § 1964 pg. 21
viii
18 U.S.C. Sec. 1964(a) pg. 7 Treatises Restatement (Second) of Torts § 766A 25 Restatement (Second) of Torts § 766B 25
1
ORAL ARGUMENT STATEMENT UNDER F.R.A.P. 34(a)(1)
The appellant believes oral argument will greatly aid the court because of
the volumous record despite the absence of discovery or evidence being accepted
for trial.
PRIOR OR RELATED APPEALS AND LITIGATION
Medical Supply Chain, Inc. v. US Bancorp, NA, et al, case no. 02-2539-CM
(“Medical Supply I”) Case 2:05-cv-02299-CM-GLR, Hon. Judge Carlos Murguia,
( All federal claims dismissed, state claims expressly dismissed without prejudice.
No discovery or evidentiary hearings. Medical Supply’s counsel admonished for
failing to research facts or law, including asserting an express private right of
action under the USA PATRIOT Act exists.)
Medical Supply Chain, Inc. v. US Bancorp, NA, et al, 112 Fed. Appx. 730
(10th Cir. 2004) Hon. Judge John C. Porfilio; Hon. Judge Michael W. McConnell;
Hon. Judge William J. Holloway (Medical Supply’s counsel sanctioned by Clerk
of the Court Patrick J. Fisher, Jr. for double attorney’s fees and costs $23, 956.00
for asserting the existence of an express private right of action under the USA
PATRIOT Act and asserting co-conspirators identified in the complaint need not
be named defendants.)
Medical Supply Chain, Inc. v. General Electric Company, et al., KS Dist.
case no. 03-2324-CM (“Medical Supply II”) Hon. Judge Carlos Murguia, (All
federal claims dismissed, state claims expressly dismissed without prejudice. No
2
discovery or evidentiary hearings. Medical Supply’s counsel admonished for
failing to research facts or law including asserting that co-conspirators identified
in the complaint need not be named defendants.)
Medical Supply Chain, Inc. v. General Electric Company, et al. 144 Fed.
Appx. 708 (10th Cir. 2005) Hon. Judge Carlos F. Lucero; Hon. Judge John C.
Porfilio; Hon. Judge Bobby R. Baldock (Trial court overturned for ruling against
sanctions based on merits of state contract claims.)
Medical Supply Chain, Inc. v. Neoforma et al., KS Dist. Court Case No.:
05-2299. Hon. Judge Carlos Murguia, ( All federal claims dismissed, state claims
expressly dismissed without prejudice. No discovery or evidentiary hearings.)
In re Landrith, 124 P.3d 467, 485-86 (Kan. 2005) ( Medical Supply’s
counsel disbarred for taking the African American civil rights plaintiff’s claims in
Bolden v. City of Topeka, Kan., 441 F.3d 1129 (10th Cir., 2006) to federal court
and for representation James Bolden’s witness American Indian David Price.)
In the Matter of Bret D. Landrith, Kansas District Court reciprocal
disbarment action continued at request of the respondent until Bolden v. City of
Topeka, Kan., 441 F.3d 1129 (10th Cir., 2006) and Medical Supply Chain, Inc. v.
Neoforma et al KS Dist. Court Case No.: 05-2299 were decided. The Kansas
District court reciprocally disbarred Bret D. Landrith after the trial court of Hon.
Judge Carlos Murguia ordered dismissal and sanctions in Medical Supply Chain,
Inc. v. Neoforma et al, KS Dist. Court Case No.: 05-2299 without waiting for the
Tenth Circuit decision in Bolden v. City of Topeka, Kan., 441 F.3d 1129.
3
Medical Supply Chain, Inc. v. Neoforma et al., Case No. 06-3331 (10th Cir.
2007) Hon. Judge Harris L. Hartz; Hon. Judge Wade Brorby; Hon. Judge Timothy
M. Tymkovich, dismissed for untimely notice of appeal.
Medical Supply Chain, Inc. v. Neoforma et al., Case No. 08-3187 (10th Cir.
2008) an appeal from Medical Supply Chain, Inc. v. Neoforma et al., KS Dist.
Court Case No. 05-2299 over denial of a Rule 60b Motion based on change of law
and prospective impact of related litigation currently before the appellate court.
Samuel Lipari v. General Electric Company, et al., 16th Cir Mo. Case no.
0616-CV07421. Hon. Judge Michael W. Manners ( Defendant’s Motion for
Dismissal overruled, then removed to W.D. of Missouri by defendants.)
In Re Samuel K. Lipari, Case No. 06-3546 ( Petition for Writ of Mandamus
to require remanding of Samuel Lipari v. General Electric Company, et al.
Denied), (8th Cir. 2006).
Samuel Lipari v. General Electric Company, et al. W.D. MO. Case no. 06-
0573-CV-W-FJG Remanded for lack of federal jurisdiction.
Samuel Lipari v. US Bancorp, NA, et al, 16th Cir Mo. Case no. 0616-
CV32307. Hon. Judge Michael W. Manners (Defendants removed to W.D. of
Missouri asserting diversity.)
Ex Rel Samuel Lipari, v. Hon. Michael Manners WD of Missouri Court of
Appeals Case no. 68703, ( Petition for Writ of Mandamus to require discovery be
granted in Samuel Lipari v. General Electric et al, 16th Cir Mo. Case no. 0616-
CV32307. Denied.)
4
Ex Rel Samuel Lipari, v. Hon. Michael Manners, Mo. Sup. Ct. Case no.
SC88756, ( Petition for Writ of Mandamus to require discovery be granted in
Samuel Lipari v. US Bancorp, NA, et al, 16th Cir Mo. Case no. 0616-CV32307.
Denied.)
Scott Eckersley v Matthew Roy Blunt et al, 16th Cir. Case no. 0816-
CV00118, Hon. Judge Michael W. Manners ( Defamation and, wrongful attorney
disbarment and wrongful termination case by state attorney author of memo
requiring Missouri to retain emails including email related to defendants’ Insure
Missouri scheme to replace Medicaid. )
Ex rel Matthew R Blunt,et al, v. Hon. Michael Manners, Mo. Sup. Ct. Case
no. SC88756 ( Petition for Writ of Mandamus to require order dividing action to
be withdrawn. Granted.)
Samuel Lipari v. US Bancorp, NA, et al, United States District Court,
Western District of Missouri Case No. 06-1012-CV-W-FJG. Hon. Judge Fernando
J. Gaitan, Jr. (Plaintiff’s petition for remand due to lack of diversity
when the same claims were filed under supplementary jurisdiction in Medical
Supply Chain, Inc. v. Neoforma et al, W.Dist. of MO Case No. 05-0210- CV-W-
ODS which are now Medical Supply Chain, Inc. v. Neoforma et al, KS Dist.
Court Case No.: 05-2299. Hon. Judge Carlos Murguia overruled by Hon. Judge
Fernando J. Gaitan, Jr. )
Rochester v. C.R. Bard, Inc., Tyco International Inc., Tyco Healthcare
Group LP, Novation LLC, VHA Inc., Premier and Premier Purchasing. United
5
States District Court, Eastern District of Texas Civil Action No. 304 CV 060, ( A
lawsuit brought by hospital supply manufacturer Rochester. C.R. Bard settled for
$49 million dollars. Premier has been dismissed from the antitrust claim in an
agreement to pay Rochester $8.8 million dollars. )
United States v. General Electric Company, No. CV-96-121-M-CCL (D.
Mont. Filed Aug. 1, 1996) Settlement to alleviate some of the competitive
concerns by eliminating agreements that prevented numerous hospitals around the
country from competing with GE.
United States v. General Electric Company, and InnoServ Technologies,
Inc., Dist of Columbia Case No. 1:98cv01744 RCL. (Filed: July 14, 1998)
Consent decree requiring divestiture of the PREVU diagnostic package to improve
compete in the markets for servicing individual pieces of imaging equipment and
providing multi-vendor service.
USA et al Cynthia Fitzgerald v. Novation LLC et al, N. Dist. of TX Case
No. 03-01589, Hon. Judge David C Godbey. Unsealed with the evidence
supporting the plaintiff-appellant’s antitrust allegations against Novation LLC in
Medical Supply Chain, Inc. v. Neoforma et al., KS Dist. Court Case No.: 05-2299.
USA ex rel. Michael W Lynch v. Seyfarth Shaw, et al W.D. MO Court Case
No. 06-00316, Hon. Judge Scott O. Wright, Unsealed with the evidence
supporting the plaintiff-appellant’s current complaint’s allegations of, tortuous
interference with the General Electric real estate contract, extrajudicial
6
racketeering conduct and extrinsic fraud to keep the plaintiff-appellant out of the
market for hospital supplies.
Samuel Lipari v. US Bancorp, NA, et al. 8th Circuit Court of Appeals, 08-
03087. ( An appeal over the denial of remand and transfer of Samuel Lipari v. US
Bancorp, NA, et al. W.D. of Mo. Case no. 06-cv-01012 Hon. Judge Fernando J.
Gaitan, Jr. to Kansas District Court where it continued as Lipari v. US Bancorp,
NA, et al. KS. Dist. Court. No. 07-cv- 02146 Hon. Judge Carlos Murguia after the
Kansas District Court partially dismissed the plaintiff’s claims.)
Samuel Lipari v. US Bancorp, NA, et al. 8th Circuit Court of Appeals, 08-
03087. Dismissed as premature.
CERTIFICATE OF APPELLATE JURISDICTION
The plaintiff-appellant appeals from the court’s 07/30/2008 (Doc. 59)
Order after the plaintiff-appellant filed a Rule 59 motion on 08/04/2008 (Doc. 61)
to Alter or Amend Judgment, then the plaintiff-appellant filed a 09/12/2008 (Doc.
70) Notice of Appeal. On 10/31/2008 in Document 76 the court made an order
denying plaintiff-appelant's motion to alter or amend the judgment. On 11/03/2008
77 the plaintiff-appellant filed an amended notice of appeal.
This court has federal question jurisdiction over racketeering violations of
the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. Secs. 1961-
1968 (RICO). Jurisdiction is expressly provided by Congress under 18 U.S.C. Sec.
1964(a), which provides in part that "[t]he district courts of the United States shall
7
have jurisdiction to prevent and restrain violations of section 1962 [listing
prohibited racketeering activities] of this chapter by issuing appropriate orders."
This court has pendent claim jurisdiction over the plaintiff-appellant’s
nonfederal claims. United Mine Workers v. Gibbs, 383 U.S. 715, 725, 86 S.Ct.
1130, 1138, 16 L.Ed.2d 218 (1966).
STATEMENT OF THE ISSUES
I. Whether The Trial Court Erred By Failing In Dismissing Lipari’s RICO Claims for Lack of Injury to a Recognizable Business Property Interest.
II. Whether The Trial Court Erred By Denying Amendment III. Whether The Trial Court Erred By Failing to Recuse Itself Over
Directorship In Party in Interest And Concurrent Defendant St. Luke’s Health System
STATEMENT OF THE CASE
The plaintiff-appellant brought federal antitrust and state contract law based
claims in Kansas District Court against the General Electric defendants for
participating with identified but uncharged co-conspirators to keep the plaintiff-
appellant an electronic medical supply distributor from competing in the market
for hospital supplies with an advanced cost saving procurement technology and
web based supply marketplace. The case was styled Medical Supply Chain, Inc. v.
General Electric Company, et al., KS Dist. case no. 03-2324-CM.
The federal antitrust claims were dismissed with prejudice and the state
claims expressly dismissed without prejudice by the Kansas District court. The
8
plaintiff-appellant has not yet brought additional federal antitrust claims for the
defendants’ continued anticompetitive conduct, however the state contract claims
were filed in Missouri as Lipari v. General Electric, et al 16th Cir. Court State of
Missouri Case No. 0616-CV07421 and withstood dismissal in the 16th Circuit
Missouri court.
The General Electric defendants then responded by having the claims
removed to federal court on 07/14/2006 where they were styled Lipari v. General
Electric, et al W.D. of Missouri Case No. 06-00573 and assigned to Hon. Judge
Fernando J. Gaitan, Jr. The plaintiff filed a timely motion to remand the claims
based on the facial untimeliness of the removal. The district court however
continued to conduct proceedings without addressing the motion to remand so
the plaintiff-appellant filed In Re Samuel K. Lipari, Case No. 06-3546 (Supp.
Apdx. Vol. Three pg. 403 ) a Petition for Writ of Mandamus to require remanding
the Western District action to state court.
The petition was denied but the plaintiff-appellant discovered Hon. Judge
Fernando J. Gaitan, Jr. was a director of a defendant hospital supply cartel
member. The plaintiff-appellant filed a motion for a new trial on the mandamus
with evidence of the directorship and a § 455 recusal motion in Western District
court. The new trial was denied by this court on 11/20/2006. However Hon.
Judge Fernando J. Gaitan, Jr. granted the remand of W.D. of Missouri Case No.
06-00573 on 11/29/2006 but in the same order determined the plaintiff-
appellant’s § 455 recusal motion was moot.
9
The remanded action was reopened under the same styling Lipari v.
General Electric, et al. 16th Cir. Court State of Missouri Case No. 0616-
CV07421. When the plaintiff-appellant continued to experience extrajudicial
conduct by the defendants and non-defendant Kansas State officials to prevent
entry into the national hospital supply market and to prevent the plaintiff-appellant
from enforcing or otherwise obtaining the benefits of his bargains and contracts to
enter into the hospital supply market or even to enforce the 16th Circuit Missouri
court pretrial order, the plaintiff-appellant petitioned the state court to add 18 USC
§ 1961 et seq. (“RICO”) claims. The General Electric defendants motioned to have
the RICO claims dismissed on standing and for failure to state a claim but the state
court overruled the motion to dismiss the RICO claims. The General Electric
defendants then caused the action to be removed for a second time to the Western
District of Missouri Court where it was given a new case number and styled Lipari
v. General Electric, et al W.D. of Missouri Case No. 07-0869 and reassigned to
Hon. Judge Fernando J. Gaitan, Jr. who was then Chief Judge of the Western
District of Missouri. The defendants then filed a motion to dismiss the RICO
claims which was upheld by Hon. Judge Fernando J. Gaitan, Jr.
The plaintiff-appellant filed a timely Rule 59(e) Motion solely on the basis
of clear error regarding the legal pleading standard for asserting injury to business
property under RICO and the failure of the trial judge to rule on the § 455 recusal
motion. The trial judge ruled denying the Rule 59(e) Motion and stated findings
inconsistent or without knowledge of the earlier removal, the case the § 455
recusal motion was filed in or the business property injuries pled in the complaint
10
as procedural history and as averments in support of the RICO extortion, mail and
wire fraud alleged.
The plaintiff-appellant filed an amended notice of appeal to include the
Rule 59(e) order.
STATEMENT OF FACTS
1. Hon. Judge Feranado J. Gaitan, Jr. is or was during the subject time period of
the plaintiff’s complaint a Director of St. Luke’s Health System, Inc. See Motion
to Recuse exb. 2 Supp. Apdx. Vol. Three Pg. 1053, also Pltf Mtn to Alter or
Amend Judgment Doc. 61 filed. 08/04/2008 that contained the recusal exhibits, 1,
1-1 and 1-2.
2. This case was in this court previously and styled Lipari v. General Electric et
al, Case No. 06-0573- CV-W-FJG. See Appearance Dockets Supp. Apdx. Vol.
One pgs. 24-28, also Vol. One pg. 17 (removed to federal court on 7-17-06.
3. The Clerk of the Western District of Missouri did not note the transfer of the
record of Lipari v. General Electric, et al 16th Cir. Court State of Missouri Case
No. 0616-CV07421 which contained the record of the removal and remand of
Lipari v. General Electric et al, Case No. 06-0573- CV-W-FJG. See Supp. Apdx.
Vol. One Pg. 1-13 (docket of 07-0869) and Vol. One Pg. 1-13, 17-18 (docket of
0616-CV07421).
4. The plaintiff’s current complaint prior to amendment at ¶¶ 78-80 (Supp. Apdx.
Vol. Two pg. 193 )identified Neoforma, Inc. a direct competitor of the plaintiff’s
and at ¶¶ 34-43 (Supp. Apdx. Vol. Two pgs. 185-187 ) owned by VHA and
11
Novation LLC and therefore St. Luke’s Health System, Inc. according to the
published statement of St. Luke’s Health System, Inc. See Motion to Recuse exb.
1 Supp. Apdx. Vol. Three Pg. 1051, also Pltf Mtn to Alter or Amend Judgment
Doc. 61 filed. 08/04/2008 that contained the recusal as exhibits 1, 1-1 and 1-2.
5. The plaintiff’s complaint alleges that the defendants’ overarching scheme is to
defraud Medicare and Medicaid through Novation LLC the entity owned by Hon.
Judge Feranado J. Gaitan’s St. Luke’s Health System, Inc. (Supp. Apdx. Vol.
Three Pg. 1051, also Pltf Mtn to Alter or Amend Judgment Doc. 61 filed.
08/04/2008 that contained the recusal as exhibits 1, 1-1):
“109. The Western District of Missouri US Attorney office under Todd P. Graves had been active in prosecuting Medicare fraud. Medical Supply Chain, Inc.'s civil antitrust suit against Texas based Novation LLC, Volunteer Hospital Association (VHA), University Health System Consortium (UHC) and Neoforma, Inc. alleges the companies formed a cartel and were involved in a scheme to monopolize hospital supplies with General Electric and Jeffrey R. Immelt’s former corporation GE Medical and Jeffrey R. Immelt’s GHX, LLC to defraud Medicare through payments to administrators and kickbacks. The scheme resulted in almost all of Kansas City, Missouri St. Luke hospital's one hundred million dollar supply budget being purchased through Novation LLC. St. Luke's merged with University of Kansas School of Medicine after Irene Cumming, CEO of the University of Kansas Hospital was given a job by University Health System Consortium (UHC) on March 19, 2007.”
Plaintiff’s complaint at pg. 19 ¶ 109 Supp. Apdx. Vol. One Pg. 199
6. The plaintiff sought recusal of Hon. Judge Feranado J. Gaitan in the Motion For
Recusal Under 28 U.S.C. § 455(a) and (b)(4). See Motion to Recuse exb. 1 Supp.
Apdx. Vol. Three Pg. 1051, also Pltf Mtn to Alter or Amend Judgment Doc. 61
filed. 08/04/2008 that contained the recusal as exhibits 1, 1-1 and 1-2.
12
7. The Hon. Judge Feranado J. Gaitan did not rule on the Motion For Recusal
Under 28 U.S.C. § 455(a) and (b)(4). Supp. Apdx. Vol. One pg. 28 Doc. 29 Order
Recusal was moot dated 11/29/06.
8. When the action was again removed to federal court the Hon. Judge Feranado J.
Gaitan was now Chief Judge of the District of Western Missouri and had the
action again assigned to him despite his being on the board of directors of a
defendant. See Supp. Apdx. Vol. One pg. 1 Docket of 07-0869
9. The complaint describes in depth with detail the repeated fraudulent and
extortionate conduct of Husch Blackwell Sanders LLP, Shughart Thomson &
Kilroy PC, and Lathrop & Gage LC. Law firms regularly practicing before the
Western District of Missouri in facts readily discernable from the official
record of the action and related cases.
10. The misconduct of these firms resulted in extrinsic fraud injuring the plaintiff
and the firms’ own clients along with the honor of the Western District Court by
resulting in the non law based outcomes in Medical Supply Chain, Inc. v.
Novation LLC, et al., Case No. 05-0210-CV-W-ODS and Lipari v. US Bank
NA and US Bancorp Case No. 06-1012-CV-W-FJG a 16th Circuit of Missouri
case 0616-CV32307 fraudulently removed on diversity by Shughart, Thomson &
Kilroy, P.C. even though it was the concurrent state case of a federal action
already in Kansas District Court and on appeal with federal jurisdiction
exclusively before the US Court of Appeals for the Tenth Circuit.
13
11. The trial court had unrefuted evidence of the extrinsic fraud by Husch
Blackwell Sanders LLP used to procure an interim order of dismissal and
sanctions against the plaintiff in Medical Supply Chain, Inc. v. Novation LLC, et
al., Case No. 05-0210-CV-W-ODS after it was transferred to Kansas District
Court as Medical Supply Chain, Inc. v. Neoforma, et al., case number 05-2299:
“33. The defendants use the dismissal of Medical Supply Chain, Inc. v. Neoforma, et al., case no. 05- 2299 that was obtained through the extrinsic fraud filing of Novation, LLC, VHA Inc., University Healthsystem Consortium Robert Baker And Curt Nonomaque’s Motion To Set Oral Hearing On Motion To Dismiss , (Doc 76-1) filed on 02/21/2006 in Medical Supply Chain, Inc. v. Neoforma, et al by John K. Power, # 70448 of Jeffrey Immelt and the GE defendants’ law firm Husch Blackwell Sanders LLP. 34. The defendants’ dismissals repeatedly cited to Medical Supply Chain, Inc. v. Neoforma, et al., case no. 05- 2299 as authority advocating the ruling should control the present action in another district and another circuit. 35. The GE Defendants obtained the ruling in Medical Supply Chain, Inc. v. Neoforma, et al., case no. 05-2299 where their cartel co-conspirators Novation LLC and Neoforma, Inc were at risk by filing a fraudulent pleading by John K. Power of Husch Blackwell Sanders LLP [Exb. 12 of Pltf’s Consolidated Answer to Defendants Dismissals Doc. 42 dated 04/14/2008 ] Motion for Hearing while knowing the Kansas District Court had been persuaded through ex parte communication to not even read the petitioner’s filing in response. 36. The fraud is readily discernable on its face the petitioner’s complaint stated all the requisite elements for each federal count. See [Exb. 13 of Pltf’s Consolidated Answer to Defendants Dismissals Doc. 42 dated 04/14/2008 ] Plaintiff’s Response to Motion for Oral hearing. 37. The elements for the antitrust and RICO claims are referenced by element and paragraph number in the complaint in the plaintiff’s appeal brief statement of facts at pgs. 19-32. See [Exb. 14 of Pltf’s Consolidated Answer to Defendants Dismissals Doc. 42 dated 04/14/2008 ] Lipari Neoforma Appeal Brief Statement of Facts. See also [Doc. 42] Plaintiff’s Response to Consolidate Motions to Dismiss at pg. 7 [Emphasis added] Above from Pltf Answer to Consolidated Motions to Dismiss Doc. 42
filed 04/14/2008 pg. 7.
14
12. Chief Judge of the Western District of Missouri, the Hon. Judge Feranado J.
Gaitan, Jr. was informed he is officially responsible for attorney discipline over
law firms and the US Attorney’s office and the enforcement of attorney ethics
before his court:
“The plaintiff unlike the defendants’ counsel was mindful of the special responsibilities of a Chief Judge. One of which is to protect his district against the felonious law firm misconduct documented at length in the plaintiff’s complaint and largely uncontrovertibly demonstrated in the record of this matter and that of the related action Medical Supply Chain, Inc. v. Novation, et al, W.D. MO case no. 05-0210. However 28 U.S.C. § 137 vests the district courts with broad discretion in the assignment of cases to particular judges and makes the Chief Judge responsible for assignments. United States v. Diaz, 189 F.3d 1239, 1243-45 (10th Cir. 1999). Hon. Judge Feranado J. Gaitan acted consistent with the duties of a Chief Judge in the wake of shocking misconduct in the District like that described in United States v. Martinez, 667 F.2d 886, 887-88 (10th Cir.1981) where USDOJ attorneys met ex parte with a district judge and witnesses to unlawfully influence the outcome of a proceeding. In what is for practical purposes an Eighth Circuit decision by a panel of this circuit’s judges hearing a Tenth Circuit case, the court determined that “A judge is not only entitled but also has a duty to take all lawful measures reasonably necessary to prevent the occurrence of a crime in his courtroom.” Martinez v. Winner, 771 F.2d 424 at 435 (C.A.10 (Colo.), 1985)2. The duty to ensure fundamental fairness gives Hon. Judge Feranado J. Gaitan the responsibility for enforcing attorney discipline:
“Above all else, the mission of a federal judge is to "administer justice without respect to persons, and... faithfully and impartially discharge and perform all the duties incumbent upon [him]... under the Constitution and laws of the United States." 28 U.S.C. § 453 (judicial oath of office).”
U.S. v. Whitman, 209 F.3d 619 at 625 (6th Cir., 2000).”
Pltf’s Rply Suggestion Doc. 64 filed 08/04/2008 at pgs. 5-6.
15
13. As Chief Judge of the Western District of Missouri, the Hon. Judge Feranado
J. Gaitan, Jr. was also informed of his likely direct role in the extrinsic fraud of the
defendants to deny the plaintiff-appellant counsel and the continuing effects of the
extrinsic fraud on other cases before his court:
“The reciprocal disbarment is a W. D. of Missouri mystery. The similarly situated Dustin Sherwood a victim of Husch Blackwell Sanders LLP, Shughart Thomson & Kilroy PC, and Lathrop & Gage LC along with Shughart Thomson & Kilroy PC’s concerted RICO extortion under color of official right and fraud was never permitted to inspect the disciplinary records (exb. 5) and interviewed former Chief Judge Hon. Dean Whipple with the affiant Sydney J. Perceful, the witness to the $39,000,000.00 bribery fund described in the WD of MO case United States ex rel Michael W. Lynch v Seyfarth Shaw et al. Case no. 06- 0316-CV-W- SOW. Hon. Judge Dean Whipple stated he was not aware of any WD of MO reciprocal disbarment of Bret D. Landrith and commented that it is unusual he does not recall it since there are so few.”
Pltf’s Rply Suggestion Doc. 64 filed 08/04/2008 fn 1 at pg. 5
14. The complaint describes in detail Husch Blackwell Sanders LLP extrinsic
fraud that defeated the public policy of the US Congress being vindicated in the
Western District of Missouri case Huffman v. ADP, Fidelity et al, Case No. 05-
CV-01205 and similar extrinsic fraud by the US Attorney for the Western
District of Missouri in United States ex rel Michael W. Lynch v Seyfarth Shaw et
al. Case no. 06-0316-CV- W- SOW over conduct in former Chief Bankruptcy
Judge of the Northern District of Illinois’ court obstructing justice before Hon.
Judge Eugene R. Wedoff. See Supp. Apdx. Vol. One pg. 226-227 and 204-210
respectively.
16
15. The current complaint describes the conduct of what is now Husch Blackwell
Sanders, LLP in concert with Seyfarth Shaw and the USDOJ committing RICO
predicate acts to prevent the plaintiff from obtaining redress for the General
Electric defendants’ breach of contract depriving the plaintiff of the CONCRETE
and tangible office building at 1600 N.E. Coronado in Blue Springs, Missouri. See
Pltf’s Rply Suggestion Doc. 64 filed 08/04/2008 at exb 7, Photograph of 1600
N.E. Coronado office building.
16. The plaintiff witnessed the law firms Husch Blackwell Sanders LLP, Shughart
Thomson & Kilroy PC, and Lathrop & Gage LC along with Shughart Thomson &
Kilroy PC’s successor in interest Polsinelli Shalton Flanigan Suelthaus PC
continuing to obstruct justice through extrinsic fraud in concert with the
Western District US Attorney John Wood in the Western District of Missouri
Bankruptcy case of In re Dustin R. Sherwood and Jennifer J. Sherwood, Case No.
BK 07-50584-jwv before Hon. Judge Jerry W. Venters after attending a hearing on
July 16, 2008. Pltf’s Rply Suggestion Doc. 64 filed 08/04/2008 at exb 8, July 16
Sherwood Hearing Transcript.
17. As Chief Judge of the Western District of Missouri, the Hon. Judge Feranado
J. Gaitan, Jr. was also informed that the plaintiff who had helped the Sherwoods
find an attorney experienced the growing use by the Kansas city area law firms
Husch Blackwell Sanders LLP, Shughart Thomson & Kilroy PC, and Lathrop &
Gage LC along with Shughart Thomson & Kilroy PC’s successor in interest
Polsinelli Shalton Flanigan Suelthaus PC of extortion through color of official
17
right via threats of economic harm described in U.S. v. Kelley, 461 F.3d 817 at 826
(6th Cir., 2006) and through the coercive nature of official office described in U.S.
v. Antico, 275 F.3d 245 at 256 (3rd Cir., 2001) to deprive parties of counsel for the
purpose of obtaining judgments through extrinsic fraud in Western District of
Missouri Court cases. See Pltf’s Rply Suggestion Doc. 64 filed 08/04/2008 at pg. 9
and Exb 10.
18. The Hon. Judge Feranado J. Gaitan, Jr.’s order dismissing the plaintiff-
appellant’s claims did not address the sufficiency of the pled elements of the
proposed amendment filed as an attachment to a Motion for Leave to Amend Doc.
49 dated 05/01/2008 (Supp. Apdx. Vol. One pgs. 250-255) that includes three
additional RICO co-conspirators, the accounting firm of KPMG; Sprint Inc. and
AT&T and their predicate acts in furtherance of the existing conspiracy as part of
an unlawful enterprise with the defendant Bradley J. Schlozman. See Doc. 49
dated 05/01/2008 exb 2 and Supp. Apdx. Vol. One pgs. 258-341.
19. The proposed amendment includes mail and wire fraud claims against KPMG
for specific fraudulent misrepresentations about the liabilities of General Electric
(NYSE symbol GE) stock that were made contrary to the accounting firm’s
official duty as Certified Public Accountants and for the purpose of continuing the
Novation LLC scheme to monopolize the hospital supply market and defraud
Medicare and Medicaid. See Doc. 49 dated 05/01/2008 exb 2 and Supp. Apdx.
Vol. One pgs. 258-341.
18
20. The proposed amendment including the RICO co-conspirators, Sprint Inc. and
AT&T describes injuries that are from the services contracted and paid for by the
plaintiff that were not the services expressly or impliedly provided
telecommunications customers, creating an Eighth Circuit recognized tangible
interest and standing for claims against the RICO conspiracy under Bennett v.
Berg, 685 F.2d 1053 (8th Cir.1982). See Doc. 49 dated 05/01/2008 exb 2 and
Supp. Apdx. Vol. One pgs. 258-341.
21. The Hon. Judge Feranado J. Gaitan, Jr. was given notice that if the plaintiff-
appellant’s mail or wire fraud allegations against the existing defendants or
proposed amended complaint defendants were insufficiently pled the court was
required to permit the plaintiff to amend the complaint before dismissal:
“If the court finds the petition’s fraud averments deficient, the proper course is to permit amendment to cure the deficiencies: “...even if the allegations are deficient, the court would allow plaintiff the opportunity to amend rather than dismiss Count VII for failure to plead fraud with particularity. See, e.g., Bennett, 685 F.2d at 1062.” Nagle v. Merrill Lynch, Pierce, Fenner & Smith, 790 F.Supp. 203 at 210 (S.D. Iowa, 1992).”
Pltf Answer to Consolidated Motions to Dismiss Doc. 42 filed 04/14/2008
at pg. 34.
22. The plaintiff-appellant’s answers to the consolidated defendants’ Motions to
Dismiss and the Motion to Dismiss of Bradley J. Schlozman detail the page and
paragraph numbers where the plaintiff’s complaint alleged injury to business
property recognizable under RICO. See Pltf Answer to Consolidated Motions to
Dismiss Doc. 42 filed 04/14/2008 at pgs. 2-13, 24-25, the reasons why under
19
controlling law the business property injury alleged is recognized for RICO
standing 29-35.
23. The Hon. Judge Feranado J. Gaitan, Jr. like USA John Wood was given notice
of the ongoing criminal conduct to obstruct justice in the plaintiff-appellant’s
commercial litigation to vindicate the laws of Congress for the purpose of
preventing the plaintiff from entering the market for hospital supplies and the loss
of lives and economic injury to the nation as a result, including the repeated use of
“straw man fraud” arguments overtly used to corruptly dismiss the plaintiff’s
claims despite their clear facial sufficiency under the controlling law of our nation.
See Pltf’s Rply Suggestion Doc. 58 filed 07/22/2008 at pgs. 3-5.
24. The Hon. Judge Feranado J. Gaitan, Jr.’s memorandum and order adopted the
interim orders described in Pltf’s Rply Suggestion Doc. 58 filed 07/22/2008 at pg
3-5 as factual findings to support Hon. Judge Feranado J. Gaitan, Jr.’s dismissal of
the plaintiff’s complaint and proposed amended complaint. See Memorandum and
Order Doc. 59 at pgs. 3-4.
ISSUE I: WHETHER THE TRIAL COURT ERRED
BY FAILING IN DISMISSING LIPARI’S RICO CLAIMS FOR LACK OF INJURY TO A RECOGNIZABLE BUSINESS PROPERTY INTEREST.
In reviewing a district court's grant of a motion for dismissal, this court uses
a de novo standard of review. See Kulinski v. Medtronic Bio-Medicus, Inc., 112
F.3d 368, 371 (8th Cir. 1997). In National Organization for Women, Inc. v.
Scheidler, 510 U. S. 249, 252 (1994), the Supreme Court held “Since their
20
complaint was dismissed at the pleading stage, the complaint must be sustained if
relief could be granted under any set of facts that could be proved consistent with
the allegations. Hishon v. King & Spalding, 467 U. S. 69, 73. Nothing more than
the complaint's extortion and injury allegations are needed to confer standing at
this stage.” Scheidler, 510 U. S. at pgs. 255-256.
The phrase "injured in business or property" has been interpreted as a
standing requirement — rather than an element of the cause of action — which
must be satisfied in order to prevail on a RICO claim. See Gagan v. American
Cablevision, Inc., 77 F.3d 951, 958-59 (7th Cir.1996). The causation component
of § 1964(c) — whether an alleged RICO injury was caused "by reason of" a
violation of the statute — has also been considered a component of standing. See,
e.g., Beck v. Prupis, 529 U.S. 494, 120 S.Ct. 1608, 146 L.Ed.2d 561 (2000);
Lerner v. Fleet Bank, 318 F.3d 113, 123 (2d Cir. 2003).
The plaintiff-appellant Lipari’s complaint avers business property interests
that were injured by the defendants’ predicate acts specifically enumerated under
18 USC § 1961 (1)(B) including claims under 18 § 1962(c) for section 1341 Mail
and section 1343 Wire Fraud; section 1951 Hobbs Act extortion; and section 1503
Obstruction of Justice.
Missouri state law determines business property interests recognizable
under 18 USC § 1964. Doe v. Roe, 958 F.2d 763, 768 (7th Cir. 1992) ("While
federal law governs most issues under RICO, whether a particular interest amounts
to property is quintessentially a question of state law."). See Ledford v. Sullivan,
21
105 F.3d 354, 357 (7th Cir.1997) (stating that "[p]roperty interests `are not created
by the constitution'... [r]ather, they are created and their dimensions are defined by
existing rules or understandings that stem from an independent source such as
state law....").
In Scheidler v. National Organization for Women, Inc., 537 U.S. 393
(2003) the Supreme Court stated that 18 § 1962(c) Fraud including the Mail Fraud
based theft of honest services averred in the plaintiff-appellant’s case can be mere
“information” and that 18 § 1962(c) Hobbs Act extortion can be mere intangible
control over business assets:
“…the outer boundaries of extortion liability under the Hobbs Act, so that liability might be based on obtaining something as intangible as another's right to exercise exclusive control over the use of a party's business assets. Our decisions in United States v. Green, 350 U. S. 415, 420 (1956) (explaining that "extortion ... in no way depends upon having a direct benefit conferred on the person who obtains the property"), and Carpenter v. United States, 484 U. S. 19, 27 (1987) (finding that confidential business information constitutes "property" for purposes of the federal mail fraud statute).
Scheidler v. National Organization for Women, Inc., 537 U.S. 393 at 402
(2003). The court reversed the lower court’s finding of liability for the RICO
predicate counts of Hobbs Act extortion stating:
“ Petitioners may have deprived or sought to deprive respondents of their alleged property right of exclusive control of their business assets, but they did not acquire any such property. They neither pursued nor received "something of value from" respondents that they could exercise, transfer, or sell. United States v. Nardello, 393 U. S. 286, 290.”
Scheidler, id. 537 U.S. 393 at 395 (2003).
22
Some of the interference with the plaintiff-appellant’s litigation occurred in
the Tenth Circuit where the claims against the current defendants originated in an
antitrust action against General Electric for conspiring with Novation LLC, GHX
LLC and Neoforma, Inc. to monopolize hospital supplies in the relevant market of
the United States. RICO case law borrows a lot from interpretations of the
Sherman Act on which 18 U.S.C. § 1961 et seq. was based. Not surprisingly the
Tenth Circuit has recognized both fraud to restrain competition and restricting
competition through interference in contractual relations as recognizable RICO
business injuries:
“In particular, Plaintiff had a property interest in a cause of action allegedly prejudiced by the fraud; and restrictions on his competing with Defendants (which allegedly were imposed by a fraudulently induced agreement) would constitute an injury to his business.”
Deck v. Engineered Laminates, 349 F.3d 1253 at 1255 (10th Cir., 2003).
See also “This allegation adequately states a RICO claim of injury to Plaintiff's
property — his contractual right to receive payments from id. at 1259-1260.
The Supreme Court has also held that "a cause of action is a species of
property” Logan v. Zimmerman Brush Co., 455 U.S. 422, 428, 102 S.Ct. 1148, 71
L.Ed.2d 265 (1982). "[a] cause of action, of course, is a form of `property,' and
when it arises out of the termination of a business, we think it is not unfair to
characterize conduct tending to impair it as `business injury.'" Malley-Duff &
Assocs., Inc. v. Crown Life Ins. Co., 792 F.2d 341, 354 (3d Cir.1986).
23
The trial court was in error for dismissing with prejudice Lipari’s complaint
as “speculative” because some of the claims were related to conduct around
ongoing antitrust litigation.
The plaintiff appellant's alleged injury was more than the prejudice to his
ability to collect damages for breach of contract described in Motorola Credit
Corp. v. Uzan, 322 F.3d 130, 135-37 (2d Cir.2003) if it were only the financial
loss of breach of contract damages and the damages were not yet “"clear and
definite" (id. at 136) then the court could not dismiss them with prejudice (id. at
138-139) and Lincoln House, Inc. v. Dupre, 903 F.2d 845, 847 (1st Cir.1990).
In Lincoln the state breach of contract claim was not part of the district
court action and the court determined the RICO claims were premature:
“ If Lincoln were to lose the breach of contract action in New Hampshire state court, Lincoln would have no RICO claim against the Dupres. In these circumstances, Lincoln's RICO claim is not now ripe for judicial resolution. Terra Nova Insurance Co. Ltd. v. Distefano, 663 F.Supp. 809 (D.R.I.1987) (where insurer's RICO action against insured was contingent on the outcome of state court suit brought by insured against insurer, RICO claim was not ripe). Armstrong v. Alabama Power Co., 667 F.2d 1385, 1388 (11th Cir.1982) (suit for indemnification and contribution should be dismissed as unripe where determination of liability on the underlying claim had yet to be made); A/S Ludwig Mowinckles Rederi v. Tidewater Construction Corp., 559 F.2d 928, 933 (2d Cir.1977) (same).”
Lincoln House, Inc. v. Dupre, 903 F.2d 845 at 847 (1st Cir.1990).
Terra Nova and Armstrong v. Alabama Power were premature because the
state claims were in separate state court proceedings and A/S Ludwig a US District
court case on review was found to be speculative or unripe because two related
24
state court wrongful death proceedings had not concluded. See Terra Nova Ins.
Co., Ltd. v. DiStefano, 663 F.Supp. at 811.
The trial court was in error over the concept of “concrete” property loss.
Besides the mistakes resulting from the defendants habit of intentionally
misrepresenting facts related to the plaintiff-appellant’s complaint describing his
sale of the lease remainder to General Electric for $350,000.00 and the ownership
and resulting right to possession and accompanying entry onto the premises of the
Coronado office building which is a $10.5 million “concrete” pre-cast office
building. All of which are recognizable RICO business property interests under
Missouri state law, Eighth Circuit precedent and the US Supreme Court. The trial
court is in error over the concept of “concrete” injury or business loss as it is
applied in determining RICO standing.
The Ninth Circuit had recognized the “concrete” or tangible business injury
requirement in Berg v. First State Ins. Co., 915 F.2d 460, 464 (9th Cir.1990).
However the court clarified this position did not limit recognizable business
injuries to physical objects. In Diaz v. Gates, 420 F.3d 897 at 900 (Fed. 9th Cir.,
2005) the court recognized “California law protects the legal entitlement to both
current and prospective contractual relations.” This includes recognizing the
property injury alleged by the plaintiff-appellant tortuous interference with
business relations under Missouri state law:
“Diaz, on the other hand, has alleged both the property interest and the financial loss. The harms he alleges amount to intentional interference with contract and interference with prospective business relations, both of
25
which are established torts under California law. See Della Penna v. Toyota Motor Sales, U.S.A., Inc., 11 Cal.4th 376, 45 Cal.Rptr.2d 436, 902 P.2d 740, 750-51 (1995) (discussing torts of "interference with an existing business contract" and "interference with commercial relations"); see also Restatement (Second) of Torts § 766A & cmt. e (intentional interference with another's performance of his own contract); id. § 766B & cmts. c-d (intentional interference with prospective contractual relations); Reeves v. Hanlon, 33 Cal.4th 1140, 17 Cal.Rptr.3d 289, 95 P.3d 513, 517 (2004) (interference with performance of contract is intentional if defendant knew "that the interference was certain or substantially certain to occur as a result of his or her action").”
Diaz v. Gates, 420 F.3d 897 at 900 (Fed. 9th Cir., 2005).
The Eighth Circuit recognizes Lipari’s business property in his chose in
action for recovering in court on his contract with the GE defendants over 1600
NE Coronado: “…given a surviving chose in action for protection of property
rights and a valid merger agreement, Western Delaware could acquire a capacity
along with Beneficial to sue Gamble-Skogmo by virtue of an effective
assignment.” Western Auto Supply Co. v. Gamble-Skogmo, Inc., 348 F.2d 736 at
741 (C.A.8 (Minn.), 1965)
The GE defendants have repeatedly misrepresented to federal courts the
petitioner’s purchase of 1600 NE Coronado and sale of the remainder of the 5.4
million dollar lease to GE Transportation as a failed lease agreement. However
even under this fraudulent misrepresentation the petitioner still lost a property
right under Missouri State law:
“We hold therefore, that plaintiff's Counts I and II state a cause of action for negligent interference with a tenant's right to use and enjoy a leasehold within the limitations we expressed in Counts I and II of the Chubb Group opinion. Should plaintiff be able to prove its cause of action, it would be entitled to its prospective profits, limited by the general rule that such profits
26
are recoverable only when proved to be reasonably certain had it not been for defendant's tortious conduct, and when ascertainable and measurable with reasonable certainty. Riddle v. Dean Machinery Co., 564 S.W.2d 238, 257 (Mo.App.1978).”
Volume Services, Inc. v. C.F. Murphy & Associates, Inc., 656 S.W.2d 785
at 792 (Mo. App.W.D., 1983). See also Shaw v. Greathouse, 296 S.W.2d 151 at
153 (Mo. App., 1956).
The deprivation of the petitioner’s business expectancy in legal
representation by Kansas and Missouri private attorneys (protected even when not
a contract under Missouri tortuous interference law) is property extorted from the
petitioner:
Illustrations of intangible or invisible rights in property are to be found in copyrights, trade marks or names, good will, the right to the publication of news, market reports, and the products of one's brain independent of copyright. Natl. Telegraph News Co. v. W. U. Telegraph Co., 119 Fed. 294, 56 C. C. A. 198, 60 L. R. A. 805; Simmons Hardware Co. v. Waibel, 1 S. D. 488, 47 N. W. 814, 11 L. R. A. 267, 36 Am. St. Rep. 755; De Lauder v. Balto. Co., 95 Md. 1, 6, 50 Atl. 427. These, after all, are but incorporeal rights of property and could well be classed as such. There may be, and there doubtless are, others, because the ever expanding horizon of human effort, mental and physical, is continually creating new relations out of which, from necessity, arise new rights. Analysis will disclose that all of these possess the essential characteristics of rights incorporeal, in that they issue out of something corporate, either real or personal, and are inheritable and are not tangible or visible. 2 Black. Comm. 20; Cyclopedic L. Dict.; Walker v. Daly, 80 Wis. 222, 227, 49 N. W. 812; Slingerland v. Inter. Contr. Co., 43 App. Div. 215, 230, 60 N. Y. Supp. 12, affirmed 169 N. Y. 60, 61 N. E. 995, 56 L. R. A. 494.”
Heller v. Lutz, 254 Mo. 704, 164 S.W. 123 at 124-125 (Mo., 1913).
A federal property right is also properly a recognized business injury to the
petitioner. The honest services of the Federal and Kansas State Officials as
27
described in the complaint ( exclusive of the defendant Schlozman who is
described acting in his private capacity as a conspirator and member of the
association in fact RICO enterprise ) were being taken from the petitioner by the
defendants:
“The specific type of wire fraud at issue here— "honest services wire fraud"—arises under 18 U.S.C. § 1346, which this Circuit has interpreted to "clearly prohibit[ ] a scheme or artifice to use the mails or wires to enable an officer or employee of a private entity (or a person in a relationship that gives rise to a duty of loyalty comparable to that owed by employees to employers) purporting to act for and in the interests of his or her employer (or of the person to whom the duty of loyalty is owed) secretly to act in his or her or the defendant's own interests instead, accompanied by a material misrepresentation made or omission of information disclosed to the employer." United States v. Rybicki, 354 F.3d 124, 126-27 (2d Cir.2003) (en banc); see also id. at 147 (stating that a conviction requires a showing of "(1) a scheme or artifice to defraud; (2) for the purpose of depriving another of the intangible right of honest services . . . ; (3) where the misrepresentations (or omissions) made by the defendants are material in that they have the natural tendency to influence or are capable of influencing the employer to change its behavior; and (4) use of the mails or wires in furtherance of the scheme"); 18 U.S.C. § 1346.”
U.S. v. Gotti, 459 F.3d 296 at 330-331 (2nd Cir., 2006). See also U.S. v.
Antico, 275 F.3d 245 (3rd Cir., 2001):
“Courts have interpreted the term " `scheme or artifice to defraud' [to] include a scheme or artifice to deprive another of the intangible right of honest services," United States v. Woodward, 149 F.3d 46 (1st Cir. 1998) (citing United States v. Sawyer, 85 F.3d 713, 723-24 (1st Cir. 1996)), giving rise to the "intangible rights doctrine." This doctrine reaches public and private fraud at the state and local levels, including prosecutions of public officials or employees who have failed to provide honest services to the citizenry they serve.”
U.S. v. Antico, 275 F.3d 245 at 261 (3rd Cir., 2001).
28
The trial court erroneously granted the dismissal upholding the defendants’
misuse of Scheidler v. National Org. for Women, Inc., 537 U.S. 393, 123 S.Ct.
1057, 154 L.Ed.2d 991 (2003) ("Scheidler II") as requiring 18 § 1962(c) Hobbs
Act extortion property to be tangible when no such finding was made by the US
Supreme Court:
“On appeal, the defendants-appellants—Peter Gotti, Richard G. Gotti, Anthony ("Sonny") Ciccone, and Richard Bondi—argue that Scheidler II invalidates all of the Hobbs Act counts in this case that were premised on the extortion of intangible property rights. We hold, however, that Scheidler II did not invalidate the challenged extortion counts at issue in this case, because Scheidler II—far from holding that a Hobbs Act extortion could not be premised on the extortion of intangible property rights—simply clarified that for Hobbs Act liability to attach, there must be a showing that the defendant did not merely seek to deprive the victim of the property right in question, but also sought to obtain that right for himself.”
U.S. v. Gotti, 459 F.3d 296 (2nd Cir., 2006).
Lipari’s complaint clearly states the defendants have retained 1600 N.E.
Coronado, the money from the sale of the 5.4 million dollar lease to GE
Transportation (the $350,000.00 expectancy the petitioner sought to cover US
Bank’s breach with, and the profits from selling hospital supplies. The petition
also describes intangible rights that the defendants still maintain adverse
possession or control over. In Gotti, a key piece of intangible property was the
union’s lucrative pharmaceutical services contract. U.S. v. Gotti, 459 F.3d 304.
The trial court has erroneously imposed an impermissible heightened
pleading standard “...our error was in requiring that Grant allege more than the
Supreme Court has now said a plaintiff must allege in order to state a civil RICO
29
claim...”Alexander Grant and Co. v. Tiffany Industries, Inc., 770 F.2d 717 at 718
(C.A.8 (Mo.), 1985). The trial court was required to follow Eighth Circuit
precedent or guidance on standing pleading requirements even in the face of
doubts. See Bowman v. Western Auto Supply Co., 773 F.Supp. 174 at 177 (W.D.
Mo., 1991). The plaintiff’s complaint however met the pleading stage showing of
RICO standing required under Eighth Circuit controlling precedent:
“Taking the facts in a light most favorable to Regions Bank, we must assume that Steven Jones, perhaps with the assistance of his accountant, Edward Bonner, committed fraud in the procurement of the $400,000 loan from Regions Bank. Regions Bank's own failure to adequately research the status of prior liens against J.R. Oil's assets, coupled with this presumed fraud, clearly caused injury to Regions Bank, both factually and proximately. Further, the $400,000 that Regions Bank actually gave to J.R. Oil under the loan cannot be viewed as an "intangible property interest." [Emphasis added]
Regions Bank v. J.R. Oil Co., LLC, 387 F.3d 721 at 729 (8th Cir., 2004) The loss of value from the contract to purchase the building at 1600
Coronado and the loss of the $350,00.00 averred in the plaintiff’s complaint meets
the property standing requirement maintained by the Eighth Circuit. However the
trial court’s memorandum and order overturns this circuit’s stare decisis
precedent in Bennett v. Berg, 685 F.2d 1053 (C.A.8 (Mo.), 1981) upheld by the en
banc court in Bennett v. Berg, 710 F.2d 1361 (C.A.8 (Mo.), 1983) regarding the
loss of value in the occupancy of the office building as another benefit of the
bargain made with General Electric and GE Transportation clearly pled
by the plaintiff in the complaint:
“Appellants' complaints alleged several forms of monetary loss. Appellants'
30
entrance endowment payments are alleged to be worth 10% of what appellants bargained for, due to appellees' alleged conversion to their own use of funds which were deposited in trust for "life care." Monthly service charges are also alleged to be higher than expected due to appellees' unlawful conduct. Appellees respond that the complaints do not allege a RICO injury for two reasons. First, the complaints are said to assert no breach of contract. Thus they allegedly do not state any injury whatsoever. Alternatively, any injury stated in the complaints allegedly is not an "injury to property" recognizable under the RICO Act. RICO is said to require competitive injury. We are not convinced. Even if breach of contract is not directly and clearly stated in the complaints, this is irrelevant. Appellants' basic contention is that the value of their occupancy agreements was misrepresented ab initio, and that appellees' conduct has further lessened the value of their contracts. The essence of this alleged injury is not so much that contractual terms have been breached, but that the value of the contracts is different than appellants were led to expect through extracontractual statements and promises. The allegation sounds as one of injury flowing from fraud rather than breach of contract. Appellants claim essentially to have been deprived of the benefit of their bargain. Appellees' second argument is somewhat more troublesome. They contend that even if appellants have alleged an injury, they have not alleged an "injury to property" within the meaning of Section 1964(c).” [Emphasis added]
Bennett v. Berg, 685 F.2d 1053 at 1058 (C.A.8 (Mo.), 1981) in which the
Eighth Circuit expressly discredits the failure of an “injury to property” argument
under identical circumstances where Hon. Judge Feranado J. Gaitan has adopted
the same as a basis for his order dismissing the plaintiff’s claims.
This circuit’s controlling precedent Handeen v. Lemaire, 112 F.3d 1339 at
1354 (C.A.8 (Minn.), 1997) recognizes standing as pled by the plaintiff’s
complaint over the loss of value from a professional services contract for legal
representation resulting from the bad faith litigation of RICO defendants:
31
“Handeen poses many diverse theories to expose how he was injured by the RICO enterprise. As an example, he cites the attorneys' fees he incurred in objecting to the Lemaires' supposedly fraudulent claims. We think that this asserted liability, if proven at trial, qualifies as an injury to business or property that was proximately caused by a predicate act of racketeering. Holmes v. Securities Investor Protection Corp., 503 U.S. 258, 268, 112 S.Ct. 1311, 1317-18, 117 L.Ed.2d 532 (1992)(deciding that RICO violation must be proximate cause of injury to business or property); Bowman v. Western Auto Supply Co., 985 F.2d 383, 385-86 (8th Cir.) (explaining that a § 1962(c) plaintiff must allege injury traceable to a predicate act of racketeering), cert. denied, 508 U.S. 957, 113 S.Ct. 2459, 124 L.Ed.2d 674 (1993). Because this ground for recovery is, in itself, sufficient to convey standing, we need not consider the soundness of the other alternatives advanced by Handeen.”
Handeen v. Lemaire, 112 F.3d 1339 at 1354 (C.A.8 (Minn.), 1997).
This circuit’s controlling precedent in Terre Du Lac Ass'n, Inc. v. Terre Du Lac,
Inc., 772 F.2d 467 (C.A.8 (Mo.), 1985) recognizes the plaintiff’s standing from
injury by conduct similar to the defendants’ alleged conduct as part of a cartel to
artificially inflate hospital supply costs defrauding Medicare for member hospitals
the cartel’s exclusionary contracts kept from doing business with the
plaintiff:
“...defendants' acts of mail fraud injured the Association by causing the cost of maintaining the roads in the Terre Du Lac Subdivision, which roads the Association is legally obligated to maintain, to increase. The cost allegedly increased because: 1) the defendants invested the money which they obtained from the mail fraud (i.e., proceeds from the sale of lots in the subdivision) in their own operations rather than using the money to improve (i.e., pave with asphalt) the subdivision roads, and 2) the mail fraud scheme caused more lots to be sold, resulting in more roads and greater usage of the roads which are required to be maintained.”
Terre Du Lac Ass'n, Inc. v. Terre Du Lac, Inc., 772 F.2d 467 at 472 (C.A.8
(Mo.), 1985). The memorandum and order of Hon. Judge Feranado J. Gaitan
violates controlling Eighth Circuit and US Supreme Court precedent on standing
32
for RICO claims on the plaintiff’s charges of 18 USC § 1961 (1)(B) predicate acts
of Hobbs Act Extortion and Mail or Wire Fraud.
The petition clearly pleads fraud predicate act elements in claims against
the defendants Jeffery Immelt, Bradley Schlozman and Sayfarth Shaw LLC. The
averred facts are related to the particular defendant and informs each defendant of
the specific act allegedly committed by the defendant justifying his inclusion in a
particular count. As such the petitioner has adequately pled the circumstances of
fraud: "Circumstances" include such matters as "the time, place and contents of
false representations, as well as the identity of the person making the
misrepresentation and what was obtained or given up thereby." Lally v. Crawford
County Trust & Sav. Bank, 863 F.2d 612, 613 (8th Cir.1988) (per curiam).
The petition avers Jeffrey Immelt had a duty under securities law to
disclose the liability of Lipari’s claims. Under federal securities laws reliance is
presumed if the omissions were material and the defendant had a duty to disclose,
Pollack v. Laidlaw Holdings, Inc., 90 Civ. 5788(DLC), 1995 WL 261518 at *11
(S.D.N.Y. May 3, 1995).
The trial court was in its Memorandum and Order on the Lipari’s Rule 59e
Motion was error in determining that the recent US Supreme Court
“the Supreme Court issued a unanimous decision in Bridge v. Phoenix Bond & Indemnity Company, __ U.S. __, 128 S. Ct. 2131, 170 L. Ed. 1012 (2008). In Bridge, the Supreme Court held that "a plaintiff asserting a RICO claim predicated on mail fraud need not show, either as an element of its claim or as a prerequisite to establishing proximate causation, that it relied on the defendant's alleged misrepresentations." Id. at __, 128 S. Ct. at 2145. In so holding, the Supreme Court noted that a first-party reliance requirement
33
finds no support in RICO's text. Id. at __, 128 S. Ct. 2139. Nor was the Supreme Court persuaded that common law rules and policy require it to impose a first-party reliance requirement for civil RICO claims predicated on mail fraud. See id. at __, 128 S. Ct. at 2139-45.
Based on the Supreme Court's ruling in Bridge, the precedent of this Court relied on by the district court in granting summary judgment in the defendants' favor has been overruled and is no longer viable. Accordingly, we REVERSE the district court's grant of summary judgment in the defendants' favor and REMAND the case for further proceedings consistent with Bridge.
Chaz Concrete Company, LLC v. Codell, No. 07-5870 (6th Cir.
10/21/2008)
The trial court was in error over whether the US Supreme Court’s ruling in
Bridge v. Phoenix Bond & Indemnity Co., No. 07-210 (U.S. 6/9/2008) prevents the
trial court from dismissing Lipari’s 18 USC § 1961 (1)(B) enumerated Mail and
Wire Fraud and Hobbs Act extortion claims. The predicate acts of fraud charged in
the complaint and proposed amended complaint concerning the defendant Jeffrey
Immelt and the proposed additional defendant KPMG signing General Electric’s
SEC quarterly reports that excluded the litigation liability to prevent General
Electric’s board of directors from discovering the RICO enterprise’s infiltration of
GE for the purposes of the hospital supply monopolization scheme to overcharge
Medicare by keeping the plaintiff-appellant out of the hospital supply market.
American Fed. Teachers v. Oregon Taxpayers, 189 P.3d 9, 345 Or. 1 at fn
11 (Or., 2008) states that Bridge v. Phoenix Bond makes these fraudulent
misrepresentations to third parties sufficient to sustain RICO claims. Instead the
court looked to the Restatement (Second) of Torts § 870 see 553 U.S. at ___, 128
34
S.Ct. 2131. The Supreme Court in Bridge itself reemphasized with approval its
own earlier holding in the RICO Hobbs Act extortion case National Organization
for Women, Inc. v. Scheidler, 510 U. S. 249, 252 (1994) and rejected the practice
of courts adding requirements for pleading that are not in the text of the statute.
The finding of the unanimous Supreme Court in Bridge v. Phoenix Bond &
Indemnity Co., No. 07-210 (U.S. 6/9/2008) reasserting Sedima, S. P. R. L. v. Imrex
Co., 473 U. S. 479, 481 (1985) “It is not for the judiciary to eliminate the private
action in situations where Congress has provided it.’ Id., at 499-500 further
upholds this court’s determination in Bennett v. Berg, 685 F.2d 1053 at 1058
(C.A.8 (Mo.), 1981) that a heightened pleading standard could not be imposed to
cause a failure of an “injury to property” averment. Hon. Judge Feranado J.
Gaitan, Jr. was bound by the stare decisis of Sedima and Bennett v. Berg. See
Bowman v. Western Auto Supply Co., 773 F.Supp. 174 at 177 (W.D. Mo., 1991).
The trial court was in error to dismiss the plaintiff-appellant’s RICO claims over a
failure to plead injury to tangible business interests and to the extent Hon. Judge
Feranado J. Gaitan, Jr. based his decision on the speculative nature of some of the
plaintiff-appellant’s litigation interests the trial court was in error to dismiss the
RICO claims with prejudice because they were unripe under Motorola Credit
Corp. v. Uzan, 322 F.3d 130, 135-37 (2d Cir.2003) supra.
35
ISSUE II: WHETHER THE TRIAL COURT ERRED
BY DENYING AMENDMENT
This court “review[s] the district court's denial of leave to amend a
complaint for abuse of discretion.” Doe v. Cassel, 403 F.3d 986 at pg. 990 (8th
Cir., 2005) quoting Becker v. Univ. of Neb. at Omaha, 191 F.3d 904, 908 (8th
Cir.1999). The court reviews de novo a district court's grant of a motion to dismiss
for failure to state a claim. Schaller Tel. Co. v. Golden Sky Sys., 298 F.3d 736, 740
(8th Cir.2002).
Unlike the plaintiff in Moses.Com Sec. v. Comprehensive Software, 406
F.3d 1052 (Fed. 8th Cir., 2005), the plaintiff-appellant has had no discovery and
no opportunity to amend his complaint after a court determination of defects. The
state court in Lipari v. General Electric, et al 16th Cir. Court State of Missouri
Case No. 0616-CV07421 had upheld all of his state law contract claims and his
proposed amendment to include RICO claims from dismissals by the defendants.
The dismissal by the defendants were consolidated into a single ruling by the trial
court. See doc. 59 on 07/30/2008, included as exhibit 1 in the addendum to this
brief. The plaintiff-appellant did not have the opportunity to cure cited defects
described in St. Louis Fire Fighters Ass'n v. City of St. Louis, 96 F.3d 323, 330
(8th Cir.1996). However the plaintiff had been forced to seek amendment to the
current complaint during the dismissal briefing phase because of the defendant
conspirators’ continuing interference in preventing the plaintiff-appellant from
entering the market for hospital supplies and the defendant conspirators’
36
continuing extrajudicial conduct to obstruct justice and to prevent the plaintiff-
appellant from obtaining enforcement of his business property rights.
The plaintiff-appellant sought to stop these injuries with a warning demand
letter to the defendants’ co-conspirators Sprint, AT&T and KPMG but without
response was forced to seek leave to file a proposed amended complaint. See
Motion for Leave to Amend Doc. 49 dated 05/01/2008 (Supp. Apdx. Vol. One
pgs. 250-341).
The possible effect of intervening grants of retroactive telecom immunity
for Sprint and AT&T under FISAAA Section 802 (50 U.S.C. § 1885a) had not
been raised or argued by the defendants or cited by the court. However the
proposed amended complaint (Doc. 49 dated 05/01/2008 exb 2 and Supp. Apdx.
Vol. One pgs. 258-341.) avers that Sprint and AT&T are co-conspirators in the
RICO conspiracy and members of the defendant RICO enterprise (Doc. 49 exb. 2
at 68-71 and Supp. Apdx. Vol. One pgs. 330-333) and Sprint and AT&T’s conduct
even if given valid civil immunity (the immunizing act is being challenged see In
Re National Security Agency Telecommunications Records Litigation, N. Dist. Of
California MDL Docket No 06-1791 VRW) as to the telecoms themselves is still
clearly charged to the existing non-telecom defendants who have not asserted
immunity. The defendant KPMG has no known immunity.
But by chance the proposed amended complaint ( Doc. 49 dated 05/01/2008
exb 2 and Supp. Apdx. Vol. One pgs. 258-341) includes RICO recognizable
business property interests that are the same nature and fact pattern recognized in
37
this circuit’s controlling precedents. The trial court was informed in the Statement
of Facts of the plaintiff-appellant’s Rule 59(e) Motion Doc. 61 at ¶¶ 19 and 20 on
pg. 6 that the court’s order dismissing the plaintiff’s claims (Addendum exhibit 1)
did not address the proposed amendment to include RICO co-conspirators,
including Sprint Inc. and AT&T and their predicate acts in furtherance of the
conspiracy as part of an unlawful enterprise with the defendant Bradley J.
Schlozman. The trial court was also given notice that the proposed amendment
including the RICO co-conspirators, Sprint Inc. and AT&T describes business
injuries that are from the services contracted and paid for by the plaintiff’s that
were not the services expressly or impliedly provided telecommunications
customers, creating an Eighth Circuit recognized tangible interest and standing for
claims against the RICO conspiracy under Bennett v. Berg, 685 F.2d 1053 (8th
Cir.1982).
The proposed amended complaint at pages 69-69 (Doc. 49 dated
05/01/2008 exb 2 at pgs. 67-68 included as Supp. Apdx. Vol. One pgs. 330-331)
avers that KPMG LLP is part of the existing defendants’ RICO conspiracy and
RICO enterprise.
The proposed amended complaint also alleges that KPMG LLP did two
predicate acts of Wire Fraud and Mail Fraud injuring the plaintiff-appellant with
Jeffrey Immelt’s fraudulent misrepresentations alleged and charged in the existing
complaint (The Form: 10-K corporate disclosure in Form: 10-K corporate
disclosure is an electronic form distributed through email and electronically
38
transmitted from KPMG to the SEC for distribution between computers on
database search queries, the annual report in ¶ 473 is mailed to stock holders) :
“i. 18 U.S.C. § 1961 Predicate Act of Fraud 471. The defendant GE and Jeffrey Immelt required the participation of KPMG LLP to commit their predicate acts and for the defendants RICO enterprise to achieve its ongoing goals.
KPMG LLP 472. The defendant KPMG LLP committed fraud by omission on March 3, 2006 in failing to disclose GE’s liability to the plaintiff for the breach of its real estate contracts with the plaintiff in a Form: 10-K corporate disclosure with the filing date: 3/3/2006 signed by KPMG LLP as required by the Sarbanes-Oxley Act of 2002, Pub. L. No. 107-204, 116 Stat. 745 to conceal Jeffrey R. Immelt and GE’s anticompetitive misconduct in the market for hospital supplies and prevent General Electric’s board of directors from discovering and honoring its obligation to the plaintiff. 473. The defendant KPMG LLP became aware of GE and Jeffrey R. Immelt’s liability from the fraud to conceal from GE’s investors and their Board of Director’s GE”s staggering liability to the plaintiff and in a more desperate effort to prevent the defendant’s RICO conspiracy from being discovered and to prevent the defendant’s RICO enterprise engaged in the artificial inflation of hospital supplies to defraud Medicare and Medicaid from being interrupted, KPMG LLP again committed fraud by omission on February 20, 2008 in failing to disclose GE’s liability to the plaintiff in SEC filings and the company’s annual report published and distributed to investors. 474. KPMG LLP concealed this liability despite becoming aware through the plaintiff’s press release that GE had avoided prosecution for the obstruction of the government’s investigation into Novation LLC by underwriting Novation LLC, VHA and UHC’s taking the plaintiff’s competitor Neoforma, Inc. private and merging it with the last remaining hospital supply marketplace GHX LLC controlled by Jeffery Immelt and General Electric through the involvement of US Attorney General Alberto Gonzales to prevent the Ft. Worth Office of the US Attorney for the Northern District of Texas from obtaining Neoforma’s corporate books containing evidence of Novation LLC’s laundering of hospital proceeds from the Medicare and Medicaid fraud scheme, first through the issuance by the USDOJ of the McNulty Memo then by taking Neoforma private. 475. The press release had informed KPMG LLP that the plaintiff would continue to seek damages in a private civil action against GE
39
and that US Attorney General Alberto Gonzales’ deal did not include the plaintiff’s claims.”
Doc. 49 dated 05/01/2008 exb 2 at pgs. 77-78 included as Supp. Apdx. Vol.
One pgs.339-340.
The trial court was in error for dismissing the plaintiff’s federal claims
because the proposed amended complaint placed the RICO allegations squarely
within the Mail Fraud and Wire Fraud pleading standard determined by the
unanimous Supreme Court in Bridge v. Phoenix Bond & Indemnity Co., No. 07-
210 (U.S. 6/9/2008) and the paid out money for contracts to provide the plaintiff-
appellant business services that were being interfered with by the existing
defendant RICO conspiracy are recognizable business property injuries conferring
standing on the plaintiff-appellant to prosecute the defendants for racketeering
under the controlling precedent of this circuit in Bennett v. Berg, 685 F.2d 1053 at
1058 (C.A.8 (Mo.), 1981).
ISSUE III: WHETHER THE TRIAL COURT ERRED BY FAILING
TO RECUSE ITSELF OVER DIRECTORSHIP IN PARTY IN INTEREST AND CONCURRENT DEFENDANT ST. LUKE’S HEALTH SYSTEM
This court reviews for abuse of discretion the denial of a motion to recuse.
Moran v. Clarke , 296 F.3d 638, 648 (8th Cir. 2002) (en banc).
The trial judge in error failed to recuse himself for his non-waivable
fiduciary interest under 28 U.S.C. § 455(b)(5)(i) as a director of a defendant
hospital supply cartel member. The case on appeal is the same matter or
controversy where a § 455 Motion for Recusal was unanswered. See Motion to
40
Recuse exb. 1 Supp. Apdx. Vol. Three Pg. 1051, also Pltf Mtn to Alter or Amend
Judgment Doc. 61 filed. 08/04/2008 that contained the recusal as exhibits 1, 1-1
and 1-2.
In Little Rock School District v. Armstrong, No. 02-3867EA (8th Cir., 2004)
the Eighth Circuit was required to determine if a “mandamus proceeding in 1987
involved the same ‘matter in controversy’ as the present questions before us for
purposes of 28 U.S.C. § 455(b)(2)” Id at 4-6. This Circuit’s analysis would find
that because the state law claims are consistent and unchanged (and as yet never
ruled on), the present action is the same “matter in controversy” as Lipari v.
General Electric et al 06-0573-CV-W-FJG where Hon. Judge Feranado J. Gaitan
did not rule on the plaintiff’s timely motion for recusal See Motion to Recuse exb.
1 Supp. Apdx. Vol. Three Pg. 1051, also Pltf Mtn to Alter or Amend Judgment
Doc. 61 filed. 08/04/2008 that contained the recusal as exhibits 1, 1-1 and 1-2.
This circuit would also find the present case is the same “matter in controversy” as
MSCI v General Electric et al. KS Dist. Court # 03-2324-CM brought by the
plaintiff’s attorney that appears to have been reciprocally disbarred without a
hearing by Hon. Judge Feranado J. Gaitan despite grounds and a request for a
hearing. See Pltf Mtn to Alter or Amend Judgment Doc. 61 filed. 08/04/2008 exb.
8 Transcript of Sherwood Bankruptcy pg. 5,6,48-49; Supp. Apdx. Vol.
Two,(Mandamus exhibit 14 )In the Matter of the Disciplinary Proceedings of Bret
Landrith, W.D. of MO court pgs. 553-580
Impermissible bias can be inferred by”... the trial court's avoidance of ruling
41
on the motions to recuse...” McPherson v. U.S. Physicians Mut., 99 S.W.3d 462 at
pg. 490 (Mo. App., 2003). When the case was removed from Independence for the
second time, Hon. Judge Feranado J. Gaitan in his new role as Chief Judge
responsible for assignments again presided over the plaintiff’s “matter in
controversy” now styled 07-0849-CV-W-FJG despite being given notice of his 28
U.S.C. § 455(b)(5)(i) prohibited directorship of a party with a very substantial and
material interest in the outcome. The circumstances of Hon. Judge Feranado J.
Gaitan Jr.’s fiduciary interest is equivalent to the judge in Liljeberg v. Health
Services Acquisition Corp., 486 U.S. 847, 859-60, 108 S.Ct. 2194, 100 L.Ed.2d
855 (1988):
“Judge Collins found for Liljeberg and, over a strong dissent, the Court of Appeals affirmed. Approximately 10 months later, respondent learned that Judge Collins had been a member of the Board of Trustees of Loyola University while Liljeberg was negotiating with Loyola to purchase a parcel of land on which to construct a hospital. The success and benefit to Loyola of these negotiations turned, in large part, on Liljeberg prevailing in the litigation before Judge Collins.”
Liljeberg v. Health Services Acquisition Corp, 486 U.S. 847 at 850.
The Chief Judge is responsible for knowing that in this Circuit under 28
U.S.C. § 455(b)(5), recusal is mandatory. See U.S. v. Tucker, 82 F.3d 1423 (C.A.8
(Ark.), 1996). The plaintiff-appellant was mindful of the special responsibilities of
a Chief Judge. One of which is to protect his district against the felonious law firm
misconduct documented at length in the plaintiff-appellant’s complaint and largely
uncontrovertibly demonstrated in the record of this matter and that of the related
action Medical Supply Chain, Inc. v. Novation, et al, W.D. MO case no. 05-0210.
42
The plaintiff-appellant was aware however that 28 U.S.C. § 137 vests the
district courts with broad discretion in the assignment of cases to particular judges
and makes the Chief Judge responsible for assignments. United States v. Diaz, 189
F.3d 1239, 1243-45 (10th Cir. 1999).
Hon. Judge Feranado J. Gaitan, Jr. acted consistent with the duties of a Chief
Judge in the wake of shocking misconduct in the District like that described in
United States v. Martinez, 667 F.2d 886, 887-88 (10th Cir.1981) where USDOJ
attorneys met ex parte with a district judge and witnesses to unlawfully influence
the outcome of a proceeding. In what is for practical purposes an Eighth Circuit
decision by a panel of this circuit’s judges hearing a Tenth Circuit case, the court
determined that “A judge is not only entitled but also has a duty to take all lawful
measures reasonably necessary to prevent the occurrence of a crime in his
courtroom.” Martinez v. Winner, 771 F.2d 424 at 435 (C.A.10 (Colo.), 1985)1. The
duty to ensure fundamental fairness gives Hon. Judge Feranado J. Gaitan the
responsibility for enforcing attorney discipline:
“Above all else, the mission of a federal judge is to "administer justice without respect to persons, and... faithfully and impartially discharge and perform all the duties incumbent upon [him]... under the Constitution and laws of the United States." 28 U.S.C. § 453 (judicial oath of office).”
U.S. v. Whitman, 209 F.3d 619 at 625 (6th Cir., 2000).
Hon. Judge Feranado J. Gaitan simultaneously ordered alternative dispute
1 Vacated and remanded on other grounds in Tyus v. Martinez, 475 U.S. 1138, 106 S.Ct. 1787, 90 L.Ed.2d 333 (1986) and reversed in part by Martinez v. Winner, 778 F.2d 553 (10th Cir.1985)
43
resolution before another judge of the district. The defendants had unsuccessfully
sought to have the RICO amendments dismissed for failure to state a claim and
lack of standing in the state court action Lipari v. General Electric, et al 16th Cir.
Court State of Missouri Case No. 0616-CV07421 prior to seeking their second
removal. The plaintiff updated his claims including subsequent RICO prohibited
conduct for the federal court. Having clearly met the Eighth Circuit controlling
standards on a twice tested complaint, the plaintiff could have no reasonable
expectation except that Hon. Judge Gaitan would disclose his interests and remedy
the misconduct in the district court.
The inquiry over whether recusal is warranted is whether a reasonable
person, knowing all the relevant facts, would discern potential impropriety
certainly warrants consideration of a judge's course or pattern of rulings, and also
of the judge's course of conduct. See Moran v. Clarke, 2002 C08 802 at 57-58
(USCA8, 2002). Hon. Judge Feranado J. Gaitan has still not disclosed information
related to his 28 U.S.C. § 455(b)(5)(i) directorship in St. Luke’s or his
participation in the reciprocal disbarment of the plaintiff’s counsel or whether
Hon. Judge Feranado J. Gaitan has made criminal and disciplinary referrals
against the present defendants’ counsel, disclosures he is permitted under section
455(e) and expected to make by the Eighth Circuit. Id. at 57-58.
The plaintiff made his § 455(b) motion as soon as he became aware of Hon.
Judge Feranado J. Gaitan directorship in St. Luke’s meeting the timeliness
requirement of Tri-State Financial, LLC v. Lovald, No. 07-2430 (8th Cir., 2008).
44
The plaintiff only discovered the information related to the Hon. Judge Feranado J.
Gaitan after learning of the information Hon. Judge Eugene Wedoff of the
Northern District of Illinois shared with senior justice department officials over
the ways and forms of interests sitting judges participating in a “pay to play”
scheme could have in cases before their court.
The timeliness rule of Kansas Public Employees Retirement System, In re, 85
F.3d 1353 at 1359 (C.A.8 (Mo.), 1996) isn’t implicated until after the court’s
disclosure: “455(a) objections can be waived after a court gives full disclosure of
the grounds for disqualification. 28 U.S.C. § 455(e).” Kansas Public Employees
Retirement System, In re, 85 F.3d 1353 at 1359. Hon. Judge Eugene Wedoff has
not yet disclosed his interests in this matter or controversy to the parties. Under
Liljeberg, § 455 relief is timely “...even though the judgment had become final.”
Scott v. U.S., 559 A.2d 745 at 751-752 (DC, 1989).
The plaintiff also has the burden of showing he was actually prejudiced by
the second assignment of his action to Hon. Judge Feranado J. Gaitan under
United States v. Gallo, 763 F.2d 1504, 1532 (6th Cir. 1985), a showing he could
not make until the Memorandum and Order was issued controverting the
controlling and clearly established precedents of the Eighth Circuit and Supreme
Court, and barring the plaintiff’s right to amend under F.R. Civ. P. Rule 15(a), "a
party may amend its pleading once as a matter of course . . . before being served
with a responsive pleading." A motion to dismiss is not a responsive pleading
within the meaning of Rule 15(a). See, e.g., Rhoades v. Avon Prods., Inc., 504
45
F.3d 1151, 1158 n.5 (9th Cir. 2007).
Hon. Judge Feranado J. Gaitan’s memorandum and order (addendum exhibit
1) also cites mere interim orders in other jurisdictions that the court was barred
from taking into consideration, demonstrating the judge’s lack of independence
and impartiality. As a counterpoint, the judge’s memorandum avoids describing
the procedural history of this matter or controversy including the fraudulent
removal to federal court by the General Electric defendants’ counsel and the
plaintiff’s need to file a mandamus and a rehearing on the mandamus to get the
matter or controversy returned to state court. This demonstrates for the first time
Hon. Judge Feranado J. Gaitan’s impermissible bias providing the moment when
the plaintiff was actually biased under Gallo, 763 F.2d at 1532 and the moment
when § 455(b)’s requirement of “actual bias or prejudice is proved by compelling
evidence” Brokaw v Mercer County, Brokaw et al (7th Cir., 2000).
A further concern over the lack of the trial court’s impartiality and influence
by extrajudicial sources is raised by the timing of the dismissal. The temporal
relationship of the trial court’s order of dismissal (addendum exhibit 1) with the
defendants’ conduct procuring interim dismissals in the District of Kansas antitrust
and racketeering action against the defendants’ hospital supply cartel and a partial
dismissal of some of the hospital supply cartel members in the 16th Circuit of
Missouri State Court exceeds that rejected in Glass v. Pfeffer, 849 F.2d 1261 at
1268 (C.A.10 (Kan.), 1988) and gives rise to the appearance of a lack of
independence or extra judicial bias and prejudice by this court. The plaintiff-
46
appellant gave notice of this temporal relationship giving the appearance of
extrajudicial influence in Plaintiff’s Reply To GE’s Opposition to Motion to Alter
or Amend Judgment Doc. 64 at pg. 8 filed 08/11/2008 and Plaintiff’s Reply To
GE’s Opposition to Motion to Alter or Amend Judgment Doc. 67 at pg. 2 filed
08/25/2008.
On July 8, 2008 the Kansas District Court in Lipari v. US Bancorp et al. KS
Dist. Case No. 2:07-cv-02146-CM made a show cause order initiating a scheme to
fraudulently procure dismissal of the plaintiff’s claims on the false accusation by
US Bank NA and US Bancorp that the plaintiff failed to produce documents and
answers requested by the defendants that led instead to the partial dismissal on
September 4, 2008 of the plaintiff’s contract, tortuous interference and fiduciary
duty claims against the US Bancorp defendants.
The temporal relationship of rulings adverse to the plaintiff and involving
adoption of extrajudicial interim orders and communications includes the
dismissal of racketeering claims against the hospital supply cartel members
involved in extrinsic fraud to interfere in the plaintiff’s ongoing antitrust litigation
appear to include the July 30, 2008 order of dismissal in the present action Lipari
v. General Electric Company, et al W. D. of MO Case no 07-0849 by Hon. Judge
Fernando J. Gaitan, Jr. ( a case Hon. Judge Gaitan had assigned to himself even
though an open § 455 Motion for recusal based on his directorship of a defendant
was on the record in the previous removal of the same action W. D. of MO Case
no. 06-0573) The July 7, 2008 order of the Kansas District Court in the same case
47
or controversy dismissing the plaintiff’s motion to reopen his federal antitrust and
racketeering claims in KS Dist. Court case no. 05-2299-CM appears related by the
same temporal and contrary to controlling precedent facts. And also, the partial
dismissal of Lipari v. Novation LLC, et al 16th Cir. Missouri State Court Case No.
0816-04217 on August 8, 2008 by Hon. Judge Michael W. Manners that Hon.
Judge Michael W. Manners had in error requested on July 3, 2008 Lipari v.
Novation LLC, et al 16th Cir. Missouri State Court Case No. 0816-04217.
The precedent of the Eighth Circuit is that the plaintiff-appellant’s appeal
will trigger the remand of the present action for the trial judge to rule on any
outstanding motion for recusal. “Accordingly, rather than remand to a different
judge, we remand this question to the district court with the suggestion that it
revisit and more thoroughly consider and respond to Moran's recusal request.”
Moran v. Clarke, 2002 C08 802 at 57-58 (USCA8, 2002).
PRAYER FOR RELIEF The plaintiff-appellant Samuel K. Lipari respectfully requests that the
dismissal of his federal claims be overruled, that leave be granted to amend his
complaint to include the additional co-conspirator defendants Sprint, AT&T and
KPMG LLC and that the trial judge be recused from further proceedings or in the
alternative the appeal be remanded for his answer to the plaintiff-appellant’s §455
motion.
Furthermore as the text of the plaintiff-appellants’ complaint gives witness
to, the struggle to vindicate the antitrust laws of this nation so clearly established
48
in the automotive industry and everywhere else citizens do business in America
that even with our Nation’s economy collapsing and the belief in private enterprise
so highly valued by our founding fathers being slaughtered by the unchecked
monopolization and extortion in healthcare that pushes America ever farther down
in the Wealth of Nations, the plaintiff has faced such treachery and treason and
witnessed the needless sacrifice of heroic officers of the court and industry experts
whenever they dared put on paper the Novation conspiracy’s conduct that he is
forced to issue the Epitaph of Simonides:
GO TELL THE KANSAS CITY METROPOLITAN BAR ASSOCIATION,
HONORABLE JUSTICES, THAT HERE, BY CONGRESS’ LAW, YOUR
NATION LIES.
S/ Samuel K. Lipari Samuel K. Lipari 3520 NE Akin, Blvd. #918 Lee's Summit, MO 64064 816-365-1306 [email protected] Pro se
CERTIFICATE OF COMPLIANCE
Section 1. Word count
As required by Fed. R. App. P. 32(a)(7)(C), I certify that this brief is proportionally
49
spaced from the beginning of Brief of the Appellant at the statement of issues to the
conclusion of the Prayer for Relief and contains 11,920 words.
Complete one of the following:
_X_ I relied on my word processor to obtain the count and it is :MS Office 2004 for
Mac.
__ I counted five characters per word, counting all characters including citations and
numerals.
I certify that the information on this form is true and correct to the best of my
knowledge and belief formed after a reasonable inquiry.
/s/ Samuel K. Lipari Samuel K. Lipari Appellant pro se
CERTIFICATION OF DIGITAL SUBMISSIONS
I hereby certify the following: Compliance with digital appellate requirements that copies were provided on a compact disc supplied along with written materials to the court and opposing counsel and by electronic mail to the opposing counsel. Compliance with with digital appellate requirements that (1) all required privacy redactions (below) have been made and, with the exception of those redactions, every document submitted in Digital Form or scanned PDF format is an exact copy of the written document filed with the Clerk, (2) the digital submissions have been scanned for viruses with the most recent version of a commercial virus scanning program Kaspersky Anti-Virus 6.0 and, according to the program, are free of viruses.
/s/ Samuel K. Lipari Samuel K. Lipari
50
Appellant pro se
ADDENDUM
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
SAMUEL K. LIPARI, ))
Plaintiff, ))
v. ) No. 07-0849-CV-W-FJG)
GENERAL ELECTRIC COMPANY, et al., ))
Defendants. )
ORDER
Currently pending before the Court are several motions to dismiss filed by the
various defendants, GE, Seyfarth Shaw LLP, Jeffrey R. Immelt, Heartland Financial
Group, Christopher McDaniel, Stewart Foster and Bradley Schlozman. Plaintiff has also
filed a Motion to Amend his Complaint to add two new defendants.
I. BACKGROUND
On November 9, 2007, defendants removed the present case to this Court.
Plaintiff initially filed this suit in Jackson County, Missouri alleging a single state law
claim for breach of contract related to an alleged purchase agreement for a building
located at 1600 N.E. Coronado Drive, Blue Springs, Missouri. Plaintiff’s petition was not
removable when it was originally filed, because it did not assert a federal question and
there was no diversity. On October 10, 2007, plaintiff filed a “Motion for Leave to
Amend Under RSMO 55.33.” Plaintiff in his motion sought leave to add new parties and
new claims, including claims under the Racketeer Influenced and Corrupt Organizations
Act (“RICO”), 18 U.S.C. § 1962, et seq. and the Hobbs Act, 18 U.S.C. § 1951. The
state court granted plaintiff’s Motion to Amend on October 31, 2007. On December 7,
Addendum Exhibit 1
1The dissolved corporation of which Mr. Lipari was the chief executive officer.
2
2007, plaintiff filed his Amended Complaint in this Court. Plaintiff in his 403 paragraph,
sixty-eight page Complaint alleges that he, through his now dissolved corporation,
“made a contract with the defendants to sell GE Transportation’s remaining ten year
lease at a deep discount benefitting GE in exchange for GE’s funding of the plaintiff’s
purchase of the building though GE’s business lending subsidiary, GE Capital.” (¶ 45).
Plaintiff alleges that the GE entities knew that plaintiff’s company, Medical Supply Chain
(“MSC”), intended to use the transaction to capitalize its entry into the hospital supply
market and that it was unable to obtain capital through conventional means. (¶ 27).
Plaintiff alleges that the GE defendants partially performed the terms of the contract, but
then subsequently breached the contract. Plaintiff alleges that “GE caused the breach
of the contracts when GE Medical and the electronic hospital supply marketplace GHX
LLC created by GE interfered to prevent Medical Supply from getting capitalization
through the contract to enter the hospital supply marketplace.” (¶ 29). Plaintiff alleged
that “GHX, GE and GE Medical are openly part of an unlawful hospital supply cartel with
Novation LLC that had previously prevented Medical Supply from capitalizing its entry
into the hospital supply market.” Id.
This is not the first time that plaintiff has brought claims of this sort against these
defendants. In November 2002, Medical Supply Chain1 filed suit against US Bancorp
and others in federal court in Kansas. Medical Supply Chain, Inc. v. US Bancorp, NA,
et al., No. 02-2539-CM. In that case, MSC asserted various state law claims, antitrust
claims under the Sherman and Clayton Acts and violations of the Hobbs Act. MSC
3
alleged that US Bancorp and the other defendants refused to provide financing to MSC
in order to prevent MSC from entering into the healthcare supply market, and
perpetuating their monopoly over this market. On June 16, 2003, the Court dismissed
MSC’s Complaint in US Bancorp I, stating that some of MSC’s allegations were
“completely divorced from rational thought.” See Medical Supply Chain, Inc. v. US
Bancorp, NA, et al., No. 02-2539-CM, 2003 WL 21479192 at *8. MSC appealed the
dismissal to the Tenth Circuit, who affirmed the case and remanded it to the District
Court with directions to impose sanctions against plaintiff and plaintiff’s counsel for
prosecution of a frivolous appeal. See Medical Supply Chain v. US Bancorp NA, et al.,
2004 WL 2504653 (10th Cir. Nov. 8, 2004).
On June 18, 2003, MSC filed a lawsuit against the GE defendants in federal
court in Kansas. Medical Supply Chain, Inc. v. General Electric Company, et al., No.
03-2324-CM (“GE I Lawsuit”). In that suit MSC claimed that the GE defendants
prevented MSC’s entry into the health care supplier/distribution market by refusing to
sublease a building or provide financing to MSC. He also alleged that the GE
defendants violated federal antitrust laws pursuant to the Sherman Act and the
Robinson-Patman Act. He also asserted state common law claims against the
defendants. On January 29, 2004, the court dismissed all of MSC’s antitrust claims with
prejudice. Medical Supply Chain, Inc. v. General Electric Company, et al., 2004 WL
956100 (D.Kan. Jan. 29, 2004).
On March 9, 2005, MSC filed suit in the Western District of Missouri against
Neoforma, Inc., Novation, LLC, US Bancorp, and various other corporate entities and
individuals. Medical Supply Chain, Inc. v. Neoforma, Inc., et al., No. 05-2010-CV-W-
4
ODS. The case was transferred to the District of Kansas. Plaintiff alleged that the
defendants conspired to restrain trade in the hospital supply market. He asserted
claims under the Sherman Act, Clayton Act, the Declaratory Judgment Act, RICO, the
Hobbs Act and the USA Patriot Act, in addition to numerous common law claims. On
March 7, 2006, the district court dismissed all of MSC’s federal claims with prejudice
and declined to retain jurisdiction over the state law claims. Medical Supply Chain, Inc.
v. Neoforma, Inc. et al., 419 F.Supp.2d 1316, 1335-1336 (D.Kan. 2006). The Court
imposed sanctions against plaintiff’s counsel, Bret Landrith as well as MSC’s CEO, Mr.
Lipari.
On November 28, 2006, plaintiff filed another lawsuit against US Bancorp NA
and U.S. Bank NA in the Circuit Court of Jackson County, Missouri, alleging the same
state law claims that were dismissed without prejudice in U.S.Bancorp I. The lawsuit
was removed to this Court and subsequently transferred to the U.S. District Court for
the District of Kansas where it is currently pending.
II. STANDARD
The Supreme Court recently issued a new standard to apply when considering
motions to dismiss. In Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1974, 167
L.Ed.2d 929 (2007), the Supreme Court rejected the “no set of facts” language from
Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). The Court stated:
While a complaint attacked by a Rule 12(b)(6) motion to dismiss does notneed detailed factual allegations, . . . a plaintiff’s obligation to provide thegrounds of his entitlement to relief requires more than labels andconclusions, and a formulaic recitation of the elements of a cause ofaction will not do . . . . Factual allegations must be enough to raise a rightto relief above the speculative level . . .on the assumption that all theallegations in the complaint are true (even if doubtful in fact) . . . .
5
Id. at 1964-65 (internal citations and quotations omitted). The Court went on to note
that, “of course, a well-pleaded complaint may proceed even if it strikes a savvy judge
that actual proof of those facts is improbable, and that a recovery is very remote and
unlikely.” Id. at 1965 (internal citations and quotations omitted). The Court
emphasized that “we do not require heightened fact pleading of specifics, but only
enough facts to state a claim to relief that is plausible on its face. Because the plaintiffs
here have not nudged their claims across the line from conceivable to plausible, the
complaint must be dismissed.” Id. at 1974.
III. DISCUSSION
A. RICO Claims
Title 18 U.S.C. § 1964 states: “[a]ny person injured in his business or property by
reason of a violation of section 1962 of this chapter may sue therefor in any appropriate
United States district court and shall recover threefold the damages he sustains and the
cost of the suit . . . except that no person may rely upon any conduct that would have
been actionable as fraud in the purchase or sale of securities to establish a violation of
section 1962.” Title 18 U.S.C. § 1964(c). Defendants move to dismiss plaintiffs’ RICO
claims on many grounds, but the ground which the Court will address first and which is
dispositive, is standing.
In a federal RICO action, ‘the plaintiff only has standing, if, and canonly recover to the extent that, he has been injured in his business orproperty by the conduct constituting the violation.’ Sedima v. Imrex, Co.,Inc., 473 U.S. 479, 496, 105 S.Ct. 3275, 87 L.Ed.2d 346 (1985). ‘Thus,the two requirements for RICO standing are (1) an injury to ‘business orproperty’ (2) caused ‘by reason of’ a RICO violation.’ Hamm v. Rhone-Poulenc Rorer Pharmaceuticals, Inc., 187 F.3d 941, 951 (8th Cir.1999).
6
Geraci v. Women’s Alliance, Inc., 436 F.Supp.2d 1022, 1038 (D.N.D. 2006).
The Court in Birdnecklace v. Steele, No. 07-5008-AWB, 2008 WL 1766720, *5
(D.S.D. Apr. 11, 2008), noted that “[t]he United States Supreme Court has further
clarified that this provision contains a ‘directness’ requirement, restricting possible
plaintiffs only to those whose injuries were proximately caused by defendant’s
racketeering conduct.” Courts have also limited plaintiffs to recovering losses which are
concrete and which are capable of measurement. “[A] showing of injury requires proof
of concrete financial loss, and not mere injury to a valuable intangible property interest.”
Steele v. Hosp. Corp. Of America, 36 F.3d 69, 70 (9th Cir. 1994)(internal citations and
quotations omitted); “Injury to mere expectancy interests or to an ‘intangible property
interest’ is not sufficient to confer RICO standing.” Price v. Pinnacle Brands, Inc., 138
F.3d 602, 607 (5th Cir. 1998). “Defendants are correct in asserting that a RICO plaintiff
may not recover for speculative losses or where the amount of damages is unprovable.”
Trustees Of Plumbers and Pipefitters Nat’l Pension Fund v. Tansworld Mech.,Inc., 886
F.Supp. 1134, 1146 (S.D.N.Y.1995). “If the damages cannot be ascertained, then there
is no lawful way to compensate the plaintiff. Thus, the courts regularly have held that a
plaintiff who alleges injuries that are ‘indefinite and unprovable’ does not have standing
under, and cannot recover damages pursuant to, RICO.” World Wresting Entertainment,
Inc. v. Jakks Pacific, Inc., 530 F.Supp.2d 486, 521 (S.D.N.Y. 2007).
In his Complaint, petitioner states only that he was repeatedly injured by the
defendants’ predicate acts, he would not have been injured but for their violations of §
1962, he was injured as a proximate cause of their violations of § 1962 and he was
injured in his business and property from their violations. He states that he is entitled to
7
four hundred and fifty million dollars, which after trebling under 18 U.S.C. § 1964 would
amount to one billion, three hundred and fifty million dollars. (Complaint ¶¶ 392-396).
In his Suggestions in Opposition, plaintiff states that he has been injured by the loss of
money from the sale of the lease to GE and GE Transportation, the loss of the sale of
hospital supplies each day that the defendants kept him from doing business, and
injury to his business reputation. However, plaintiff does not attempt to quantify or
measure these damages in any way. He also offers no evidence or support for his
claim that his RICO damages total $450 million dollars. In World Wresting
Entertainment, 530 F.Supp.2d 486, the licensor of videogames and toys brought an
action against licensees and licensing agents, alleging that as a result of defendants
racketeering acts, it was deprived of the intangible right of honest services of the agents
and received lower royalty rates from its licenses. Plaintiff in that case alleged that it
was denied the business opportunity of between 50 - 60% more in royalties from a non-
corrupt licensing arrangement. The Court in that case found that plaintiff had no ability
to project what would have come out of the bidding processes for the various licenses.
Additionally, the Court found that plaintiff had no way of assessing the profits any
winning licensee could have produced for plaintiff, as that was dependent on the vendor
manufacturing and marketing the videogames and toys on a scale equal to or better
than the bids that Plaintiff accepted. The Court in that case concluded that there was
no plausible set of facts which would show that the plaintiff has suffered a “quantifiable
and cognizable injury under RICO.” Id. at 524. Similarly, in the instant case, the Court
finds that the plaintiff’s allegations regarding his injuries are even less specific,
particularly since plaintiff had not even begun operating his business at the time he
9
RICO action and there is no private right of action for a violation of the statute.
Accordingly, any claims that plaintiff may have raised under this statute are hereby
DISMISSED.
C. State Law Claims
As the Court has now dismissed all of plaintiff’s federal claims, the Court declines
to retain jurisdiction over plaintiff’s state law claims. Accordingly, the Court hereby
DISMISSES plaintiff’s state law claims.
IV. CONCLUSION
Accordingly, for the reasons stated above, the Court hereby GRANTS GE’s
Motion to Dismiss (Doc. # 11), Seyfarth Shaw’s Motion to Dismiss (Doc. # 16); Jeffrey
Immelt’s Motion to Dismiss (Doc. # 19); Heartland Financial Group, Inc., Christopher
McDaniel and Stuart Foster’s Motion to Dismiss (Doc. # 32) and Bradley Schlozman’s
Motion to Dismiss (Doc. # 56).
The Court GRANTS the Moving Defendants’ Motion for Leave to File Reply Brief
in Excess of Local Rule Page Limitation (Doc. # 45); GRANTS Jeffrey Immelt’s Motion
to Join the Moving Defendants’ Motion for Leave to File Reply Brief in Excess of Local
Rule Page Limitation (Doc. # 46).
The Court DENIES as MOOT Heartland Financial Group, Inc. and Christopher
McDaniel’s Motion for Extension of Time to File Answer to Amended Complaint (Doc. #
27); DENIES plaintiff’s Motion for Service by U.S. Marshal (Doc. # 30); DENIES
plaintiff’s Motion to Amend his Complaint (Doc. # 49); DENIES as MOOT defendants’
Motion to Stay Briefing (Doc. # 51) and DENIES AS MOOT defendant Schlozman’s
10
Motion for Extension of Time to File Answer (Doc. # 55).
Date: 7/30/08 S/ FERNANDO J. GAITAN, JR. Kansas City, Missouri Fernando J. Gaitan, Jr.
Chief United States District Judge
IN THE UNITED STATES DISTRICT COURTWESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
SAMUEL K. LIPARI, ))
Plaintiff, ))
v. ) No. 07-0849-CV-W-FJG)
GENERAL ELECTRIC COMPANY, et al., ))
Defendants. )
ORDER
Currently pending before the Court are the following motions: 1) plaintiff’s Motion
to Alter or Amend the Judgment (Doc. # 61); 2) plaintiff’s Motion for Order Disqualifying
Attorney General Michael Mukasey and the Department of Justice (Doc. # 68);
3) plaintiff’s Motion to Withdraw Any and All Ex Parte Orders (Doc. # 69) and
4) plaintiff’s Motion for a Hearing on the Motion to Disqualify (Doc. # 74).
I. Motion to Alter or Amend the Judgment
Plaintiff moves pursuant to Fed.R.Civ.P. 59(e) for the Court to reconsider the
Order entered on July 30, 2008, granting defendants’ Motions to Dismiss.
A motion to alter or amend judgment pursuant to Fed.R.Civ.P. 59(e)serves the limited purpose of correcting manifest errors of law or fact orpresenting newly discovered evidence. . . . It is not appropriate to use aRule 59(e) motion to repeat arguments or to raise new arguments thatcould have been made before judgment. . . . District courts have broaddiscretion when deciding whether or not to grant a motion to amendjudgment.
In re General Motors Corp. Anti-Lock Brake Products Liability Litigation, 174 F.R.D. 444,
446 (E.D.Mo. 1997), aff'd sub nom. Briehl v. General Motors Corp., 172 F.3d 623 (8th
Cir. 1999)(citations and internal quotations omitted). See also, Peters v. General
Addendum Exhibit 2
2
Service Bureau, Inc., 277 F.3d 1051,1057 (8th Cir. 2002)(“Arguments and evidence
which could have been presented earlier in the proceedings cannot be presented in a
Rule 59(e) motion.”). Plaintiff believes that this Court erred by: 1) ignoring the recent
Supreme Court decision in Bridge v. Phoenix Bond & Indem. Co., 128 S.Ct. 2131, 170
L.Ed.2d 1012 (2008) and applying a heightened pleading standard; 2) finding the
plaintiff’s injuries indefinite or speculative; and by 3) failing to recuse from this case.
Plaintiff states that he has not raised any new evidence to support his Rule 59(e) motion
and that his motion is “based solely on the basis of clear error or manifest error and
injustice.” (Plaintiff’s Reply Suggestions to General Electric’s Suggestions in
Opposition, p.1). The Court will examine each of the points raised by plaintiff below.
A. Bridge v. Phoenix Bond & Indemnity Co.
Plaintiff argues that this Court ignored a recent Supreme Court decision in Bridge
v. Phoenix Bond & Indemnity Co., 128 S.Ct. 2131, 170 L.Ed.2d 1012 (2008), and held
plaintiff to a heightened standard of pleading. However, the Supreme Court’s decision
in Bridge dealt not with standing, but rather with a reliance element in a mail fraud case.
The Supreme Court found that:
a plaintiff asserting a RICO claim predicated on mail fraud need not show,either as an element of its claim or as a prerequisite to establishingproximate causation, that it relied on the defendant’s allegedmisrepresentations.
Id. at 2145. Plaintiff’s complaint was dismissed because he could not show that
he suffered a definite and provable injury. Thus, the Court does not find that the Bridge
decision affects the Court’s previous determination.
3
B. Indefinite and/or Speculative Injuries
Plaintiff argues that the Court’s ruling erroneously discredits the accrual rule
where multiple injuries occur over an extended period of time. Plaintiff also argues that
the Court has adopted an excessively narrow view of causation and injury contradicting
the law of this Circuit. Plaintiff then proceeds into a seven page discussion of various
cases and an explanation as to why they are relevant to his case. However, plaintiff is
simply repeating arguments that he could and did raise in his earlier pleadings. The
purpose of Rule 59(e) is not to give parties an opportunity to rehash or reargue their
cases.
C. Recusal
Plaintiff also asserts that the Court is biased because of an alleged connection to
the Board of Directors of St. Luke’s Health System, Inc. during the period of time
described in plaintiff’s Complaint. Plaintiff alleges that St. Luke’s was the racketeering
conspiracy’s planned recipient of the laundered funds from the Novation LLC member
hospitals and the replacement entity for Neoforma, Inc. It should be noted however, the
plaintiff has not actually filed a Motion for Recusal nor did plaintiff raise this issue until
after the Court ruled against plaintiff. Plaintiff argues that “[t]he Circuit’s analysis would
find that because the state law claims are consistent and unchanged (and as yet never
ruled on), the present action is the same ‘matter in controversy’ as Lipari v. General
Electric et al., 06-0573-CV-W-FJG where the Hon. Judge Fernando J. Gaitan did not
rule on the plaintiff’s timely motion for recusal and the same ‘matter in controversy’ as
MSCI v. General Electric et al., KS Dist. Court # 03-2324-CM brought by the plaintiff’s
4
attorney that appears to have been reciprocally disbarred without a hearing by Hon.
Judge Fernando J. Gaitan despite grounds and a request for a hearing.”
The Court is unsure why plaintiff believes that this case is the same ‘matter in
controversy.’ The case filed in 2006 by plaintiff was a separate action which was
remanded to the state court almost two years ago. The Court in that case denied as
moot plaintiff’s motion for recusal. The instant action was initially filed in federal court
by the plaintiff on November 9, 2007, against some of the same defendants, but also
against other defendants who were not named in the ‘06 action. Despite having
previously filed the Motion to Recuse in the ‘06 action, plaintiff has not to date filed a
Motion to Recuse in the present action. Even if plaintiff had actually filed a Motion to
Recuse, the Court finds no basis for granting the motion. In Tri-State Financial, LLC v.
Lovald, 525 F.3d 649, 653 (8th Cir. 2008), the Court stated:
Motions for recusal under 28 U.S.C. § 455 “will not be consideredunless timely made.” Fletcher v. Conoco Pipe Line Co., 323 F.3d 661, 664(8th Cir.2003) (citation omitted). The timeliness doctrine under § 455“requires a party to raise a claim at the earliest possible moment afterobtaining knowledge of facts demonstrating the basis for such a claim.” Id.(internal quotation marks and citation omitted). A party is required to bringits recusal motion promptly to avoid the risk that the party might hold itsapplication as an option in the event the trial court rules against it. See Inre Apex Oil Co., 981 F.2d 302, 304-05 (8th Cir.1992).
Additionally, even if the motion had been timely made, there is no basis for the motion.
In Scenic Holding LLC v. New Board of Trustees of Tabernacle Missionary Baptist
Church, Inc., 506 F.3d 656 (8th Cir. 2007), the Court stated:
Under 28 U.S.C. § 455(a), a judge “shall disqualify himself in anyproceeding in which his impartiality might reasonably be questioned.”Because § 455(a) sets forth an objective standard, whether a judge
5
actually is biased or actually knows of a ground requiring recusal isirrelevant. Moran v. [Clarke], 296 F.3d at 648 [(8th Cir. 2002)]. Rather, theissue is “whether the judge's impartiality might reasonably be questionedby the average person on the street who knows all the relevant facts of acase.” Id. (quotation omitted). “Because a judge is presumed to beimpartial, a party seeking recusal bears the substantial burden of provingotherwise.” United States v. Martinez, 446 F.3d 878, 883 (8th Cir. 2006).
Id. at 662. In the instant case, an average person would not reasonably question the
Court’s impartiality, especially since the Court has not served on the Board of Directors
for St. Luke’s in several years. Therefore, the Court finds that there is no basis on
which to recuse.
Accordingly, for the reasons stated above, the Court hereby DENIES plaintiff’s
Motion to Alter or Amend the Judgment (Doc. # 61).
II. Motion to Disqualify
Plaintiff requests that the Court disqualify Attorney General Michael Mukasey and
the United States Department of Justice including the Western District of Missouri Office
of U.S. Attorney John Wood from representing Bradley Schlozman. Plaintiff argues that
the U.S. Department of Justice has targeted Bradley Schlozman in an investigation by a
federal grand jury. Plaintiff also asserts that Schlozman and John Wood were installed
in the U.S. Attorney’s office to obstruct justice in the criminal case against Cox-Health of
Springfield, Missouri and its executives. Plaintiff also states that John Wood was a
former law partner of Brad Schlozman. Plaintiff argues that Attorney General Michael
Mukasey and John Wood have an unwaivable conflict of interest in the representation of
Brad Schlozman because they were engaged in criminal activity related to the charges
for which their client is on trial.
6
As the Court has now dismissed plaintiff’s Complaint and has denied plaintiff’s
Motion to Alter or Amend the Judgment, the Court hereby DENIES AS MOOT plaintiff’s
Motion to Disqualify (Doc. # 68).
III. Motion to Withdraw Any and All Ex Parte Orders
Plaintiff argues that the Order dismissing his Complaint did not reflect the record
of the litigation or the issues raised between the parties. He also asserts that the Order
did not address the Motion for Recusal that was filed on 11/8/06 in his other case or
address his motion to remand. Plaintiff states that the Order was overreaching because
it referred to the Kansas litigation, erroneously ignored his standing and ignored recent
Supreme Court precedent. Plaintiff theorizes that because the Order did not address
the issues raised between the parties, then the Order must of been ghost written by the
United States Department of Justice. The Court can assure plaintiff that the Order
dismissing his Complaint was not ghost-written nor were portions of the Order submitted
to the Court through improper ex parte contact. The Order was written after reviewing
all the parties’ pleadings and reading the relevant caselaw and was a product of this
Court’s own analysis of the issues. Accordingly, as there were no ex parte orders
submitted, the Court hereby DENIES plaintiff’s Motion to Withdraw Any and All Ex Parte
Orders (Doc. # 69).
IV. Motion for Hearing
Plaintiff requests that the Court grant a hearing on his outstanding motions
including his Rule 59(e) motion. In support of this motion, plaintiff refers to another pro
se party, who is not a party to this action and asserts that John Wood was
7
eavesdropping on conversations between a prisoner and a witness in a federal criminal
proceeding and federal bankruptcy proceedings. The Court in unsure how plaintiff
believes that this information is relevant to his case before this Court. Nevertheless, the
Court does not find that a hearing is necessary and finds no merit in plaintiff’s Motion to
Alter or Amend the Judgment.
V. Conclusion
Accordingly, for the reasons stated herein the Court hereby DENIES plaintiff’s
Motion to Alter or Amend the Judgment (Doc. # 61); DENIES AS MOOT plaintiff’s
Motion for Order Disqualifying Attorney General Michael Mukasey and the Department
of Justice (Doc. # 68); DENIES plaintiff’s Motion to Withdraw Any and All Ex Parte
Orders (Doc. # 69) and DENIES plaintiff’s Motion for a Hearing on the Motion to
Disqualify (Doc. # 74).
Date: 10/31/08 S/ FERNANDO J. GAITAN, JR. Kansas City, Missouri Fernando J. Gaitan, Jr.
Chief United States District Judge
1
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
SAMUEL K. LIPARI, )
Plaintiff, )
)
v. ) Civil No. 07-0849-CV-W-FJG
) Formerly 06-0573-CV-W-FJG
GENERAL ELECTRIC COMPANY, et al., ) Formerly 16th
Cir. Case No.0616-
Defendants ) CV07421
NOTICE OF APPEAL
Comes now the plaintiff Samuel K. Lipari appearing pro se and respectfully files this notice of
appeal.
The plaintiff appeals this court’s 07-0849-CV-W-FJG order (doc. 59) dated 7/30/08 granting
defendants’ motions for dismissal and denying plaintiff’s Motion to Amend his Complaint (Doc. 49)
The plaintiff appeals this court’s denial as moot the plaintiff’s motion for recusal (doc. 24) Case
4:06-cv-00573-FJG in the order (doc. 29) filed 11/29/2006.
The appeal is timely having been filed within days of this court’s Judgment (doc. 60) entered
7/30/08 and is held in abeyance until the court rules on the plaintiff’s Rule 59(e) Motion (doc.61); the
plaintiff’s Motion to Disqualify Attorney General Michael Mukasey (doc. 68); and the plaintiff’s Motion to
Withdraw Any and All Ex Parte Orders (doc. 69):
“Pursuant to Federal Rule of Appellate Procedure 4(a)(4), when a notice of appeal is filed after
announcement or entry of judgment but before disposition of a post-judgment motion, the appeal is
held in abeyance pending the district court's disposition of the post-judgment motion. FED. R.
APP. P. 4(a)(4)(B)(I) (stating that under such circumstances, the prior filed notice of appeal does not
become effective until "the order disposing of the last such remaining motion is entered[]").” [
Emphasis added]
Stewart Park and Reserve Coalition Inc. v. Slater, 374 F.Supp.2d 243 at 252 (N.D. N.Y., 2005).
Respectfully submitted,
S/ Samuel K. Lipari
Samuel K. Lipari
CERTIFICATE OF SERVICE
I certify I have sent a copy via email to the undersigned and opposing counsel via email on 8/12/08.
John K. Power
Leonard L. Wagner
Michael S. Hargens
Husch Blackwell Sanders, LLP
Addendum Exhibit 3
2
1200 Main Street
Suite 2300
Kansas City, MO 64105
(816)283-4651
Fax: (816)421-0596
via email
Attorneys for the GE Defendants
J. Nick Badgerow
Spencer Fane Britt & Browne, LLP
9401 Indian Creek Parkway
Suite 700
Overland Park, KS 66210
(913)327-5134
Fax: (913)345-0736
Email: [email protected]
Attorney for Seyfarth Shaw LLP
USA John Wood
Jeffrey P. Ray
Office of the United States Attorney
400 E. 9th St.
Room 5510
Kansas City, MO 64106
(816) 426-3130
Fax: (816) 426-3165
Attorney for Bradley J. Schlozman
S/ Samuel K. Lipari
____________________
Samuel K. Lipari
297 NE Bayview
Lee's Summit, MO 64064
816-365-1306
Pro se
CERTIFICATE OF SERVICE I certify I have sent two bound paper copies and a digital disc via UPS to each
group of appellee’s counsel at the addresses below and an digital copy email to
the undersigned and opposing counsel via email on 12/12/08.
John K. Power Leonard L. Wagner Michael S. Hargens Husch Blackwell Sanders, LLP 1200 Main Street Suite 2300 Kansas City, MO 64105 (816)283-4651 Fax: (816)421-0596 [email protected] [email protected] [email protected] via email Attorneys for the GE Defendants J. Nick Badgerow Spencer Fane Britt & Browne, LLP 9401 Indian Creek Parkway Suite 700 Overland Park, KS 66210 (913)327-5134 Fax: (913)345-0736 Email: [email protected] Attorney for Seyfarth Shaw LLP USA John Wood Jeffrey P. Ray Office of the United States Attorney 400 E. 9th St. Room 5510 Kansas City, MO 64106
(816) 426-3130 Fax: (816) 426-3165 [email protected] Attorney for Bradley J. Schlozman
S/ Samuel K. Lipari ____________________ Samuel K. Lipari 3520 NE Akin Blvd. #918 Lee's Summit, MO 64064 816-365-1306 [email protected] Pro se