Case: 10-3000 Document: 003110402972 Page: 1 Date Filed: 01/07/2011

LAW OFFICES OF
PHILIP J. BERG
555 Andorra Glen Court, Suite 12
Lafayette Hill, PA 19444-2531
PHILIP J. BERG
CATHERINE R. BARONE
BARBARA MAY
(610) 825-3134

FAX (610) 834-7659

NORMAN B. BERG, Paralegal [Deceased] E-Mail: philjberg@gmail.com

January 7, 2011

Ms. Tiffany Washington

Calendar Clerk
U.S. Court of Appeals for the Third Circuit
21400 United States Courthouse
601 Market Street
Philadelphia, PA 19106-1790

Filed and Served Electronically through ECF…………………….Total = 10 Pages

Re: Liberi, et al v. Taitz, et al, Case No. 10-3000

This Court’s letter of Jan. 4, 2011 regarding the Court’s Jurisdiction

Dear Ms. Washington:

My office is in receipt of your letter, at the direction of the Court, requesting the
Appellees response as to whether the Third Circuit Court of Appeals has jurisdiction to
entertain the appeal filed by Appellant, Attorney Orly Taitz.

It is the Appellees position, as notated by the Appellees Motion to Dismiss the

Instant Appeal filed July 27, 2010 and as outlined in Appellees Brief at pp. 12-14 filed
with this Court November 7, 2010, that the Third Circuit Court of Appeals lacks
jurisdiction over Appellant Taitz’s Appeal.

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Ms. Tiffany Washington January 7, 2011

Calendar Clerk
U.S. Court of Appeals for the Third Circuit
Page Two

According to Appellant, Attorney Orly Taitz’s Notice of Appeal, Appellant was

Appealing the Honorable Eduardo C. Robreno’s Orders of June 25, 2009, Docket Entry
No. 76; September 29, 2009, Docket Entry No. 109; January 21, 2010, Docket Entry
No. 116; June 3, 2010, Docket Entry No. 118; the Memorandum and Order dated June
22, 2010, Docket Entry No.’s 123 and 124; and the Order of June 22, 2010 granting
Plaintiffs (Appellees) Motion for Reconsideration, Docket Entry No. 125.

As this Court is aware, failure to identify and/or argue an issue in their Opening
Brief constitutes Waiver of those issues on Appeal. It should also be noted it is not
permissible to appeal a Court’s Opinion or Memorandum, see In the Matter of Chelsea
Hotel Corp., 241 F.2d 846, 848 (3d Cir. 1957) (“[I]t is settled that an appeal may not be
taken from an opinion. It is only the definitive order or judgment which follows the
opinion which is reviewable by appeal.). Therefore, Appellees will only respond to the
jurisdictional issues pertaining to the actual Orders identified and argued in the
Appellants Brief

The only Orders addressed in Appellants Brief were the Court’s Order of June
25, 2009, Docket Entry No. 76 dismissing Defendants Rock Salt Publishing and James
Sundquist; and the Court’s Order of June 3, 2010, Docket Entry No. 118; and the
Court’s Order of June 22, 2010, Docket Entry No. 124 severing and transferring the
underlying case.

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Ms. Tiffany Washington January 7, 2011

Calendar Clerk
U.S. Court of Appeals for the Third Circuit
Page Three

I. The June 25, 2009 Order, Docket Entry No. 76, Dismissal of
Defendants James Sundquist and Rock Salt Publishing is
time barred, therefore this Court lacks Jurisdiction

Appellant Orly Taitz and Defend our Freedoms Foundations, Inc. are
attempting to Appeal the Court’s Order of June 25, 2009 [Docket Entry No. 76],
however the Appeal to this particular Order is time barred.

This Order of June 25, 2009 is a Final Order dismissing two (2)
Defendants, James Sundquist and Rock Salt Publishing to save diversity, and
therefore, any appeal thereto had to have been filed within thirty [30] days of the
Order, which would have been on or before July 25, 2009. See Federal Rules of
Appellate Procedure, Rules 3 and 4. Here, Appellants are attempting to appeal
this Order over a year later.

In a civil case, the Notice of Appeal “must be filed with the district clerk
within 30 days after the judgment or order appealed from is entered." Fed. R.
App. P. 4(a)(1). The Supreme Court has made it abundantly clear that, because
this time limit derives from statute, it is jurisdictional, and no judicially-created
doctrine of unique circumstances may excuse such an untimely appeal from being
dismissed. See Bowles v. Russell, 551 U.S. 205, 209-214, 127 S. Ct. 2360, 168 L.
Ed. 2d 96 (2007) ("[T]he timely filing of a notice of appeal in a civil case is a
jurisdictional requirement."); Browder v. Director, Dep't of Corrections, 434 U.S.
257, 264, 98 S. Ct. 556, 54 L. Ed. 2d 521 (1978). (A notice of appeal in a civil
case in which the United States is not a party must be filed within 30 days of the

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Ms. Tiffany Washington January 7, 2011

Calendar Clerk
U.S. Court of Appeals for the Third Circuit
Page Four

entry of the order or judgment being appealed. See Fed. R. App. P. 4(a)(1)). The
time limit of Rule 4(a)(1) for commencing an appeal is mandatory and
jurisdictional, Bowles v. Russell, 551 U.S. 205, 209-214, 127 S. Ct. 2360, 168 L.
Ed. 2d 96 (2007); Browder v. Director, Dep't of Corrections, 434 U.S. 257, 264,
98 S. Ct. 556, 54 L. Ed. 2d 521 (1978).

For the aforementioned reasons, the Third Circuit Court of Appeals lacks
jurisdiction over this Appeal.

II. The Orders of June 3, 2010, Docket Entry No. 118; and the Order
of June 22, 2010, Docket Entry No.’s 124 Severing and
Transferring the underlying Case to California and Texas, where
the Defendants are located, are not appealable Orders and
therefore this Court lacks Jurisdiction:

Appellant Taitz is attempting to Appeal the Orders of June 3, 2010,

docketed June 4, 2010 [Docket Entry No. 118]; June 22, 2010, docketed June 23,
2010 [Docket Entry No. 124] which are Orders Severing and Transferring the
underlying case to California and Texas, where the Defendants are located and
which the Defendants requested. These Orders are not final Orders under either
the text of 28 U.S.C. §1291 or the Collateral Order Doctrine. As this Court is
well aware, normally, appeals must await a "final order" on the case that resolves
all the issues, such as a dismissal or judgment, Carr v. Am. Red Cross, 17 F.3d
671, 675 (3d Cir. 1994).

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Ms. Tiffany Washington January 7, 2011

Calendar Clerk
U.S. Court of Appeals for the Third Circuit
Page Five

It is entirely settled, as the numerous case citations make abundantly clear,

that an order granting or denying a motion to transfer venue under §§ 1404(a) and
1406 of Title 28 of the United States Code are interlocutory in character and not
immediately appealable under 28 U.S.C. § 1291. See In re Federal-Mogul
Global, Inc., 300 F.3d 368 (3d Cir. 2002), citing Wright, Miller & Cooper,
certiorari denied 123 S.Ct. 884, 537 U.S. 1148, 154 L.Ed.2d 851. See also
Nascone v. Spudnuts, Inc., 735 F.2d 763, 764 (3d Cir. 1984), citing Wright, Miller
& Cooper; McCreary Tire & Rubber Co. v. CEAT S.p.A., 501 F.2d 1032 (3d Cir.
1974); Mutual Life Ins. Co. of New York v. Ginsburg, 228 F.2d 881 (3d Cir.
1956), certiorari denied 76 S.Ct. 1050, 351 U.S. 979, 100 L.Ed. 1495;; Tivoli
Realty, Inc. v. Paramount Pictures, Inc., 186 F.2d 120 (3d Cir. 1950); and Wright
Miller & Cooper 15 Fed. Prac. & Proc., Juris. §3855 (3d ed. 2007); Sunbelt
Corp. v. Noble, Denton & Assoc., 5 F.3d 28, 30 (3d Cir.1993) (quoting Carteret
Sav. Bank, FA v. Shushan, 919 F.2d 225, 228 (3d Cir.1990) (It is a well-
established rule in this circuit (and generally) that “orders transferring venue are
not immediately appealable.”); see also Hershey Foods Corp. v. Hershey
Creamery Co., 945 F.2d 1272, 1278 (3d Cir.1991) (“It is well-settled that orders
granting or denying a change in venue are not proper subjects for interlocutory
appeals.”) (citing Nascone v. Spudnuts, Inc., 735 F.2d 763, 764 (3d Cir.1984)); 15
Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice &
Procedure § 3855, at 472 (2d ed. 1986 & Supp. 2002) (“It is entirely settled that
an order granting or denying a motion to transfer under 28 U.S.C.A. § 1404(a) is
interlocutory and not immediately appealable....”); In re Diet Drugs Prods. Liab.

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Ms. Tiffany Washington January 7, 2011

Calendar Clerk
U.S. Court of Appeals for the Third Circuit
Page Six

Litig., 401 F.3d 143; 2005 U.S. App. LEXIS 4012; 61 Fed. R. Serv. 3d
(Callaghan) 79 (3d Cir. 2005) at *30 (Courts of Appeals acquire jurisdiction over
appeals through final Orders under 28 U.S.C. § 1291).

The Third Circuit Court of Appeals has held, “In general, an order
transferring a case is not a final order and, hence, not appealable.” In re United
States, 2001 U.S. App. LEXIS 25231 (3d Cir 2001) (quoting Nascone v.
Spudnuts, Inc., 735 F.2d 763, 764 (3d Cir. 1984).

Appellant, Attorney Orly Taitz claims the Court lacked Jurisdiction to issue
the Orders to Sever and Transfer the underlying case to California and Texas
where the Defendants are located. This simply is not the case.

As this Court is aware, even if diversity were lacking, which it is not and
was not, the District Court had the inherent power to transfer the case to the
proper jurisdiction. Appellees case was filed within the jurisdictional time limits.
California Court’s require these types of cases to be filed within one [1] year.
The events giving rise to the underlying action began occurring on or about April
17, 2009. Had the District Court dismissed Appellees action, it would have
barred Appellees claims and any redress in which they are entitled. If a case is
filed in the wrong jurisdiction, and the statute has run, it has been the long
standing of our Court’s that transfer pursuant to 28 U.S.C. §1406(a) would be
proper in lieu of dismissal. See Jumara v. State Farm Ins. Co., 55 F.4d 873, 878
(3d Cir. 1995); 17A Moores Federal Practice, §5524(2); Lafferty v. Gito St. Riel,
495 F. 3d 72 (3d Cir. 2007).

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Ms. Tiffany Washington January 7, 2011

Calendar Clerk
U.S. Court of Appeals for the Third Circuit
Page Seven

The transferee forum's limitations statute applies, and the date of the initial
filing in the improper forum counts as the date of the filing in the transferee
forum for limitations purposes, when the case is transferred, rather than
dismissed, under statute governing filing case in improper venue. Lafferty v. St.
Riel, 495 F.3d 72 (3d Cir. 2007).

The District Court analyzed the case under 28 U.S.C. § 1404(a), and
Ordered the case transferred to the United States District Court for the Central
District of California and the Western District of Texas where the Defendants are
located, thereby granting Defendants' (Appellants) request for transfer. “[O]rders
granting or denying motions to transfer under 28 U.S.C. § 1404(a) or 28 U.S.C. §
1406(a) are not immediately appealable under 28 U.S.C. § 1291 as collaterally
final orders. It is irrelevant for these purposes whether the motion to transfer is
based on a forum selection clause, the convenience of witnesses, or other factors.”
Nascone v. Spudnuts, Inc., 735 F.2d 763, 772-73 (3d Cir.1984). See also
McCreary Tire & Rubber Co. v. CEAT S.p.A., 501 F.2d 1032 (3d Cir.1974) (“An
order transferring an action pursuant to 28 U.S.C. § 1404(a) or refusing to make
such a transfer is interlocutory and unappealable under § 1291.”).

The only way this Court would have had jurisdiction to review the Orders
severing and transferring the underlying case is if they would have fallen under
the Collateral Order Doctrine, which they do not; and/or if Appellants would
have filed for certification of Appeal of the Orders in question pursuant to 28
U.S.C. §1292(b); or by the filing of a Writ of Mandamus, none of which were

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Ms. Tiffany Washington January 7, 2011

Calendar Clerk
U.S. Court of Appeals for the Third Circuit
Page Eight

done and they are now time barred. See Wright Miller & Cooper 15 Fed. Prac. &
Proc., Juris. §3855 (3d ed. 2007).

For the above aforementioned reasons, this Appeal must be Dismissed as

this Court clearly lacks jurisdiction over the Orders.

III. Appellees are entitled to Attorney Fees and Costs; and Appellees hope
this Court will Sanction Attorney Orly Taitz for filing this frivolous
Appeal, wasting Judicial Resources; costing Appellees large amounts
of money in Attorney Fees and Costs; and for delaying the proceedings
from moving forward, which has been prejudicial to the Appellees:

Appellant, Attorney Orly Taitz who is licensed to practice law in this very
Court was placed on notice on three [3] separate occasions that the Orders she
was attempting to Appeal were time barred and not appealable Orders. First, on
July 9, 2010 in the District Court, see Docket Entry No. 132; on July 27, 2010
when Appellees filed their Motion to Dismiss the instant Appeal with this Court;
and on November 7, 2010 when Appellees filed their Appellees Brief. Despite
this, Appellant Attorney Orly Taitz failed to withdraw her appeal. The case was
further delayed as a result of Appellant Attorney Orly Taitz’s continued non-
compliance with the Court’s Rules and Procedures as demonstrated by the Docket
in this Court. The case was further delayed as a result of Appellant Attorney Orly
Taitz’s failure to comply with the Federal Rules of Civil Procedure, Federal Rules
of Appellate Procedure and this Court’s Local Rules in violation of Fed. R. Civ.
P. 11, Fed. R. App. P. 46 and the Third Circuit L.A.R. 46.1.

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Ms. Tiffany Washington January 7, 2011

Calendar Clerk
U.S. Court of Appeals for the Third Circuit
Page Nine

This Court has the inherent power to issue an Order to Show Cause upon
Appellant, Orly Taitz as to why she should not be sanctioned for the filing of the
frivolous appeal which Appellees were forced to respond to and this Court was
forced to address. Appellant, Orly Taitz, as an Attorney, had a duty to be familiar
and comply with the Federal Rules of Civil Procedure, Federal Rules of Appellate
Procedure and this Court’s local Rules. Had Appellant Attorney Taitz complied,
she would have never attempted to appeal non-appealable Orders, wasting this
Court’s Judicial Recourses; stalling and delaying the Plaintiffs (Appellees) Case;
and costing the Appellees extensive Appellate Fees and costs

As stated in Walsh v. Schering-Plough Corp., 758 F.2d 889, 895 (3d

Cir.1985):

“Undoubtedly, it was just such considerations that gave rise to the

recent amendment to Fed.R.Civ.P. 11. That Rule, promulgated to
keep attorneys "honest" in their pleading practice, now authorizes
sanctions to be imposed when an attorney violates his certificate that
good grounds support his pleading and that the pleading is not
interposed for delay. Moreover, our own Fed.R.App.P. 46(c)
provides for action being taken by us in the event that an attorney
who practices before us exhibits conduct unbecoming a member of
the bar or fails to comply with any rule of the court.1”
1
Federal Rule of Appellate Procedure 46(c) provides:

“c) Disciplinary Power of the Court over Attorneys. A court of appeals may, after
reasonable notice and an opportunity to show cause to the contrary, and after hearing, if
requested, take any appropriate disciplinary action against any attorney who practices before
it for conduct unbecoming a member of the bar or for failure to comply with these rules or
any rule of the court.”

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Ms. Tiffany Washington January 7, 2011

Calendar Clerk
U.S. Court of Appeals for the Third Circuit
Page Ten

Appellees renew their Motion to Dismiss the instant Appeal; for Attorney
Fees; and for Costs which was filed with this Court on July 27, 2010.

Appellees have been forced to expend large amounts of money in

defending against this frivolous Appeal, therefore, Attorney Fees in the amount of
Twenty-Five Thousand [$25,000.00] Dollars and Costs in the amount of Six
Hundred [$600.00] Dollars for the printing and binding of the Appellee Brief and
Appendices must be granted.

IV. CONCLUSION:

For the reasons stated herein, the instant Appeal must be Dismissed as this
Court clearly lacks jurisdiction. In addition, Appellees must be awarded attorney
fees in the amount of Twenty-Five Thousand [$25,000.00] Dollars for the time
spent defending against this frivolous Appeal and costs in the amount of Six
Hundred [$600.00] Dollars for the printing and binding of Appellees Brief and
Appendices, again defending against this frivolous Appeal.

Respectfully,

Philip J. Berg

PJB:jb

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