Appellant Robert M. Davidson and Appellant Vanessa E.

Komar (“Appellants”), representing themselves pro se, move this Court pursuant to 28 U.S.C. § 2201(a) to declare Arizona Rule of Civil Procedure 5.1 (“ARCP 5.1") unconstitutional, both facially and as applied to Robert M. Davidson and Vanessa E. Komar. See Count Six and Count Seven of the Amended Complaint (Document #19) at USCA5 548 and USCA5 549-553, respectively. See Document #57 at USCA5 1647 for the text of the relevant portions of ARCP 5.1, which states, in pertinent part, “No attorney shall be permitted to withdraw as attorney of record after an action has been set for trial, (i) unless there shall be endorsed upon the application therefore either the signature of a substituting attorney stating that such attorney is advised of the trial date and will be prepared for trial, or the signature of the client stating that the client is advised of the trial date and has made suitable arrangements to be prepared for trial, or (ii) unless the court is satisfied for good cause shown that the attorney should be permitted to withdraw.” The constitutionality of ARCP 5.1 is material to the question of whether Appellants stated claims under the civil RICO statute (18 U.S.C. 1964 ( c)) and under the Civil Rights Act of 1871 (42 U.S.C. § 1983 and § 1985) against Michael J. Meehan (“Meehan”), Bruce R. Heurlin (“Heurlin”), Jay Grossman (“J. Grossman”), and Eudice Grossman (“E. Grossman”). See Count Two and Count Three of the Amended Complaint at USCA5 521 and 542, respectively. See Plaintiffs’ Consolidated Response (Document #56 of IOR) at USCA5 1508 where it states, “Michael J. Meehan became a coconspirator and proper defendant in Count Two, Count Three, Count Four, Count Six, and Count Seven, when he repeatedly refused to bring Arizona fraud, Arizona RICO, and federal RICO actions, on behalf of his then clients, the Davidsons, despite repeated requests by the Davidsons to bring such actions, and despite MJM’s actual knowledge of the content and substance of the Prosecution

Memorandum of November 20, 2000. MJM’s repeated refusals were intended to conceal the racketeering conspiracy which had been ongoing for nearly two decades, in both New York and Arizona, and facilitate MJM’s candidacy for anticipated vacancies in the Arizona Supreme Court and Division II Arizona Court of Appeals. See ¶s 54, 57-59, 69, and 85-87 of the Amended Complaint. See Exhibits #5-7 and #9-16, to this Consolidated Response. Exhibits #14 and #15 represent fraudulent misrepresentations which employed the U.S. Mails. These mail frauds were directly targeted at the Plaintiffs. Plaintiffs do not seek money damages from any Judges of Division II Arizona Court of Appeals or from any Justices of the Arizona Supreme Court.” “Bruce R. Heurlin became a coconspirator and proper defendant in Count Two, Count Three, Count Four, Count Six, and Count Seven, when he reached an agreement with Michael J. Meehan and the State trial Judge Jane L. Eikleberry (“JLE”), and comitted overt acts, to coerce the dismissal of Davidsons’ retained legal counsel by fiat of the trial court under color of Arizona Rule 5.1. See ¶ 69 of the Amended Complaint. See Exhibits #5-7 and #9, to this Consolidated Response. The attorney withdrawal was ordered by the Court, after motion by MJM and QBSL citing authority under rule 5.1 and nonobjection by opposing legal counsel [Karp, Heurlin & Weiss]. Bruce R. Heurlin actually drafted the Trial Judge’s Order. The Order of the Trial Judge bears the letterhead of Bruce R. Heurlin. Davidsons were the real parties in interest to attorney withdrawal, not Grossmans. QBSL, MJM, and opposing legal counsel already knew that the Trial Judge would Order Attorney Withdrawal. QBSL, MJM, and opposing legal counsel were so confident of this assertion that opposing counsel (Bruce R. Heurlin), actually drafted the Trial Judge’s Order, effectively making MJM, QBSL, opposing counsel (Bruce R. Heurlin), and the Trial Judge (JLE), state actors, all acting pursuant to Rule 5.1. The Motion to Withdraw was a self-fulfilling prophecy, culminated by the Trial Judge’s signature on the previously written Order [by opposing counsel] and encouraged and enabled by Rule 5.1. These coconspirators’ fraudulent misrepresentations employed the U.S. Mails. These mail frauds were directly targeted at the Plaintiffs. These coconspirators all knew that the term of Justice Thomas A. Zlaket as Chief Justice was due to expire on January 7, 2002, four days before the Order of January 11, 2002, which coerced the dismissal of Davidsons’ retained legal counsel, under color

of Arizona Rule 5.1. These coconspirators had personal extrajudicially-acquired knowledge that the Motion to Withdraw as Counsel of Record, under color of Arizona Rule 5.1, was a willful, malicious violation of Davidsons’ civil rights, motivated by bad faith (evil intent), an improper motive (personal political and financial gain), and with deliberate reckless indifference to the federally-protected rights of the Davidsons.” Appellants’ incorporate here by reference all of the arguments, points, and authorities found in Document #56 captioned Plaintiffs’ Consolidated Response, under the heading “State Action under Color of Arizona Rules of Civil Procedure Rule 5.1" at USCA5 1515-1525. This Court is referred to USCA5 1532-1534 for the Affidavit and Index to the Appendix of Exhibits in Support of Plaintiffs’ Consolidated Response. See USCA5 1626-1627 and 1629, for the Announcement Letter of Change of Law Firm on January 15, 2001, from Meehan to the Davidsons, and the Letter of October 17, 2001 from Meehan to Davidson. Appellant’s incorporate here by reference all of the allegations found at Count Six and Count Seven of the Amended Complaint. See USCA5 548-554. The constitutionality of ARCP 5.1 has already been thoroughly briefed and is ripe for adjudication by this Court. There is considerable case law precedent for a constitutional right to retained counsel in a civil case. A civil litigant has a Constitutional right to retain hired counsel. See Potashnick v. Port City Construction Company, 609 F.2d 1101. See The Right to Counsel in Civil Litigation, 66 Colum. L. Rev. 1322 (1966). The right to representation is basic to system of justice and extends to every facet of judicial process. See Montgomery Elevator Co. v. Superior Court of the State of Arizona, 135 Ariz. 432, 661 P.2d 1133. Representation of party by his duly constituted attorney is fundamental to administration of justice. See Arizona State Department of Public Welfare v. Barlow, 80 Ariz. 249, 296 P.2d 298. There is constitutionally-guaranteed right to retain hired counsel in civil matters under due process clause of
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Fourteenth Amendment. See Texas Catastrophic Proprerty Insurance v. Morales, 975 F.2d 1178. Subject to certain limitations, right to counsel expressly guaranteed by the Sixth Amendment in criminal cases, is no less fundamental in civil cases and springs from both statutory authority and from the constitutional right to due process of law. See McCuin v. Texas Power & Light Co., 714 F.2d 1255. State participation in a nominally private activity can result in a characterization of that activity as “state action” for purposes of 42 U.S.C. §1983. Private actors may align themselves so closely with either state action or state actors that the undertow pulls them inexorably into the grasp of Section 1983. There is liability of private parties who conspire with immune officials in federal civil rights action under 42 U.S.C. §1983. See 44 A.L.R. Fed. 547. In Pugliano v. Staziak, 231 F.Supp. 347, the court stated that, “unless the attorney wronged the [criminal] defendant in furtherance of a conspiracy participated in by persons acting under color of state law, the court declared, it would not have jurisdiction of any suit against him.” Meehan and QBSL were not just private individuals for the purposes of 42 U.S.C. §1983. They conspired with each other, the Trial Judge, and the Grossmans, to deprive the Davidsons of the presently-enjoyed benefit of their retained legal counsel, just 4 months before the scheduled trial date, under color of ARCP 5.1. In Minns v. Paul, 542 F.2d 899, the court pointed out that no facts were alleged in the instant case to indicate that the court-appointed attorney had exceeded the scope of his function or that he had intentionally “disregarded” the state prisoner’s rights. In Davidsons’ case at bar, however, Davidsons have alleged facts to indicate that Meehan and QBSL, exceeded the scope of their function and intentionally “disregarded” Davidsons’ rights. Davidsons have alleged that Meehan’s and QBSL’s conduct was intentionally harmful to the Davidsons, or
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otherwise deliberately inconsistent with their obligations to the Davidsons, so as to be a voluntary excursion outside the scope of their duties. Liability may attach to Meehan, QBSL, the trial judge, and the Grossmans, under 42 U.S.C. §1983, 1985, and 1988, when the acts complained of are done outside the scope of their duty. See Carruth v. Geddes, 443 F.Supp. 1295. Davidsons have established actual damages as part of their claim. Some kind of hearing is required at some time before the State finally deprives a person of his property or liberty interest. See Parratt v. Taylor, 101 S.Ct. 1908. 42 U.S.C. §1983 affords a “civil remedy” for deprivations of federally protected rights caused by persons acting under color of state law without any express requirement of a particular state of mind. The Prosecution Memorandum provides prima facie evidence that the Grossmans’ filing of the State court proceeding and Meehan’s and QBSL’s filing of the Motion to Withdraw as counsel of record in the State court proceeding, were both motivated by bad faith (evil intent). For the purposes of 42 U.S.C. §1983, an attorney does not act under color of state law “when performing a lawyer’s traditional functions” as counsel to defendant in a [criminal] proceeding. See 36 A.L.R. Fed. 594, at page 18. Meehan and QBSL were not performing a lawyer’s “traditional function” when they filed their motion to withdraw under ARCP 5.1, which was intended to maliciously abandon and slander the Davidsons. Meehan’s and QBSL’s Motion to Withdraw as counsel of record for the Davidsons was not in any way an act “on behalf of the clients [Davidsons] in the historical and traditional manner.” Meehan and QBSL clothed their Motion to Withdraw with the authority of State law (Arizona Rule 5.1), and the trial judge and opposing legal counsel for Grossmans, agreed that Meehan andQBSL should be granted withdrawal. A litigant’s right to retain an attorney of choice can be protected on review of final judgment [only] if appellate courts are willing when necessary to set aside verdicts,
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even when they result from lengthy civil proceedings. See Richardson Merrell Inc v. Koller, 105 S.Ct. 2757 at pages 15-16. Appellants’ challenge to the federal Constitutionality of ARCP 5.1 rests on procedural and substantive due process grounds, equal protection grounds, takings clause grounds, and right to contract grounds. The strict (heightened) scrutiny standard of review should apply. Appellants’ have not only established that ARCP 5.1 and the state action complained of had a disproportionate or discriminatory impact, but also that the action was taken with intent to discriminate, so as to permanently deny their clients a legal remedy for the crimes alleged in the federal court proceedings and avoid their contractual and professional responsibility to their clients, just 4 months before the scheduled trial date. See U.S. Supreme Court Docket # 04-1687, Supplemental Brief filed on August 22, 2005, where it states, “If federal courts adopt a per se rule and dismiss all Section 1983 against [attorneys], the most egregious behavior by [an attorney], even if unquestionably the result of pressures by the State, will not be cognizable under Section 1983. Under the doctrine of absolute judicial immunity, judges are subject to suit only for (1) non-judicial actions, i.e. actions not taken in the judge’s judicial capacity, or (2) “actions, though judicial in nature, taken in the complete absence of all jurisdiction”. “The judge must have jurisdiction over the person and subject matter if he [she] is to be immune from suit for an act performed in his [her] judicial capacity.” “A third element is the power of the Court to render the particular decision which was given.” “The third element in the concept of jurisdiction as used in the context of judicial immunity necessitates an inquiry into whether the defendants’ action is authorized by any set of conditions or circumstances. This inquiry begins with an examination of the satute under which the defendant presumed to act.” “There are actions of purported judicial character that a judge even when exercising general jurisdiction, is not empowered to take.” See Briley v. State of California, 564 F.2d 849.”
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See U.S. Supreme Court Docket # 04-1687, Petition for Rehearing, filed on October 26, 2005, where it states, “Final Judgment and Memorandum Decision of April 4, 2005, from Ninth Circuit U.S. Court of Appeals (# 03-17342) and Final Judgment and Memorandum Decision of April 4, 2005, from Ninth Circuit U.S. Court of Appeals (# 04-15304) are void as moot because the Orders of November 24, 2003 (U.S. District Court, Arizona District, Docket No. 56, Civil Case # CV-0300110-FRZ and February 2, 2004 (U.S. District Court, Arizona District, Docket No. 9, Civil Case # CV-03-00580-FRZ), which dismissed Davidsons’ federal causes of action, were acts in clear absence of all jurisdiction. See Am.Jur. Civil Rights, Section 105, C.J.S. Judges, Section 208, Am.Jur. Judges, Section 75, and C.J.S. Judges, Section 207. See also Sharp v. Bivona, 304 F.Supp.2d 357, Mireles v. Waco, 112 S.Ct. 286, Stamp v. Sparkman, 98 S.Ct. 1099, and Hale v. Lefkow, 239 F.Supp.2d 842. Federal District Court trial judge Frank R. Zapata had actual knowledge of Michael J. Meehan’s (“MJM’s”) candidacy for the Arizona bench prior to the final Orders by Judge Zapata which dismissed both of Davidsons’ federal causes of action. Violations of 28 U.S.C. Section 455(a) can be applied retroactively. Only one inference can reasonably be drawn from the evidence. Estoppel may be a question of law, when the facts are not in dispute or are beyond dispute. See 28 Am. Jur.2d Estoppel and Waiver Section 188. This Court is referred to the Affidavit and Attachments to Davidsons’ Petition for Review to the Arizona Supreme Court on September 21, 2005.” See U.S. Supreme Court Docket # 04-1687, Petition for Rehearing, filed on October 26, 2005, where it states, “The Ninth Circuit holdings in Davidson v. Meehan, 127 Fed. Appx. 312, have effectively adopted a per se rule which permits dismissal of all Section 1983 complaints against attorneys [and judges], thereby fostering [if not actually encouraging] the most egregious behavior by attorneys [and judges], even if unquestionably the result of pressures by the State. The Ninth
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Circuit held that privately-retained attorney and law firm cannot violate constitutional rights of clients. This ruling is certain to have been well received by the State Actors in the State Action.” See Meehan’s Motion to Withdraw as Counsel of Record and to Continue Trial (USCA5 1594-1596) in Pima County Superior Court. See Grossman’s Response to Motion to Withdraw as Counsel of Record and to Continue Trial (USCA5 1597-1598) in Pima County Superior Court. See the signed Order (USCA5 1599-1600) of Pima County Superior Court on January 11, 2002, the unsigned Minute Entry Order (USCA5 1601-1603) of Pima County Superior Court on January 20, 2004, the unsigned Minute Entry Order (USCA5 1605-1606) of Pima County Superior Court on April 29, 2004, the signed Minute Entry Order (USCA5 1607-1609) of Pima County Superior Court on November 9, 2004, and the signed Minute Entry Order (USCA5 1711-1713) of Pima County Superior Court on November 24, 2004. See the Motion to Amend Defendants’ Answer, to Add Counterclaims, and Add Parties, (USCA5 1554-1557) in Pima County Superior Court. See the Amended Answer to First Amended Complaint and Counterclaims (USCA5 1558-1593) in Pima County Superior Court. See the Memorandum Decision of Division Two Arizona Court of Appeals Case No. 2 CA-CV 2002-0051 (USCA5 1535-1538). See the Memorandum Decision of Division Two Arizona Court of Appeals Case No. 2 CA-CV 2005-0011 (USCA5 1539-1553). See the file-stamped Order of July 1, 2003, in U.S. District Court Case No. CV-03-110-TUC FRZ (USCA5 969-972). See the file-stamped Order of November 24, 2003, in U.S. District Court Case No. CV-03-110 TUC FRZ (USCA5 973-976). See the file-stamped Order of February 2, 2004, in U.S. District Court Case No. CV-03-580 TUC FRZ (USCA5 977-981). See Ninth Circuit U.S. Court of Appeals Memorandum decision of April 4, 2005, in Case No. 04-15304. See Ninth Circuit U.S. Court of Appeals Memorandum decision of April 4, 2005, in Case No. 03-17342. See U.S. Supreme Court Docket 04-537, Petition for
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Writ of Certiorari, certiorari denied on January 10, 2005. See U.S. Supreme Court Docket 04-1687, Petition for Writ of Certiorari, certiorari denied on October 3, 2005. See U.S. Supreme Court Docket # 04-1697, Supplemental Brief, filed on August 22, 2005. See U.S. Supreme Court Docket 04-1687, Petition for Rehearing, rehearing denied on November 28, 2005. See U.S. Supreme Court Docket 06-398, Petition for Writ of Certiorari, certiorari denied on November 6, 2006. Appellants are not pro se litigants by choice. Appellants are victims of an egregious continuing violation. See Count Two, Count Three, Count Four, Count Six, and Count Seven of the Amended Complaint (Document #19 IOR). Appellees Meehan, Heurlin, J. Grossman, and E. Grossman, are named Defendants to these Counts. See ¶s 56-59 of Amended Complaint at USCA5 549 and 550. See ¶42 and ¶s 85-87 of Amended Complaint at USCA5 548 and 553. “Plaintiffs’ federal Constitutional injury in the State Action can be fairly traced to the challenged action and is likely to be redressed by a favorable decision. Plaintiffs are suffering continuing present adverse effects (continuous constitutional violation and continuous jeopardy) by reason of decisions in the State Action.” Count One of the Amended Complaint incorporated by reference ¶ 8.14 and ¶ 8.28. Count Two repeated the allegations found in ¶s 9-90. Count Three repeated the allegations in ¶s 1-8 and incorporated by reference the allegations found in ¶s 16-90. Count Four repeated the allegations found in ¶s 1-15 and incorporated by reference the allegations found in ¶s 22-90. Count five repeated the allegations found in ¶s 1-21 and incorporated by reference the allegations found in ¶s 36-90. Count Six repeated the allegations found in ¶s 1-36 and incorporated by reference the allegations found in ¶s 43-90. Count Seven repeated the allegations found in ¶s 1-44 and incorporated by reference the allegations found in ¶s 87-90.
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Meehan was named Defendant to Counts Two, Three, Four, Five, Six, and Seven of the Amended Complaint (Document 19 of IOR). Each of the seven counts in Plaintiffs’ original Complaint (Document 1 of IOR) incorporated by reference paragraphs from each of the other counts. See ¶ 54 of the Amended Complaint at USCA5 549 where it states, “Jay Grossman, Eudice Grossman, QBSL,BRH, MJM, and JLE, agreed with each other to conceal fraud by knowingly committing overt acts in furtherance of this objective for personal, political, and corporate financial gain. By reason of this corrupt conspiracy, Davidsons suffered direct injury to their business and property.” See ¶ 56 of the Amended Complaint which states, “After MJM changed law firms (he joined the law firm of Quarles Brady Streich Lang (“QBSL”) during his representation of the Davidsons in State court proceedings), he stated in writing in a letter of January 15, 2001, from MJM to the Davidsons, “I do not expect this [his change in law firm] to affect or impair in any way my ability to continue effective representation for you.” See ¶ 59 of the Amended Complaint at USCA5 550 where it states, “MJM’s and QBSL’s Motion to Withdraw as counsel of record (December 17, 2001), when viewed against the backdrop of the Prosecution Memorandum (November 20, 2000) provides prima facie evidence of actual malice and willful misconduct by the attorney (MJM) and his law firm (QBSL) towards his clients (Davidsons). There was not “good cause appearing therefore” upon which to base the Trial Judge’s (JLE’s) Order of January 11, 2002. The reasons given for attorney withdrawal are false. MJM and QBSL have defrauded the Trial Court by alleging that ethical considerations motivated their Motion to Withdraw. MJM and QBSL actually slandered their then clients (the Davidsons) in their Motion to Withdraw, by maliciously characterizing their clients’ objectives as being unprofessional, imprudent, unethical, and repugnant. This intentional misrepresentation inflicted irreparable harm upon the Davidsons once the motion was filed. By information and belief, MJM and QBSL knew the substance and content of the
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Prosecution Memorandum, prior to filing their Motion to Withdraw as counsel of record. Yet, QBSL and MJM agreed with each other to continue to refuse to bring Arizona fraud, Arizona RICO, and federal RICO actions, on behalf of their then clients, the Davidsons, despite repeated requests by the Davidsons to bring such actions. Davidsons did not realize at the time that the object of the aforementioned repeated refusals to bring fraud and racketeering actions of behalf of their clients, and the object of their Motion to Withdraw, was not solely to permanently deprive the Davidsons of a legal remedy for the injuries wrought upon them by the Grossmans and others acting in concert, and avoid their contractual and professional responsibility to the Davidsons, just four months before the scheduled trial date, but was also intended to conceal the racketeering conspiracy which had been ongoing for nearly two decades, in both New York and Arizona, and facilitate MJM’s candidacy for anticipated vacancies in the Arizona Supreme Court and Division II Arizona Court of Appeals.” See Document #57, captioned Appendix of Exhibits in Support of Plaintiffs’ Consolidated Response at USCA5 1594-1600, 1605-1609, 16101623, 1624-1634, and 1711-1713. The relationship between Appellants’ injuries and the defendants’ RICO violations are direct (not attenuated). See ¶s 85-87 of the Amended Complaint. See the affidavit and attached exhibits from Tab B of filed Document #79, filed September 18, 2007 in Case 4:07-cv-00471. These exhibits provide evidence that the continuing violation doctrine is applicable. See Reno v. Metropolitan Transit Authority, D.C. Tex. 1997, 977 F.Supp. 812 (in deciding whether continuing violation doctrine is applicable, factors considered are whether acts involve same type of discrimination, which tends to connect them in continuing violation, whether acts are recurring or are more in nature of isolated work assignment or employment decision, and whether acts have degree of permanence which should trigger employee’s awareness of and duty to assert his or her rights). See Harvey v. Chevron U.S.A., Inc.,D.C. Tex. 1997, 961 F.Supp. 1017. See Jackson v. Texas A&M Univ. Sys., D.C. Tex.
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1996, 975 F.Supp. 943. See Interamericas Inv. Ltd. v. Board of Governors of the Fed. Reserve Sys., C.A.5th, 1997, 111 F.3d 376 (continuing violation applies when conduct is ongoing, rather than single event). Under the Texas fraudulent concealment law, a number of the Defendants (J. Grossman, E. Grossman, Petrillo, Thiry, Ott, Mello, Wray, and Meehan) to this lawsuit, were charged with a legal duty through a special relationship to reveal the concealed facts to the plaintiff enabling plaintiff to claim tolling under this theory. See Dougherty v. Gifford, 826 S.W.2d 668 (Tex. App.-Texarkana 1992). Courts construing §1983 actions “borrow” the forum state’s general personal injury limitations period. Because the Texas statute of limitations is borrowed in § 1983 cases, Texas’ equitable tolling principles also control. See Rotella v. Pederson, Fifth Circuit U.S. Court of Appeals Case #97-10731 (July 14, 1998); Jackson v. Johnson, 950 F.2d 263, 265 (5th Cir. 1992). Under Texas law, “where a person is prevented from exercising his legal remedy by the pendency of legal proceedings, the time during which he is thus prevented should not be counted against him in determining whether limitations have barred his right.” This lawsuit was timely-filed under the Texas tolling rule as well as the power in the federal courts to toll limitations when a potentially valid federal interest is to be protected. See Rodriguez v. Holmes, Fifth Circuit U.S. Court of Appeals Case #91-8090 (June 24, 1992). See Young v. Kenny, 907 F.2d 874, 878 (9th Cir. 1989), cert. denied, 111 S.Ct. 1090, 112 L.Ed.2d 1194 (1991) “[I]t would hardly promote the goals of the Civil Rights Act of 1871 to twice deny prisoners a federal forum for section 1983 complaints, once for being too early and again for being too late.” Plaintiffs in this lawsuit have been more than “twice denied”. Plaintiffs in this lawsuit have certainly not at any time “slept on their rights”. The filing of Plaintiffs’ Original Complaint and Application for
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Injunctive Relief on November 20, 2003, in the U.S. District court for the District of Arizona (Case No. CV 03-580-TUC FRZ) against Meehan and QBSL, tolled the limitations period as to MJM and Count Seven of the Amended Complaint (Document #19 in Case 4:07-cv-00471). The filing of Plaintiffs’ Original Complaint on February 19, 2003, in the U.S. District Court for the district of Arizona (Case No. CV 03-110-TUC FRZ) tolled the limitations period as to Counts One, Two, and Three. See Preveza Shipping Co. V. Sucrest Corp., 297 F.Supp. 954 (S.D.N.Y. 1969). (when a federal statute of limitations is involved, the federal rule is applied to the effect that the statute of limitations is tolled when the complaint is filed). The limitations period as to Meehan, Heurlin, J. Grossman, and E. Grossman, is tolled under Texas fraudulent concealment law, Texas tolling rule, and continuing violation doctrine. See Porter v. Charter Medical Corp., D.C. Tex. 1997, 957 F. Supp. 1427 (to toll statute of limitations under Texas’ doctrine of fraudulent concealment, plaintiff must show that defendant had actual knowledge of fact that wrong has occurred, and fixed purpose to conceal wrong). Appellants’ have shown that they have suffered actual injury in both Arizona and Texas. Appellants have demonstrated that the State Actor’s (Meehan, Heurlin, Eikleberry, J. Grossman, and E. Grossman) conduct caused the injury. Granting the relief requested likely would redress Appellants’ injury. See the affidavit and Exhibits attached to this Motion. As an irrefutable example of immediate adverse legal interests between the parties, warranting the issuance of a declaratory judgment, this Court is referred to pages of 7 of 23 and page 8 of 23 of Document # 79-3, filed on September 18, 2007, in Case 4:07-cv-00471, which are true and correct copies of the certified Letter of July 9, 2007, from Daniel J. Artz (with copy to Heurlin) to Centers for Medicare and Medicaid Services. Thus, the State Actors, by means of a surrogate (their retained Texas legal counsel, Daniel J. Artz) have directly
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and maliciously interfered with Davidsons’ professional practice of internal medicine in Texas. Mr Artz feigns not to know that the effective date for the issuance by Medicare of Davidsons’ new NPI numbers was August 1, 2006. Davidson provided this information from Medicare regarding Davidsons’ new NPI numbers (with the effective date) by fax to the attention of Mr Artz. Dominion has provided no professional medical services to patients since July 31, 2006. Dominion began winding-down operations on August 1, 2006. On May 10, 2007, Grossmans were granted a second turnover application in Gregg County Texas, this time as to Davidsons’ ownership interests in Dominion Health Services P.A. and Health Patrons P.L.L.C. On August 1, 2007, Davidsons were issued a Certificate of Dissolution for Dominion Health Services P.A. by the Office of the Secretary of State for the State of Texas. On September 21, 2007, Davidsons were issued a Certificate of Dissolution for Health Patrons P.L.L.C. by the Office of the Secretary of State for the State of Texas. To date, under the Uniform Enforcement of Foreign Judgments Act and the default judgment in Arizona (the State Action), the State Actors have succeeded in “stealing” Davidsons’ life savings, “stealing” Davidsons’ real property in Arizona, and destroying Davidsons’ professional medical practice (“Dominion”). Davidsons are suffering continuing present adverse effects by reason of decisions in the State Action. There exists a substantial controversy between the parties having adverse legal interests of sufficient immediacy and reality to warrant the issuance of a declaratory judgment. The interests of justice will be advanced and an adequate and effective judgment may be rendered. There is an adequate and full-bodied record. The Arizona state court adjudication was not complete until the Arizona Supreme Court issued its final decision (April 20, 2006), more than 3 years after Davidsons commenced the Arizona federal court proceedings.
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Davidsons’ Notice of Appeal was timely-filed under Rule 4(a) of the Federal Rules of Appellate Procedure. Jurisdiction on appeal is proper based upon 28 U.S.C. §1291. “Any court of the United States” may render a declaratory judgment based upon 28 U.S.C. § 2201 (a). WHEREFORE, based upon all of the aforementioned arguments, points, and authorities, Appellants pro se, pray for this Court to remedy ongoing violations of constitutional law by declaring that Arizona Rules of Civil Procedure Rule 5.1 is repugnant to the U.S. Constitution (both on its face and as applied to the Davidsons) and therefore held by this Court to be be unconstitutional, and order such “further necessary or proper relief” to aid enforcement of the judgment. This Court may wish to advance the briefing schedule on the calendar to accomodate a hearing on this Motion. RESPECTFULLY signed, on this 25th Day of October, by

________________________ and ______________________________ ROBERT M. DAVIDSON VANESSA E. KOMAR

First M otion for Declaratory Judgment

07-20650

Davidson v. Grossman

15

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