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Case 1:99-cv-03329-BMC-LB Document 286 Filed 05/29/13 Page 1 of 11 PageID #: 1684

Brian King, Esq. KFIRM LLP 40 Wall St, 28th Floor New York, NY 10005

Phone:202-251-2121 Fax:718-313-0050

Honorable Brian M. Cogan U.S. District Court Judge U.S. District Courthouse 225 Cadman Plaza East Brooklyn, New York 11201 Via Electronic Filing (CM/ECF) Re: Judgment as a Matter of Law Dear Judge Cogan:

May 29, 2013

As Your Honor knows, I entered my appearance on behalf of Sonny Southerland in this case on April 30, just under a month ago. It is my duty to inform the Court, based upon information divulged in post-remand discovery and in the various pre-trial conferences before Judge Bloom, that the defendant Timothy Woo has perpetrated a fraud on this Court. Most crucially, Woo has represented to this Court and the Second Circuit that he obtained an order from the New York Family Court affirming his June 1997 removal of the Southerland children from the custody and care of their father Sonny Southerland. Woo revealed in a pre-trial conference held on May 15, however, that he never in fact obtained any such order, and that he does not in fact have any such order now. Further, Woo confirmed in a May 24 pre-trial conference that there is no June 1997 order. Looking back over the history of this case, Woos fraud began with his false affidavit on June 6, 1997, to obtain a search warrant. His perverseness continued when he removed the children in the absence of emergency circumstances. He then filed several false petitions with the New York Family Court to cover his prior indiscretions. Woos most recent act of fraud is embodied in his filing to the Court of this afternoon (Doc. 283), wherein he attempts to defeat the plaintiffs procedural due process claims by submitting what appears to be fabricated court records. As explained in Section III, if the docket sheets Woo submitted today are not fabrications, his May 24, 2013 submission must be a fabrication.1 The recent discovery of

This would explain why Woos counsel, Martin Bowe, objected vehemently to Judge Blooms directive that he provide the Court a certified copy of the May 24 submission (see Exhibit 1), which purports to be an order dated July 1, 1998, bearing the docket number 13423/97. Tellingly, in support of his objection, Mr. Bowe told the Court that he had never been required to produce certified copies of orders he submitted as evidence in cases. Judge Bloom, detecting the fraud, repeatedly overruled the objection, ultimately ordering Mr. Bowe to please sit down. 1

Case 1:99-cv-03329-BMC-LB Document 286 Filed 05/29/13 Page 2 of 11 PageID #: 1685


Brian King, Esq. KFIRM LLP 40 Wall St, 28th Floor New York, NY 10005

Phone:202-251-2121 Fax:718-313-0050

Woos fraud upon this Court and other courts, outlined in detail below, entitles all the plaintiffs to a judgment as a matter of law with regard to their individual procedural due process claims. For the same reasons, the plaintiffs are also entitled to relief from this Courts orders of May 25, 2012 (Doc. 202) (dismissing the plaintiffs substantive due process claims), May 15, 2013 (Doc. 258) (issuing various oral rulings regarding the admissibility and excludability of evidence), and May 17, 2013 (Doc. 263) (limiting the scope of the plaintiffs claims for damages). See Fed. R. Civ. P. 60(b)(3) and (d)(3) (2013) (authorizing a district court to relieve a party from an order or judgment procured by fraud, misrepresentation, or misconduct by a party). I. Woo has adduced insufficient evidence to support a finding that emergency circumstances existed at the time of the removal. In order for the plaintiffs to prevail on their procedural due process claims, they must prove either of two theories of liability. The first theory of liability would be satisfied if defendant Woo removed the Southerland children from the physical custody of Mr. Southerland without prior court authorization and in the absence of emergency circumstances. See Hurlman v. Rice, 927 F.2d 74, 80 (2d Cir. 1991) ([O]fficials may remove a child from the custody of the parent without consent or a prior court order only in emergency circumstances. Emergency circumstances mean circumstances in which the child is immediately threatened with harm, for example, where there exists an immediate threat to the safety of the child, or where the child is left bereft of care and supervision, or where there is evidence of serious ongoing abuse and the officials have reason to fear imminent recurrence.). It is undisputed that Woo removed the children without prior court authorization. The inquiry does not end with that fact, however, because Woo maintains that emergency circumstances existed. Notwithstanding that averment, in 2007 this Court found that Woo had adduced no evidence as to why the particular circumstances that Woo encountered in the Southerland home established that there was imminent danger to the childrens life or limb requiring removal in the absence of a court order. See Southerland v. City of NY., 521 F. Supp. 2d 218 at 234 n.29 (EDNY 2007) ("Southerland II"). This Court further found that Woo had adduced no evidence that there was insufficient time for Woo to seek judicial authorization for the removal. Id. at 235 n.31.

Case 1:99-cv-03329-BMC-LB Document 286 Filed 05/29/13 Page 3 of 11 PageID #: 1686


Brian King, Esq. KFIRM LLP 40 Wall St, 28th Floor New York, NY 10005

Phone:202-251-2121 Fax:718-313-0050

Likewise, the Second Circuit Court of Appeals reviewed all of Woos evidence in May 2012, and concluded that this Court was correct in finding that Woo had not adduced evidence showing either that emergency circumstances existed or that Woo lacked time to obtain a court order before removing the Southerland children from their home. Southerland v. City of New York, 680 F.3d 127, 151 (2d Cir. 2012) (Southerland III) ([W]e cannot conclude as a matter of law that it was objectively reasonable for Woo to believe that his acts did not violate those clearly established rights.) (internal quotations and citations omitted). Importantly, the Second Circuit s opinion recommended - but did not require - this Court to permit the parties to engage in additional discovery before trial to determine whether judgment as a matter of law would be appropriate. Id. at 162 (The district court may, although it need not, permit additional discovery, a renewed motion for summary judgment, or both.). Despite this Court providing Woo extraordinary latitude in seeking additional evidence via subpoenas, several depositions, and additional discovery requests, Woo has not produced to the Court or to the plaintiffs even one additional new fact in support of his contention that emergency circumstances existed at the time of the removal. Additionally, Woo conceded in a May 14, 2013, pre-trial conference that police officer Christopher Aitola, who accompanied Woo during the search and removal, testified under oath that he did not observe any hazardous or dangerous conditions in the apartment at the time of the removal. Woos concession that P.O. Aitola denied dangers or hazards were present further rebuts Woos claim that emergency circumstances existed. Surely, where a police officer specially trained as a first-responder to emergencies states under penalties of perjury that no emergency existed, Woo could not feasibly rebut such testimony by merely restating the same evidence that this Court and the Second Circuit already deemed insufficient to show emergency circumstances. This point is especially poignant when viewed in conjunction with Woos May 21, 2013, revelation in that he misplaced all of the Family Court hearing transcripts, six in total, which contained sworn testimony about the events giving rise to this litigation. See Woo Email of May 21, 2013, attached as Exhibit 2. By mislaying those transcripts, Woo lost his last remaining opportunity to prove that testimony given in those Family Court proceedings pointed to evidence indicating emergency circumstances at the Southerland home on June 9, 1997.

Case 1:99-cv-03329-BMC-LB Document 286 Filed 05/29/13 Page 4 of 11 PageID #: 1687


Brian King, Esq. KFIRM LLP 40 Wall St, 28th Floor New York, NY 10005

Phone:202-251-2121 Fax:718-313-0050

What is more, at the close of the Family Court proceedings in July 1998, the Family Court issued an order in which it declined to affirm that emergency circumstances attended the June 1997 removal. See Woo Letter of May 16, 2013 (Doc. 260). The Family Courts 1998 order leaves no doubt that the preponderance of sworn testimony given in the Family Court corroborated the plaintiffs contention that no emergency circumstances existed. And because Woo somehow lost all six of the transcripts from the underlying proceedings, the Family Court order further corroborates the exact conclusion that this Court reached in 2007, and the Second Circuit reached last year: none of Woos proffered evidence is sufficient to show that emergency circumstances existed at the time of the June 1997 removal. Indeed, the July 1998 order supports only the conclusion that no emergency circumstances existed when Woo, accompanied by P.O. Aitola, removed the children. Before analyzing the July 1998 order further, it should first be noted that Woo did not produce a copy of the order to the plaintiffs until May 24, 2013, less than one week ago, and more than eleven years after it was first due2 as a mandatory initial disclosure pursuant to Rule 26. See Fed. R. Civ. P. 26(a)(1)(C) (mandating that initial disclosures be made within 14 days of the Rule 16(f) conference). As a second violation of Rule 26, Woos disclosure of the order comes more than ten years after the plaintiffs demanded it in discovery requests. See Plaintiffs First Set of Interrogatories and Request for Production of Documents, attached as Exhibit 3. Third, Woo achieved a veritable trifecta of Rule 26 violations by producing the July 1998 order to the plaintiffs merely 10 days before trial, which violates Rule 26s mandate that it be served at least 30 days before trial. See Fed. R. Civ. P. 26(a)(3)(iii) and (a)(3)(B). The fact that Woo missed the November 2001 initial disclosure deadline might have been excusable but for the fact that Rule 26 imposes an ongoing duty on all parties to supplement initial disclosures and discovery responses in a timely manner. See Fed. R. Civ. P. 26(e)(1)(A) (mandating that a party must supplement or correct its disclosure or response in a timely manner if the party learns that in some material respect the disclosure or response is incomplete

The Rule 16(f) Scheduling Order in this case was entered on October 8, 2001 (Doc.72). 4

Case 1:99-cv-03329-BMC-LB Document 286 Filed 05/29/13 Page 5 of 11 PageID #: 1688


Brian King, Esq. KFIRM LLP 40 Wall St, 28th Floor New York, NY 10005

Phone:202-251-2121 Fax:718-313-0050

or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing.). Certainly, where Woo has invoked the July 1998 order in virtually every filing in this case, including filings with the Second Circuit and the U.S. Supreme Court, it seems doubtful that his 11-year delay in disclosing it was merely an oversight. Woos act of withholding this document intentionally for over a decade, only to produce it on the eve of trial, demonstrates his complete disregard for the numerous courts and judges before whom he has appeared. As such, this Court should order Woo to show cause why he should not be assessed financial penalties for leading this Court, the Second Circuit, the U.S. Supreme Court, and the plaintiffs on what turned out to be a wasteful and extravagant 14-year thought experiment. See Fed. R. Civ. P. 11(c)(3). As noted before, this Court permitted Woo to conduct post-remand discovery for the explicit purpose of finding additional evidence that would support a motion for judgment as a matter of law. As also stated, the plaintiffs were permitted no further discovery. In a twist of irony, Woos unfettered discovery privileges have revealed that a police officer did not observe emergency circumstances or hazards at the Southerland home at the time of the removal. Those same generous discovery privileges have revealed that Woo lost every transcript of sworn testimony that might have feasibly contained evidence to the contrary. And those same discovery privileges have revealed that the Family Court, after receiving the sworn testimony of P.O. Aitola and other affiants, declined to affirm Woos assertion that emergency circumstances were afoot at the time of the removal. That is, the July 1998 Family Court order, declining to affirm Woos allegations of emergency circumstances, comports perfectly with this Courts and the Second Circuit s identical finding that Woo failed to present sufficient evidence that emergency circumstances warranted an extra-judicial removal. As a matter of formal logic, where one state court and two federal courts have reviewed Woos entire body of evidence and found it insufficient to support a finding that emergency circumstances existed, no reasonable jury could find upon hearing a police officer testify in the negative that such emergency circumstances existed. Surely, a jury ought not to be impaneled simply to confirm what three or more separate courts have already concluded: No emergency circumstances were afoot at the

Case 1:99-cv-03329-BMC-LB Document 286 Filed 05/29/13 Page 6 of 11 PageID #: 1689


Brian King, Esq. KFIRM LLP 40 Wall St, 28th Floor New York, NY 10005

Phone:202-251-2121 Fax:718-313-0050

time of the removal. Poetically, Woos post-remand discovery efforts have only yielded evidence rebutting his own contentions and proving the plaintiffs claims. In sum, because it is undisputed that the Family Court, this Court, and the Second Circuit all found that Woo failed to adduce sufficient evidence supporting his contention that emergency circumstances were present; and because it is undisputed that P.O. Aitola provided sworn testimony that no emergency circumstances were in fact present; and finally because it is undisputed that Woo has failed to uncover, despite strenuous searches over the last several months, new evidence from any of source corroborating the existence of emergency circumstances, the plaintiffs are presently entitled to a favorable judgment on claims that Woo violated their procedural due process rights by conducting a removal in the absence of emergency circumstances. II. Woos qualified immunity defense based upon objective reasonableness necessarily fails in the absence of competent evidence that emergency circumstances existed at the time of the removal. Consequently, the foregoing circumstances also foreclose Woos qualified immunity defense based upon objective reasonableness. As this Court is aware, the objective reasonableness defense is a mixed question of law and fact. See Bailey v. Pataki, 708 F.3d 391 (2d Cir. 2013) (entering a judgment dismissing the defendants qualified immunity defense after finding that the evidence adduced at the summary judgment staged failed to demonstrate that the defendants acts were objectively reasonable). A direct application of the undisputed facts in Section I requires this Court to find, as it did in 2007, and as the Second Circuit found in 2012, that Woo has failed to adduce evidence sufficient to support a finding of objective reasonableness. To be sure, logical reasoning forecloses this Court from reversing its own previous findings as well as the previous findings of the Family Court and the Second Circuit in the wake of new information corroborating those findings, and in the absence of new information rebutting those findings. Accordingly, this Court must enter a judgment in favor of the plaintiffs on their procedural due process claims.

Case 1:99-cv-03329-BMC-LB Document 286 Filed 05/29/13 Page 7 of 11 PageID #: 1690


Brian King, Esq. KFIRM LLP 40 Wall St, 28th Floor New York, NY 10005

Phone:202-251-2121 Fax:718-313-0050

III. Woos May 24, 2013 revelation that he never in fact obtained an order confirming the existence of emergency circumstances proves the plaintiffs claims that they did not receive a timely and adequate hearing after the removal. Turning to the plaintiffs second theory of liability, Woo must be held liable for violations of the plaintiffs procedural due process rights if Woo cannot adduce evidence that the plaintiffs were given an adequate and timely opportunity after the June 1997 removal to contest Woos proffered explanation for the removal. See Southerland III, 680 F.3d at 151 n.22 ([A] plaintiff may have a viable claim for violation of procedural due process even where emergency circumstances existed at the time of the removal, if the plaintiff does not receive a timely and adequate post-deprivation hearing.). Woos feverish, if not desperate, post-remand discovery efforts gives light to yet another pivotal revelation: Woo never obtained an order from a Family Court judge affirming that emergency circumstances existed at the Southerland home. Notwithstanding repeated representations over the last 16 years that he obtained an order from Judge Turbow in June 1997, Woo revealed on May 24, 2013, just five days ago, that he did not in fact obtain such an order. This eleventh-hour revelation could not have been less timely, considering that the existence or non-existence of the order is a matter of utmost materiality to every claim the plaintiffs have lodged and every defense Woo has invoked in this sprawling litigation. In illustration of the orders import, Woos representation that Judge Turbow issued such an order was so crucial that a unanimous panel of Second Circuit judges relied upon it as the sole basis for dismissing the plaintiffs substantive due process claims. Of course, neither this Court nor the Second Circuit could have known that Woo would later reveal, more than a year later, that he does not now nor has he ever possessed any such order. From the time this case was filed in June 1999, Woo has repeatedly misled this Court as well as reviewing courts about the existence of the mythical June 1997 order only to admit ten days before trial that he never actually obtained any such order. Woos misrepresentations and omissions seem to have no end. Woo stands accused of knowingly misrepresenting information and omitting material facts in order to defraud a state court into giving him a search warrant. Thus, it should not be to anyones astonishment that he waited well over a decade to advise this Court and the plaintiffs that he did not actually obtain an order affirming the June 1997 removal.
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Case 1:99-cv-03329-BMC-LB Document 286 Filed 05/29/13 Page 8 of 11 PageID #: 1691


Brian King, Esq. KFIRM LLP 40 Wall St, 28th Floor New York, NY 10005

Phone:202-251-2121 Fax:718-313-0050

It might never have occurred to Woo that there is something unethical about withholding this pivotal fact, thereby needlessly diverting federal judicial resources over the span of this litigation. By the same token, Woo apparently was undeterred by the fact that his material omissions worked a further hardship upon the plaintiffs. The plaintiffs have waited 16 years for some type of explanation and redress regarding Woos woeful decision to remove them from their happy home only to learn last week that Woo never obtained an order affirming the grounds for the removal. Undoubtedly, if any questions persist as to whether Woo willfully, knowingly, or maliciously misrepresented or omitted material facts in order to obtain a search warrant in 1997, one might reasonably infer that if Woo could mislead this Court and other courts over a period of 14 years, he would readily mislead a state court for the purposes of obtaining a search warrant. It is not clear how reasonable jurors could conclude otherwise -- excepting, of course, the reality that Woo, a clear enemy of truth and the rule of law, would be just as inclined to mislead and defraud a jury as he is inclined to defraud state and federal courts. The consequences of Woos recent revelation are numerous the most important being that by revealing at this late date that he did not obtain an order, Woo has generously satisfied the plaintiffs burden of showing that he did not obtain an order. To clarify, the presumed existence of a June 1997 order was taken by this Court as well as the Second Circuit as possible evidence that the plaintiffs had been provided an adequate and timely opportunity to contest the propriety of the June 1997 removal. As the theory goes, the order itself would possibly show that the children and/or Mr. Southerland had an adequate and timely opportunity to contest the propriety of Woos June 1997 removal. The sufficiency of the orders contents in evincing an adequate and timely adversarial hearing was, of course, entirely speculative because the document itself had apparently never been produced by or to any party, nor attached to any filings or pleadings, nor otherwise possessed by Woo or his attorneys, who smartly make no claim of having ever possessed a copy of the order. Even if this Court were to take Woo at his word that such an order ever existed, the fact that Woo does not have an order, combined with the fact that he lost the transcripts of the postremoval proceedings, forecloses any opportunity he might have otherwise had to corroborate his

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Brian King, Esq. KFIRM LLP 40 Wall St, 28th Floor New York, NY 10005

Phone:202-251-2121 Fax:718-313-0050

assertion that those proceedings accorded the plaintiffs the procedural due process to which they were entitled. However, as outlined in Section II above, it does not appear that those transcripts would have availed Woo even if he could locate them being that at the end of the Family Court proceedings, the purported July 1998 Family Court order gave no indications that the plaintiffs were permitted to challenge Woos basis for the removal. The July 1998 order, in fact, omitted any reference to the conditions Woo allegedly observed in June 1997. Likewise, the July 1998 order did not corroborate in any way Woos assertions that emergency circumstances were at hand in June 1997. Tellingly, the order does not even make reference to 1997 or dates therein. Judging by the contents of the purported July 1998 order, it is inconceivable that the proceedings leading to it would have corroborated either the existence of emergency circumstances or the existence of a June 1997 order. Astonishingly, a careful inspection of the June 1998 order, when compared to documents Woo filed today, May 29, 2013, reveals that Woo will stop at nothing short of fabricating documents in order to mislead this Court. To wit, today Woo submitted a document purporting to be a record of a case begun on June 13, 1997. See Letter by Timothy Woo of May 29, 2013 (Doc. 283, Exh. B). Woos Exhibit B indicates that the docket number for the case carrying the removal affirmation order is N-13432/97. It would seem, upon reviewing this submission, that Woos will to deceive is only delimited by his poor attention to detail -- for in submitting a July 1998 order with the docket number 13423/97, he transposed the numbers 2 and 3 in the docket number that appears on his Exhibit B. This means that either the document he submitted today with 13432 is a fabrication, or, alternatively, the document he provided the plaintiffs on May 24, bearing 13423, is a fabrication. To be sure, a 1998 order could not have a docket number that was issued before the docket number of a 1997 order it is averred to affirm. Stated differently, Woo has tried to convince this Court that the docket number relating to the July 1998 order affirming Woos decision was somehow issued before the alleged June 1997 action was even docketed. The plaintiffs do not know and need not prove which of Woos submissions is a fabrication because, no matter which one is the fabrication, they both illustrate the murky, lurid depths to which Woo will stoop, shamelessly, in order to defraud any and every court that gives him the opportunity to be heard. Woo so desperately wants to avoid liability here that he has

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Brian King, Esq. KFIRM LLP 40 Wall St, 28th Floor New York, NY 10005

Phone:202-251-2121 Fax:718-313-0050

mounted a challenge to scientific conceptions of space-time. Judgment for the plaintiffs is not only due; it is long overdue. IV. Conclusion For the last 14 years this Court has engaged in a constitutional analysis on the basis of what ultimately turned out to be merely a hypothetical June 1997 order. As a hypothetical, the order might have recorded the solemn and necessary legal procedures antecedent to depriving Mr. Southerland of the fundamental right ... to make decisions concerning the care, custody, and control of his children. Southerland III, 680 F.3d at 142 (emphasis added). For a decade and a half, Woo touted that the same hypothetical order would, when finally unveiled, show that he was justified in depriving the Southerland children of their parallel constitutionally protected liberty interest in not being dislocated from the emotional attachments that derive from the intimacy of daily family association. Id. (emphasis added). Such an order, embodying all the procedural process that the plaintiffs contend they were denied, and Woo contends they were provided, was as much the centerpiece of Woos defense strategy and it was a stumbling block for the plaintiffs procedural due process claims. Plaintiffs have contended from the start that they were not provided a timely and adequate opportunity to challenge Woos removal decision. Up until a few days ago, Woo lacked the integrity and decorum to advise any person or court that he never in fact possessed an order. Now that this fact is known, Woos thought experiment must come to an end for if there is no order, Woo could not hope to prove that the plaintiffs were provided an adversarial hearing in order to challenge Woos removal decision. In the absence of record evidence as to the substance of the post-removal judicial confirmation proceeding, Woo simply adduces no evidence permitting the conclusion that the Family Court confirmed the June 1997 removal and/or that the plaintiffs received procedural due process. Certainly, where this Court and the Second Circuit have each found the residuum of Woos evidence insufficient to demonstrate emergency circumstances, the non-existence of the June 1997 order further corroborates that no court has ever found, upon review of Woos evidence, that emergency circumstances abided the Southerland home on June 9, 1997.

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Case 1:99-cv-03329-BMC-LB Document 286 Filed 05/29/13 Page 11 of 11 PageID #: 1694


Brian King, Esq. KFIRM LLP 40 Wall St, 28th Floor New York, NY 10005

Phone:202-251-2121 Fax:718-313-0050

The law requires that Woos allegations be cast in the most favorable light for the purposes of determining the merits of this motion. Notwithstanding that standard, no amount of favor, preference, or benefit of the doubt can overcome the grotesque luminescence of Woos 16year secret, to which he finally confessed last week -- only after Judge Bloom demanded he turn over a copy of the coveted June 1997 order. Indeed, Woo has relied upon the benefit-of-thedoubt from the moment he filed a false affidavit in 1997 seeking a search warrant. From that moment forward he has continued to abuse the trust and confidence society ought to be able to place in governmental officers especially those performing the duties of a family social worker. He has flagrantly violated the trust of the Family Court, this Court, the Second Circuit, the U.S. Supreme Court, and most grievously, the millions of U.S. citizens that counted on him to carry out his role as a social worker with integrity. The most favorable light casts Woo as a rogue governmental official, who has led numerous state and federal court on a complicated, complex scam in order to avoid his responsibility to bear, faithfully, his governmental authority. The undersigned, formerly and always a United States Marine, sworn to protect and defend the United States Constitution against all enemies, foreign and domestic, has yet to reconcile Woos actions over the last 16 years with his trusted role as a governmental official. In contrast to what one would come to expect from a government official, Woos long-running scheme displays him as a preeminent enemy of the U.S. Constitution and the rule of law. And owing to Woos extraordinary distinction, only recently brought to light, I seriously doubt that any person sworn to uphold the U.S. Constitution and the rule of law would now be inclined to shake his sullied hands. Respectfully and Dutifully,

/s/

Brian King

Brian King, Esq.

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