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10-12-19 Addendum to Request for investigation, impeachment proceedings where appropriate, in re: US Judge JED RAKOFF and Clerk of the Court RUBY KRAJICK, US District Court, Southern District of New York
The Honorable John Conyers, Jr,
Chair
US House Committee on the Judiciary 2426 Rayburn HOB Washington, DC 20515 Fax: 202-225-0072 The Honorable Patrick Leahy,
Chair
US Senate Committee on the Judiciary 433 Russell Office Building Washington DC 20510 Fax: 202-224-3479 The Honorable Louise McIntosh Slaughter,
Chair
US House Committee on Rules 2469 Rayburn HOB Washington, DC 20515 Fax: 202-225-7822
By certified mail, by fax, and email
RE: Addendum to Request for investigation, impeachment proceedings where appropriate, in re: JED RAKOFF - US Judge, and RUBY KRAJICK – Clerk of the Court, US District Court, Southern District of New York
Dear Congressman Conyers, Senator Leahy, and Congresswoman McIntosh Slaughter:
Please accept instant notice and the linked SEC FOIA-response [] as an addendum to the previously filed requests for initiating investigation and, where appropriate, impeachment proceedings,
pursuant to Section 4 of Article Two of the United States Constitution,
against US Judge JED RAKOFF [
] and
Clerk of the Court RUBY KRAJICK, [
] both of the US District Court, Southern District of New York. The requests pertain to their conduct in the litigation of
Securities and Exchange Commission v Bank of America Corporation
(1-09 -cv-06829) in apparent violation of the law.
The matters underlying the litigation of
SEC v BAC
are of the highest public policy significance, pertaining to the December 2008 government-coerced merger of Merrill Lynch and Bank of America. The matter involved alleged criminal conduct by senior US and BAC officers, including: Chair of the Federal Reserve Ben Bernanke, former U.S. Treasury Secretary Henry Paulson, former BAC President Ken Lewis, and then BAC General Counsel Brian Moynihan (today – BAC President).
The requests for investigation in this matter and the report, [] which was filed for international peer-review, detailed the invalid nature of the litigation, which originated in the merger: There is no record of a valid assignment order for Judge Jed Rakoff, minutes were not entered for the proceedings, motions were not docketed, but were purportedly ruled upon, and unauthorized court personnel constructed the docket. The Court also denies access to all the Clerk’s authentication/ attestation records (NEFs) in the case, including, but not limited to the authentication record for the purported Final Consent Judgment. Therefore, it impossible to ascertain the validity, or lack thereof, of the judicial records in the case.
Digitally signed by Joseph Zernik DN: cn=Joseph
Zernik, o, ou, email=jz12345@earthlink.net, c=US Date: 2010.12.19 18:24:59 +02'00'
Page 2/5 December 19, 2010
The US District Court, Southern District of New York, continues to deny access to litigation records under the caption of
SEC v BAC
.
However, in response to FOIA-requests, the linked records were received from the SEC, [
] including the purported summons as issued by clerk, which are the focus of the instant Addendum:
A. Issuance of the Summons
1) The September 21, 2009 summons, which was produced by SEC as part of the FOIA-response, as summons issued by clerk, was not signed by Clerk of the Court. 2) The summons, which was produced by SEC, had no seal of the Court. 3) US law, 28 USC 1691 requires:
All writs and process issuing from a court of the United States shall be under the seal of the court and signed by the clerk thereof.
Therefore, the summons produced by SEC as summons issued by clerk in
SEC v BAC
could not be a valid summons.
B. Docketing and Public Access to the Summons
1) The PACER docket of
SEC v BAC
notes:
08/03/2009 SUMMONS ISSUED as to Bank of America Corporation. (ama) (Entered: 08/03/2009)
2) The purported August 3, 2009 summons was excluded from the PACER docket. 3) Upon repeated requests, the Clerk refused to provide a copy of the August 3, 2009 summons. 4) Upon inquiries the clerk explained that the Court routinely excluded the summonses as issued by the Clerk from the PACER dockets and denies public access to them. Only counsel in a given case were permitted access to the summons as issued by the Clerk. 5) The
Federal Rules of Civil Procedure,
Rule 79: Records Kept by the Clerk (a)(1) and (a)(2), states:
(a) Civil Docket. (1) In General. The clerk must keep a record known as the civil docket in the form and manner prescribed by the Director of the Administrative Office of the United States Courts with the approval of the Judicial Conference of the United States. The clerk must enter each civil action in the docket. Actions must be assigned consecutive file numbers, which must be noted in the docket where the first entry of the action is made. (2) Items to be Entered. The following items must be marked with the file number and entered chronologically in the docket: (A) papers filed with the clerk; (B) process issued, and proofs of service or other returns showing execution; and (C) appearances, orders, verdicts, and judgments.
6) In
Nixon v Warner Communications, Inc
(1978) the U.S. Supreme Court re-affirmed public access to court records to inspect and to copy as inherent to the First Amendment. Therefore, based on the facts detailed in sections A and B, above, a reasonable person is likely to conclude:
1) The August 3, 2009 docket notation, “SUMMONS ISSUED”, is a false a docketing entry. 2) The practice, whereby the Clerk of the Court excludes the summonses from the dockets in general, and from the
SEC v BAC
docket in particular, should be deemed a violation of the law and also a violation of the Clerk's Oath of Office.
Page 3/5 December 19, 2010
3) The ongoing denial of public access to court records by the Clerk of the Court should be deemed a
Deprivation of Rights under the Color of Law
. 4) The facts surrounding the issuance of the summons demonstrate the invalidity of the PACER docket in
SEC v BAC
and lack of accountability of the Clerk of the Court for integrity of the PACER dockets. 5) The facts would lead a reasonable person to conclude that the overall conduct of the Court relative to issuance of summons in
SEC v BAC
was false and deliberately misleading.
C. Failure to Execute/Waive the Service of Process and Failure to Dismiss the Complaint
1) Nowhere in the docket of
SEC v BAC
is there any indication that service of the summons was waived, or that the service was in fact executed. 2) The Court did not dismiss the case after the passage of 120 days, during which no execution or waiver of service of process was recorded. 3) The
Federal Rules of Civil Procedure
, Rule 4: Summons (m), states:
(m) Time Limit for Service.
If a defendant is not served within 120 days after the complaint is filed, the court — on motion or on its own after notice to the plaintiff — must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period. This subdivision (m) does not apply to service in a foreign country under Rule 4(f) or 4(j)(1).
Therefore: 1) The failure to dismiss the complaint of
SEC v BAC
, after the summons had not been served within the time required by law, should be deemed as conduct of invalid litigation in violation of the law.
D. Conduct of the litigation as a whole
A report, [
] filed for international peer-review in a scholarly law journal, detailed the conduct of the litigation and docketing practices in
SEC v BAC
:
•
There is no record of a valid assignment order for Judge Jed Rakoff;
•
The minutes were not entered for the proceedings;
•
Some of the proceedings were not recorded in the docket as such;
•
Motions were not docketed, but were purportedly ruled upon;
•
Unauthorized court personnel constructed the docket.
•
The Court denies access to all the Clerk’s authentication/ attestation records (NEFs) in the case, including, but not limited to, the authentication record of the purported Final Consent Judgment, making it impossible to ascertain the validity, or lack thereof, of nay of the judicial records in the case. Therefore, the litigation as a whole was opined as Fraud on the Court. The facts surrounding the summons, which are now provided as additional evidence, would lead a reasonable person to conclude that the conduct of the invalid litigation in
SEC v BAC
was most likely coordinated prior to the filing of the complaint in
SEC v BAC
at the Office of the Clerk.