Case: 10-3000 Document: 003110402972 Page: 1 LAW OFFICES OF PHILIP J.

BERG

Date Filed: 01/07/2011

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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Date Filed: 01/07/2011

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

January 7, 2011

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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Case: 10-3000 Document: 003110402972 Page: 3

Date Filed: 01/07/2011

Ms. Tiffany Washington Calendar Clerk U.S. Court of Appeals for the Third Circuit Page Three I.

January 7, 2011

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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Date Filed: 01/07/2011

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

January 7, 2011

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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Date Filed: 01/07/2011

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

January 7, 2011

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 wellestablished 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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Date Filed: 01/07/2011

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

January 7, 2011

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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Date Filed: 01/07/2011

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

January 7, 2011

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

January 7, 2011

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 noncompliance 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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Date Filed: 01/07/2011

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

January 7, 2011

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”
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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.” 9

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

January 7, 2011

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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