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Civ. No. 10-00362 JW

Nonparty Memorandum conforming to Civil Local Rule 7-4 in opposition to dismissal of the Amended Complaint for failure to state a Claim and MOTION TO JUDGE WARE TO SUPPLEMENT HEARING RECORD NOTING THE KMT CONTROLLED THE SECRET POLICE AND MILITARY POLICE FORCES ON FORMOSA AND SUPERIOR COMMAND RESPONSIBILITY OF CINCPAC OVER THE FORCES ON FORMOSA Equitable tolling is proper because the KMT triad criminal racketeering organization extensively engages in activities in the District, such as murder for hire to the United States Army Military Police on Formosa (allied UN military government Chinese member occupation forces Military Intelligence Bureau, Liu v. Republic of China,642 F.Supp. 297 (N.D.Cal.1986).), and the KMT Secretary General (ex officio Chair of the KMTBMC) ordered a treason trial against Dr. Roger CS Lin and unindicted co-conspirator Dr. Jonathon Levy ( ). The same triad is currently trying to evict a 90 year old early dementia widow whose husband was trained by the CIA in the 1950s and settled on Formosa on property provided by the authorities who built with his own funds a home thereon, said eviction being premised on a legislative takings provision enacted belatedly by forty years claiming it improper for the life estate holders to lease any portion of their own homes to others. Usually the US Army handles occupation public security on its own, but on Formosa, the US relies on sutlers or free Chinese refugee mercenaries or other members of the KMT triad organization. The Courts order, docket item 40, claims Plaintiffs putative cause of action for quasi-contract appears to be barred by the statute of limitations for that claim. The order tellingly does not purport to explain any factual basis in the record for a date certain on which

the Court believes the bell began tolling for assertion of the claims. In Doe v Siddigi (
09/12/2011 Civil Action No. 2010-1256 Doc No. 39 (memorandum opinion) DOE v. SIDDIG et al by Judge Colleen Kollar-Kotelly 09/12/2011 Civil Action No. 2010-1256 Doc No. 39 (memorandum opinion) DOE v. SIDDIG et al by Judge Colleen Kollar-Kotelly adduced enough factual content to render her equitable tolling argument sufficiently plausible to allow her to proceed to discovery. See Jones v Rogers Mem'l Hospital, 442 F.2d 773, 775 (DC Cir 1971) (per curiam) noting the statute of limitations is an affirmative defense that should not be decided on a motion to dismisss unless it is clear that plaintiff is not entitled to relief; Supermail Cargo Inc v US, 68 F3d 1204, 1206 (9th Cir 1995) noting that because the applicability of the doctrine of equitable tolling often depends on matters outside the pleadings, it is not generally amenable to resolution of a motion to dismisss. Indeed, as Doe correctly observes, several courts have found the sort of factual allegations raised by Due sufficient to invoke the doctrine of equitable tolling. See, eg, Hernandez v Attisha, 2010 WL 8161660 at 1, 4-5 (SD Cal March 5, 2010); Deressa v Gobena 2006 WL 335629 at 1, 3-5 (ED Va Feb 13, 2006); Wallace v Kato, 549 US 384, 389 (2007).), the US District Court in the congressionally controlled District of Columbia, excluded from equal participation through representation with a member in Congress, because the residents are mostly of African American heritage and democrats, held that equitable tolling was permitted, and that for some claims, the tolling of the statute of limitations would date from a date certain established on the basis of facts averred in the pleadings before the Court on the motion pending. The threat of official acts of repression or retribution were deemed sufficient to have warranted equitable tolling and to have constituted factual legal bases for false imprisonment claims. Many of the TCRLO class remain involuntarily held on Formosa, and have false imprisonment claims (see Shen v. Daly, 222 F.3d 472 (8th Cir. 2000).) as they cannot leave the island as citizens of the island of Taiwan (like Guamanians or Puerto Ricans could), but must carry the allied UN military government travel document laissez passer self-styled ROC Taiwan passport to exit

from the island [SWNCC SFE 107 reposes travel control authority in the US military governor for Formosa, SCAP terminated the Japanese ability to issue passports for her Formosan nationals (SCAPINs) and from 1949 October the allied UN Chinese member began issuing passports for Formosan islander/inhabitants(email communication to Intervenor from Ministry of Foreign Affairs unit responsible for protection of Japanese on Formosa and conduct of relations as such exist with Japan by the allied UN Chinese member authorities on Formosa ad interim)]. The Court also held: See Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986) (explaining that in considering whether to grant default judgment, the Court must consider the sufficiency of plaintiffs complaint); see also Cripps v. Life Ins. Co. of N. Am., 980 F.2d 1261, 1267 (9th Cir. 1992) (citation omitted) (explaining that necessary facts not contained in the pleadings, and claims which are legally insufficient, are not established by default). A court may act on its own initiative to note the inadequacy of a complaint and dismiss it for failure to state a claim. Wong v. Bell, 642 F.2d 359, 361 (9th Cir. 1981). But the Court should note that Wong v Bell related to admission to the US, and standing and venue issues relating to Fed.R.Civ.P. 12(b) (6). Those legal principles, facts, and issues do not have any relation to the immediate causes of action in equity for conversion and breach of trust or quasi-contract. Moreover in Wong the Court admitted its standing decision could be wrong, citing, United States ex rel. Garcia v. McAninch, 435 F.Supp. 240, 243 (E.D.N.Y .1977) (wife has standing to complain of nonadmission of husband). Plaintiffs have accordingly failed to state a claim upon which relief can be granted. See Jablon v. Dean Witter & Co., 614 F.2d 677, 682 (9th Cir. 1980). Their suit is therefore subject to dismissal under Fed.R.Civ.P. 12(b)(6).

A trial court may act on its own initiative to note the inadequacy of a complaint and dismiss it for failure to state a claim, 5 C. Wright & A. Miller, Federal Practice and Procedure, 1357 at 593 (1969), but the court must give notice of its sua sponte intention to invoke Rule 12(b)(6) and afford plaintiffs "an opportunity to at least submit a written memorandum in opposition to such motion," Crawford v. Bell, 599 F.2d 890, 893 (9th Cir. 1979), quoting Potter v. McCall, 433 F.2d 1087, 1088 (9th Cir. 1970).

The Eitel court held the: Factors which may be considered by courts in exercising discretion as to the entry of a default judgment include: (1) the possibility of prejudice to the plaintiff, (2) the merits of plaintiff's substantive claim, (3) the sufficiency of the complaint, (4) the sum of money at stake in the action; (5) the possibility of a dispute concerning material facts; (6) whether the default was due to excusable neglect, and (7) the strong policy underlying the Federal Rules of Civil Procedure favoring decisions on the merits. 6 Moore's Federal Practice p 55-05, at 55-24 to 55-26. Yet here the District has explained only one of the seven factors affecting her discretion, to the utter neglect of the others. Moreover the Court can proceed to a bench trial for determine the merits of the case, rather than decline to provide a default judgment. Additionally, Eitel is legal malpractice case, and combined with the Courts admonishment of counsel that they lack standing to appear, appears to imply that the Court believes the clients in interest as plaintiffs, TCRLO, may have claims for malpractice against their counsel for failure to have first read the local civil rules, etc. That the Court sua sponte reviewed whether counsel were members of the bar of the Northern District reveals an odd zeal among the Court in this matter. Cripps is a quasi-probate action for prior spouses of an estate property right or claim, thus providing another useful family law analogy for the status of Formosa, Formosans and the various

international claimants in their historic and cultural affinities and relations to the island and her peoples through the conceptual metaphors of nationality (individual (national) to country (nation), femes covert feudal law doctrine of covertage unity of spousal identity (husband and wife merge into a single legal personality) recently condemned by the Ninth Circuit in the Singh decision).

In reviewing a default judgment, this court must take the wellpleaded factual allegations of Cynthia's cross-complaint as true. Benny v. Pipes, 799 F.2d 489, 495 (9th Cir.1986) cert. denied, 484 U.S. 870, 108 S.Ct. 198, 98 L.Ed.2d 149 (1987). However, necessary facts not contained in the pleadings, and claims which are legally insufficient, are not established by default. Danning v. Lavine, 572 F.2d 1386, 1388 (9th Cir.1978); accord 6 J. Moore, Moore's Federal Practice p 55.03, at 55-20 to 21 (1992). Thus, Susan may prevail on the merits if she can demonstrate that, taking the facts alleged in the pleadings as true, Cynthia was not entitled to relief. See Alan Neuman Productions v. Albright, 862 F.2d 1388, 1392-93 (9th Cir.1988) (reversing default judgment for plaintiff on RICO claims because the complaint failed properly to allege such claims), cert. denied, 493 U.S. 858, 110 S.Ct. 168, 107 L.Ed.2d 124 (1989). Here the Court has not alleged any facts from the pleadings to support her discretionary basis for a conclusion that the statute of limitations has ever even begun to toll, let alone the date certain. Lavine is a bankruptcy Trustee proceeding using her maiden name for breach of trust, and thus also provides a useful analogy no doubt for the status of Formosa issues involved. Lavine also involved a fraudulent conveyance or a voidable preference, concepts analogous to the claims presented herein. Your putative prospective intervenor thus prays the Court acknowledge: 1. Equitable tolling is due because the KMT triad organization continues to control the Military Police on Formosa, through the

KMT branches assigned specifically to the military law enforcement branches on Formosa, noting that counsel Dr. Levy was implicitly charged with treason by the defendants Secretary General, and other improper harassment by the defendants during the proceedings. Defendants continue to control archives of documents in secret which amply reveal their massive breaches of trust, conversion and quasi-contract causes of action in this district. The KMT party apparatus on Formosa seized more than 300,000 private Japanese estates and homes contrary to the Third amendment, and confiscated ALL Japanese property on the island, then laundered the proceeds through gold yuan related transactions in Hong Kong etcetera, reinvesting the hundreds of millions of dollars and indeed billions in proceeds in the Northern District of California in real estate, businesses, the Far Eastern National Bank, etc. Claimants have simply not been free to pursue their claims in the District until President Obama by US military government directive from the White House intervened to direct the Taiwan High Court prosecutors on Formosa to issue nolle prosecui letters to Dr. Roger CS Lin of the Taiwan Civil Government organization terminating the prosecution for treason (Duarte v Dade), and similar directives from the White House to the Taipei District Court prosecutors in the matter of prosection of claims for recoupment of city councilor wages and benefits for many years service by Dr. Ching-An Lee, a naturalized US citizen born to Chinese refugees resettled on Formosa, under the de facto official doctrines of Nguyen v US from the Ninth Circuit. Dr. Levy cannot even freely visit Formosa, as he has not received a nolle prosecui, and his client Shuibian Chen, though apparently in receipt of a nolle prosecui, nevertheless remains in custody, and the prosecutors and KMT certainly could reassert their treason charges against Dr. Levy even though Dr. Lin and former President Chen have seen the charges against them alleviated administratively. 2. The US has publicly only stated that Formosa is territory detached from Japan incident our conquest in the Pacific theater in the second world war, the future disposition of which remains for international settlement. But to the Republic of China (Taiwan) authorities, the PRC through the then USSR, and all

allied victors on the Far East Commission, the US by Aide Memoire, in travaux preparatoires for the Treaty of Peace at San Francisco with Japan, October 25, 1950 provided that the US was Administering Authority for the entrusted territories detached from Japan in the islands of Formosa and the Pescadores consonant the duties of the US under UN Charter Article 73, and other precatory national responsibilities. Thus, plaintiffs have been at all times, including the present, denied the public admission and notice from the US of the special relations existing for superior command responsibility to the allied victors occupation of the formerly Japanese relinquished territory detached from Japan incident the Principal Victors directives therefor (SCAPIN 677, JCS 1651, SCAP Gen. Order One, JCS 1381/15). 3. We appreciate the Court finding that the causes of action are sufficient if equitable tolling applies, and holding that there are no bars to justiciability other than statute of limitations issues. This holding amply shows that intervenor and Plaintiffs complaints to the Court have been deemed wholly meritorious in all respects other than whether the applicable statute of limitations doctrine for quasi-contract claims shall bar adjudication in the Courts nearly unfettered discretion. The Court however in its order at docket item 40 identifies no date certain on which the Court alleges the statute of limitations began to toll, nor how long the statute of limitations is alleged to have run, nor on what basis, so it is impossible, quite literally, to respond to the unfounded assertion in the order that an unidentified period for a statute of limitations has begun to toll from an unknown time and date, and has run its course since an unknown date, for the Court has provided no rationale for its apparently arbitrary determination. The authorities on Formosa maintain that the gold yuan bond obligations remain valid and current, and thus by judicial notice, this Court can deem no statute of limitations to have run, while also holding the obligations in fact defaulted upon and justly, now due. 4. The US remains in command and control on Formosa, never having relinquished our Principal Victor unsatisfied interest or claims to the ultimate disposition thereon, and having fully

operationally integrated the local forces in defense thereon with PACOM. type=turn&id=FRUS.FRUS195254v14p1&entity=FRUS.FRUS195254 v14p1.p0248&q1=department%20of %20defense&q2=liaison&q3=formosa For background, Major Briggs commenced by showing me a copy of a top secret telegram from CINCFE (as I recall, dated March 8) 1 in which General MacArthur expressed for the information of Defense his frank views on the subject of Formosa advisory personnel. To my knowledge this telegram was never distributed to the Department (Major Briggs remarked that this information was being furnished me informally for background purposes only; under the circumstances I could, of course, take no notes regarding this telegram or subsequent remarks). General MacArthur concedes in this telegram that the State Department and Minister Rankin have a legitimate interest in MDA operations on Formosa, but adds that under the present circumstances (i.e., with Formosa under his military command and the invasion threat increasing) he believes that there should be a direct ch-ain of command through CINCFE to JCS with respect to Formosa, military matters.2 General MacArthur then outlines his views regarding the complement for training land advisory personnel :for the island, to the best of my recollection, as follows: type=turn&id=FRUS.FRUS1951v07p2&entity=FRUS.FRUS1951v07p 2.p0362&q1=taiwan&q2=defense&q3=intelligence United States Department of State / Foreign relations of the United States, 1951. Korea and China (in two parts) (1951)

The China area, pp. 1474-2055 PDF (222.6 MB)

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of politics and privilege without running extreme risks of misuse, waste, and corruption. The political commissar system, at present, is the creature of General Chiang Ching-kuo, the Generalissimo's son and Director of the Political Department of the Ministry of National Defense. Formosa does not have a unitary secret police system; it comprises the political commissars in the army, Chiang Ching-kuo agents other than the commissars, the Peace Preservation Corps of General Peng Mengchi," the agents of the Ministry of Interior, the Generalissimo's own bodyguards, etc., etc.....5 Chiang Ching-kuo, as Chairman of the Kuomintang Reform, Committee, has reduced the size of the Central Committee of .the PIarty from 238 to 20 and through this sensitive point exercises considerable indirect and semi-police influence. General Chase has not set for himself the goal of reforming Formosa. However, the secret police, counter intelligence, informer, and commissar activities in the army constitute-according to both General Sun Li-jen and General Chase-an almost insuperable barrier to the achievement of good military discipline, high morale, and effective combat potential. To streamline a military establishment requires, of course, some knowledge of its size and organization. One is impressed on Formosa by the lack of good statistical information on its actual size. I heard

estimates ranging from 350,000 to 800,000. General Chase has set for himself the target of training and equipping 600,000-and no more. It should be mentioned, parenthetically, that Colonel Rector, Chief of the Air Section of MAAG, has been very well impressed by the success of the Chinese Air Force in preserving its organization, maintaining its records, and carrying out training operations. Its records are exact and complete. Its commissions are well earned. There are only 13 generals in the Air Force as a whole. He believes that the Air Force could -achieve peak combat efficiency in six to seven weeks after the arrival of fighter aircraft and within eight weeks after the arrival of light bombers. The story of the army is very different. The MAAG has persuaded the Ministry of National Defense to reduce from 12 to 10 the number of Chinese armies and from 38 to 21 the number of Chinese divisions. This contraction of organization strength will result in the elimination of "paper" units and bring to full strength units actually to be carried on the books. This organizational reform is already taking place. The organizational reform, however, is, in General Chase's opinion, merely a prerequisite of a reform in military thinking. The Chinese Communist army fighting in Korea is an Lieutenant General Peng Meng-chi, Deputy Commander, Taiwan Peace Preservation Headquarters. 5Ellipsis in the source text. FOREIGN RELATIONS, 19 51, VOLUME VII 1820

We also ask the Court permit intervention, jus tertii, since the pro hac vice status of counsel for the class plaintiffs has not been resolved: Further, the Court notes that neither of the attorneys for Plaintiffs appear to be a member of the bar of the Northern District of California, while only one of the attorneys is a member of the State Bar of California. The Civil Local Rules of the Northern District of California provide that only members of the bar of this Court may practice in this Court, and only active members in good standing of the State Bar of California are eligible to be members of the bar of this Court. See Civil L. R. 11-1. An attorney who is not a member of the bar of this Court may, however, apply to appear pro hac vice, which requires, inter alia, that such an attorney designate a member of the bar of this Court as co-counsel. See id. 11-3. On or before September 23, 2011, Plaintiffs counsel shall either rectify this issue or shall file a certification explaining that one of Plaintiffs attorneys is, in fact, a member of the bar of this Court. In light of this Order, the Court CONTINUES the hearing on Plaintiffs Motion for Default Judgment from September 19, 2011 to October 3, 2011 at 9 a.m. We hope this material will show that the Courts order regarding: In particular, the Court finds that Plaintiffs putative cause of action for quasi-contract appears to be barred by the statute of limitations for that claim. is indeed subject to equitable tolling of the statute of limitations because the de jure status of the superior command relations have only been recently more publicly reconfirmed by the US. We hope the Court liberally permit us to intervene in relation to her order to: On or before September 23, 2011, Plaintiffs shall file a written memorandum conforming to Civil Local Rule 7-4 in opposition to dismissal of the Amended Complaint for failure to state a claim., docketing this memorandum in response thereto. Respectfully, Dr. Paul Maas Risenhoover Robin Hood Tainan, allied American Formosa Certificate of service by email to:,,, "Jeff Geer" <>,

"Dr. Jonathan Levy" <>,, "Cheng Kuang Chen" <>,, "RWH (Taipei)" <>, "roger Lin" <>,, "pacom.foia.fct" <>,,, " ( DPP )" <>,, "stantonwa" <>,, "Zobel, James" <>,