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FRIENDS OF KELLY AYOTTE, et al., Defendants. ) ) ) ) CASE NO. 2010-CV-501 JUDGE PAUL BARBADORO MAGISTRATE LANDYA McCAFFERTY
PLAINTIFF’S EMERGENCY MOTION FOR RULE 11 SANCTIONS RELATIVE TO HIS MOTION TO VOID REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE LANDYA B. McCAFFERTY, WHO ALONG WITH MCLANE GRAF ATTORNEYS NEVER DISCLOSED THE FACT THAT SHE WORKED AT DEFENDANT KELLY AYOTTE’S OLD LAW FIRM ALONGSIDE PLAINTIFF’S OPPOSING COUNSEL Now comes Plaintiff to issue this emergency Motion against all named Counsel for Defendants and Defendants themselves for interjecting materially false and morally and ethically-challenged commentary into this case. These facts begin with the fact that they all actively and willingly participated in a process in which a sitting Judge with known ethical conflicts failed to report her work history with McLane, Graf when even 1L law students know better than that, and culminating with all of them falsely representing to this Court that Plaintiff has been disbarred. These Sanctions must issue immediately in order for the Court to regain some semblance of propriety and Honor now that Plaintiff has CORRECTLY identified many procedural and substantive faults on the part of not one but two Judges that has led to their recusals. Further, Defendants fail to cite any controlling or persuasive cases that show that the Court had any authority whatsoever to deny Plaintiff’s right to file additional pleadings -- including a Third Amended Complaint showing pattern and practice as: 1) Named Defendant Nashua PD made disparaging comments against the First Amendment YouTube videos of Plaintiff and of Dave Ridley/Ridley Report as they arrested Mike Gannon for videotaping them, in clear violation of Glik v. Boston and; 2) Reporter Dave Ridley was illegally arrested and acquitted under virtually identical situation as Plaintiff by Nashua PD, again a named Defendant in the case at bar. There simply comes a point in time where this sort of contumacious behavior cannot and will not be tolerated. Now is that time.
Plaintiff will be brief and cite the following issues, using Defendant’s own pleading filed yesterday:
The Defendants simply cannot make this argument with a straight face while tersely acknowledging in their own Pleading yesterday that Her Honor did in fact recuse herself. That statement is sanctionable in and of itself. May the Court take Judicial Notice that Judges are loathe to recuse themselves and that recusal only occurs when there are serious substantive and/or procedural issues at hand. Moreover, Plaintiff has already addressed the fallacy of Judge Barbadoro’s ruling as follows:
**************************** The reason for the Void is simple: Magistrate McCafferty, a former ethics/discipline staffer at NH Bar Association, was fully aware under a 28 U.S.C. §455 analysis before she took the Bench in this case that she had substantial connections with McLane, Graf et al. -- Defendant Kelly Ayotte’s former law firm. Not only did she work at McLane, Graf, her predecessor Judge Muirhead worked there and trained her. Moreover, her former boss and firm founding partner Jack Middleton (who likely wrote a letter of recommendation for her ascension to the bench) joined her former co-worker and current NH Bar President Jennifer Parent across from Plaintiff as lead Defense Counsel for now Senator Kelly Ayotte. Plaintiff hereby retenders his Request for Full Disclosure, which the Court and Counsel have assiduously avoided because production of same would only show how correct Plaintiff was, ab initio.
Defendants fail to point out what those alleged errors were, and it is patently obvious that the issue advances a material issue because the Court is still laboring under an Order that was harshly and unfairly biased against Plaintiff, written by a Judge who has finally admitted that she had an ethical conflict and who recused herself, albeit initially through an underhanded manner, only putting her recusal to written Order at least three (3) weeks after being called on it by Plaintiff. But while Defendants are making vague assertions about errors allegedly made by Plaintiff, they miss the fact – despite being warned – that Plaintiff never was disbarred. Even casual due diligence would uncover that fact so the Statement issued in Brian Cullen’s email and republished in this Court that Plaintiff was disbarred is also Sanctionable in and of itself.1 Turning now to Defendant’s misrepresentations of Plaintiff’s arguments and case law they erroneously wrote:
That is once again a false Statement that also belies common sense. Plaintiff has REPEATEDLY stated and argued this point, using case law but rather than face the music the Defense counsel have joined together in a pleading to outright lie to this Court. Specifically Plaintiff wrote in his Motion to Void/Vacate:
Not that disbarment would constitute any sort of barometer on a NH Attorney’s ability to practice law. As we all know, Shaheen & Gordon’s Michael McLaughlin was not only disbarred but is a convicted felon. Note further that Counsel stated the Plaintiff was interjection extraneous matter into this case, nothing is more extraneous than a lawyer like Brian Cullen trying to threaten Plaintiff with an old suspension (not: disbarment) order from another Court when he has a recent Contempt Order in this very Court. See Bourne v Town of Madison, 2005-CV-365 at the end of this document and as Appendix A.
See generally Payton v. State, 937 So. 2d 462 (2006) holding that a Judicial argument with counsel may be grounds for recusal and that any orders issued once the grounds for disqualification is valid are void. Moreover, if Summary Judgment is entered by a disqualified judge the judgment is voidable upon plaintiff's objection." Urias v Harris Farms, Inc. (1991) 234 CA3d 415, 426, 285 CR 659. These cases are instructive here because unlike Payton, the grounds for recusal did not develop along the way, rather they existed all along as witnessed by the organizational chart on the following page. As such the only equitable solution is to void the findings of fact and law set forth by Her Honor’s Report and Recommendations and begin anew. The Court simply cannot be permitted to use her Report in addressing the pending Motions to Dismiss because the errors she made are so clearly against the manifest weight of the evidence: She saw Plaintiff at all media events engaging in banter with Kelly Ayotte supporters who were in no ways concerned with his presence or worried about his conduct during the exact same time periods that Witness Monier claimed Plaintiff was creating a suspicion of fear or disturbance yet she ignored those facts. She saw Plaintiff being continually harassed by Lieutenant John Fisher even though Plaintiff was on the sidewalk yet ignored it. She saw other white people were actually closer to a backing vehicle but received no comment from Fisher and she ignored that as well. All of these issues have been raised in Plaintiff’s 14 July 2011 Motion for Reconsideration on his Motion for Recusal, which has not been addressed by the Court. All Defendants can do in this instance is to point to the spurious and unlawful orders of Judge Barbadoro, even as they ignore the points set forth by Plaintiff when he wrote in prior pleadings: Lastly, as to any pending Orders that Plaintiff is not permitted to file anything, those orders are ipso facto Unconstitutional as well given the circumstances manifest. Not only that, but Plaintiff has a tracker on his website and he is aware that Counsel have reviewed the following law, but have failed to provide any law for their position that the Court’s action was lawful. In point of fact a reasonable observer could find that the Court’s actions were not lawful because Judge Barbadoro recused himself sua sponte, before Plaintiff could even move for it: Richardson Securities v. Lau, 825 F.2d 647 (1987).
We believe that the district judge usurped power when she prevented the Laus from filing a motion for leave to amend their answer. Absent extraordinary circumstances, such as a demonstrated history of frivolous and vexatious litigation, see In re Martin-Trigona, 737 F.2d 1254, 1261-62 (2d Cir.1984), or a failure to comply with sanctions imposed for such conduct, Johl v. Johl, 788 F.2d 75 (2d Cir.1986) (per curiam), a court has no power to prevent a party from filing pleadings, motions or appeals authorized by the Federal Rules of Civil Procedure. The actions of the district court effectively prevented the Laus from filing a motion for leave to amend. The refusal to permit a motion to be filed without a prior conference, followed by a failure to hold such a conference until nearly five months after one was first requested, and then by a denial of the motion for having been filed too late, are actions so "at odds with the purpose and intent of [the Federal Rules]," Padovani v. Bruchhausen, 293 F.2d 546, 548 (2d Cir.1961), as to warrant mandamus relief. 5
CONCLUSION Magistrate Judge McCafferty knew, ab initio that she could not sit for this case, meaning that she should have recused herself at the outset, rendering anything she touched as tainted. The fact that she didn’t even follow her normal protocol in recusing herself provides further indicia of improper activity and the Court’s ongoing reliance on her unlawfully-skewed Report and Recommendations will not allow Plaintiff to substantially advance his case because almost everything she wrote in it was false or unfair to Plaintiff. Plaintiff’s opposing counsel, including current New Hampshire Bar Association President Jennifer Parent, also knew as much yet failed to behave in principled manner. As such, this entire case has been tainted and Counsel and the Court would do well to recognize the pit that they have sunk themselves into going forward. SCOTUS and Justice Elena Kagan are watching, and Plaintiff looks forward to having the Counsel of his Choice brief and argue this case. Rule 7.2 Certification: There is no need for Rule 7.2 Certification in light of the fact that this is an Emergency Motion. Plaintiff will today also file for leave to issue a Reply Memorandum to Defense Counsel’s Memorandum in Opposition. /s/ Christopher King, J.D. _____________________________ Christopher King, J.D. http://KingCast.net -- Reel News for Real People 617.543.8085
CERTIFICATE OF SERVICE I the undersigned, solemnly swear that a true copy of this Emergency Motion was electronically served on 6 September 2011 to: Jennifer Parent and Jack Middleton, Esq. City Hall Plaza 900 Elm Street Manchester, NH 03101 Gordon MacDonald, Esq. Nixon Peabody LLP 900 Elm Street Manchester, NH 03101 Brian Cullen, Esq. 10 East Pearl Street Nashua, NH 03060 /s/Christopher King, J.D. __________________________________ KingCast.net By and through Christopher King, J.D. 617.543.8085