Opinion
1:08-cv-0923-JMS-TAB.
June 22, 2011
ENTRY
During the past week, Defendant Paul Walker has faxed numerous documents to the Court. The Court will address those documents, Mr. Walker's method of service, and the upcoming final pretrial conference herein.
Mr. Walker has been made aware numerous times that he cannot represent Defendant Essential Health, Ltd. because a corporation must be represented by counsel, and Mr. Walker is not an attorney. [Dkts. 215; 225; 230.] Therefore, Mr. Walker's requests are considered to be solely on his own behalf as an individual defendant.
A. Documents Received June 16, 2011
On June 16, 2011, Defendant Paul Walker faxed four documents to the Court, including motions in limine asking the Court to exclude references to two prior cases to which Mr. Walker was not a party (attached as "Exhibit A" and "Exhibit B," respectively); a letter objecting to proposed jury instructions (attached as"Exhibit C"); and a motion challenging the subject matter jurisdiction of this Court (attached as "Exhibit D").
Local Rule 5.1(c) provides that the Court does not accept facsimile filings, except upon a finding of compelling circumstances warranting such method of filing. Additionally, this Court's Pro Se Handbook expressly provides that "under the Local Rules filing by fax is not permitted without prior court authorization." Pro Se Handbook at 10, available at www.insd.circ7.dcn ("Publications/Forms" — "Pro Se Handbook"). It also provides that all motions "must comply with the Local Rules or the Court may `strike' or disregard them." Id. at 9.
Mr. Walker has not complied with the applicable local rules by filing these documents with the Court by facsimile. Additionally, Mr. Walker has not received prior authorization to file documents by facsimile. The fact that Mr. Walker is proceeding pro se does not excuse his failure to comply with procedural rules. McMasters v. United States, 260 F.3d 814, 818 (7th Cir. 2001). Therefore, the Court strikes the documents Mr. Walker faxed to the Court on June 16, 2011, attached as Exhibits A through D.
The striking of Mr. Walker's motions in limine is without prejudice to his right to make any evidentiary objections at trial.
B. The Court's Jurisdiction Over this Litigation
Although the documents referenced above are not part of the record, the Court notes that one of them purports to challenge the Court's subject matter jurisdiction. The Court has an independent duty to determine whether jurisdiction exists over a case. Thomas v. Guardsmark, LLC, 487 F.3d 531, 533 (7th Cir. 2007). Therefore, the Court will review its jurisdiction over the matter at hand to confirm that it is acting within the scope of its powers.
Subjects of a foreign state are considered diverse from citizens of a state in the United States of America. 28 U.S.C. § 1332(a)(2). Therefore, the Court can exercise diversity jurisdiction pursuant to § 1332(a)(2) over a suit between a citizen of a state and citizens of a foreign country when the matter in controversy exceeds the jurisdictional amount. Extra Equipamentos E Exportacao Ltda. v. Case Corp., 541 F.3d 719, 721 (7th Cir. 2008).
Plaintiff International Medical Group, Inc. ("IMG") is an Indiana citizen. [Dkt. 1 at 1 ¶ 2.] Defendant Paul Walker is a subject of the United Kingdom, and Defendant Essential Health, Ltd. ("Essential Health") is a corporation organized under the laws of the United Kingdom with its principal place of business in the United Kingdom. [ Id. at ¶¶ 3-4; dkt. 25 at 2 ¶¶ 3-4.] The amount in controversy exceeds $75,000, exclusive of interest and costs. [Dkt. 1 at 2 ¶ 6.] Therefore, the Court concludes that it can exercise diversity jurisdiction over this matter pursuant to 28 U.S.C. § 1332(a)(2).
Although the Court strikes Mr. Walker's facsimile regarding jurisdiction, a brief word about the contents of that document is necessary. Mr. Walker bases his jurisdictional challenge on his belief that the Court improperly exercised jurisdiction over International Medical Group, Inc., et al. v. Jonathan Bond, Cause No. 1:05-cv-0438-RLY-JMS ("Bond"). Therefore, Mr. Walker asks this Court to dismiss the Bond litigation and vacate all judgments rendered therein. Final judgment was entered in favor of Plaintiffs and against the Defendant in Bond in January 2006. [Dkt. 1:05-cv-0438-RLY-JMS 44.] Mr. Walker was not a party toBond.
Mr. Walker does not allege that the Court lacks jurisdiction over this case; instead, he focuses his entire argument on the Court's jurisdiction in Bond. The Court cannot consider Mr. Walker's post-judgment challenge to the jurisdiction in Bond because Mr. Walker lacks standing to make that argument. He was not a party to that case and has not shown how the judgment in that litigation affects the claims at issue herein. See Marozsan v. United States, 90 F.3d 1284, 1288 (7th Cir. 1996) (to establish standing a party must, among other things, have suffered an injury in fact, which is defined as an invasion of a legally-protected interest that is actual or imminent, not conjectural or hypothetical). Moreover, Mr. Walker attempted to intervene years after final judgment in the Bond litigation, but his request was denied, in part, because that Court concluded he lacked standing. [1:05-cv-0438-RLY-JMS Dkt. 76.] If he disagreed with that ruling, his remedy was to seek an appeal to the Seventh Circuit; this Court has no appellate jurisdiction to review a decision of another district judge. See Devlin v. Scardelletti, 536 U.S. 1, 17 (2002) (holding that a district court's denial of a motion to intervene is appealable).
Because Mr. Walker was not a party to Bond and has not articulated how the judgment in that case injures him in this litigation, the Court cannot address his jurisdictional concerns with that case.
C. Document Received June 22, 2011
On June 22, 2011, Mr. Walker faxed a letter to the Court requesting leave to file documents by fax and to appear telephonically at the final pretrial conference on June 23, 2011 (attached as "Exhibit E").
The Court finds that based on the representations made in his letter of June 22, 2011, Mr. Walker has shown compelling circumstances to permit him to file documents in this case by fax to 317-229-3678. Documents filed by fax before that time (as discussed above) are stricken and will not be considered, as they were faxed without prior Court authorization. The Court reminds Mr. Walker, however, that with this permission comes responsibility. Mr. Walker is responsible for monitoring filings on the PACER system. Given the brief amount of time before trial, Mr. Walker cannot be granted any leniency with respect to timing or deadlines. Mr. Walker is responsible for timely faxing documents to comply with all deadlines imposed by the Court, the Federal Rules of Civil Procedure, and the Local Rules. Mr. Walker is responsible for communicating with counsel for Plaintiff IMG to determine whether IMG objects to requests that require Mr. Walker to make note of an opposing parties' consent or objection. Mr. Walker is responsible for communicating with counsel for Plaintiff IMG when the Court orders the parties to submit joint filings. Mr. Walker is responsible for serving Plaintiff IMG, by counsel, by fax or email so that it will simultaneously receive his filings when the Court does. If Mr. Walker violates these conditions or the Court determines that he is abusing this privilege, it will terminate permission for him to file documents by fax.
Mr. Walker's letter references his intention to fax a "Trial Brief and other associated and supporting documents" later today. Pursuant to the parties' case management plan, [dkts. 31 at 10; 36], trial briefs were due two weeks before the final pretrial conference — June 9, 2011. Untimely filings will not be considered. The parties were reminded of those deadlines by docket 179, issued December 10, 2010.
The Court grants Mr. Walker's request to appear telephonically at the final pretrial conference, which is set for 10:00 a.m. EDT on Thursday, June 23, 2011. Mr. Walker is responsible for calling 317-229-3670 at least ten minutes before the hearing. If Mr. Walker fails to do so, he will not be allowed to participate telephonically at the final pretrial conference. Mr. Walker will not be allowed to appear telephonically at the upcoming trial or any additional pretrial conferences the Court holds before trial.
To: Clerk of the Courts FAX Fax number: 0013172293959 From: Paul Walker Fax number: 0845 408 5445 Date: 16 June 2011 Total Page: 19 Comments: Motion in Limine — Resend . . .I am resending this Motion in Limine as your fax was out-of-order this time last week, and not seeing these documents on PACER leads me to believe they have not yet been received by the Court.
The second Motion for Limine will follow immediately after this.
Kind regards,
Paul Walker The Clerk of the US District Court. 00 131 722 93959 Original Documents in Land Mail. Case Ref: 1:08-cv-923-JMS-TAB Re: Motion in Limine and accompanying Proposed Order for First Motion in Limine
Mr Paul M Walker 21a Sherborne Road, Yeovil BA21 4HD United Kingdom Email: paulwalker@lycos.com Date: Thursday, 9th June 2011 105 U.S. Courthouse 46 East Ohio Street Transmitted by fax on the following: Indianapolis Fax: Indiana 46204, USA Dear Sir / Madam, Please find the following Motion which seeks exclude prejudicial evidence in advance of trial by way of an in limine motion.Immediately following the 15 Pages of the Motion for Limine is also a 2 page Proposed Order First Motion in limine.
Original copies have been dispatched by International Mail to the Clerk of Courts on the same date as shown above.
Yours sincerely
____________________
Paul Walker Pro Se Representative for Defendant Paul Walker
TO: ALL PARTIES AND THEIR RESPECTIVE ATTORNEYS OF RECORD:
PLEASE TAKE NOTICE THAT defendant hereby moves this Court for an order excluding any and all evidence, references to evidence, testimony or argument relating to certain prior litigation occurring during the past in this Court; specifically, current Case Number 1:05-cv-438 RLY-JMS; INTERNATIONAL MEDICAL GROUP, INC., SIRIUS INTERNATIONAL INSURANCE CORPORATION vs. JONATHAN BOND, [hereinafter referred to as the [BOND case]; plus any discovery that relates specifically to that prior case.
This motion is based upon the grounds that this Federal Court, while hearing and ruling upon the prior litigation did not possess subject matter jurisdiction to hear Case 1:05-cv-438 RLY-JMS. Thus, Case 1:05-cv-438 RLY JMS, [the BOND case] is fatally flawed and any evidence arising from it, is contaminated and thus, unfairly prejudicial. Allowing any of the flawed information from the [BOND] case into evidence in the instant case, would unfairly prejudice the Defendant and cause jury confusion.
This motion is made under the provisions of Federal Rules of Evidence 403 and 401, and is based upon the supporting Memorandum of Points and Authorities, the pleadings and papers on file in this action, and upon such of the argument and evidence as may be presented prior to or at the hearing of this matter.
MEMORANDUM OF POINTS AND AUTHORITIES 1. PRELIMINARY STATEMENT
This action arises from allegations of Defamation and Conspiracy on the part of Defendant Paul Walker; where the plaintiff is seeking compensation for alleged damages, although none have been specified by the plaintiff during a period of almost three years. Furthermore, the plaintiff's company representative for a very recent 30(b)(6)deposition has testified that the plaintiff cannot prove any damages. [ Ed. Note: Transcript not yet available at the time of this filing, but will be submitted as a supplement as soon as possible.]Furthermore, this instant law suit (Case No. 1:2008-cv-00923 JMS TAB), including many of the plaintiff's pleadings contained within, make extensive references and allegations related to the previous law suits, which occurred in the distant past. (Case No. 1:05-cv-438 RLY-JMS) and (Case No. 1:06-cv-280 DFH-JMS.
However, the Defendant in this instant law suit was never a party to either of the other prior law suits; nor, did the other lawsuits proceed in a parallel time frame. Indeed, the previous lawsuits were never consolidated. Yet, for some reason, the separate lawsuits have been comingled under judicial banner of one judge, who has now been replaced by successors.
Furthermore, in Docket No. 76 of the [BOND] litigation, the successor presiding judge rejected the Defendant's Motion to Intervene as a Party (page 2, Docket No. 76, (Case No 1:05-cv-438-RLYY-JMS); in order to mount a defense, which had become necessary due to this instant litigation.
It should be noted that without foreknowledge, as well as prior to service-of-suit upon Defendant, and prior to retention of local counsel by the Defendant, this instant law suit was shifted by the court, without explanation and with the actual docket entry (i.e., Docket No. 10) being unavailable, from the judge originally assigned, to the purview of former District Judge David F. Hamilton. For additional background information. Judge Hamilton had been the presiding judge in both Case Nos. 1:05-cv-438 and 1:06-cv-280 DFH-JMS; but neither of those prior law suits, nor the instant one, had been consolidated.
In addition, Case No. 1:05-CV-438, the [BOND] litigation resulted in a default judgment, including the mammoth amount of $5+ million of purported damages, plus $10 million dollars in punitive damages.
Furthermore, no defense whatsoever by the defendant, was ever mounted prior to the default judgment. Thus, none of the purported evidence, nor the pleadings in the prior litigation were ever tested, whatsoever, for veracity or even reason.
Upon information and belief, the defendant in Case No. 1:05-cv-438, the [BOND] litigation was recalcitrant because he totally disagreed with the following basic proposition; to wit: a U.S. Federal Court in Indiana, was thought to be entitled to jurisdiction in a case populated by a foreign corporation, which was allied with a U.S. corporation, both as plaintiffs, against a British subject, who then residing in Spain, which is a nation Governed by the legal precepts of the European Union (EU).
Jonathan Bond's intuition would be proved prescient; as a result of legal arguments presented in Case No. 1:06-CV-280 DFH-JMS (i.e., the [MEDIBROKER] litigation; where the rules of subject matter Jurisdiction were eloquently articulated by an Indianapolis attorney. The upshot: "SUBJECT MATTER" jurisdiction was initially absent in Case No. 1:06-cv-280, but that fatal defect was cured with the withdrawal of Sirius International, as a plaintiff. Sirius international never withdrew from the [BOND litigation. Thus, the fatal flaw persists to this date.
However, as a non-U.S. citizen with virtually no experience then with U.S. Federal courts, and unable to afford legal representation, Jonathan Bond was unaware of the precise legal language and judicial precepts, which would actually sustain his innate belief.
Co-incidentally, after an eight-month delay, Judge Hamilton Issued a denial for re-consideration in the [BOND] litigation; but, Jonathan Bond was gravely ill by then, Indeed, Jonathan Bond's demise may have occurred almost simultaneously. The Upshot: there would be no opportunity for an appellate review at that juncture.
Thus, the status of Judge Hamilton's fatally flawed default judgment against Jonathan Bond became moot. However, this instant lawsuit against the Defendant, seeks to link with the [BOND] litigation; plus, seeks to superimpose, the two legal actions, even though the respective lawsuit are widely separated in calendar time. In addition, the instant case (WALKER) deal with events that are few in number and miniscule in scope, by comparison.
Therefore, the Defendant anticipates the plaintiff will argue, inter alia, one or more of the following, or other similar points regarding the BOND litigation, during the Defendant's forthcoming trial; to wit:
(1) the two separate cases are inter — linked, and virtually indistinguishable;
(2) the two cases are supposedly woven together in some for o of alleged conspiracy;
(3) thus, the instant Defendant (WALKER) is likewise guilty of conspiracy with Jonathan Bond, because they happened to interact with some mutual acquaintances and events; and thus
(4) the Defendant, due to purported mutual guilt, is culpable and subject to huge vicarious liability, even though it would stem from a flawed final judgment that the court has yet to correct,
(5) and this alleged liability would exist, despite the situation of their being virtually no direct evidence other than hearsay or circumstance.
(6) and, there is no way to ". . . prove a negative . . ." regarding any alleged prior engagements or participation with a dead man,
(7) and, even though the preponderance the prior allegations of defamation against Jonathan Bond can now be substantiated, with objective input for the affirmative defense of Truth.
(8) and, despite the fact that the defendant has never had an opportunity as a "party" to defend his interests in either of the prior litigation.
(9) and, despite the fact that [WALKER] has never yet had an opportunity to move for dismissal of the fatally flawed judgment in the fatally flawed [BOND] litigation, which occurred years earlier.
Chief Judge Richard L. Young, Indiana Southern District, Indianapolis Division, opined on page 2 of Docket No. 75 in Case No. 1:05-cv-438 RLY-JMS,[i.e., the BOND case], the following: "Fourth, Mr. Walker's claims and concerns with IMG can be fully vindicated in International Medical Group, Inc. v. Paul Walker, et al.", No. 1:08-cv-923-JMS-TAB".
Thus, each and every document or purported evidence related in any way to the [BOND] case, would have to be litigated in the instant case. Furthermore, the plaintiff's substantial failures to fully comply with discovery, would then impede and/or delay this instant case even further; as well as extend its length and calendar time allocation, immeasurably.
Consequently, each of the plaintiff's potential arguments must fail; if for no other reason, due to the egregious blunder committed by Judge Hamilton's court in violating a fundamental canons of American jurisprudence; namely, an unequivocal, unwavering mandate for the Federal court to possess subject matter jurisdiction.
To streamline the presentation of facts at trial, the Defendant moves, in limine, to have arguments and evidence regarding Case No. 1:05-cv-438 RLY-JMS, INTERNATIONAL MEDICAL GROUP, Inc., SERIUS INTERNATIONAL INSURANCE CORPORATION vs. JONATHN BOND [hereinafter referred to as the BOND case], excluded; in order that a myriad of misleading subjects and confusing events, including countless irrelevant ones, can be prevented from substantially or irreparably contaminating the perspectives and perceptions of the jurors, and polluting the trial setting with inadmissible or very unfairly prejudicial evidence.
2. THIS COURT MAY EXCLUDE PREJUDICIAL EVIDENCE IN ADVANCE OF TRIAL BY WAY OF AN IN LIMINE MOTION
The Court has the inherent power to grant a motion in limine to exclude evidence that could be objected to at trial. Luce v United States, 459 U.S. 38, 41 (1984); United States v. Caputo, 313 F.Supp.2d 764, 767-68 (N.D. Il 2004); United States v. Lachman, 48 F.3d 586, 590-94 (1st Cir. 1995).Federal Rule of Evidence 403 allows the court to exclude evidence where there is a substantial danger that the probative value will be outweighed by the danger of undue prejudice. SeeOld Chief v. United States, 519 U.S. 172, 180-92 (1997); United States v. Aguilar-Aranceta, 58 F.3d 796, 800-02 (1st Cir. 1995);Coleman v. Home Depot, Inc., 306 F.3d 1333, 1343 (3rd Cir. 2002).
In addition, Federal Rules of Evidence 103(c) and 104(c) allow the court to hear and determine the question of the admissibility of evidence outside the presence or hearing of the jury. Williams v. Board of Regents of the University System of Georgia, 629 F.2d 993, 999-1001 (5th Cir. 1980).
3. EVIDENCE OF PLAINTIFF'S PRIOR LITIGATION SHOULD BE EXCLUDED TO AVOID UNFAIR PREJUDICIAL JURY CONFUSION
The Federal Rules of Evidence clearly provide that this Court may exclude evidence when it is unduly confusing. In fact, Federal Rule of Evidence 403 specifically states: "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice,confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." (Emphasis added.) The Court may exclude marginally probative evidence that might easily confuse the jury. See, e.g., Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 582-98 (1993); Navarro De Cosme v. Hospital Pavia, 922 F.2d 925, 931-32 (1st Cir. 1991);Coleman v. Home Depot, Inc., 306 F.3d 1333, 1341-47 (3rd Cir. 2002); Chase v. General Motors Corp., 856 F.2d 17, 18-20 (4th Cir. 1988); United States v. Cody, 114 F.3d 772, 777-78 (8th Cir. 1997); and United States v. Hitt, 981 F.2d 422, 423-25 (9th Cir. 1992).In the present case, there is a substantial danger that jurors might believe that the plaintiff's prior litigation (i.e., the BOND case), which dealt with some of these same terms or issues or events, applies concomitantly, or with the same degree of relevance in the instant litigation against the defendant. Thus, any of the potentially prodigious amounts of disputed materials, which for various reasons such as the death of Jonathan Bond, cannot be authenticated from the prior BOND litigation. Therefore, the jury would easily become confused and mislead, and thus, unfairly prejudice the defendant.
In regards to the mammoth financial award reported in the fatally flawed BOND Case, Blakely v. City of Clarksville, 244 Fed. Appx. 681, 683-84 (6th Cir. 2007) (unpublished decision), ruled that evidence of a verdict that was reached in a similar lawsuit was unfairly prejudicial, misleading, and confusing and should not have been admitted. In addition, the trial court in Woods v. Lecureux, 110 F.3d 1215, 1218-19, 46 Fed.R.Evid. Serv. 1111, 1997 FED App. 0116P (5th Cir. 1997) properly excluded documents from other litigation, because they were confusing, misleading and unduly prejudicial. Furthermore, in U.S. v. Bowman, 302 F.3d 1228, 1239-40, 59 Fed.R.Evid. Serv. 1018 (11th Cir. 1971), the trial court abused ist discretion by allowing a party to admit judicial findings of fact from a separate but related case. The appellate court noted that the judicial findings were unfairly prejudicial, hearsay, confusing, and misleading.
The few Exhibits attached by the plaintiff to Complaint (Docket No. 1), are the essence of evidence for any probable Defamation allegation. However, in contrast, there is an unfathomable amount of irrelevant material within the BOND hearsay that was provided to the plaintiff in discovery, but never published by the defendant. PRL USA Holdings, Inc. v. U.S. Polo Assn., Inc., 520 F.3d 109, 75 Fed.R.Evid. Serv. 1104 (2d Cir. 2008) allowed a document to be excluded as hearsay and because its probative value was outweighed by its prejudicial effect. Harrison v. Sears, Roebuck and Co., 981 F.2d 25, 31-32, 37 Fed.R.Evid. Serv. 1200 (1st Cir. 1991) ruled that the trial judge had discretion to exclude otherwise admissible evidence, under Rule 403, based upon a concern that it might improperly confuse and prejudice the jury. There may literally thousands, certainly hundreds of hearsay documents contained in the materials associated with the BOND case.
4.
A full discussion of the fatally flawed ruling and judgment in the [BOND] litigation is beyond the scope of this particular motion. However, the synopsis is as follows:
a. There is an Indiana corporation and a foreign corporation versus a foreign citizen.
b. According to the Seventh Circuit, "there is no diversity jurisdiction over a case in which there are foreign parties on both sides of the suit and a U.S. citizen on only one side." Salton Inc. v. Philips Domestic Appliances Personal Care B.V., 391 F.3d 871, 875 (Seventh Circuit 2004); [Ed. Notes: plus, other similar citations, omitted for brevity.]
c. This is because a case involving a mixture of foreign and domestic parties on one side versus foreign parties on the other does "not fit any of the possible applicable jurisdictional pigeonholes". Allendale Mut. Ins. Co. V. Bull Data Syst., Inc., 10 F.3d 425, 428 (7th Cir. 1993)
d. The burden of demonstrating jurisdiction rests on the plaintiff. Nelson v. Park Indus. 717 F2d at 1275; 717 F2d 1120, 1123 (7th Circuit 1983; [Ed. Notes: plus, other citations, as well as applicable Local Rules, are omitted for brevity.]
e. Accordingly, the Court did not have jurisdiction over Case No. 1:05-cv-438 DFH-JMS; [the BOND litigation].
f. "Jurisdiction" is the power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause. Veiga v. World Meteorological Organization, 568 F.Supp 2nd 367 — Fed Cts. S.D.N.Y. 2008; [ Ed. Note: plus other citations omitted for brevity]
5. CONCLUSION
Based on the foregoing, the Defendant respectively requests the Court to exclude any and all evidence, including any mention of evidence, or rulings relating to the plaintiff's prior litigation against Jonathan Bond [Case No. 1:05-cv-438 RLY-JMS).PROPOSED ORDER GRANTING DEFENDANT'S FIRST MOTION IN LIMINE
GOOD CAUSE APPEARING, IT IS HEREBY ORDERED that plaintiffs shall not present any testimony, and shall not argue or refer to this Court's prior Case 1:2005-cv-438 RLY-JMS; namely, International Medical Group, Inc. and Sirius International v. Jonathan Bond; and even more specifically, the judgment awarded in that case. IT IS HEREBY FURTHER ORDERED that plaintiff's, counsel and plaintiff's witnesses shall:1. Not to mention, refer to, or attempt to convey to the jury in any manner, either directly or indirectly, any of the facts or descriptions mentioned in this Motion, without first obtaining permission of the Court outside the presence and hearing of the jury; and
2. Not to make any reference to the fact that this motion has been filed; and
3. To warn and caution each of plaintiff's witnesses to strictly follow the same instructions.
Dated:
__________________________________
Jane Magnus-Stinson
JUDGE OF THE DISTRICT COURT
To: Clerk of the Courts FAX Fax number: 0013172293959 From: Paul Walker Fax number: 0845 408 5445 Date: 16 June 2011 Total Page: 15 Comments: Resend of Motion in Limine (2)I am resending this Motion in Limine as your fax was out-of-order this time last week, and not seeing these documents on PACER leads me to believe they have not yet been received by the Court.
Kind regards,
Paul Walker
TO: ALL PARTIES AND THEIR RESPECTIVE ATTORNEYS OF RECORD:
PLEASE TAKE NOTICE THAT defendant hereby moves this Court for an order excluding any and all evidence, references to evidence, testimony or argument relating to certain prior litigation occurring during the past in this Court; specifically, currently styled Case Number 1:06-cv-280 DFH-JMS; INTERNATIONAL MEDICAL GROUP, INC vs. J. LESLIE SMITH, MEDIBROKER INT'S, LLC, and MEDIBROKER LTD. (hereinafter referred to as the [MEDIBROKER] case); plus any discovery that relates specifically to that prior case.
This motion is based upon the grounds that this Federal Court and the respective parties, implemented various protective orders and confidentiality agreements; and, in addition, upon information and belief, this former litigation was settled under the protective umbrella of said confidentiality agreement(s).
In addition, due to the said confidentiality agreements, the Defendant in the instant litigation, has been foreclosed from ascertaining the inner workings or judicial mechanics that may have occurred en route to settlement. Yet, the Plaintiff's attorneys are the same in both causes; and, are thus fully aware of whatever may, or may not, have occurred during the prior litigation.
Of even greater potential unfair prejudice in the instant litigation against Defendant, Paul Walker, is the role of the judicial officials presiding in the past, and now. For example, the magistrate for approximately the latter half of the [MEDIBROKER] lawsuit, was then the Honorable Jane Magnus Stinson, Magistrate Judge; who is now the District Judge assigned to the instant litigation involving Defendant, Paul Walker.
These two separate cases were never consolidated, and Paul Walker was not a party to the MEDIBROKER litigation. Furthermore, the two cases proceeded sequentially in calendar time; not in parallel.
Thus, the Defendant, Paul Walker would be forced into a position of extremely unfair and undue prejudice; due to the other parties, as well as their counsel, plus the presiding judge all having potentially large and pivotal amounts of ex parte knowledge, which is unavailable and unknown to the Defendant, Paul Walker.
This motion is made under the provisions of Federal Rules of Evidence 403 and 401, and is based upon the supporting Memorandum of Points and Authorities, the pleadings and papers on file in this action, and upon such of the argument and evidence as may be presented prior to or at the hearing of this matter.
Dated 9 JUNE 2011
MEMORANDUM OF POINTS AND AUTHORITIES 1. PRELIMINARY STATEMENT
This action arises from allegations of Defamation and Conspiracy on the part of Defendant Paul Walker; where the plaintiff is seeking compensation for alleged damages, although none have been specified by the plaintiff during a period of almost three years. Furthermore, the plaintiff's company representative for a very recent 30(b)(6)deposition has testified that the plaintiff cannot prove any damages. [ Ed. Note: Transcript not yet available at the time of this filing, but will be submitted as a supplement as soon as possible.]Furthermore, this instant law suit (Case No. 1:2008-cv-00923 JMS TAB), including many of the plaintiff's pleadings contained within, make references and allegations related to the previous law suit, which occurred in the distant past; namely: (Case No. 1:06-cv-280 DFH-JMS) [MEDIBROKER].
However, the Defendant in this instant law suit was never a party TO the other prior law suits; nor, did the other lawsuits proceed in a parallel time frame. Indeed, the previous lawsuit involving MEDIBROKER was never consolidated.
Yet, for some reason, the separate lawsuits have been comingled under the judicial banner of one specific judge, who has now been replaced by successors.
It should be noted that without foreknowledge, as well as prior to service-of-suit upon Defendant, and prior to retention of local counsel by the Defendant, this instant law suit was shifted by the court, without explanation. The actual details of the apropos docket entry (i.e., Docket No. 10) still unavailable. The judge originally assigned in this instant cause-of-action was not former District Judge David F. Hamilton. However, for additional background information, former District Judge Hamilton had also been the presiding judge in Case No. 1:06-cv-280 DFH-JMS; although the two respective cases were not consolidated.
Therefore, the Defendant anticipates the plaintiff will argue, inter alia, one or more of the following, or other similar points regarding the MEDIBROKER litigation, during the Defendant's forthcoming trial; to wit:
(1) the two separate cases are inter — linked, and virtually indistinguishable;
(2) the two cases are supposedly woven together in some form of alleged conspiracy;
(3) thus, the instant Defendant (WALKER) is likewise guilty of conspiracy with Leslie Smith/MEDIBROKER because they happened to interact with some mutual acquaintances and events;
(4) and thus, the Defendant, due to purported mutual guilt, is culpable and subject to the similar astonishing vicarious liability that appears to have been negotiated in the MEDIBROKER settlement;
(5) and this alleged liability would exist, despite the situation of their being virtually no direct evidence other than hearsay or circumstance,
(6) and, there is no way to ". . . prove a negative . . ." regarding any alleged prior engagements or participation with information that is purportedly confidential, as well as may involve a dead man,
(7) and, even though the preponderance of the prior allegations of defamation can now be substantiated, with objective input for the affirmative defense of Truth,
(8) and, despite the fact that the instant Defendant, [WALKER] has never had an opportunity as a "party" to defend his interests in the prior litigation.
Therefore, each and every document or purported evidence of any kind, or related in any way to the MEDIBROKE case, would have to be litigated in the instant case. Furthermore, the plaintiff's substantial failures to fully comply with discovery, as well as extend, immeasurably, the Court's allocation of calendar time for this trial.
Consequently, each of the plaintiff's potential arguments must fail; if for no other reason, the sanctity of "Confidentiality" agreements which were entered into in "good faith" by parties and entities no longer engaged in litigation with the plaintiff. Indeed, what would be the point of supposedly sacrosanct "Settlement Negotiations" and "Settlement Agreements" undertaken in confidence, but then breached.
To streamline the presentation of facts at trial, the Defendant moves, in limine, to have arguments and evidence regarding Case No. 1:06-cv-280 DFH-JMS, INTERNATIONAL MEDICAL GROUP, Inc. vs. LESLIE SMITH/MEDIBROKER, et al [hereinafter referred to as the MEDIBROKER case], excluded; in order that a myriad of misleading subjects and confusing events, including countless irrelevant ones, can be prevented from substantially or irreparably contaminating the perspectives and perceptions of the jurors, and polluting the trial setting with inadmissible or very unfairly prejudicial evidence.
2. THIS COURT MAY EXCLUDE PREJUDICIAL EVIDENCE IN ADVANCE OF TRIAL BY WAY OF AN IN LIMINE MOTION
The Court has the inherent power to grant a motion in limine to exclude evidence that could be objected to at trial. Luce v United States, 469 U.S. 38, 41 (1984); United States v. Caputo, 313 F.Supp.2d 764, 767-68 (N.D. Il 2004); United States v. Lachman, 48 F.3d 585, 590-94 (1st Cir. 1995).Federal Rule of Evidence 403 allows the court to exclude evidence where there is a substantial danger that the probative value will be outweighed by the danger of undue prejudice. SeeOld Chief v. United States, 519 U.S. 172, 180-92 (1997); United States v. Aguilar-Aranceta, 58 F.3d 796, 800-02 (1st Cir. 1995);Coleman v. Home Depot, Inc., 306 F.3d 1333, 1343 (3rd Cir. 2002).
In addition, Federal Rules of Evidence 103(c) and 104(c) allow the court to hear and determine the question of the admissibility of evidence outside the presence or hearing of the jury. Williams v. Board of Regents of the University System of Georgia, 629 F.2d 993, 999-1001 (5th Cir. 1980).
EVIDENCE OF PLAINTIFF'S PRIOR LITIGATION SHOULD BE EXCLUDED TO AVOID UNFAIR PREJUDICIAL JURY CONFUSION
The Federal Rules of Evidence clearly provide that this Court may exclude evidence when it is unduly confusing. In fact, Federal Rule of Evidence 403 specifically states: "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice,confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." (Emphasis added.) The Court may exclude marginally probative evidence that might easily confuse the jury. See, e.g., Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 582-98 (1993); Navarro De Cosme v. Hospital Pavia, 922 F.2d 926, 931-32 (1st Cir. 1991);Coleman v. Home Depot, Inc., 306 F.3d 1333, 1341-47 (3rd Cir. 2002); Chase v. General Motors Corp., 856 F.2d 17, 18-20 (4th Cir. 1988); United States v. Cody, 114 F.3d 772, 777-78 (8th Cir. 1997); and United States v. Hitt, 981 F.2d 422, 423-25 (9th Cir. 1992)In the present case, there is a substantial danger that jurors might believe that the plaintiff's prior litigation (i.e., the MEDIBROKER case), which dealt with some of these same terms or issues or events, applies concomitantly, or with the same degree of relevance in the instant litigation against the defendant. Thus, there is a potentially prodigious amount of disputed materials, which for various reasons such as the CONFIDENTIAL SETTLEMENT NEGOTIATIONS, cannot be authenticated from the prior MEDIBROKER litigation, without breaching whatever protective orders are in place. Furthermore, attempting to authenticate any MEDIBROKER evidence, would require undue delays for the Court. Therefore, the jury would easily become confused and mislead, and thus, unfairly prejudice the defendant.
In regards to the astonishingly large financial settlement reported by the plaintiff's prior breach of the Confidentiality Agreement during discovery in this case, Blakely v. City of Clarksville, 244 Fed. Appx. 681, 683-84 (6th Cir. 2007) (unpublished decision), ruled that evidence of a verdict that was reached in a similar lawsuit was unfairly prejudicial, misleading, and confusing and should not have been admitted. In addition, the trial court in Woods v. Lecureux, 110 F.3d 1215, 1218-19, 46 Fed.R.Evid. Serv. 1111, 1997 FED App. 0116P (6th Cir. 1997) properly excluded documents from other litigation, because they were confusing, misleading and unduly prejudicial. Furthermore, in U.S. v. Bowman, 302 F.3d 1228, 1239-40, 59 Fed.R.Evid. Serv. 1018 (11th Cir. 1971), the trial court abused its discretion by allowing a party to admit judicial findings of fact from a separate but related case. The appellate court noted that the judicial findings were unfairly prejudicial, hearsay, confusing, and misleading.
The few Exhibits attached by the plaintiff to Complaint (Docket No. 1) in the instant litigation, represent most of the of evidence for any possible Defamation allegation. However, in contrast, there is an unfathomable amount of irrelevant material within the MEDIBROKER hearsay, but is generally unknown at present, due to the instant Defendant, Paul Walker, honoring protective orders in "good faith". PRL USA Holdings, Inc. v. U.S. Polo Assn., Inc., 520 F.3d 109, 75 Fed.R.Evid. Serv. 1104 (2d Cir. 2008) allowed a document to be excluded as hearsay and because its probative value was outweighed by its prejudicial effect. Harrison v. Sears, Roebuck and Co., 981 F.2d 25, 31-32, 37 Fed.R.Evid. Serv. 1200 (1st Cir. 1991) ruled that the trial judge had discretion to exclude otherwise admissible evidence, under Rule 403, based upon a concern that it might improperly confuse and prejudice the jury. There may be literally thousands, certainly hundreds of hearsay documents contained in the materials associated with the MEDIBROKER case.
4. CONCLUSION
Based on the foregoing, the Defendant respectively requests the Court to exclude any and all evidence, including any mention of evidence, or rulings or "Settlement", relating to the plaintiff's prior litigation against MEDIBROKER, [Case No. 1:06-cv-280 DFH-JMS).PROPOSED ORDER GRANTING DEFENDANT'S SECOND MOTION IN LIMINE
GOOD CAUSE APPEARING, IT IS HEREBY ORDERED that plaintiffs shall not present any testimony, and shall not argue or refer to this Court's prior Case 1:2006-cv-280 DFH-JMS; namely, INTERNATIONAL MEDICAL GROUP, INC. v. J. LESLIE SMITH, MEDIBROKER INT'L, LLC and MEDIBROKER LTD., even more specifically, the confidential material under any form of Protective Order and whatever "Confidentiality Agreement" may have been placed in force.
IT IS HEREBY FURTHER ORDERED that plaintiff's, counsel and plaintiff's witnesses shall:
1. Not to mention, refer to, or attempt to convey to the jury in any manner, either directly or indirectly, any of the facts or descriptions mentioned in this Motion, without first obtaining permission of the Court outside the presence and hearing of the jury; and
2. Not to make any reference to the fact that this motion has been filed; and
3. To warn and caution each of plaintiff's witnesses to strictly follow the same instructions.
Dated:
______________________________
Jane Magnus — Stinson
JUDGE OF THE DISTRICT COURT The Clerk of the US District Court. Thursday, 16th June 2011 00 131 722 93959 Original Documents in Land Mail. Case Ref: 1:08-cv-923-JMS-TAB Re: Letter of Objection and Amendment Request for Jury Instructions . . .
Mr Paul M Walker 21a Sherborne Road, Yeovil BA21 4HD United Kingdom Email: paulwalker@lycos.com Date: 105 U.S. Courthouse 46 East Ohio Street Transmitted by fax on the following: Indianapolis Fax: Indiana 46204, USA Dear Sir / Madam, I must raise objection to the Plaintiff's request to modify the language of the Indiana Statutes. The Plaintiff to date has been granted its every wish, yet has squandered them causing little more than lengthy delays to this case ( Plaintiff was granted a six month extension to `modify' the complaint after arguing that Florida was not relevant to the case, after six months, no modification had occurred and the Plaintiff continued to argue the relevancy of Florida to the Defence).Following this debacle; the Court issued an Order compelling the Plaintiff to co-operate, only for the Plaintiff to be seen as co-operating while erroneously abusing the rules of Privilege in an attempt to further withhold evidence and findings of FACT. Therefore I believe it would be improper for the courts to grant further special favours to the Plaintiff.
Additionally, in response to the Jury Instructions provided by the Court; my only request would be the inclusion of the proper legal definition of both "defamation" and "conspiracy" to be included within the jury instructions. If this proves difficult, please let me know and I shall arrange such wording.
Equally, as the Court has been instrumental in imposing near impossible time restrictions upon me, I feel it should be noted that I am yet to receive a transcript of the recent 30(b)6 deposition of the Plaintiff. Excerpts from this transcript will be fundamental to my defence and along with other key Discovery Documents remain absent.
Original copies have been dispatched by International Mail to the Clerk of Courts on the same date as shown above.
Yours sincerely
Paul Walker Pro Se Representative for Defendant Paul Walker The Clerk of the US District Court. th 00 131 722 93959 Original Documents in Land Mail. Case Ref: 1:08-cv-923-JMS-TAB Re: Motion Rule 12 — Subject Matter Jurisdiction (11 pages)
Mr Paul M Walker 21a Sherborne Road, Yeovil BA21 4HD United Kingdom Email: paulwalker@lycos.com Date: Thursday, 16 June 2011 105 U.S. Courthouse 46 East Ohio Street Transmitted by fax on the following: Indianapolis Fax: Indiana 46204, USA Dear Sir / Madam, Please find the following 11 pages constitute my Motion for a Rule 12 regarding Subject Matter Jurisdiction.More documentation will follow shortly, however although I am happy to transmit documents to the courts by fax; given no other resources are granted, I should point out that the recent documents transmitted were unable to fax due to a problem at the courts end. I simply wanted it noted that I have and continue to, make every effort toward the courts to provide timely responses.
Original copies have been dispatched by International Mail to the Clerk of Courts on the same date as shown above. If you could be so kind to ensure that the District Judge is able to review this document in full.
Yours sincerely
__________
Paul Walker Pro Se Representative for Defendant Paul Walker
TO: ALL PARTIES AND THEIR RESPECTIVE ATTORNEYS OF RECORD:
PLEASE TAKE NOTICE THAT defendant pursuant to Rule 12(h)(3), Federal Rules of Civil Procedure, hereby moves this Court for an order dismissing, and vacating the judgment rendered in Case Number 1:05-cv-0438 DFH-VSS; (whose successor presiding judicial officials are now delineated as "RYS — JMS"); but, with the proper styling for the case still reflecting the original parties; namely, International Medical Group, Inc. and Sirius International Insurance Corporation vs. Jonathan Bond.
This motion is based upon the grounds that this Federal Court, while hearing and ruling upon the prior litigation described just above, was not entitled to subject matter jurisdiction, neither during the trial itself, nor in the meantime, to hear Case No. 1:05-cv-1:05-cv-0438 DFH-VSS. Therefore, as articulated in Smith v. Canadian Pac. Airways, Ltd., C.A.2d, 1971, 452 F.2d 798, 802 — Federal Rule of Civil Procedure 12(h)(3) requires ". . . that the court must dismiss the action `whenever' it appears, by information of the parties, `or otherwise', that the court lacks basic jurisdiction." (Oakes, J.)
In addition to pleading this motion under the Federal Rules of Civil Procedure 12(h)(3), this motion is based upon the attached supporting Memorandum of Points and Authorities, which refers to an abundance of unequivocal and confirming case law; even though only a few examples are cited herein. Indeed, this motion and numerous supporting examples could easily expand into a treatise regarding subject matter jurisdiction; or, as in this case, the lack thereof. However, this abridged listing should readily suffice in this instance; because these inconvertible historical facts are so numerous, combined with very clear and unequivocal points-of-law.
Dated: 16 JUN 2011
MEMORANDUM OF POINTS AND AUTHORITIES 1. PRELIMINARY STATEMENT
The legal cause-of-action discussed herein, arises from allegations of defamation and interference on the part of Defendant Jonathan Bond; where the plaintiff was awarded a gigantic default judgment circa January 2006. However, upon information and belief, the defendant refuted jurisdiction of a U.S. Federal Court to hear an action emanating from a U.S. domestic corporation, allied with a foreign corporation, namely Sirius International Insurance Corporation, as joint plaintiffs against a foreign (non-U.S.) citizen, who was not then a resident anywhere within the U.S.A. Furthermore, upon information and belief, due to ill health restricting travel, the defendant never attended any of the legal proceedings; and, was never represented by legal counsel; nor filed any pleadings prior to the default judgment. Thus, the plaintiff was arbitrarily awarded the mammoth judgment, without even the slightest legal test of the court's procedures or evidence. As a result, this Court erred by rendering gigantic rulings, in the absence of subject matter jurisdiction.
2. SUBJECT MATTER JURISDICTION FLOWS FROM THE CONSTITUTIONAL AUTHORITY WHICH EMPOWERS THE COURT, OR DENIES ITS JURISDICTION
In Wyman v. McCloskey Co., C.A.3d, 1965, 342 F.2d 495, 497, certiorari denied 86 S.Ct. 52, 382 U.S. 823, 15 L.Ed.2d 68, the appellate court raised the question of lack of subject matter jurisdiction on its own motion, stating: "it is the continuing responsibility of trial counsel and trial courts to see that all essential jurisdictional facts are alleged and adequately established."
3. A CHALLENGE TO THE DISTRICT COURT'S SUBJECT MATTER JURISDICTION IS EXPRESSLY PRESERVED AGAINST WAIVER BY FEDERAL RULE 12(h)(3)
a. The federal courts have made it abundantly clear that not only is it impossible to foreclose the assertion of this defense by the passage of time or the notion of estoppels, but also it is impossible to cure or waive a defect of subject matter jurisdiction by consent of the parties. For example: "The defendants were not stopped from raising the issue of the district court's lack of subject matter jurisdiction after the statute of limitations had run on the plaintiff's cause of action." Sadat v. Mertes, C.A.7th, 1980, 615 F.2d 1176.
b. Litigants cannot establish jurisdiction by stipulation, consent, or waive. U.S. v. Mississippi Valley Barge Line Co., C.A. 8th, 1960, 285 F.2d 381.
4. RULE 12(h)(3) MOTION IS DISTINGUISHED FROM RULE 12(B)(1)
a. A Rule 12(h)(3) motion is distinguished from a Rule 12(b)(1) motion in that the former may be made at any time and need not be in response to any pleading. Berkshire Fashions, Inc. v. The M.V. Hakusan II, C, A3d, 1992, 954 F.2d 874
b. Furthermore, a question of subject matter jurisdiction may be presented by any interested party at any time throughout the course of the law suit.
5. SUBJECT MATTER JURISDICTION MAY BE RAISED AT ANY TIME
a. Subject matter jurisdiction may be raised at any time, even after judgment. Bateman v. E.I. DuPont De Nemours Co., D.C.Mich. 1998, 7 F.Supp 2d 910.
b. A motion to dismiss for lack of subject matter jurisdiction is proper even subsequent to a jury verdict. Painter v. Harvey, D.C.Va. 1987, 673 F.Supp 777, affirmed C.A. 4th, 1988, 863 F.2d 329
c. Maryland Cas. Co. v. W.R. Grace Co., C.A.2d. 1993, 23 F.3d 617 involved a challenge to subject matter jurisdiction raised nearly a decade after the litigation began.
d. Grupo Dataflux v. Atlas Global Group, L.P., 2004, 124 S.Ct 1920, ___ U.S. ___ ___ L.Ed. 22 ___ (dictum)
e. Passage of deadline for filing of dispositive motions is irrelevant for purposes of motion challenging subject matter jurisdiction. Barrueto v. Larios, D.C. Fla. 2003, 291 F.Supp. 1360
6. RELIEF FROM JUDGEMENT
a. "Despite a federal trial court's threshold denial of a motion to remand, if, at the end of the day and case, a jurisdictional defect remains uncured, the judgment must be vacated." Free v. Abbott Labs., Inc., C.A.5th, 1999, 164 F.3d 270 (Jones, J.)
7. SUBJECT MATTER JURISDICTION CAN BE CHALLENGED UPON APPEAL
An objection to subject matter jurisdiction calls into question constitutional and statutory power of the federal court to hear and decide the case. Therefore, it is well settled that a lack of subject matter jurisdiction may be asserted by the federal court itself, at either the trial or appellate level, either by the court of appeals or the Supreme Court.Indeed, the Supreme Court has indicated that it is the obligation of the federal courts to assure themselves that they have subject matter jurisdiction. For example, in Ruhrgas AG v. Marathon Oil Company, Justice Ginsburg, writing for a unanimous Court, stated that "subject matter delineation must be policed by the courts on their own initiative even at the highest level." Ruhrgas AG v. Marathon Oil Co., 1999, 119 S.Ct. 1563, 526 U.S. 574, 143 L.Ed.2d 760.
In addition, no formal motion need be made in order to raise the subject matter jurisdiction issue. Rule 12(h)(3) provides that the defense may be interposed by informal "suggestion", rather than by motion.
a. The court permitted the issue of lack of subject matter jurisdiction to be raised by a law firm, neither representing nor appearing for the defendant in Arcaya v. Estrada, D.C.N.Y. 1957, 24 F.R.Serv. 12h.234, case 1
8. SYNOPSIS OF SUBJECT MATTER DEFECT
A full discussion of the glaring defect, and the resultant erroneous judgment rendered in the (BOND) litigation, are beyond the scope of this particular motion. However, the inherent defect is glaringly simple and straight-forward upon itself. The facts are obvious and historically incontrovertible; while the matters-of-law are clear and well — settled. Nevertheless, a synopsis follows:a. There is an Indiana corporation and a foreign corporation versus a foreign citizen. (See Complaint — Docket No. 1)
b. The historical styling of the (BOND) litigation, namely, International Medical Group, Inc. and Sirius International Insurance Corporation vs. Jonathan Bond, has been constant since inception; and, is a continuous historical fact; despite, the plaintiff's tendency to mislead by conveniently omitting Sirius International Insurance Corporation from some of its recent pleadings in the (WALKER) litigation.
c. In addition to the (BOND) litigation, there was other litigation; namely, the (LESLIE SMITH/MEDIBROKER) litigation, Case No. 1:06-cv-280 DFH JMS. However, the inherent defect was remedied, when Sirius International Insurance corporation withdrew as a plaintiff; for the expressed purpose of preserving jurisdiction.
d. However, the blatant jurisdictional defect was never cured in the (BOND) litigation. "[I]f, at the end of the day and case, a jurisdictional defect remains uncured, the judgment must be vacated." Caterpillar Inc v. Lewis, 1996, 117 S.Ct. 467, 477, 519 U.S. 61, 76-77, 136 L.Ed.3d 437 (Ginsburg, J.)
e. According to the Seventh Circuit, "there is no diversity jurisdiction over a case in which there are foreign parties on both sides of the suit and a U.S. citizen on only one side." Salton Inc. v. Philips Domestic Appliances Personal Care B.V., 391 F.3d 871, 875 (Seventh Circuit 2004); [ Ed. Notes: Plus, numerous other citations with similar conclusions are available, but have been omitted for brevity.]
f. Thus, the defective case, namely, International Medical Group, Inc. and Sirius International Insurance Corporation vs. Jonathan Bond (Case No. 1:05-cv-438 RLY-JMS), which involves a mixture of foreign and domestic parties on one side versus a foreign party on the other, "does not fit any of the possible applicable jurisdictional pigeonholes". Allendale Mut. Ins. Co. V. Bull Data Syst., Inc., 10 F.3d 425, 428 (7th Cir. 1993)
g. The burden of demonstrating jurisdiction rests on the plaintiff. Nelson v. Park Indus. 717 F2d at 1275; 717 F2d 1120, 1123 (7th Circuit 1983). ( Ed. Note: Plus numerous other similar citations omitted for brevity.)
h. Accordingly, the Court did not have jurisdiction over Case No. 1:05-cv-438 DFH-JMS; [the BOND litigation].
i. "Jurisdiction" is the power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause. Veiga v. World Meteorological Organization, 568 F.Supp 2nd 367 — Fed Cts. S.D.N.Y. 2008. [Ed. Note: Plus numerous other similar citations omitted for brevity]
10. CONCLUSION
Based on the foregoing the Defendant in Case No. 1:2008-cv-00923 JMS-TAB, which is the instant (WALKER) litigation, respectively requests the District Court for the Indianapolis Division, Southern District of Indiana to dismiss the BOND litigation; and, vacate any and all judgments rendered therein.DATED: 16 JUN 2011
By: _________
Paul Walker
Pro Se Judge Jane Magnus-Stinson nd 00 131 722 93959 and Judge Jane Magnus-Stinson 00 131 722 93678 Case Ref: 1:08-cv-923-JMS-TAB Re: Response to Entry (dkt 230)
Mr Paul M Walker 21a Sherborne Road, Yeovil BA21 4HD United Kingdom Email: paulwalker@lycos.com Date: Thursday, 22 June 2011 105 U.S. Courthouse 46 East Ohio Street Transmitted by fax on the following: Indianapolis Fax: Indiana 46204, USA Fax: Dear Madam, I write respectfully requesting leave and permission to join the Pre-trial Conference by telephonic conference all in capacity of Pro Se defendant named in this complaint.Having read the recent Entry (dkt 230), I should highlight that after 35 months of extensive prior precedence in this case, with the Pro Se office cooperating heretofore much has been achieved, far more so than under the guidance of counsel.
The Trial Brief and other associated and supporting documents will follow promptly later today; however I have had near impossible time scales imposed upon me; most of which have been imposed upon me by the court and not standard procedures.
Also, due to geographical challenges, coupled with the restrictive methods at my disposal as Pro Se, documents have always been faxed to the Clerk of the Court at the time of posting as a gesture of courtesy to the Courts; in over 35 months, the Court nor Magistrate Baker have raised an objection.
Therefore, if able; I would appreciate more filling time. As an example, the recent Order dated 14th June has only been received at my address on the afternoon of the 21st June . . . the plaintiff has been granted much grace and favour by the courts, it would be just to reciprocate such favour to both parties involved.
Finally, a number of documents have recently been issued to the Courts in response to the plaintiff's stance, these documents under pin the invalidity of this complaint, and highlight how the plaintiff is attempting to blame others, for its self-created problems.
A copy of this fax will also be sent to the Clerk of the Courts and the Plaintiff in keeping with the precedent in place.
Yours sincerely
_________
Paul Walker Pro Se Representative for Defendant Paul Walker