Opinion
No. CIV 01-898 PHX RCB
February 14, 2002
ORDER
This case was originally filed in the District of Colorado and was transferred to the District of Arizona on May 7, 2001 (doc. #55). Defendant, Michael G. Czarnecki, has filed motions contesting the transfer (doc. #56) and the Court's jurisdiction (doc. #62 and #63), and seeking permission to be represented by a non-attorney (doc. #57). Additionally, Plaintiffs, Janet Kennedy-Burdick and Allen Burdick, have filed a motion to compel discovery (doc. #61) Because all of these motions are interrelated, the Court will consider them together.
I. BACKGROUND
This case has a long and complicated procedural history, it is necessary to explain it in some detail in order to unravel all of the issues before the Court. On May 5, 2000, Plaintiffs filed a Complaint in the United States District Court for the District of Colorado. The Complaint alleged that Michael G. Czarnecki assaulted Janet Kennedy-Burdick in May of 1998, causing her to suffer serious injuries. Compl. (doc. #2) ¶ 7. Czarnecki is currently incarcerated in Arizona based on a related criminal action (doc. # 8). The Complaint claimed that the federal court had diversity jurisdiction under 28 U.S.C. § 1332. Id. ¶ 4. An Amended Complaint was filed on May 26, 2000. The allegations were essentially unchanged. Amended Compl. (doc. #2) ¶ 7. Czarnecki was served on June 6, 2000. Affidavit of Service (doc. #5).
Czarnecki did not respond to the Complaint, and on July 17, 2000, default was entered against him. Notice of Default (doc. #7). Plaintiffs did not move for a default judgment in the case. It appears that the default has been effectively ignored by the parties and the court alike.
On December 4, 2000, Czarnecki filed a Notice and Demand for Dismissal for Lack of Jurisdiction (doc. #20) followed by numerous briefs filed in a period spanning months, purporting to support his motion to dismiss. See First Jurisdictional Brief in Support of Demand for Dismissal "No Opportunity to Defend" (doc. # 21); Second Jurisdictional Brief in Support of Demand for Dismissal "Court Unable to Affect a Remedy" (doc. #44); Third Jurisdictional Brief in Support of Demand for Dismissal "Lack of Proper Venue" (doc. 47); Fourth Jurisdictional Brief in Support of Notice and Demand for Dismissal for Lack of Jurisdiction "Status of Citizens" (doc. #50); Fifth Jurisdictional Brief in Support of Demand for Dismissal "Court Unable to Affect A Remedy" (doc. #52); Sixth Jurisdictional Brief in Support of Demand for Dismissal "Lack of Subject-Matter" (doc. #53); Seventh Jurisdictional Brief in Support of Demand for Dismissal "Lack of Reliable Witness" and Request for Subpoena Duces Tecum (doc. # 54). On December 4, 2000, Plaintiffs filed a motion asking the court to compel discovery (doc. #19). Despite the jurisdictional issue before the court, Plaintiffs' motion was granted on January 16, 2001 (doc. #31). Czarnecki's motion to dismiss for lack of jurisdiction was not addressed until April 6,
At some point in time, not specified in the record, Czarnecki appealed the Colorado District Court's January 16, 2001 Order compelling discovery to the Tenth Circuit. On February 7, 2001, the Tenth Circuit tolled all action on the merits of the case pending the appeal (doc. #39). Czarnecki failed to pay the appropriate fees in order to continue the appeal; however, it does not appear that the appeal was dismissed and the order tolling the action lifted until April 13, 2001 (doc. #40). While Czarnecki's appeal was still pending, Plaintiffs filed a Motion for Sanctions and to Further Compel Discovery (doc. #36) on March 5, 2001, and Plaintiffs' Motion to Extend Discovery Deadline (doc. #41) on March 28, 2001.
On April 6, 2001, while the Tenth Circuit's Order tolling the action was still in place, the Colorado District Court took up Czarnecki's jurisdictional motion. The court issued an Order to Show Cause (doc. #43), requiring the Plaintiffs to demonstrate why the action should not be dismissed for lack of personal jurisdiction over Czarnecki. In the meantime, the court continued to issue orders in the case. The court denied what it called "Defendant's Second Motion to Dismiss" on April 10, 2001 (doc. #45). On April 12, 2001, the court granted Plaintiffs' motion to extend the discovery deadline (doc. #46). To this point no answer had been filed and Czarnecki was protesting the court's misinterpretation of his motions and its mishandling of the case (doc. #48).
Plaintiffs never directly responded to the court's order to show cause. Instead, on April 16, 2001, they filed a motion for transfer of venue (doc. #49). Czarnecki responded that, by their motion, Plaintiffs admitted that the court had no jurisdiction. Czarnecki insisted that the only proper action for the court to take was to dismiss the case. (doc. #51). The court interpreted Plaintiffs' motion as conceding that their was no jurisdiction over Czarnecki in Colorado. Instead of dismissing the case, however, the District Court in Colorado transferred the case to this district pursuant to 28 U.S.C. § 1631 (doc. #55). All other pending motions were dismissed without prejudice to allow them to be refiled in this Court.
Upon transfer to this Court, Czarnecki filed a Motion to Amend Findings of Court (doc. #56), protesting the transfer of venue and asking that the action be dismissed for lack of jurisdiction. He also moved for the Court to allow John Purdy, a non-attorney, to appear on his behalf in this case (doc. #57). On July 23, 2001 Plaintiffs filed another motion to compel discovery (doc. #61). On August 2, 2001, Czarnecki refiled his "Notice Demand for Dismissal for Lack of Jurisdiction," including all seven briefs previously filed in support of the motion (doc. #63). At the same time Czarnecki filed a Motion for Interlocutory Stay Pending Resolution of Jurisdiction Issue (doc. #62).
II. Order of Transfer
The District Court in Colorado transferred this case to the District of Arizona pursuant to 28 U.S.C. § 1631. Section 1631, in pertinent part, reads: "Whenever a civil action is filed . . . and [the] court finds that there is a want of jurisdiction, the court shall, if it is in the interest of justice, transfer such action . . . to any other such court in which the action . . . could have been brought at the time it was filed. . . ." This statute requires the transferring court to determine that: (1) there is no jurisdiction in that court; (2) transferring the action, rather than dismissing it, is in the interest of justice; and (3) the action could have originally been filed in the transferee court. The Colorado court's order of transfer made each of these determinations based on the record before it.
Czarnecki protests the Colorado court's "interest of justice" determination. He argues that the case should have been dismissed rather than transferred. Czarnecki claims that his motion to amend is filed pursuant to Rule 52(b) of the Federal Rules of Civil Procedure. This rule is inapplicable. It allows a litigant to move a court to amend its findings of fact issued after a bench trial. There has been no trial in this case requiring any findings of fact; therefore, no amendment to such findings is possible. Additionally, because the decision to transfer is at the discretion of the transferring court, this Court will not review the Colorado court's determination that a transfer was in the interests of justice, if indeed it has any authority to do so.
III. Jurisdiction
Czarnecki has filed a motion to dismiss for lack of jurisdiction. He has offered essentially seven arguments why this case should be dismissed. The Court will address each argument in turn.
A. Service of Process
Czarnecki contends that service of process is inadequate because the original service of process was for a case in Colorado and that court did not have personal jurisdiction over him. He insists that he must be served again now that the case is in Arizona. This is incorrect. Section 1631 states that after transfer "the action . . . shall proceed as if it had been filed in or noticed for the court to which it is transferred on the date upon which it was actually filed in or noticed for the court from which it is transferred." 28 U.S.C. § 1631. This section specifically cures the jurisdictional defect by allowing the federal courts to transfer cases to their proper jurisdictions and treat all action taken in the case, including service of process, as if it had occurred in the appropriate court from the beginning.
B. Statute of Limitations
Czarnecki asserts that Plaintiffs claims are barred because he was not served until after the two-year statute of limitations expired. However, Czarnecki has misunderstood the applicable statute of limitations. The Arizona statute of limitations for personal injury claims requires that an action be commenced within two years from the date of injury. A.R.S. § 12-542. An action commences when it is filed, not when it is served upon the defendant. Ariz. R. Civ. P. 3. According to the Amended Complaint, the alleged injury occurred on May 18, 1998. The action was originally filed on May 5, 2000. Amend. Compl. (doc. #2) at tab C. The Complaint was amended on May 26, 2000 (doc. #2). The Amended Complaint relates back to the date of the original filing. Fed.R.Civ.P. 15(c). When this case was transferred it continued as if filed in this Court on the same date as the original Complaint. 28 U.S.C. § 1631. Therefore, this action commenced on May 5, 2000, thirteen days before the statute of limitations expired.
C. Opportunity to Defend
Czarnecki argues that this case should be dismissed because it violates procedural Due Process. He asserts that because he is in prison adequate legal materials are not available to him. He maintains that without a law library at his disposal he has no opportunity to defend against this claim. According to Czarnecki this violates his Due Process rights and deprives the Court of jurisdiction.
Besides not being a jurisdictional argument, Czarnecki's position is incorrect. [D]ue process is flexible and calls for such procedural protections as particular situation demands. Morrissey v. Brewer, 408 U.S. 471, 481 (1972). Generally Due Process requires, at the least, some type of notice and an opportunity to be heard. Foss v. National Fisheries Serv., 161 F.3d 584, 590 (9th 1998). Due Process does not require that Czarnecki have legal counsel or desired materials for defending a civil tort claim. Additionally, Czarnecki clearly has notice of this action, as evidenced by his voluminous filings with the Court in this matter. Further, Czarnecki will be allowed to present a defense before the Court determines liability in this matter.
D. Status of Citizens
Czarnecki next purports to repudiate his federal citizenship in favor of a common law citizenship; thus, depriving the Court of jurisdiction over him. This theory has no sound basis in law. It has been consistently rejected by the courts as "bizarre," "entirely frivolous," "meritless," and "unreasonable." United States v. Schmitt, 784 F.2d 880, 882 (8th Cir. 1986); United States v. Greenstreet, 912 F. Supp. 224 (N.D. Tex. 1996); Sandlier v. Payne, 974 F. Supp. 1411 (D. Utah 1997). This Court has jurisdiction over Czarnecki according to the laws, statutes, and Constitution of the United States. Czarnecki cannot avoid the Court's lawful jurisdiction by denouncing his allegiance to the federal system.
E. Availability of a Remedy
According to Czarnecki, the Court does not have jurisdiction over him because it can only impose a remedy in "dollars" and no such thing exists today because federal reserve notes can no longer be redeemed for gold or silver coins. This claim is meritless. The United States Congress has the power to make anything it wishes legal tender or "dollars". Congress is not limited to gold or silver coins. The Legal Tender Case, 110 U.S. 421 (1884); United States v. Rifen, 577 F.2d 1111, 1112 (8th Cir. 1978); Lowry v. State, 655 P.2d 780 (Alaska App. 1982). Federal reserve notes are legal tender in the United States. 31 U.S.C. § 5103. Moreover, the medium used to satisfy a judgment has no bearing on the Court's jurisdiction to impose one.
F. Lack of Reliable Witness
Next Czarnecki wishes to subpoena various witnesses, including the entire 1968 United States Olympic swimming team, in order to undermine the Plaintiffs' credibility. Czarnecki believes this is necessary because if Plaintiffs' claims are unfounded then the Court should not here them. Czarnecki's contentions about Plaintiffs' credibility go to the merits of this case, not the Court's jurisdiction. A litigant may not ultimately prevail on her claim, but if she has plead her case correctly she has a right to be heard.
G. Color of Conspiracy
Czarnecki asserts that various actions taken by Plaintiffs and their attorney amount to a criminal conspiracy. Plaintiffs have brought a civil tort action in this Court based on diversity jurisdiction. This Court is not charged with investigating an alleged criminal conspiracy. One of the allegations of conspiracy leveled by Czarnecki, however, is that Plaintiffs can not meet the amount in controversy requirement of 28 U.S.C. § 1332. If Plaintiffs' claims do not meet the amount in controversy requirement then the Court would be deprived of subject matter jurisdiction.
Generally, the amount in controversy is determined from the face of the pleadings. See Pachinger v. MGM Grand Hotel-Las Vegas, Inc., 802 F.2d 362, 363 (9th Cir. 1986). The sum claimed by the plaintiff controls so long as the claim is made in good faith. See St. Paul Mercury Indem. Co., 303 U.S. at 288, 58 S.Ct. 586. "To justify dismissal, `it must appear to a legal certainty that the claim is really for less than the jurisdictional amount.'" Budget Rent-A-Car, 109 F.3d at 1473 (quoting St. Paul Mercury Indem. Co., 303 U.S. at 289, 58 S.Ct. 586).
Crum v. Circus Circus Enter., 231 F.3d 1129, 1131 (9th 2000). The Complaint demands in excess of $75,000 compensatory damages for severe personal injuries allegedly afflicted upon Janet Kennedy-Burdick by Czarnecki. The alleged injuries include fractured cheekbone, eye socket, skull, knees, ribs, and tooth, as wells as internal injuries to the kidneys, spleen, and brain. Amended Compl. (doc. # 2) ¶ 7. It is certainly reasonable to conclude that such extensive injuries could command an award of more than $75,000 for medical expenses, as well as pain and suffering. Czarnecki's adamant avowals that Plaintiffs' are lying about Kennedy-Burdick's injuries do not demonstrate that the claims alleged in the Complaint are really worth less than the jurisdictional amount.
IV. Motion to Compel
Plaintiffs have moved to compel responses to certain discovery requests. It is uncertain why discovery has commenced in this case at all considering there has been no Answer and a motion to dismiss for lack of jurisdiction has been pending before the Court. This being the case, discovery is not appropriate at this time. Now that the Court has disposed of the jurisdictional issues Czarnecki will be required to respond to the Complaint and this matter can go forward in accordance with the applicable rules of civil procedure. Once disclosure, if any, has occurred, a scheduling conference is held and a discovery schedule is established, Plaintiffs may seek discovery from Czarnecki and refile their motion to compel if it becomes necessary. Should Czarnecki refuse or unreasonably fail to engage in disclosure or cooperate in preparing the joint scheduling report, the plaintiffs may move for appropriate sanctions.
V. Representation by Non-attorney
Czarnecki has asked that the Court allow him to be represented by John Purdy a non-attorney. Local Rule 1.5(b) states that only members of the bar of this Court may practice in this district. Local Rule 1.5(a) explains that in order to be admitted to the bar of this Court an individual must be an attorney who is an active member in good standing of the Arizona Bar. Mr. Purdy has not been admitted to practice before this Court. Indeed he cannot be admitted before this Court because he is not an attorney, nor a member of the Arizona Bar. Local Rule 1.5(b) does have exceptions for U.S. government attorneys, tribal attorneys, attorneys admitted pro hac vice, and certified students. Mr. Purdy does not fit within any of these exceptions.
IT IS ORDERED that Defendant's Motion to Amend Findings of Court (doc. # 56) is DENIED.
IT IS FURTHER ORDERED that Defendant's Motion (Notice and Demand) for Dismissal for Lack of Jurisdiction (doc. # 63) is DENIED.
IT IS FURTHER ORDERED that Plaintiffs' Motion to Compel (doc. # 61) is DENIED.
IT IS FURTHER ORDERED that Defendant's Motion (Limited Notice) of Appearance as Guardian Ad Litem "Next Friend" (doc. # 57) is DENIED.