Best et al v. US Foods Inc. Delaware Division et alREPLY BRIEF re MOTION for Hearing Us FoodsM.D. Pa.June 17, 2014 1 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA R. Michael Best : Keith Dougherty : Docson Consulting LLC (SMLLC) : Keith Dougherty Investments & Consulting : LLC (SMLLC) : : : Plaintiff(s), : Civil Action NO: 1:14-CV-922 : v. : U.S. Food Inc et al : : Frederick Motz (Judge) : : Filed Electronically : : Defendant(s), : : Jury Trial Demanded : : : __________________________________________________________________ Plaintiff’s Reply Brief in Support of a Hearing and in Opposition to US Foods Inc. ________________________________________________________ And now comes Keith Dougherty and R. Michael Best pro se and aver as follows. Brief Factual Background Keith Dougherty is a “capitalist”. He therefore saw an opportunity to make money when ERIE “denied the Claim of Larry Runk II” see 14-CV-480 ERIE Claim #010171282556 Case 1:14-cv-00922-JFM Document 53 Filed 06/17/14 Page 1 of 13 2 ERIE Insured: Larry Runk II see Assignment attached to 480; Date of Loss: 3/4/13 ERIE Policy #Q02-25057 43 Keith Dougherty offered to purchase the claim “initially” and Larry Runk II rejected (as we were busy working on his Legal Malpractice Claim). As of 10/7/2013 Larry Runk II was receiving “solicitations” from “criminal attorneys” with dire warnings. This prompted Keith Dougherty to do an online search and found the “criminal indictment”. At that point the issue ripened. What was revealed in the denial letter is ERIE Insurance “routinely uses an outdated Contract” to threaten and intimidate its insured to “accept reduced claims”. If they refuse to accept the “low ball offer” they threaten to “charge the insured with insurance fraud”. When ERIE took note of Keith Dougherty purchasing the Claim where he promised to “seek treble damages” with the underlying threat from Larry Runk II to seek “defamation” ERIE sought to bribe and influence Cumberland County Detective RG Smith and CID (under a false notion that if they got Case 1:14-cv-00922-JFM Document 53 Filed 06/17/14 Page 2 of 13 3 the Police to charge Fraud they would be protected by Immunity of some sort). The easiest way to “prove a valid claim” and thereby invalidate any charges against Larry Runk II was to seek Declaratory Judgment of the Contract involved. It just so happens ACT 78 was established as the “exclusive remedy” for Insurance Carriers seeking to sever a long term relationship with an insured in ERIE v. Lake 1996. In 1998 the Act was amended to Act 68 where it added Paragraph 14. This makes it unlawful to “refuse to renew” an insured for any “comprehensive claim”. If as Keith Dougherty avers “swerving to avoid a herd of deer” requires ERIE to pay its “comprehensive claim deductible” it would be impossible for as here to accuse Larry Runk II that he is trying to steal the $450 different in the Collision Claim they said they owed and the $50 deductible Larry Runk II is entitled to. The Standard is “in any contract of adhesion the language must be strictly read against the drafter” for any interpretation the carrier seeks to enforce. Just as the Courts “refuse to define SMLLC” (because Case 1:14-cv-00922-JFM Document 53 Filed 06/17/14 Page 3 of 13 4 Keith Dougherty wins under Conestoga Wood Specialties) President Judge Hess knew Keith Dougherty was right and he sought to protect Cumberland County by “invalidating the First Amendment and indicating “assignment is not possible in Cumberland County” (absurd). This identical course of conduct was employed by Judge Bratton in CV-2011-2531 (it must be a well known tactic). See previous arguments as to why infringement of first Amendment Freedoms for even minimal periods of time is “irreparable injury” Elrod v. Burns. Case 1:09-cv-00524-CCC Document 50 Filed 09/30/2010 Page 1 of 21 A. Irreparable Injury “stare Decisis” See Stilp v. Contino, 629 F. Supp. 2d 449 (M.D. Pa. 2009). On July 22,2010, the Third Circuit Court of Appeals affirmed this court's decision to grant a preliminary injunction. See Stilp v. Contino, 613 F.3d 405 (3d Cir. 2010). For the reasons that follow, the plaintiffs motion for summary judgment (Doc. 35) will be granted, and the defendants' motion for summary judgment (Doc. 39) will be denied. Case 1:09-cv-00524-CCC Document 50 Filed 09/30/2010 Page 1 of 21 Section 1983 affords an avenue of relief when official action deprives an individual of his or her First Amendment rights. Monell v. Dep't of Soc. Servs., 436 U.S. 658,690 Case 1:14-cv-00922-JFM Document 53 Filed 06/17/14 Page 4 of 13 5 (1978); see also Burnett v. Graham, 468 U.S. 42,43-48 (1984) (assuming applicability of 8 1983 as remedy for contravention of constitutionally protected speech). To enjoin application of an unconstitutional state statute [or here local custom under Monell/Bivens] under 8 1983, a plaintiff must bring suit against those officials charged with enforcement of the contested measure. See Kentucky v. Graham, 473 U.S. 159,166-67 & n.14 (1985); & Parte Young, 209 U.S. 123, 153-61 (1908). Accordingly, Stilp identifies Contino and Corbett [ see here Hess, Bratton] as responsible for enforcement of … Once someone reviews the contract Keith Dougherty wins Money. It just so happens Larry Runk II must be released from “the malicious prosecution” with indictment scheduled for 6/19/2014. It is absurd to suggest they “innocently do not know Insurance Law” but can still charge crimes that are legally impossible. Keith Dougherty seeks the protection of the Federal Court of Keith Dougherty’s 1st, 5th, and 6th amendment rights (so that I can make money). The sooner the better. Argument I. U.S. Foods Inc. is in Default; A. It is vexatious and obdurate for U.S. Foods to continue to file pleadings when by all accounts they are in default. Case 1:14-cv-00922-JFM Document 53 Filed 06/17/14 Page 5 of 13 6 B. The best that U.S. Foods Inc. Could hope for is to concur with default and then file a 55(c) motion if there is a “meritorious defense” for violating R. M. Best’s 4th amendment rights and seizing his personal property for a sale that was never completed “with no post judgment hearing” See EXHIBIT A (I did not know?). 1. See Open Ins Ltd v. Chester County “hearing on damages” after granting of summary Judgment (here default). Conclusion The only way to get an additional 14 days is to ask the Court or have your opponent fail to object. The defaulting defendant has merely lost his standing in court. He will not be entitled to service of notices in the cause, nor to appear in it in any way. He can adduce no evidence, he cannot be heard at the final hearing. Frow v. De La Vega - 82 U.S. 552 (1872) Jurisdiction as to the question “is assignment protected under the First Amendment” is with the court see RFRA and Conestoga Wood Specialties. Respectfully Submitted, Case 1:14-cv-00922-JFM Document 53 Filed 06/17/14 Page 6 of 13 7 Keith Dougherty, CFP®, CLU®, IAR, EA Sole Member Keith Dougherty Investments & Consulting LLC 8075 Manada View Drive Harrisburg, PA 17112-9383 866-391-7295 keithdoughertycfp@comcast.net R. Michael Best 6493 Carlisle Pike Mechanicsburg, PA 17055 (717) 795-9350 Fax: 717-691-6636 Bestautosales1@gmail.com Case 1:14-cv-00922-JFM Document 53 Filed 06/17/14 Page 7 of 13 8 Certification of Service I Keith Dougherty doe hereby certify a copy of the foregoing was served by 1st class mail prepaid and by ECF where indicated; College Park LLC Curtis Property Management 5620 Linda Ln, 20748-2300 (301) 702-3200 Case 1:14-cv-00922-JFM Document 53 Filed 06/17/14 Page 8 of 13 9 By ECF; Colin S. Haviland Legal Counsel Supreme Court of Pennsylvania Administrative Office of PA Courts 1515 Market Street, Suite 1414 Philadelphia, PA 19102 colin.haviland@pacourts.us (v) 215.560.6300 (f) 215.560.5486 Joseph M. Cincotta, Esquire (Attorney I.D. No. 31844) Stephen J. Finley, Esquire (Attorney I.D. No. 200890) GIBBONS P.C. 1700 Two Logan Square 18th & Arch Streets Philadelphia, PA 19103-2769 Tel: 215-665-0400 Fax: 215-636-0366 jcincotta@gibbonslaw.com sfinley@gibbonslaw.com Kathleen A. Stimeling, Esquire (PHV to be filed) SCHIFF HARDIN LLP One Market Spear Street Tower, Suite 3200 San Francisco, CA 94105 Tel: 415-901-8712 Fax: 415-901-8701 KStimeling@schiffhardin.com Brian 0. Watson, Esquire (PHV pending) SCHIFF HARDIN LLP 233 S. Wacker Dr. Suite 6600 Chicago, IL 60606 Tel: 312-258-5845 Fax: 312-258-5600 BWatson@schiffhardin.com Case 1:14-cv-00922-JFM Document 53 Filed 06/17/14 Page 9 of 13 10 Attorneys for Defendant US Foods, Inc., improperly sued as US Foods Inc. Delaware Division EDWIN A.D. SCHWARTZ, ESQUIRE Attorney ID 75902 NICOLE M. EHRHART, ESQUIRE Attorney ID 2000538 100 Corporate Center Road, Suite 201 Camp Hill, PA 17011 (717) 651-3700 easchwartz@mdwcg.com MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN /s/Timothy J. McMahon Timothy J. McMahon, Esquire I.D. No. 52918 100 Corporate Center Drive, Suite 201 Camp Hill, PA 17011 (717) 651-3505 tjmcmahon@mdwcg.com WILLIAM J. FERREN & ASSOCIATES Leticia J. Santiago Leticia J. Santiago, Esquire Attorney Attorney ID# 308519 10 Sentry Parkway, Suite 301 Blue Bell, PA 19422 (215) 274-1724 (215) 274-1735- Fax Email: ljsantia@travelers.com Joshua D. Bonn jbonn@nssh.com , klfarhat@nssh.com Case 1:14-cv-00922-JFM Document 53 Filed 06/17/14 Page 10 of 13 EXHIBIT A Case 1:14-cv-00922-JFM Document 53 Filed 06/17/14 Page 11 of 13 A3lZglzEBg E6:68 282-234-4472 MEIT,IEESD.C., Mu, N.Y. BAns ALDEN MUELLER PHtr,IPA, MugT,Inn ATTORNEYATLAW 3133 Arems trIrul RDo lfw WAsgrncrotrl, D.C. 20010 philipamueller@yahoo. corn PAGE E2 Tw": €ff1) d6?-1d6r l.ix: (ru7,66?-r463 Msrch2oih. ?oog Fv Fax onlv * Fnx Tsk Efd 25S ?944 Keith Dougherty Du:sunConsultiry; LLC 80?5 Manada VW Dr. Harnsburg, PA 1 7i 12-9385 Re: Cluck U, Corp. / Collcge Pmk" MD Mr. Dougherty: I received your f*r of March I9s. My client hs"s bem trying in good fuith to rcsolvc this issue. Your lener did not respond to the questions raised, in my letter of March 18th. It contains numerous uew factual assertions and opinions of law. You have repeatedly refirsed to stata whether you re,present the named individuals. Youhave presented a sonfirsed litany of complaints, alligations, and ulintelligible statements thaf sem to have little or no bearing on the matter at hand. For exampler your stetement that "the colster offer of 2/9/2009 is unacceptable* makss no $ense. If there was some offer in Febnrary, w€ are cleady beyond rbat now. Otlter ramblings aro equally out of plam. Your allegations of furconpet€nce and childishness are offensive and unpmfessional' My client generously qffered you the option to either have a full mfund of the tansfer fee and retum to th.e statrs quo prior tb January lstr', 2009, or pfly the tansfer fee and obtail a crrrrent franchise ageernent. You have failed to respoud ta the offer' My client is not interested in wasting Rny more dme qn this mana. AII oftrs are withdrf,wn Th* t*tsf*r, if ever there wa.s one, ii void. My clientwill instruct its b6nk to wire a refirnd of tlrs karr+fer fee pai't to the CtiC sf MD, Inc. account from which it came aftcr malung dcdustiou for the unpaid royulty and marketing fees. If you do not want the fees deducted CUC of MD' Inc. nnust pay th* o.tire outstading bqlsneg in cesh or csdified check trefnrt the refund is wired- andmy client will wire the etrtire tansfcr fee paid to CUC of MD, Ilc.'s sccouilL My climt will retrtov€ the late fees asse$ed for Febnrary. The ftanchiw agreemeotthat Mike Ghiglieri purchased in 2005 is still iu effect exactly as written. All terms srd conditions of that agltern€nt are in effect- No tansfet has heen made. CUC of MDo Inc. and lv.{r. Ghiglieri are responsible fsr all obligntions tbey accepted in that a$effient Lcrer to Ecith Do$gherty, !t d., f,otlege PalE MEI fluclc.tT Chickcrr. rc Chu:k I.l. fix?., page I nf?, Fridry, Mrclr 20' 200O Case 1:14-cv-00922-JFM Document 53 Filed 06/17/14 Page 12 of 13 B3/2A/28n9 E6:88 242-234-4472 ALEN F,II-ELLER PA6E 83 and any related agrnements. CUC of MD, Inc. must follow its franchise ageenrent and operating msnusl in all respects. Current recipes rnust be fullowed. Conect product must be purchased, prepared and sold according to the operating manual and franchise agrcement. Ths rights conveved to Mr. Ghigtiet h 2005, no mor€ and no less, are reinstated- They remain conditional on the faitbful pcrformancc of its obligations. My client has done all it can to address this rnaner. The status quo pnor to Janrury 2009 has been rciustated. There is nothing further to discuss. I an not auahorized to revie$' or reqpond to any furtlm eofrespondeirce Aom you. You are simply wasring my client's time aDd resources for uo firrther purpose, Please do not send me aoy more letters, faxes, emails, voicemails, or other eonrnrmieations. I will not read them or rcspond to thcrn. As I hsve previously advi$ed yor+ the marketing firnd materi"l uay be rreviewed by nppointmeot at Cluck-U, Coqp.'s offices. If CUC of MD, Inc. has any operational needs it should contait Cluck-U, Corp. directly for assistance. I understand that ifthe Haddads are €vEr asked to ast on the gumanty they signed, they will cont€st any agleements made by otlrer parties that nright exceed or chauge +hc gssp,c of thcir guatanty. I look forward to not hearing from you. cc: Clnck-U, Corp. Shcerely, L#
