Rosiere v. United States of America

MOTION for Summary Judgment and MOTION to Compel Discovery

D.N.J.September 29, 2016

SHAUN ROSIERE Petitioner(s) v. UNITED STATES DISTRICT COURT DISTRICT OF New Jersey ____ , New Jersey ___ _ Civil No. 3:16-cv-00341 UNITED STATES OF AMERICA Respondent( s) RECEIVED SEP 2 9 2016 AT 8:30 M WILLIAM T. WALSH CLERK Motion for Summary Judgment and Motion toCompel Discovery COMES NOW the Plafntiff, ·Shaun Rosiere, and moves the Honorable Court to grant this Motion for Summary Judgment and Motion to Compel Discovery pursuant to Federal Rule of Civil Procedure 56. In support of this motion the Plaintiff relies upon the accompanying Memorandum of Points and Authorities, the Statement of Undisputed Facts, and all pleadings and other documents on file. STATEMENT OF MATERIAL FACTS AS TO WHICH THERE IS NO GENUINE DISPUTE Pursuant to Federal Rule of Civil Procedure 56, the Plaintiff, respectfully summits the following statement of material facts as to which there is no genuine dispute. The government, through its choice notto answer the admissions, admits all the following matters as true: Active Trader News, Inc., activities are not a part of the September 17, 2009 plea agreement [Doc. No. 6 in Crim. Case. No. 09-cr-00720] or agreed upon in any form in the September 17, 2009 plea agreement or mentioned in any way or under any obligation within the September 17, 2009 plea agreement for restitution (information charge). It was never mentioned or a matter of contention in the Plea Proceedings [see Exhibit A, recently discovered approximately 1 week ago, on and through a FOIA request dated back in 2010 that the government finally answered, page 8-10 clearly spell out only MAAAC related to the information charge and no money is owed in-regard to restitution and MAAAC or Even presented to a court of law]. Memorandum of Points and Authorities 1 Case 3:16-cv-00341-BRM-TJB Document 23 Filed 09/29/16 Page 1 of 33 PageID: 72 Section I 1. The Government actively and willfully violated the terms of the September 17, 2009 alleged Plea AgreemenUContract as follows: (a). The contract terms state clearly, "One-count Information." [Seep. 1, paragraph two, lines 3-4, case# 09-720-1, Doc. 6]. The government is restricted to the terms set forth in the contract that was generated by themselves. As such, one count Information, meaning singular, as only related to MAAAC, registered in the state of Texas on October 20, 2008. This point is clarified by the Plea Proceeding transcript, taken in Newark, New Jersey, on September 17, 2009, pages 22-25. Active Trader News, Inc., was not a part of the plea agreemenUcontract; nor was it brought up or ever mentioned. The Admissions recorded on the court docket and now admitted to under F.R.Civ.P. 36 supports this argument in full [see Exhibit B]. (b). Restitution, as per the terms of the alleged plea agreemenUcontract limit restitution to, "losses resulting from the offenses of conviction ... criminal/activity underlying those offenses." [See September 17, 2009 Plea AgreemenUContract, criminal case No. 09-720-1, Doc. 6, p. 3, paragraph 2, lines 3-5]. There are no criminal convictions related to Active Trader News, Inc., and/or to Plaintiff Rosiere, who has sole stock ownership. In any form imaginable, Active Trader News, Inc. was and is not an active part as spelled out under the terms of the plea agreemenUcontract. Currently there are no criminal Indictments or criminal Information agreements that charge Active Trader News, Inc., and/or Plaintiff Rosiere with any wrong doing under agreement with any government agency. The Admissions which are now on the Record, and are now admitted to under F.R.Civ.P. 36 supports this argument [see Exhibit B]. 2. The government is without and Indictment or Information charge related to Active Trader News, Inc., or any activities thereof, thus there is no valid legal conviction. The government, on and through AUSA's, sought to violate the terms of the plea agreemenUcontract on August 3, 2010, by their own hand when they asked the court to grant Restitution in the amount of approx. 1. 7 million dollars to include Active Trader News, Inc. Once granted without a hearing and an a lawyer who represented me (John Feiner was no longer my attorney at the time of the order of restitution issued against Active Trader News, Inc., and the government fraudulently present to the court that he was still my lawyer, the contractual breach of contract occurred. The government's own words state, "So with regard to Forex, Your Honor, there are really two different groups. There's the Active Trader News and then the MAAC." [Sentencing Transcript, case Nos. 08-629 and 09-720-1, p. 22, lines 6-8]. The key words as stipulated by the government are "two different groups." Thus, 'one', one count Information does not equal the "two" groups; and "different" does not equal the 'same.' 3. Government concessions made during oral arguments at sentencing constitute admissions to establish fact. See Nationalist Movement v. City of New York, 481 F.3d 178 (CA 3 2007). 2 Case 3:16-cv-00341-BRM-TJB Document 23 Filed 09/29/16 Page 2 of 33 PageID: 73 4. The legal standard under contract law is; one party cannot be held to a bargain that the other party has breached. See United States v. Williams, 510 F. Ed 416 (CA 3 2007). Plaintiff Rosiere cannot be held to a contract that clearly stated one Information charge and that restitution would only relate to criminal offenses; when the government itself violated the terms. Plaintiff Rosiere is evoking the option that is within his legal right to treat the September 17, 2009 contract as unenforceable; being that the government breached the contractual terms of the contract. See Ricketts v. Adamson, 483 U.S. 1, 9 n. 5, 107 S.Ct. 2680, 97 L.Ed.2d. 1 (1987); See also, United States v. Alexander, 869 F.2d. 91, 95 (2nd Cir. 1989). Also Rosiere is seeking a judgement of 1.27 million dollars that the government tried to fraudulently obtain under the premise of Active Trader News, Inc. Behalf of shareholders. I am the only share holder of said company. (0.1) The U.S. Government has failed to answer the admissions within the time frame established in F.R.Civ.P. 36. Hence, Rule 56 of the F.R.Civ.P. mandates the entry of summary judgment upon this motion against the government, who has failed to make a showing sufficient to establish the existence of an element essentia1 to any position and on which the government bears the burden of proof. See Celotex Corp. Supra, at 322, 106, S.Ct. 2548, 91 L.Ed.2d. 265. (0.2) Contract construction, which is the legal operation of the contract is a question of law mandating. review. See Volero Mktg. & Supply Co. v. Greeni Oy, 242 Fed. Appx 840 (CA 3 2007). (0.3) In general, contract law espouses three distinct, yet equally important theories of damages to remedy a breach of contract: expectation damages, reliance damages, and restitution damages ("Foreseeable Damages"). See Linan-Faye Constr. Co. v. Housing Auth., 49 F.3d. 915 (CA 3 1994). (0.4) If the government challenges this summary judgment in any form, or this judgment is not granted in a timely manner, then Plaintiff Rosiere will seek all remedies legally allowed for the government's willful breach of the alleged plea contract. At the present time Plaintiff Rosiere only seeks the contract as unenforceable and void, due to the government's breach or the Government honor the contract and admit that it tried to defraud me out of my own company, Active Trader News, Inc. and I would like an order of damage against the Government for the sum of 1.27 million dollars the exact sum the government tried to steal from me, by trying to steal Active Trader News, Inc. Section II 1. If the government challenges the Motion for Summary Judgment, then the Judicial requirements of F.RCiv.P. 6(b)(1 )(8) mandate that the District Court must make a 3 Case 3:16-cv-00341-BRM-TJB Document 23 Filed 09/29/16 Page 3 of 33 PageID: 74 finding of excusable neglect; supported by affidavit. Here in show how the government, represented by the DOJ and ALISA, failed to answer the admissions within the time frame mandated within F.R.Civ.P. 36; as well failed to provide, as requested, discovery pursuant to F.R.Civ.P. 26. The Summons, Complaint, Requests for Admissions, Discovery, were all properly served; all of which were filed and docketed upon the court; and AUSA filed an appearance only to the complaint. 2. In Pioneer Inv. Services Co. v. Brunswich Assocs. Ltd. P'Ship, 507 U.S. 380, 392, 113 S.Ct. 1439, 123 L.Ec.2d 74 (1993), the Supreme Court spells out four requirements a court must contemplate. They are: (a) Prejudice to Plaintiff Rosiere a pro se inmate/incarcerated. Here the answer is clear and spelled out by the S.Ct.; any minimal additional time in prison/incarceration constitute prejudice; any amount of actual jail time has constitutional significance. See Glover v. United States, 531 U.S. 198, 203, 121 S.Ct. 696, 148 L.Ed.2d 604 (2001). Currently I am incarcerated to the limits of the State of Nevada for at least 2 more years. (b) The length of the delay. Here the 3rd Circuit case precedent set forth in Derrick v. Greyhound Lines, Inc., 2012 U.S. Dist. LEXIS 85397 (3rd Cir.). This set the standard that the government, as the defendant, who is in noncompliance with F.R.Civ.P 36 mandate for 30 days must immediately respond to the Request for Admissions. The record is clear on this issue. When the government is confronted with the The Summons, Complaint, Requests for Admissions, Discovery they made no immediate attempt to answer the Admissions as well as file for relief under F.R.Civ.P. 36(b). The docket is absent a timely filing. (c) Whether the cause of the delay was within the reasonable control of the government and ALISA. How could the government, represented by counsel ALISA, who is subjected to the same rules as everyone else Claim they are without knowledge of the laws. Enclosed forthwith is Exhibit D showing proof of service to the DOJ. (d). Whether the government, represented by counsel acted in good faith. Under this requirement good faith is measured as the standards set forth by the legal profession (the ABA). To act in good faith is to form a rebuttal or choose to accept the Admissions as true by not answering them, and thus subject themselves to the admissions as fact. In this instance the government has, on and through, counsel AUSA, chosen to let the admissions stand as fact, by an active choice of a refusal to answer or an active choice not to answer. 3. The courts by precedent frown on lawyer manufactured excuses; all excuses require affidavits and must be verifiable by the court. See Generally In Re Cendunt Corp., 189 F.R.D. 321, 324 (D.N.J. 1999); See also Dominic v. Hess Oil Corp., 841 F.2d 513, 517 (3rd Cir. 1988). 4 Case 3:16-cv-00341-BRM-TJB Document 23 Filed 09/29/16 Page 4 of 33 PageID: 75 4. Plaintiff Rosiere argues that F.R.Civ.P. 6(b) and F.R.Civ.P. 36(b) work in conjunction under congressional intent. Effort of the government's failure to respond to Request for Admissions is clear under 3rd Circuit case precedent. Pursuant to Rule 36; Plaintiff Rosie re a pro se inmate/incarcerated, served a written request upon the government for admissions of the truth as to matters related to the facts of the case. Rule 36(a)(3) clearly states, "a matter is admitted unless, within 30 days after being served, the party to whom the request is directed serves on the requesting party a written answer or objection addressed to the matter and signed by the party or its attorney." Regardless of the potential harshness of the result for failing to respond to Rule 36 discovery, the conclusive effect of requests for admissions applies equally to those admissions made affirmatively and those established by default (as we have here, by the government represented by counsel) as a result of a party's neglect to respond. The 3rd Circuit has held such admissions under Rule 36 are sufficient to support entry of summary judgment. Since Rule 36 is self-executing, the party relying on an admission by default need do nothing to establish the admission. See United States v. Pearson, 2012 U.S. Dist. LEXIS 36189 (3rd Cir.). 5. The 3rd Circuit has established precedent in Derrick v. Greyhound Lines, Inc., 2012 U.S. Dist. LEXIS 85392 (3rd Cir.). It states: (a) The government had to immediately respond to the Request for Admissions. (b) The government had to immediately seek leave under F.R.Civ.P. 36(b) to have the admissions entered by default withdrawn and immediately answer to those admissions to consider them as timely. (c) The court must direct counsel for the government to submit an affidavit explaining the government's internal document and case management procedures as well; the reason for AUSA failure to timely respond to the Request for Admissions. 6. This sets the framework for this Motion for Summary Judgment. Annotation of Points and Authorities 1. The purpose of discovery is to provide a mechanism for making relevant information available to the litigants. Knowledge of all relevant facts gathering is the backbone and essential to proper litigation. See Hickman v. Taylor, 329 U.S. 495 (1947). 2. Plaintiff Rosiere argues that congressional intent under Title 28 U.S.C.S., Section 5308 or Fed.R.Civ.P. 26, 33, 34, and 36 requires that all AUSA's are to freely produce all discovery in accordance with the laws of the State and Rules of the State, herein New Jersey, or Fed.R.Civ.P.'s and as such must produce all requested items mentioned within the complaint directly or indirectly upon a request for the production for documents as well as answer the request for Admission within the time frames established by the State of New Jersey or Fed.R.Civ.P.'s, whichever is least. 5 Case 3:16-cv-00341-BRM-TJB Document 23 Filed 09/29/16 Page 5 of 33 PageID: 76 3. The ethical and State rules or Fed.R.Civ.P.'s for discovery are absent any and all indications that an action brought without an attorney or and action brought without an attorney by a person in the custody of the United States, a State, or a State subdivision are entirely exempt/excluded from discovery disclosure. 4. Title 28 U.S.C.S., Section 5308 states, "Ethical standards for attorneys for the Government; (a) An attorney for the Government shall be subject to State laws and rules, and local Federal court rules, governing attorneys in each State where such attorney engages in the attorneys duties, to the same extent and in the same manner as other attorneys in that State." Title 28 U.S.C.S., Section 5308; "Law" took effect 180 days after enactment pursuant to Sec. 801 (c) of Title VIII of Sec. 101 (b) of Division A of Act Oct. 21, 1998, P.L. 105-277. 5. Under Federal Rules of Civil Procedure 26; History; Ancillary Law and Directives; it states that, ''If a local rule exempts any types of cases in which discovery may be needed from the requirement of a meeting under Rule 26(f), it should specify when discovery may commence in those cases." There is no local rule in place at this time, that one as an inmate/incarcerated can see, that excludes any type of discovery, the request for production of documents, or admissions. All requests are allowed at any time pursuant to Fed.R.Civ.P. 26(d), as such, the Plaintiff has done so by submitting those Requests to the government within the confines of the Rules. 6. Fed.R.Civ.P. 26 also states under History; Ancillary Laws and Directives; "Use of Freedom of Information Act (5 U.S.C.S., Sec. 552) as substitute for, or as means of, supplementing discovery procedures available to litigants in federal civil, criminal, or administrative proceedings 57 ALR Fed 903." The Plaintiff has used this within the complaint [Doc. 1] of the case herein. As such was entitled to the production under the Request for Production of Documents and for the production to be within the complaint parameters. Yet, the Government has failed to produce (any and all of) the documents as required under the discovery rules. Therefore, this motion will also serve as a Motion to Compel the discovery of all items within the complaint; as well as all the requested items as listed in the FOIA Exhibits. 7. In the context of all requested documents within the complaint and incorporated by reference either by the written word or as an exhibit thereof, Plaintiff Rosiere served the Request for Production of Documents [See Exhibit C], as well as the Request for Admissions [See Exhibit B], upon the government along with a full copy of the Complaint [Doc. 1] and the Summons. 8. Therefore, the issue of "Plaintiff propounded discovery upon Defendant prior to filing the motion to compel." See Taylor-Bray v. Dep't of Servs. for Children, 2014 U.S. Dist. LEXIS 17684 (3rd Cir). 9. The court has the authority to compel discovery pursuant to Federal Rule of Civil Procedure 37(a). The Plaintiff asks the court to do so now. 6 Case 3:16-cv-00341-BRM-TJB Document 23 Filed 09/29/16 Page 6 of 33 PageID: 77 10. Pursuant to Fed.R.Civ.P. 26; History; Ancillary Laws and Directives, "The categories of proceeding listed in subdivision (a) (1) (E) are also exempted from the subdivision (f) conference requirement and from the subdivision (d) moratorium on discovery. Although there is no restriction on commencement of discovery in these cases, it is not expected that this opportunity will often lead to abuse since there is likely to be little or no discovery in most such cases. Should a defendant need more time to respond to discovery requests filed at the beginning of an exempted action, it can seek relief by motion under Rule 26 (c) if the plaintiff is unwilling to defer the due date by agreement." For the record the Government has failed to file a Motion under Rule 26 (c), within the 30 day requirement under Federal Rule Civil Procedure 36(a) (3) requirements. 11. For the record the government has never conferred with Plaintiff Rosiere in any form and in any manner that the Request for Admissions was in dispute or did they ask for the addition of more time to respond. 12. The government has failed to conform to Rule 26 (c)'s procedural requirements. Pursuant to Rule 26(c), the government must certify that it has met and conferred in good faith to resolve the dispute prior to seeking court intervention; Federal Rule Civil Procedure 26(c)(1 ). This must be done within the 30 day time limit set forth in Federal Rule Civil Procedure 36(a)(3), as related to the Request for Admissions. 13. Government counsel has failed to declare under penalty of perjury that both sides have met and conferred in good faith. The Federal Rules of Civil Procedure broadly interpret relevancy, such that each party has the right to the discovery of "any nonprivileged matter that is relevant to any party's claim of defense." Fed.R.Civ.P. 26(b) (1); See generally, Uelian De Abadia-Peixoto, et al., v. U.S. Department of Homeland Security, 2012 U.S. Dist. LEXIS 162907 (9th Cir.). 14. To put the above in context one must ask the simple question of: What is Congressional intent? We begin, as we must, with the language of the statute itself. See, United States v. Ron Pair Enterprises, Inc., 489 U.S. 235, 241, 103 L.Ed. 2d 290, 109 S.Ct. 1026 (1989). Where the statutes language is plain, the sole function of the courts is to enforce it according to its terms. See Caminetti v. United States, 242 U.S. 470, 485, 61 L.Ed. 442, 37 S.Ct. 192 (1917). Congress expresses its intent through the ordinary meaning of its language and has done so here as the ALISA will follow all State law or Fed.R.Civ.P.'s requirements with the use of the word, ''shall," in Title 28 U.S.C.S., Section 5308, thus provide discovery upon request and answer the admission within the time frame allotted within Federal Rule Civil Procedure 36(a)(3) or suffer the consequence of the law and case precedents of non-response; therefore admitting to the issues raised within the complaint. This also includes subjecting themselves to summary judgment. See generally, Murphy v. Millennium Radio Group LLC, 650 F.3d 295 (CA 3 2011 ); Alston v. Countrywide Fin. Corp., 585 F.3d 753 (CA 3 2009); United States v. Diallo, 575 F.3d 137, 141 (3rd Cir. 2001). 7 Case 3:16-cv-00341-BRM-TJB Document 23 Filed 09/29/16 Page 7 of 33 PageID: 78 15. Under Fed.R.Civ.P. 36(a) (3); "Time to Respond; Effect of Not Responding. A matter is admitted unless, within 30 days after being served, the party to whom the request is directed serves on the requesting party a written answer of objection addressed to the matter and signed by the party or its attorney. A shorter or longer time for responding may be stipulated to under Rule 29 or be ordered by the court." Here AUSA has failed to respond in the time frame and thus admits [See Exhibit B]. This Motion for Summary Judgment should be granted on the issues raised in accordance to case precedent herein to follow. 16. The Third Circuit Court of Appeals has, "long recognized that deemed admissions are sufficient to support orders of summary judgment." See Kelvin Cryosystens, Inc., v. Lightnin, 252 F. App'x 469, 472 (3rd Cir. 2007); see, e.g., Schwartzman v. Sierra Capital Resources, LLC, No. 11-7395, 2012 U.S. Dist. LEXIS 156171, 2012 WL 5354595, at *2(E.D. Pa. Oct. 31, 2012) (deeming requests for admissions admitted in the face of nonresponse and granting summary judgment against a pro se defendant); DIRECTV, Inc. v. Jarvis, 262 F. App'x 143, 416 (3rd Cir. 2008)(affirming district court's denial of motion for reconsideration after district court had deemed admitted requests for admissions and granted summary judgment against pro se part who had failed to respond); Am. Equip. Leasing v. Capital Transp., Inc., No. 01-2650, 2002 U.S. Dist. LEXIS 12524, 2002 WL 31560203, at *1(E.D. Pa. July 11, 2002)(deeming admitted requests for admission and granting summary judgment against pro se party who failed to respond); U.S. v. Klimek, 952 F.Supp. 1100, 1103 (E.D. Pa. 1997) (deeming admitted request for admissions and entering judgment against pro se defendant who ''proffered no excuse for his failure to respond to the Government's ... request for admissions"). 17. The government on and through counsel has failed to properly support an assertion of fact or fails to properly address another party's assertion of fact as required by Rule 56(c), the court is duty bound by congressional intent under the formation of law (as stated above) to consider those facts undisputed for the purpose of the summary judgment motion and grant summary judgment since the supporting materials, including the facts considered undisputed show that Plaintiff Rosiere is entitled to such a judgment pursuant to Fed.R.Civ.P. 56(e) (2), (3) or Fed.R.Civ.P. 36 (a) (2); thus the Plaintiff asks the court to do so now. (a) WHEN MOTION MADE: A motion for summary judgment against government was not premature where served 21 days after complaint was filed, pursuant to Rule 56 (a); although Rule 12 (a) gave government 60 days after service upon it of complaint, measure of time in Rule 56 is unrelated to time in Rule 12, and Rule 56 does not provide for longer time before motion can be made against government agency than against private party. See Holtzman v. Richardson (1973, ED NY) 361 F. Supp. 544. (b) BEFORE ANSWER FILED OR SERVED: Summary judgment motion, brought within 20 days of commencement of action, is timely regardless of lack of answer by defendant. See Electro-Catheter Corp., v. Surgical Specialties Instrument Co. (1984, DC NJ) 587 F. Supp. 1446. 8 Case 3:16-cv-00341-BRM-TJB Document 23 Filed 09/29/16 Page 8 of 33 PageID: 79 (c) REQUEST FOR ADMISSIONS: (1) Under Fed.R.Civ.P. 36, when defendant fails to respond to plaintiff's request for admissions, defendant is deemed to have admitted all material facts therein contained, and, where defendant fails to file any response to request for admissions incorporating essential allegations of complaint, award of summary judgment is proper. See Music City Music v. Delta Radio, Inc. (2003 ND Miss) 66 USPQ2d 1367. (2) Admission requested under Fed.R.Civ.P. 36 which was not denied is properly deemed admitted for the purpose of summary judgment. See Goodman v. Mead Johnson & Co. (1976, CA3 NJ) 534 F.2d 566. See also, Walsh v. Connecticut Mut. Life Co. (1939, DC NY) 26 F. Supp. 566; Merriman v. Broderick (1941, DC RI) 38 F. Supp. 13. (d) OPPORTUNITY FOR DISCOVERY: Rule 56 does not require courts to allow parties to conduct discovery before entering summary judgment. See Small Business Admin., v. Light (1985, CA 8 SD) 766 F.2d 394. (e) NO EVIDENCE PROVIDED TO SUPPORT NONMOVANT'S CASE: Moving party need not support its motion for summary judgment with evidence disproving non-moving party. Rather, moving party need only show, or point out to district court, that there is absence of evidence to support non-moving party's case. See Hartse/ v. Keys (1996, CA 6 Ohio) 87 F.3d 795. See also, Allen v. Muskogee (1997, CA 10 Okla) 119 F.3d 837; Keach v. U.S. Trust Co., N.A. (2003, CD 111) 256 F. Supp. 2d 843. CONCLUSION Enclosed forthwith is Exhibit D showing proof of service of the Summons/Complaint, the Request for Admissions [See Exhibit B], the Request for Production of Documents [See Exhibit C] and the Request for Interrogatories [See Exhibit E]. Plaintiff Rosiere certifies within this document, that as the moving party (pursuant to F.R.Civ.P. 37(b)), that as a prose inmate/incarcerated all available avenues have been exhausted in an effort to confer with the opposing party in a good faith effort to try to resolve discovery issues that have come to rise in the following manner: (a). Request for Production of Documents and the Request for Admissions was delivered to AUSA in Las Vegas and also to the U.S. Attorney General in DC on July, 14 2016 [See Exhibit D]. 9 Case 3:16-cv-00341-BRM-TJB Document 23 Filed 09/29/16 Page 9 of 33 PageID: 80 All of the above were sent to the U.S. Government and/or their legal counsel via, pre-paid first class Certified Mail/Mail. The above was also done in order to avoid any intervention as to the issues by the court. As of the mailing of this document the parties are unable to reach any agreement. This is due to the government's, who is represented by counsel, negligence to respond to the Requests. Pursuant to 28 U.S. Code§ 1746, Plaintiff Rosiere certifies under penalty of perjury that the foregoing is true and correct. (Per P.L. 94-550, Sec 1 (a), 90 Stat. 2534: Oct. 18, 1976; upon the signing of this document for submission to the court. WHEREFORE, with all of the above established upon the record of the court, Plaintiff Rosiere moves for a Summary Judgment on the issues as outlined and as submitted under the Statement of Material Facts As to Which There Is No Genuine Dispute; as admitted to pursuant to Fed.R.Civ.P. 36(a) (2). Plaintiff also seeks a Motion to Compel Discovery as the government has failed to respond to the Request for Production of Documents [See Exhibit C], the Request for Admissions [See Exhibit B]. 0 Respectfully submitted, Have questions? We're here to help. Get Easy Tracking Updates > Sign up for My USPS. Available Actions Text Updates ·-- Email Updates . - Manage Incoming Packages Track all your packages from a dashboard. No tracking.numbers necessary. Sign up for My USPS> -- Case 3:16-cv-00341-BRM-TJB Document 23 Filed 09/29/16 Page 28 of 33 PageID: 99 UNITED STATES DISTRICT COURT DISTRICT OF New Jersey ___ , New Jersey ___ _ SHAUN ROSIERE Petitioner(s) v. UNITED STATES OF AMERICA Respondent(s) Civil No. Civil No. : 3: 16-cv-00341-FLW-T JB Request for Interrogatories Request for Interrogatories Pursuant to F.R.Civ.P. 33; Pursuant to Title 28 U.S.C.S., Sec. 5308; F.R.Civ.P.26(a)(1)(8). 1. Interrogatory Request One: Plaintiff Rosiere seeks the following information in regard to: "I think there was about $100,000.00 that was transferred to another bank .. . all that money ... has been seized." This statement made by AUSA influenced the court on August 3, 2010 at sentencing. (See Sentencing Transcript, p. 21, lines 22-24, Exhibit ST-1). Plaintiff Rosiere seeks the complete documented legal lineage of all of Rosiere's money. This also encompasses the totality of: search and seizure warrant; chain of evidence/possession/custody; legal notice of forfeiture; and, all legally required notifications and service made to Plaintiff Rosiere. Make sure to include any and all AUSA, Government/DOJ counsel/employee notifications to the court of any and all fraudulent withholding of Plaintiff Rosiere's money by the government or other federal agencies that they had a duty to report to the judiciary. Include and identify each federal employee and citizen or witnesses that had any contact with the $100,000.00. (Basically, Plaintiff Rosiere seeks all documentation related to the $100,000.00). 2. Interrogatory Request Two: Plaintiff Rosiere seeks any plea a.greement signed by Plaintiff Rosiere that specifically states or thus uses the specific words: "Active Trader News, Inc." or a.k.a. "Active Trader", etc., within said plea agreement. 3. Interrogatory Request Three: Plaintiff Rosiere seeks all information in regards to Plaintiff's PSI list that is related to the indictment: Commercial Federal Bank is listed as the only bank victim in the indictment. However, the PSI report states, "five victim 1 Case 3:16-cv-00341-BRM-TJB Document 23 Filed 09/29/16 Page 29 of 33 PageID: 100 banks," four of which are unknown (See PSI Report, p. 19, #46). One cannot claim unknown and give a specific count or number. Therefore, Plaintiff Rosiere seeks the complete documented legal lineage of the ''four unknown banks" that were not in the indictment but were listed as victim banks. This would encompass the totality of: the total of Rosiere's money obtained by the government in relation to each bank; the bank(s) name and address; search and seizure warrants; chain of evidence/possession/custody; legal notice of forfeiture; and, all legally required notifications and service to Plaintiff Rosiere. Make sure to include any and all ALISA, GovernmenUDOJ counsel/employee notifications to the court of any and all fraudulent withholding of Plaintiff Rosiere's money by the government or other federal agencies that they had a duty to report to the judiciary. Include and identify each federal employee and citizen or witnesses that had any contact with the money or documents sought. (Basically, Plaintiff Rosiere seeks all documentation related to the "four unknown banks"; as the government cannot claim unknown and give a count or specify any specific number). 4. Interrogatory Request Four: Plaintiff Rosiere seeks any and all plea agreements signed by him, and/or the convictions by a Federal Jury for violations of 18 LI.S.C. §§ 1341, 1343, and 1344. (Basically, Plaintiff Rosiere seeks all documentation related to the above listed issues). 5. Interrogatory Request Five: Plaintiff Rosiere seeks all information in regards to: the removal of monies from ten (10) bank accounts at Commercial Federal Bank on November 3, 2005 (Rosiere's money) as stipulated by Postal Inspector Robert Meyers in his Affidavit (Exhibits C0-1, C0-2). Plaintiff seeks the complete documented legal lineage of Rosiere's money, approximately $1.5 million, which Robert Meyers stated under penalty of perjury that the monies were taken from ten accounts at Commercial Federal Bank on November 3, 2005; and that his statements were true and that he was also the keeper of the records and evidence in New Jersey. All information would encompass the totality of: the total of Rosiere's money obtained by the government in relation to each bank account; the bank(s) name and address; search and seizure warrant(s); chain of evidence/possession/custody; legal notice of forfeiture; and, all legally required notifications and service to Plaintiff Rosiere. Make sure to include any and all ALISA, GovernmenUDOJ counsel/employee notifications to the court of any and all fraudulent withholding of Plaintiff Rosiere's money by the government or other federal agencies that they had a duty to report to the judiciary. Include and identify each federal employee and citizen or witnesses that had any contact with the money or documents sought. (Basically, Plaintiff Rosiere seeks all documentation related to the ten accounts and money of November 3, 2005). 6. Interrogatory Request Six: Plaintiff Rosiere seeks all information in regards to: the physical evidence located in Edison, New Jersey that is related to Crim. Nos. 08-629 and 09-720; a complete documented legal lineage of every item in the evidence hold related to the above said cases. This would encompass the totality of: The sign in log book or similar item that shows the signature of John H. Feiner, and the time spent at the Edison facility; the total money and gold and checks obtained by the government 2 Case 3:16-cv-00341-BRM-TJB Document 23 Filed 09/29/16 Page 30 of 33 PageID: 101 (Rosiere's money); the address of source of said monies, checks, and gold,; all related search and seizure warrants; chain of evidence/possession/custody; legal notice of forfeiture; and, all legally required notifications and service to Plaintiff Rosiere. Make sure to include any and all AUSA, GovernmenUDOJ counsel/employee notifications to the court of any and all fraudulent withholding of Plaintiff Rosiere's monies, gold, and other items or evidence held and in violation of timely returns as established by case law, by the government or other federal agencies that they had a duty to report to the judiciary. Include and identify each federal employee and citizen or witnesses that saw John H. Feiner at the evidence view facility in Edison, New Jersey, and list all persons that had any contact with Rosiere's monies, gold, or other items and documents sought, and include a complete itemized list. Also include all phone records relating to John H. Feiner and to whom and when he called said party, governmental official, etc. (Basically, Plaintiff Rosiere seeks all documentation related to all the above issues of Edison, New Jersey holding evidence facility related to the above listed cases; as well as Counsel John H. Feiner's activities, if any). 7. Interrogatory Request Seven: Plaintiff Rosiere seeks all information in regards to: A copy of all document(s) related to Pilot Accounts that are in the case files of: 1 :08-cr-00629. To help you in the process of location of documents sought. (1) The closure of the accounts and date of closure. (2) The freezing of the accounts letter issued by the bank that you have in your documents. (3) How a calendar works in America (Thus a copy of a calendar cycle in a sequential order recognized by the U.S. Government). Copy of Documents that demonstrate, Rosiere's ability to go back in time in violation of a common calendar cycle. Notice of Point of Authority (To establish sanctions pursuant to F.R.Civ.P. 37) 1. Interrogatories which seek the identification of witnesses of documents that support any of the allegations in the complaint; do not fall into the category of contention interrogatories. See In Re Auto. Refinishing Paint Antitrust Utig., MDL 1426, 2006 U.S. Dist. LEXIS 34129, 2006 WL 1479819 (E.D. Pa. May 26, 2006). Plaintiff Rosiere has repeatedly requested discovery in the following forms: 1) FOIA requests; 2) Request for Discovery; 3) Request for Admissions; 4) Request for Conference; 5) Motion for Conference on Discovery Issues; 6) Motion for Scheduling Order; and 7) Subpoena to Produce Documents, Information or Objects in a Civil Action. The DOJ/ United States has repeatedly ignored Plaintiff Rosiere's discovery request, thus Plaintiff Rosiere has been prejudiced. See Ware v. Rodale Press, Inc., 322 F.3d 218 (CA 3 2003); Briscoe v. Klaus, 538 F.3d 252 (CA 3 2008). 2. The Government's failure to comply by the F.R.Civ.P.'s discovery rules, wholly frustrates and delays the resolution of the action. Plaintiff Rosiere clearly spells out specific action herein that the government has in essence violated (F.R.Civ.P.'s) and Plaintiff Rosiere is compelled to file these Interrogatories upon the record of the Court. Thus, to prove the Government's actions are not accidental or inadvertent, but instead reflect an intentional disregard for this case. Under the standards set by Pou/is v. State 3 Case 3:16-cv-00341-BRM-TJB Document 23 Filed 09/29/16 Page 31 of 33 PageID: 102 Farm Fire and Gas. Co., 743 F.2d 863 (CA 3 1984); this court must determine that the Government acted willfully, in bad faith. Willfulness involves intentional behavior, thus a persistent failure to honor discovery must be viewed as a willful effort to evade discovery. See Philadelphia Cervical Collar v. Jerome Med., 2003 U.S. Dist. LEXIS 6572 *18 (E.D. Pa. Mar. 31, 2003). 3. When the Government fails to produce the requested Interrogatories in the not so distant future, the 30 day clock set by F.R.Civ.P 33(b)(2); then the court is faced with the simple fact that the government actions are to evade discovery and the truth of the complaint's foundation. Herein, when faced with the truth the Government is evading the principles of discovery, and their actions must be construed as "Bad Faith". Plaintiff Rosiere reserves the right to file a secondary Request as allowed under the rules herein. Sincerely~~ Dated: July, 7 2016 Shaun Rosiere, Pro Se 7380 S. 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