Sundy v. Friendship Pavilion Acquisition Company, Llc et al

MOTION for Summary Judgment with Brief In Support

N.D. Ga.August 11, 2016

.. Tim Sundy Plaintiff, vs. F!LED!N c1 u.s.o.c:·-��S OfFICE IN THE UNITED STATES DISTRICT COURT . esvitle FOR THE NORTHERN DISTRICT OF GEORGIA AU(J 11 2016 GAINESVILLE DIVISION JAMcg�Air, By:� EN, Clefk ,, Deputy Clerk Civil Action Case No.: 2: 16-cv-00123-WCO FRIENDSHIP PAVILION ACQUISITION COMPANY, LLC-a Delaware company; et al. Companion Cases: 2015-CV-001366A and 2:15-cv-00149-RWS and 2016-CV-000982A Defendants MOTION FOR SUMMARY JUDGMENT PURSUANT TO RULE 56 FRCP TO OBTAIN A DECLARATORY JUDGMENT PURSUANT TO TITLE 28 U.S.C. § 2201 WITH A TRIAL BY JURY IN RE: RESPONDENT C. ANDREW FULLER AND DEFENDANTS FRIENDSHIP PAVILION ACQUISITION COMPANY LLC. AND MICHEAL B. WEINSTEIN BY TIM SUNDY Comes now, Pro se Plaintiff Tim Sundy (herein "Plaintiff') by special appearance, having a constitutional immunity from being subjected to crimes of OCGA § 45-1 l-4(b )( d) by public officials of using any other deliberate means to delay or avoid the due course or proceeding of law relying without waiver of other rights upon Art. 1§1,12: Right to Court; Constitution of the State of Georgia providing: "No person shall be deprived of the right to prosecute or defend, either in person or by attorney, that person's own cause in any of the courts of this state." The Plaintiff, without waiver of remand and remittitur of the record, without waiver of a verified answer from each Defendant, without waiver of default of Defendants Ling, Picone, and Arsenal, without waiver of a qualified judge pursuant to Brown v. Johnson, 251 Ga. 436 (306 S.E.2d 655) (1983), without waiver of his Bivens and § 1983 claims, without waiver of the Plaintiff's time to respond to Defendants Friendship Pavilion Acquisition Company LLC ("FPAC") and Weinstein, without waiver of a trial by jury, and timely files his Motion for Summary Judgment pursuant to Federal Rules of Civil Procedure ("FRCP") Rule 56 on Counts I and III of his Amended Complaint to obtain a Declaratory Judgment against Respondent C. Andrew Fuller and Defendants FP AC and Michael B. Weinstein and such other claims as Plaintiff is due. Plaintiff, as well, seeks a declaratory Page 1of5 Case 2:16-cv-00123-WCO Document 47 Filed 08/11/16 Page 1 of 5 " judgment that Respondent C. Andrew Fuller acted contrary to law, in an arbitrary and capricious manner, and in abuse of his discretion when he revoked a federal court order that had neither been attacked nor modified nor set aside in the court of rendition and that Respondent Fuller and other Defendants acted contrary to the rights of the Plaintiff of his State rights to the court to prosecute or defend under Art. l§lifl2: of the Constitution of the State of Georgia. Plaintiff in compliance with the Local Rules 56.1.B(l) for Motion for Summary Judgment has filed contemporaneously his separate Statement of Undisputed Material Facts, and grounds supporting this Motion are set forth in his Brief establishing at least one plausible claim to overcome failure to state a claim upon which relief should be granted against at least one Defendant. WHEREFORE, for the foregoing reasons, and those set forth in the accompanying Brief in Support and the separate Statement of Undisputed Material Facts, summary judgment, to obtain a declaratory judgment ,in favor of Plaintiff and against Respondent Fuller and non-judicial Defendants is appropriate. In light that the existence of another adequate remedy does not preclude a declaratory judgment that is otherwise appropriate, Plaintiff Tim Sundy requests from this Court as follows: 1. A declaratory judgment determining and declaring that the August 6, 2015 Regular Erroneous Order issued in federal court case 2:15-CV-00149-RWO [Doc. 13] granting Tim Sundy intervenor status, has full force and effect for Plaintiffs right to court upon remanding to state court until set aside or otherwise modified by a federal court. 2. A declaratory judgment determining and declaring that the September 29, 2015 Regular Erroneous Order issued in federal court case 2:15-CV-00149-RWO [Doc. 29] ordering Defendants to pay money into the registry, has full force and effect for Plaintiffs right to court upon remanding to state court until set aside or otherwise modified by a federal court. 3. A declaratory judgment determining and declaring that the October 5, 2015 Regular Erroneous Order issued in federal court case 2:15-CV-00149-RWO [Doc. 34] ordering Plaintiff as guarantor and principal to be evicted from the premises, had full force and effect for Plaintiffs right to court upon remanding to state court until set aside or otherwise modified by a federal court. Page 2 of 5 Case 2:16-cv-00123-WCO Document 47 Filed 08/11/16 Page 2 of 5 4. A declaratory judgment determining and declaring that Respondent Judge C. Andrew Fuller exceeded over 90 days for a determination of Plaintiffs 23 December 2015 Motion for Summary Judgment in HCSC case 2016CV1366A contrary to Plaintiffs right to court under civil statute OCGA § 15-6-21(b) and is ground for impeachment under civil statute OCGA § 15-6-21(d). 5. A declaratory judgment determining and declaring Respondent Judge C. Andrew Fuller failed to issue an order after the April 18, 2016 hearing contrary to Plaintiffs right to court under civil statute OCGA § 15-6-2l(c) and is ground for impeachment under civil statute OCGA § 15-6- 21(d). 6. A declaratory judgment determining and declaring Respondent Judge C. Andrew Fuller exceeded over the term of the court for a timely determination of Plaintiffs 25 March 2016 Motion for Disqualification in HCSC case 2016CV1366A contrary to Plaintiffs right to court under civil statute OCGA § 45-ll-4(b)(l)(2)(3)(4) and is ground for removal of office under civil statute OCGA § 45-11-4(c). 7. A declaratory judgment determining and declaring Respondent Judge C. Andrew Fuller failed to procure a qualified judge in HCSC case 2016CV000982A contrary to Plaintiffs right to court under civil statute OCGA § 15-6-13(a) and is ground for impeachment under civil statute OCGA § 15-6-13(b ). For further relief, Plaintiff's requests the court for: 8. An Order removing Respondent Judge C. Andrew Fuller from office for violation of OCGA § 15-6-21(b) 9. An Order removing Respondent Judge C. Andrew Fuller from office for violation ofOCGA § 45-1 l-4(b )(1)(2)(3)(4) 10. An Order removing Respondent Judge C. Andrew Fuller from office for violation of OCGA § 15-6-21(c) 11. An Order removing Respondent Judge C. Andrew Fuller from office for violation of OCGA § 15-6-13(a) Page 3 of 5 Case 2:16-cv-00123-WCO Document 47 Filed 08/11/16 Page 3 of 5 12. By operation of law of Brown v. Johnson, 251 Ga. 436 (306 SE2d 655) (1983) and the Superior Court Judge C. Andrew Fuller being the Respondent, thus the Superior Court will disqualify and a qualified Judge procured to enter Summary Judgment as a matter law for damages of $2,225,000.00 against Defendants Friendship Pavilion Acquisition Company, LLC., Michael B. Weinstein, Arsenal Real Estate Fund II-IDF, LP, Gary Picone, and Thomas Ling in HCSC case 2015-cv-OO 1366 and in the event of an adverse determination, the Plaintiff Tim Sundy may appeal the final decision to the Supreme Court for review in accord with Brown v. Johnson. 13. The Plaintiff preserves FRCP Rules 38 and 39 for his demand for ajury trial. Respectfully submitted this 11th day of August 2016. Tim Sundy c/o Suite 119, Box I 6065 Roswell Road Sandy Springs, GA 30328 Page 4 of 5 Case 2:16-cv-00123-WCO Document 47 Filed 08/11/16 Page 4 of 5 CERTIFICATE OF SERVICE The undersigned hereby certifies that was served a true and accurate copy of this MOTION FOR SUMMARY JUDGMENT PURSUANT TO RULE 56 FRCP TO OBTAIN A DECLARATORY JUDGMENT PURSUANT TO TITLE 28 U.S.C. § 2201 WITH A TRIAL BY JURY IN RE: RESPONDENT C. ANDREW FULLER AND DEFENDANTS FRIENDSHIP PAVILION ACQUISITION COMPANY LLC. AND MICHEAL B. WEINSTEIN BY TIM SUNDY via U.S. mail addressed as follows: Christian Alexander Fuller, State of Georgia Law Department, 40 Capitol Square S.W., Atlanta, GA 30334-1300; Michael B. Weinstein, MBW Law, LLC, 949 Image Avenue- Suite B, Atlanta, GA 30318; Mary Jo Volkert, State of Georgia Law Department, 40 Capitol Square S.W., Atlanta, GA 30334-1300; Thomas Ling, Arsenal Real Estate Partners, 1776 on the Green, 6th Floor, 67 Park Place East, Morristown, New Jersey 07960; Arsenal Real Estate Fund 11-IDF, LP, 1776 on the Green, 6th Floor, 67 Park Place East, Morristown, New Jersey 07960; Gary Picone, Arsenal Real Estate Partners, 1776 on the Green, 6th Floor, 67 Park Place East, Morristown, New Jersey 07960; Lori M. Beranek, Office of U.S Attorney, Northern D.G., 75 Spring St. S.W., Atlanta, GA 30303 Respectfully submitted 11 August 2016. Tim Sundy c/o Suite 119, Box 142 6065 Roswell Road Sandy Springs, GA 30328 Page 5 of 5 Case 2:16-cv-00123-WCO Document 47 Filed 08/11/16 Page 5 of 5 Tim Sundy Plaintiff, vs. IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA FILED IN CLERK'S OFFICE u.s.o.c. • G1tno1v1110 AUG 1 f 2016 GAINESVILLE DIVISION JAMES N. HATTe By: . .-<5?6 N, Clork 7. "' Deputy Cltrk Civil Action Case No.: 2:16-cv-0012 3-WCO FRIENDSHIP PAVILION ACQUISITION COMPANY, LLC-a Delaware company; et al. Companion Cases: 2015-CV-001366A and 2:15-cv-00149 -RWS and 2016-CV-000982 A Defendants BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT PURSUANT TO RULE 56 FRCP TO OBTAIN A DECLARATORY JUDGMENT PURSUANT TO TITLE 28 U.S.C. § 2201 WITH A TRIAL BY JURY IN RE: RESPONDENT C. ANDREW FULLER AND DEFENDANTS FRIENDSHIP PAVILION ACQUISITION COMP ANY LLC AND MICHAEL B. WEINSTEIN BY TIM SUNDY Pursuant to Rule 56 of the Federal Rules of Civil Procedure, Plaintiff Tim Sundy ("Plaintiff') by special appearance submits the following memorandum of law in support of his motion for summary judgment. I. Introduction This case involves the actions taken by a U.S. District Court Judge and a Superior Court judge which have the sum result of depriving the Pro se Plaintiff of unalienable rights, including the deprivation of property without due process of law and allowing Plaintiffs private property to be taken without just compensation. The District Court issued ORDERS, over a five month period, regular on their face before remanding to Superior Court, making no finding as to the exercise of its discretion under 28 USC § 1367( c) or its plain usurpation of power. Upon remand, after almost five months of judicial silence, the Respondent Judge Fuller held a hearing absent the Plaintiff at which Respondent Fuller ignored and revoked only the single portion of one of several federal district court Orders which granted Plaintiff intervenor status, an order that had been neither judicially attacked by motion of any party, nor judicially modified nor vacated nor set aside in the Court of rendition. Respondent Fuller Page I of25 Case 2:16-cv-00123-WCO Document 47-1 Filed 08/11/16 Page 1 of 25 refused to issue a written order from the revocation hearing, depriving Plaintiff of any ordinary remedy. Plaintiffs' complaint raises claims challenging the Superior Court Judge's actions as a violation of the Due Process Clause of the Fourteenth Amendment, a violation of Plaintiff's Constitutional protection of property and a violation of the Plaintiff's State right to the court to Prosecute or defend under Art. 1 § 1 il12 of the Constitution of the State of Georgia. Plaintiff seeks summary judgment, in the form of declaratory judgment, on all claims as to Respondent Fuller and Defendants Friendship Pavilion Acquisition Company LLC ("FP AC") and Michael Weinstein. Declaratory relief is appropriate where a litigant needs direction from a court before from taking future action. Such direction will afford the litigant relief from uncertainty or insecurity. See Amer. Household Products, Inc. v. Evans Manufacturing, Inc., 139 F.Supp.2d 1235, 1239 (N.D. Al. 2001). The object of the declaratory judgment is to permit determination of a controversy before obligations are repudiated or rights are violated. As many times pointed out by this court, its purpose is to permit one who is walking in the dark to ascertain where he is and where he is going, to tum on the light before he steps rather than after he has stepped in a hole. Cox v. Athens Reg. Med. Cent., 279 Ga. App. 586, 594, 631 S.E.2d 792, 799 (2006). '"The fundamental requisite of due process of law is the opportunity to be heard.' Grannis v. Ordean, 234 U.S. 385, 394 (1914). In the present context these principles require that the [PlaintiffJ have timely and adequate notice detailing the reasons for the revocation of status and an effective opportunity to defend by confronting any adverse witnesses and by presenting his own arguments and evidence." Goldberg v. Kelly, 397 U.S. at 267-268. II. Procedural History The above-entitled action was commenced by the Plaintiff on 18 May 2016 in Hall County Superior Court as civil case #2016CV982A, a Brown v. Johnson see Endnote Ill action, with Plaintiff filing VERIFIED PETITION FOR WRIT OF MANDAMUS OR, IN THE ALTERNATIVE, WRIT OF PROHIBITION OR EX DELICTO REMEDY IN THE NATURE OF A COMMON LAW WRIT OF QUO W ARRANTO OR A BIVENS CAUSE OF ACTION FOR DAMAGES FROM FRAUD AND DECEIT, for recourse from Plaintiff's injuries and Page 2 of25 Case 2:16-cv-00123-WCO Document 47-1 Filed 08/11/16 Page 2 of 25 enforcement of Plaintiffs constitutional rights in Hall County Superior Court Civil ("HCSC") companion case 2015CVOO 1366A. The above-entitled action is inextricably linked to HCSC 2015CV001366A which arose from the 2011 decision of Defendant Friendship Pavilion Acquisition Company LLC ("FP AC"), as Landlord, to lease out a portion of the Premises at 4949 Friendship Road, Buford, GA while simultaneously negotiating to sell, without disclosure to the prospective guarantors or tenant, a portion of the same Premises to the Georgia Department of Transportation ("GDOT") under eminent domain for a road construction project whereby GDOT would transform a two-mile stretch of Friendship Road from an undivided two lane into a divided four-lane, Plaintiff being a co-guarantor on said Lease. In June 2015, after three years of road construction, FPAC sued bankrupt tenant Mediterranean Dining Group Inc. ("Med Dining") in Hall County for alleged non-performance on the lease guaranteed by Plaintiff Tim Sundy and co-guarantor David Sundy. HCSC 2015CV001366 was removed to USDC [USDC Civil Case No. 2:15-cv-00149- RWS] on 14 July 2015 where Guarantors Tim Sundy and David Sundy were granted unopposed Intervenor status and, as Intervenors/Third-party Plaintiffs, counter-sued Third party Defendants FPAC, Michael Weinstein, Gary Picone, Tom Ling, Arsenal Real Estate Fund 11-IDF, LP ("Arsenal") and Georgia Department of Transportation ("GDOT") in order to seek appropriate relief upon Guarantors' claims of Intentional Misrepresentation and Fraudulent Inducement, Misrepresentation by Concealment, Breach of Contract, Intent Not to Perform, Prevention of Performance, Breach of Covenant of Good Faith and Fair Dealing and the grounds of predicated RICO activity and inverse condemnation and to obtain the answer to several simple but fundamental questions. These fundamental questions included: 1) Whether or not it is lawful for Third-party Defendants to commit predicated RICO activity, including using U.S. mail to file a false affidavit in a government entity, by making false representations to induce a contract when the false representations go to the essence of the contract and are part of the contract and then breach the contract? 2) Whether or not it is lawful for Third-party Defendants in bad faith to intentionally make false material representations to the Third-party Plaintiffs/Intervenors as Guarantors which deprive the Guarantors of right of recovery? 3) Whether or not it is lawful, under the doctrine of Page 3 of25 Case 2:16-cv-00123-WCO Document 47-1 Filed 08/11/16 Page 3 of 25 prevention, when a party to a contract, i.e, the Third-party Defendants, causes the failure of the performance of the obligation due, for that party to take advantage of that failure? USDC Civil Case No. 2:15-cv-00149-RWS, after multiple submissions by all parties and several orders issued, was remanded to Hall County Superior Court on 2 December 2015 without specific analysis nor finding of fact by USDC but simply stating, after the dismissal by USDC of Third-party Defendant GDOT for the Sundys' failure to file a brief in opposition, that USDC did not "currently" have jurisdiction and HCSC's jurisdiction in 2015CV001366 resumed. After five months of judicial silence, on Friday afternoon, 15 April 2016, the attorneys for Med Dining and FPAC were noticed to attend a calendar call on 18 April 2016 for trial of HCSC 2015CV001366, with Intervenors/Third-party Plaintiffs Tim Sundy and David Sundy not noticed, yet Intervenor/Third-party Plaintiff David Sundy having submitted a proposed pre-trial order as requested by the Court. At the calendar call on 18 April 2016, with neither Intervenor physically present, Respondent Judge C. Andrew Fuller issued oral orders revoking the Intervenor status of Plaintiff Tim Sundy and co-Intervenor David Sundy stating that Plaintiff and co-Intervenor David Sundy had NOT been granted that status in federal court. Defendant Fuller refused to issue a written order from the 18 April 2016 hearing, depriving Plaintiff of due process and an opportunity for appeal. On 18 May 2016, Plaintiff commenced this Brown v. Johnson action in Hall County Superior Court with Plaintiff filing VERIFIED PETITION. III. Synopsis of Undisputed Facts 1. Plaintiff commenced this Brown v. Johnson1 action on 18 May 2016 in Hall County Superior Court ("HCSC"), case by filing VERIFIED PETITION FOR WRIT OF MANDAMUS OR, IN THE ALTERNATIVE, WRIT OF PROHIBITION OR EX DELICTO REMEDY IN THE NATURE OF A COMMON LAW WRIT OF QUO WARRANTO OR A BIVENS CAUSE OF ACTION FOR DAMAGES FROM FRAUD AND DECEIT, initiating HCSC case 2016-CV-000982A, the case being assigned by HSCS to Judge Fuller although Fuller was a named respondent. SMF � 31, 32 Ill Page 4 of25 Case 2:16-cv-00123-WCO Document 47-1 Filed 08/11/16 Page 4 of 25 2. Service was completed on Respondent C. Andrew Fuller and Defendant Richard W. Story on 19 May 2016 with Defendants' Verified Answers to Plaintiffs Verified Petition due in HCSC case 2016-CV-000982A on or before 18 June 2016. SMF �33 3. On 31 May 2016, Respondent Judge Fuller did not procure a qualified judge from another circuit as required to hear case 2016-CV -000982A but rather assigned the case to fellow HCSC Judge Gosselein. SMF �34 4. On 14 June 2016, four days before Defendant Fuller's verified answer was due in Hall County Superior Court, Defendant Story, by and through the United States Attorney for the Northern District of Georgia ("USDOJNDGA"), removed the action to USDC North Georgia - Gainesville Division, with no payment made for removal, citing 28 U.S.C.§ 1442(a)(l ) and 28 U.S.C.§ 2679 as grounds for removal, and being assigned USDC case number 2:16-cv-00123-WCO and HCSC docketing the removal. SMF �� 39-42, 45 5. USDOJNDGA certified Service of Process by U.S. mail on 14 June 2016 of the Notice of Removal on Respondent C. Andrew Fuller and Defendants Michael Weinstein, Friendship Pavilion Acquisition Company LLC ("FP AC") and Georgia Department of Transportation and the HCSC Clerk of Courts docketed the notice of removal of civil action #2016-CV -000982A to USDC on 14 June 2016. SMF �� 35, 44 6. USDOJNDGA filed no certification by the Attorney General that the defendant employee Richard W. Story was acting within the scope of his office or employment at the time of the incident out of which the claim arose. SMF � 43 7. No Defendants have filed a verified answer to Plaintiffs Verified Petition and/or Plaintiffs Verified Amended Petition in either State Court of Federal Court as required by OCGA § 9-10-111. SMF � 38 8. On 17 June 2016, Defendant C. Andrew Fuller filed into Hall County Superior Court Defendant Fuller's unverified answer and defenses to Plaintiffs Verified Petition as well as a motion to dismiss. SMF � 46 9. On 17 June 2016, Respondent C. Andrew Fuller admitted in his unverified answer and defenses that Respondent Judge Fuller held a status hearing on 18 April 2016 in Page 5 of25 Case 2:16-cv-00123-WCO Document 47-1 Filed 08/11/16 Page 5 of 25 companion case HCSC 2015-CV-001366A at which he nullified and revoked a USDC Order. SMF � 47 10. Companion case HCSC 2015-CV-001366A had been remanded to HCSC from USDC on 2 December 2015 after five months in USDC as USDC Civil Case No. 2:15-cv-00149- RWS, with multiple submissions by all parties and several orders issued, without specific analysis nor finding of fact by USDC but simply stating that USDC did not "currently" have jurisdiction after the dismissal by USDC of Third-party Defendant GDOT. SMF � 7-8 11. Several orders were issued in USDC Civil Case No. 2:15-cv-00149-RWS prior to remand to HCSC, including an Order granting Plaintiff's Motion to Intervene and an Order granting Writ of Possession to FPAC. All Orders were regular on their face and none of the Orders issued were judicially attacked by motion of any party in the Court of rendition nor were any of the Orders judicially modified nor vacated nor set aside in the Court of rendition. SMF��l-6 12. The Plaintiff was deprived of property without compensation under the 5 October 2015 Order granting a Writ of Possession to Friendship Pavilion Acquisition Company, LLC. SMF��4,48 12. On 23 December 2015, Plaintiff relying on an order regular on its face issued in federal court, filed a Motion for Summary Judgment as Intervenor Third-party Plaintiff against Defendant Friendship Pavilion Acquisition Company LLC ("FPAC") et al. in HCSC 2015-CV-OO 1366A. Defendants FP AC et al. failed to answer or in any way respond to Plaintiff's Motion, though responding in HCSC to other motions that had been filed in USDC. SMF �� 9-10 13. On 21March 2016, in the March-April term of the Court, Plaintiff filed Notice to Court of Non-Consent in HCSC 2015-CV-001366A, stating that Plaintiff did not consent to extend the time beyond 90 days for determination on Plaintiff's Motion for Summary Judgment as a matter of law, pursuant to O.C.G.A. § 15-6-21(b). Respondent Judge Fuller did not make a determination on Plaintiff's motion within 90 days and Plaintiff filed a Motion for Disqualification of Respondent Fuller within five days of Respondent Fuller proceeding over Page 6 of25 Case 2:16-cv-00123-WCO Document 47-1 Filed 08/11/16 Page 6 of 25 90 days of Plaintiff's Motion for Summary Judgment. Respondent Fuller did not procure a qualified judge to rule on Plaintiff's Motion for Disqualification nor make any determination. SMF��ll-15 14. On 18 April 2016, after five months of judicial silence since remand, Respondent Fuller convened a calendar call/status hearing/revocation hearing of which Plaintiff was not noticed and at which Plaintiff was not present. At the hearing, Respondent Fuller on his own finding of facts, nullified and revoked the Intervenor Status granted Plaintiff by USDC Order, said Order not having been judicially attacked in HCSC by any party and said Order not having been modified nor vacated nor set aside in HCSC nor in the court of rendition. SMF �� 16-17, 19, 24, 5-6 15. On 20 April 2016, Plaintiff, filed his objection in HCSC to the revocation of his intervenor status and the inference of bias of Respondent Fuller and attached a copy of the Order from the USDC granting him Intervenor status, Plaintiff having exercised the Intervenor rights vested in him under the USDC Order without challenge or attack from 6 August 2015 until 18 April 2016. SMF �� 18, 20-23 16. Respondent Fuller neither issued a written order nor did "'Mrs. Burton" prepare an order pursuant to the 18 April 2016 hearing within the March-April term, nor subsequently, from which Plaintiff could appeal, denying and depriving Plaintiff of any ordinary remedy to appeal the issue of the effectiveness and validity of the USDC Orders and forcing Plaintiff to resort to an extraordinary remedy. SMF �� 25-26, 30 17. Defendants FP AC and Weinstein, admitting at the 18 April 2016 hearing that they were in agreement with the scheme that Respondent Fuller would revoke Plaintiff's intervenor status yet that the likewise void or erroneous Order granting Writ of Possession to FPAC was effectively used by the Hall County Sheriff to deprive Plaintiff of property without due process, and Defendants FP AC and Weinstein having not responded to Plaintiff's Motion for Summary Judgment, are consistent with enhancing the false affidavit filed by Defendants FP AC and Ling into a government entity with Defendant Weinstein in full support. SMF �� 27-29, 48 Page 7 of25 Case 2:16-cv-00123-WCO Document 47-1 Filed 08/11/16 Page 7 of 25 IV. Legal Standard Summary judgment is appropriate where "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). A requirement that there be no "genuine issue as to any material fact" does not mean that summary judgment is inappropriate if there is some dispute as to any fact. "By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). Here, there is no genuine issue as to any material fact and Plaintiff is entitled to judgment as a matter of law. The Plaintiff asks this Court to determine and declare that the orders issued by the federal court in USDC case 2:15-CV-00149-RWO, have full force and effect until properly set aside or otherwise modified by a federal court. As a corollary issue, the Court must determine and declare whether a State Superior Court can revoke a federal court order without due process, reviewing and or controlling the exercise of the jurisdiction of the Federal court. With this corollary issue, the Court must determine if a State Superior Court Judge can revoke a single paragraph of federal court order without revoking the entire order. It is for the court ... to determine the question of the validity of the law, and until its decision is reversed for error by orderly review, either by itself or by a higher court, its orders based on its decision are to be respected, and disobedience of them is contempt of its lawful authority, to be punished." Howat v. Kansas, 258 U.S. 181, 189-90 (1922) The federal Declaratory Judgment Act ("DJA") provides that "any court of the United States ... may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought." 28 U.S.C. § 2201. While the Declaratory Judgment Act, 28 U.S.C. § 2201, does not broaden federal jurisdiction, see, e.g., Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 671, 70 S.Ct. 876, 878-79, 94 L.Ed. 1194 (1950), it does allow parties to precipitate suits that otherwise might need to wait for the declaratory relief defendant to bring a coercive action. See, e.g., Franchise Tax Board, 463 U.S. at 19 n. 19, 103 S.Ct. at 2851 n. 19; Lowe v. Inga/l's Shipbuilding, a Division of Page 8 of25 Case 2:16-cv-00123-WCO Document 47-1 Filed 08/11/16 Page 8 of 25 Litton Systems, Inc., 723 F .2d 1173, 1179 (5th Cir. 1984) (Declaratory Judgment Act broadens class of litigants - "though the underlying cause of action which is thus actually litigated is the declaratory defendant's, not the declaratory plaintiffs, this does not violate the requirement that what must arise under federal law is the cause of action in issue itself (regardless of to whom it belongs).") "'[I]f the federal issue [presented in a declaratory judgment action] would inhere in the claim on the face of the complaint that would have been presented in a traditional damage or coercive action, then federal jurisdiction exists over the declaratory judgment action."' McDougald v. Jenson, 786 F.2d 1465, 1476 (11th Cir. 1986) (quoting lOA C. Wright, A. Miller M. Kane, Federal Practice and Procedure§ 2767, at 745 (2d 1983)). An actual and substantial controversy exists between the Pro se Plaintiff and the United States and the Attorney General of Georgia over force and effectiveness of federal court Orders as well as over Respondent Fuller's jurisdiction to revoke the decrees of a Federal court, being unattacked, unmodified and unreversed, thus reviewing and or controlling the exercise of the jurisdiction of the Federal court. An actual and substantial controversy also exists between the Pro se Petitioner and the United States and the Attorney General of Georgia over Defendant Story's jurisdiction in USDC Civil Case No. 2:15-cv-00149-RWS as adjudged by Respondent Fuller, who nullified and revoked the Writ of Possession and the Intervenor Status Orders and other orders upon which Plaintiff relied in USDC Civil Case No. 2:15-cv-00149-RWS to injure Plaintiff Tim Sundy and deprive him of his rights to property and due process. These controversies touch "the legal relations of parties having adverse legal interests."' Atlanta Gas Light Co. v. Aetna Cas. Sur. Co., 68 F.3d 409, 414 (1 lth Cir. 1995) (citing U.S. Fire Ins. Co. v. Caulkins Indiantown Citrus Co., 931 F.2d 744, 747 (1 lth Cir. 1991)) and present a justiciable controversy that arose upon the 18 April 2016 hearing at which Respondent Judge Fuller revoked a standing USDC Order without notice, without motion and without just terms. "For a controversy to justify the making of a declaration, it must include a right claimed by one party and denied by the other, and not merely a question as to the abstract meaning or validity of a statute." Pilgrim v. First Nat'l Bank, 235 Ga. 172, 174, 219 S.E.2d 135 (1975). Page 9 of25 Case 2:16-cv-00123-WCO Document 47-1 Filed 08/11/16 Page 9 of 25 The Plaintiff has been injured, deprived of status, and constitutional protections of property, equal protection and due process in Hall County Superior Court Civil Action Case No. 2015CVOO 1366A and is held hostage by an oral order for which Plaintiff was not personally present, having not been noticed of the hearing, and said oral order cannot be appealed nor reviewed for validity. "What the judge orally declares is no judgment until it has been put in writing and entered as such."' [Cit.]" State v. Sullivan, 237 Ga. App. 677, 678 (516 S.E.2d 539) (1999). The Pro se Plaintiff's deprivation of due process and property and equal protection are cognizable injuries. Respondent Fuller has refused to issue a written order in HCSCC 2015CV001366A regarding the revocation of Petitioner's status as Intervenor Defendant, depriving Plaintiff of appellate review of Respondent Fuller's findings of fact and conclusions of law. " . . . we find that it was an abuse of discretion for the trial court to fail to issue findings of fact and conclusions of law. By omitting these crucial ingredients in the judgment, appellate review has been rendered impossible. See, e.g., Zumpano Enterprises v. Ga. Title Distrib., 200 Ga. App. 563 (408 SE2d 813) (1991)." Gold Kist, Inc. v. Wilson et al. 220 Ga. App. 426 (469 SE2d 504 )(1996). It is well settled that a federal district court can exercise ancillary jurisdiction over a second action in order "to secure or preserve the fruits and advantages of a judgment or decree rendered" by that court in a prior action. Southmark Properties v. Charles House Corp., 742 F.2d 862, 868 (5th Cir. 1984) (quoting Local Loan Co. v. Hunt, 292 U.S. 234, 238, 54 S.Ct. 695, 696, 78 L.Ed. 1230 (1934)). Such jurisdiction is appropriate where the effect of an action filed in state court would "effectively nullif[y ]" the judgment of a prior federal action. Id. This is true even where the federal district court would not have jurisdiction over the second action if it had been brought as an original suit. Local Loan Co., 292 U.S. at 238, 54 S.Ct. at 696; Southwest Airlines Co. v. Texas Int'l Airlines, 546 F.2d 84, 89-90 (5th Cir.), cert. denied, 434 U.S. 832, 98 S.Ct. 117, 54 L.Ed.2d 93 (1977). "The petitioner having removed his case into the Circuit Court has a right to have its further progress governed by the law of the latter court, and not by that of the court from which it was removed; and if one of the advantages of this removal was an escape from this examination, he has a right to that benefit if his case was rightfully removed." Ex parte Fisk, 113 U.S. 713 at 725-726. Page 10of25 Case 2:16-cv-00123-WCO Document 47-1 Filed 08/11/16 Page 10 of 25 Respondent Fuller is not immune from suit for declaratory relief or injunctive relief. See Pulliam v. Allen, 466 U.S. 522 (1984), 104 S.Ct. 1970, 1978-81, 80 L.Ed.2d 565 (1984) Gudicial immunity is not a bar to prospective injunctive relief against a judicial officer acting in his judicial capacity); Slavin v. Curry, 574 F.2d 1256, 1264, modified, 583 F.2d 779 (5th Cir. 1978) Gudge not immune from suit for declaratory relief); United States v. McLeod, 385 F.2d 734, 738 n. 3 (5th Cir. 1967). The plain language of 42 U.S.C. § 1983 contemplates a declaratory judgment against judicial officers like Judge Fuller in his official capacity. Section 1983 states, in part: Every person who, under color of any statute ... of any State, subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges or immunities secured by the Constitution and laws, shall be liable to the party injured in ... [a] suit in equity ... except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. Moreover, sovereign immunity does not bar Plaintiffs declaratory judgment claim against Judge Fuller in his official capacity. Plaintiff seeks a declaration that Judge Fuller violated and continues to violate the Constitutional protections of due process and Plaintiffs right to not be deprived of property without just compensation. This falls squarely within the Ex parte Young doctrine. In Ex parte Young, 209 U.S. 123 (1908), the Supreme Court stated an exception to sovereign immunity that allows individuals to seek prospective relief against state officials who violate federal laws or the Constitution. The Ex parte Young doctrine "rests on the premise-less delicately called a 'fiction[]' ... -that when a federal court commands a state official to do nothing more than refrain from violating federal law, he is not the State for sovereign-immunity purposes." Virginia Of ice of Protection & Advocacy v. Stewart, 563 U.S. 247, 131 S. Ct. 1632, 1638 (2011). Thus, sovereign immunity is not a bar to Plaintiffs declaratory judgment claim. Likewise, judicial immunity is not a bar to Plaintiffs declaratory judgment claim. "Generally speaking, courts have held that the doctrine of judicial immunity does not bar§ 1983 suits seeking declaratory judgment. Guillion v. Cade, 449 F. App'x 340, 341 (5th Cir.2011); Johnson v. Mc Cuskey, 72 F. App'x 475, 477 (7th Cir. 2003); Bolin v. Story, 225 F.3dl234, 1242 (11th Cir. 2000); see also Allen v. Burke, 690 F.2d 376, 378 (4th Cir. 1982)(holding, pre-Pulliam v. Allen, 466 U.S. Page 11 of25 Case 2:16-cv-00123-WCO Document 47-1 Filed 08/11/16 Page 11 of 25 522 (984), that "judicial immunity does not extend to injunctive and declaratory relief under 42 U.S.C. [§ ] 1983")." Koon v. US. Attorney Gen. Loretta Lynch, CIA No.: 4:15-2107-DCN-TER (D.S.C. Jul 28, 2015) V. Argument (a). The Plaintiff is entitled to having a timely determination of his Motions by duty of a Superior Court Judge under OCGA § 15-6-21(b): The instant case derives from another case formerly before this Court, 2:15-cv-00149- RWS, in which the District Court issued ORDERS, over a five month period, regular on their face before remanding to Superior Court, making no finding as to the exercise of its discretion under 28 USC § 1367(c) or its plain usurpation of power. Upon remand, after almost five months of judicial silence, having ignored Plantiffs Motion for Summary Judgment, Notice of Non-Consent, and Motion for Disqualification, the Respondent Judge Fuller held a hearing in HCSC 2015-CV-001366A absent the Plaintiff at which Respondent Fuller ignored and revoked the portion of a federal district court Order granting Plaintiff intervenor status, an order that had been neither judicially attacked by motion of any party, nor judicially modified nor vacated nor set aside in the Court of rendition. The statute confirms that Respondent Fuller has a clear and non-discretionary duty under O.C.G.A. § 15-6-2l (b) to timely rule on motions within ninety days of filing, Hall County having more than 100,000 inhabitants. The Respondent does not have any discretion to not discharge his obligation to timely rule on motions. In Hagan v. State, 755 S.E.2d 734 (Ga. 2014), the Supreme Court of Georgia held: "However, if the judge fails or refuses to rule within that period, the remedy is not to require the motion to be granted, regardless of its merit. Instead, such conduct can be grounds for impeachment, see OCGA § 15-6-2l(d), or the moving party may seek a writ of mandamus to compel the judge to decide the motion. See Graham v. Cavender, 252 Ga. 123, 311 S.E.2d 832 (1984)." The plain language of OCGA 15-6-21(b) indicates that the General Assembly of the State of Georgia intended to set time limitations for the Judges of the Superior Courts of this State when the statute was enacted as evidenced by Ga L. 1898, page 89, Law No. 40, Section III which further enacted that "The provisions of this act shall apply to all motions, injunctions and demurrers now pending [in 1898] before the several judges of this State . . . and unless the same are decided within Page 12 of25 Case 2:16-cv-00123-WCO Document 47-1 Filed 08/11/16 Page 12 of 25 sixty days after the approval of this Act ... then the remedy and penalty hereinbefore provided shall apply to same." The 1983 Georgia Constitution gives the Georgia appellate courts and superior courts original jurisdiction to issue process in the nature of mandamus, prohibition, specific performance, quo warranto, and injunction. Art. VI, Sec. I, Par. IV. Prior to the effective date of that Constitution, the only sanction provided by law for the failure or refusal of a judge to obey the provisions of Code Ann.§ 24-2620 (now OCGA § 15-6-21 (a))131 requiring prompt judicial action, was found in Code Ann.§ 24-2621 (now OCGA § 15-6-21 (d)), i.e., impeachment and removal from office. Haynes v. State, 159 Ga. App. 34 (4) (283 S.E.2d 25) (1981), affirmed in Haynes v. State, 249 Ga. 119 (3) ( 288 S.E.2d 185) (1982), although reversed on another ground. In Brown v. Johnson, 251 Ga. 436, 437 (306 SE2d 655) (1983), the Supreme Court of Georgia specified the procedure to be followed before seeking to invoke that Court's original jurisdiction to sanction a judge, namely that a mandamus petition be filed in the appropriate superior court. In Carey Canada, Inc. v. Head, 252 Ga. 23, 25 ( 310 SE2d 895) (1984 ), the Georgia Supreme Court extended the procedure to include a petition for a writ of prohibition. (b ). The Plaintiff is entitled �o having a timely Order issued by the Court after a hearing by duty of a Superior Court Judge under OCGA § 15-6-21(c): Respondent Fuller refused to issue a written order from the revocation hearing, depriving Plaintiff of any ordinary remedy. "What the judge orally declares is no judgment until it has been put in writing and entered as such."' [Cit.]" State v. Sullivan, 237 Ga. App. 677, 678 (516 S.E.2d 539) (1999). " ... we find that it was an abuse of discretion for the trial court to fail to issue findings of fact and conclusions of law. By omitting these crucial ingredients in the judgment, appellate review has been rendered impossible. See, e.g., Zumpano Enterprises v. Ga. Title Distrib., 200 Ga. App. 563 (408 SE2d 813) (1991)." Gold Kist, Inc. v. Wilson et al. 220 Ga. App. 426 (469 SE2d 504)(1996). The statute confirms that Respondent Fuller has a clear and non-discretionary duty under O.C.G.A. § 15-6-21(c): "When he or she has so decided, it shall be the duty of the judge to file his or her decision with the clerk of the court in which the cases are pending and to notify the attorney or attorneys of the losing party of his or her decision." Page 13 of25 Case 2:16-cv-00123-WCO Document 47-1 Filed 08/11/16 Page 13 of 25 "From time immemorial the courts have held that a judgment, valid on its face, cannot, in the absence of fraud in its procurement, be collaterally attacked as to mere errors or irregularities committed by the court in the exercise of its jurisdiction or in the course of the proceedings even though errors and irregularities may appear on the face of the record." 31 Amer.Jur. 181-183, paragraph 582. Byers v. Surget, 19 How. 303, 60 U.S. 303, 15 L.Ed. 670; Cornett v. Williams, 20 Wall. 226, 87 U.S. 226, 22 L.Ed. 254; Cocke v. Halsey, 16 Pet. 71, 41 U.S. 71, 10 L.Ed. 891; Mitchell v. St. Maxent's Lessee, 4 Wall. 237, 71U.S. 237, 18 L.Ed. 326. "A judgment not attacked, especially where third parties are involved, should not be set aside." First Fidelity Insurance Corporation v. Busbia, 128 Ga. App. 485, (197 SE2d 396)(1973). This is echoed in OCGA § 9-11-60(h) which states that "generally judgments and orders shall not be set aside or modified without just cause and, in setting aside or otherwise modifying judgments and orders, the court shall consider whether rights have vested thereunder and whether or not innocent parties would be injured thereby." It is undisputed that none of the Orders issued in USDC 2:15-cv-00149-RWS, [Doc. 42, Exhibit Kand Exhibit L; Doc 1-1, pages 27-29] were judicially attacked by motion of any party in the Court of rendition nor in Hall County Superior Court nor were the Orders judicially modified nor vacated nor set aside in the Court of rendition. Since federal courts have "jurisdiction to determine jurisdiction," that is, "power to interpret the language of the jurisdictional instrument and its application to an issue by the court," Stoll v. Gottlieb, 305 U.S. at 171, 59 S.Ct. at 137, error in interpreting a statutory grant of jurisdiction is not equivalent to acting with total want of jurisdiction. Such an erroneous interpretation does not render the judgment a complete nullity. See Chicot County Drainage District v. Baxter State Bank, 308 U.S. 371, 376-77, (1940). It appears that Respondent Judge Fuller, orally revoking an existing federal oral in order to remove Plaintiff from a pending action, acted arbitrarily, in an abuse of his discretion and with bias to avoid Plaintiff's timely and properly filed Notice of Non-Consent and Motion for Disqualification, among others. In depriving Plaintiff of federally-granted intervenor status, Respondent Fuller has also stated that Respondent Fuller has no obligation to address the Plaintiff nor the Plaintiff's constitutional rights in HCSC 2015-CV-001366A. Respondent Page 14 of25 Case 2:16-cv-00123-WCO Document 47-1 Filed 08/11/16 Page 14 of 25 Fuller refusing to issue a written order from which Pro se Plaintiff can appeal raises reasonable question of Respondent Fuller's motives, giving rise to an appearance of partiality and bias. A declaratory judgment on the full force and effect of federal orders until set aside will serve a function not otherwise available to the Plaintiff by settling issue-precluding arguments in the Hall County Superior Court and in this Court. The Advisory Committee Notes from the 1937 adoption of Federal Rule of Civil Procedure 57 provide that "[a] declaratory judgment is appropriate when it will 'terminate the controversy' giving rise to the proceeding." Furthermore, such a declaratory judgment will precipitate due process for the Plaintiff as he seeks relief from the tyrannical partiality of Respondent Fuller. (c). Subject to the provisions of OCGA § 15-6-21(b)(c), OCGA § 15-6-21(d) is grounds for removing a Judge from office: The statute confirms that "If any judge fails or refuses, unless providentially hindered or unless counsel for the plaintiff and the defendant agree in writing to extend the time, to obey the provisions of subsections (a) through (c) of this Code section, or if any judge repeatedly or persistently fails or refuses to decide the various motions, demurrers, and injunctions coming before him in the manner provided by such subsections, such conduct shall be grounds for impeachment and the penalty therefore shall be his removal from office. In Hagan v. State, 755 S.E.2d 734 (Ga. 2014), the Supreme Court of Georgia held: "However, ifthe judge fails or refuses to rule within that period, the remedy is not to require the motion to be granted, regardless of its merit. Instead, such conduct can be grounds for impeachment, see OCGA § 15--6-21 ( d), or the moving party may seek a writ of mandamus to compel the judge to decide the motion. See Graham v. Cavender, 252 Ga. 123, 311 S.E.2d 832 (1984)." "The only remedies for violation of the statute [OCGA § 15-6-21] are mandamus and impeachment of the judge." Brooks v. State, 265 Ga. 548, 549 (3) (458 S.E.2d 349), citing Graham v. Cavender, 252 Ga. 123 ( 311 S.E.2d 832). O.C.G.A. § 9-2-4 provides: "A plaintiff may pursue any number of consistent or inconsistent remedies against the same or different persons until he shall obtain a satisfaction from some of them." This mandamus action, initiated as 2016-CV-000982A in Hall County Superior Court ("HCSC"), is a Brown v. Johnson proceeding and operates as an extraordinary Page 15 of25 Case 2:16-cv-00123-WCO Document 47-1 Filed 08/11/16 Page 15 of 25 remedy to companion HCSC case2015-CV-001366A where the presiding judge, C. Andrew Fuller, ignored a Notice of Non-Consent from the Plaintiff to exceed 90 days in determining Plaintiff's Motion for Summary Judgment, ignored Plaintiff's motion to disqualify and subsequently nullified and revoked Plaintiff's status as intervenor defendant and third-party plaintiff granted by the USDC in 2:15-cv-00149-RWS, removing Plaintiff from the action. Respondent Judge Fuller exceeding 90 days to make a determination on Plaintiff's 23 December 2015 Motion for Summary Judgment appears to be in violation of OCGA § 15-6-2l(b). Plaintiff is relying on OCGA § 15-6-10: Discharge of duties: "Each of the judges of the superior courts shall discharge all the duties required of him by the Constitution and law for the circuit for which he was elected or appointed ... " to no effect. Further, Respondent Judge Fuller then ignored Plaintiffs timely and properly filed Motion for Disqualification filed on 25 March 2016 upon Respondent Fuller exceeding 90 days and failed to procure a qualified judge, facially a ground for impeachment under OCGA § 15-6-2l(d). 141 The record shows that Respondent Judge Fuller failed to issue an order after the April 18, 2016 hearing contrary to Plaintiffs right to court under civil statute OCGA § 15-6-21(c) 151 which is also ground for impeachment under civil statute OCGA § 15-6-2l(d). 161 (d). An erroneous federal court Order whether void or regular on its face is valid until set aside in a Federal Court: Case law makes it clear that the presumption of jurisdiction over the subject matter and over the persons involved in the action, is an inherent characteristic of a judgment. Titus v. Wallick, 306 U.S. 282, 287, 59 S.Ct. 557, 83 L.Ed. 653 (1939); Cook v. Cook, 342 U.S. 126, 128, 72 S.Ct. 157, 96 L.Ed. 146 (1951) (quoting Adam v. Saenger, 303 U.S. 59, 62, 58 S.Ct. 454, 82 L.Ed. 649 (1938)) "In the interest of finality, the concept of void judgments is narrowly construed. While absence of subject matter jurisdiction may make a judgment void, such total want of jurisdiction must be distinguished from an error in the exercise of jurisdiction. A court has the power to determine its own jurisdiction, and an error in that determination will not render the judgment Page 16 of25 Case 2:16-cv-00123-WCO Document 47-1 Filed 08/11/16 Page 16 of 25 void. Only in the rare instance of a clear usurpation of power will a judgment be rendered void . . . . [Such a] determination could have been attacked in an appeal, but, . . . [if] it was not a clear usurpation of power, it is now res judicata and immune from collateral attack." Coalition of Black Leadership v. Cianci, 570 F.2d 12,15 (1st Cir. 1978) In El Chico Restaurants, Inc. v. Trans. Ins. Co., 235 Ga. App. 427 (509 S.E.2d 681 )(1998), the Georgia Court of Appeals held: "The fact that the district court, and not the superior court, granted leave to add parties, does not nullify this permission .... Rodgers does not suggest that a state court may simply ignore the rulings of district courts made in the same case before remand to superior court ... The district court's order was valid until set aside. See generally Howell Mill/Collier Assoc. v. Gonzales, 186 Ga. App. 909, 910 (1) ( 368 S.E.2d 831 ) (1988). It was never set aside, and the superior court was therefore bound by it ... Accordingly, we conclude that the superior court erred ... " (emphasis added) Other State courts have held similarly. Citing the ruling of the Georgia Court of Appeals, the New Hampshire Supreme Court stated in State v. Hess Corp, 159 N.H. 256 (N.H. 2009): "Whether a state court should give effect to a complaint that was amended in federal court to add parties is a matter that is rarely litigated. Only a handful of cases address this issue, all of which support giving effect to the first amended complaint in this case. See El Chico Restaurants v. Transp. Ins. Co. , 509 S.E.2d 681 (Ga. Ct. App. 1998), ajfd on other grounds, 524 S.E.2d 486 (Ga. 1999); Craig v. Missouri Dept. of Health , 80 S.W.3d at 458, 460 (Mo. 2002) 80 S. W.3d at 458, 460; Edward Hansen, Inc. v. Kearny P. 0. Assoc., 399 A.2d at 3." Craig v. Missouri Dept. of Health, 80 S.W.3d at 458, 460 (Mo. 2002), cited by New Hampshire states: "There is no authority for this Court, however, to rule on the federal court's jurisdiction, and the federal court's decision with respect to its jurisdiction, and any other matter submitted for its determination, is exclusive and conclusive .... The state court receives the case on remand from federal court removal in the posture it is in when remanded. Since the case, when remanded, was governed by the second amended complaint, that complaint was properly before the state trial court." The Supreme Court of Georgia has also held that "a timely answer filed in district court following timely removal of the action is sufficient to prevent a default in a state court Page 17 of25 Case 2:16-cv-00123-WCO Document 47-1 Filed 08/11/16 Page 17 of 25 ifthe case is subsequently remanded from district court," Teamster Local 515 v. Roadbuilders, Inc., 249 Ga. 418 (Ga. 1982). "In view of the fact that the question is a Federal one, and that the state court is given no right to review or control the exercise of the jurisdiction of the Federal court, we think that such Federal judgment cannot be ignored in the state court as one absolutely void for want of jurisdiction, and that such judgment, until reversed by a proper proceeding in this court, is binding upon the parties, and must be given force when set up in the action." C&O Railway Co. v. McCabe, 213 U.S. 207 (1909) (e). Violation of OCGA § 15-6-13(a) is grounds for removing a Judge from office Upon Respondent Judge Fuller's failure of duty to procure PlaintiIDPetitioner with a qualified Judge upon Petitioner's 0312512016 proper Motion for Disqualification in HCSC case 2015-CV-001366A, Petitioner relies upon O.C.G.A. § 15-6-13 (a)(b) providing (a) When from any cause a judge of the superior court is disqualified from presiding in a matter, he shall procure the services of another superior court judge to try the matter, even if he has to call for a special term of court for that purpose. (b) Failure of a judge to comply with subsection (a) of this Code section within a reasonable time, when it is in his power to do so, is a ground of impeachment. "A judge who is disqualified for any reason to hear and act in the case is disqualified from making any judicial determination therein." Garland v State of Georgia, 110 Ga. App. 756 (Ga. Ct. App. 1964). "A disqualified judge can take no judicial action in the case and any attempt at such action is a mere nullity." State v. Evans, 187 Ga. App. 649 (Ga. Ct. App. 1988). "The error in refusing to entertain the motion [to disqualify the judge] rendered all further proceedings nugatory." Bryant v. Mitchell, 195 Ga. 135 ,136(Ga. 1942) "A litigant who files a motion for disqualification should not be required to file a petition for a writ of mandamus to compel a trial judge to provide a ruling on the motion." Tableau Fine Art Group, Inc., 853 So.2d at 302-03. Petitioner is relying upon the intent of the Georgia General Assembly for O.C.G.A. § 45-11-4 providing "It is apparent that the legislature intended by this enactment to require faithfulness to public trust upon the part of the officials therein named. To secure this conduct the officials not only are "required to perform" the acts required of them by law, but are equally forbidden to commit Page 18 of25 Case 2:16-cv-00123-WCO Document 47-1 Filed 08/11/16 Page 18 of 25 under the "color of office" acts not authorized by laws." Cargile v. State, 67 Ga. App. 610, 21S.E. 2d 326, (1942). Respondent Fuller has deprived the Plaintiff of rights and privileges secured by the Constitution and Georgia laws while acting "under color" of state law, including due process, further injuring Plaintiff by Respondent Fuller's refusal to issue a written Order from the 18 April 2016 hearing deliberately defying OCGA 15-6-2l(c), to delay the due course of proceedings and depriving PlaintiffSundy of procedural due process. "No judicial process, whatever form it may assume, can have any lawful authority outside of the limits of the jurisdiction of the court or judge by whom it is issued; and an attempt to enforce it beyond these boundaries is nothing less than lawless violence." Ableman v. Booth, 21 Howard 506 ( 1859). Plaintiff Sundy properly pursued the remedy afforded him in this Brown v. Johnson, 251 Ga. 436 (306 S.E.2d 655) (1983) proceeding with the jurisdiction conferred by the 1983 Georgia Constitution which gives the appellate courts, as well as the superior courts, of this state, original jurisdiction to issue process in the nature of mandamus, prohibition, specific performance, quo warranto, and injunction. Ga. Const. of 1983, Art.VI, §. I, ii IV. See Hagan v. State, 294 Ga. 716, 718, 755 S.E.2d 734 (2014). ("However, if the judge fails or refuses to rule within that period, the remedy is not to require the motion to be granted, regardless of its merit. Instead, such conduct can be grounds for impeachment, see OCGA § 15-6-21(d), or the moving party may seek a writ of mandamus to compel the judge to decide the motion. See Graham v. Cavender, 252 Ga. 123, 123, 311 S.E.2d 832 (1984)"); Brooks v. State, 265 Ga. 548, 458 S.E.2d 349, 352 (1995) ("His sole objection in the trial court was that the record automatically closed at the conclusion of the time period established by OCGA § 15-6-21 for ruling on motions . . . The only remedies for violation of the statute are mandamus and impeachment of the judge."); Bonner v State, 226 Ga. App. 3 (Ga. Ct. App. 1997) ("Appellant asserts the trial court erred by disregarding his motions in violation of OCGA § 15-6-21. "The only remedies for violation of the statute are mandamus and impeachment of the judge." Brooks v. State, 265 Ga. 548, 549 (3) (45�LSJ;:,2if3-::12), citing Graham v. Cavender, 252 Ga. 123 ( 311 S.E.2d 832).") Page 19 of25 Case 2:16-cv-00123-WCO Document 47-1 Filed 08/11/16 Page 19 of 25 When a specified time limit authorizing jurisdiction is exceeded, the trial court loses jurisdiction over such case. See, Hill v. State, 309 Ga.App. 531, 533, 710 S.E.2QJ567 (2011). To the degree that Respondent Fuller has lost all jurisdiction, he has exposed himself to liability. Waterfield v. Law, 546 F. App'x 841, 842 (11th Cir. 2013)(citing Bolin v. Story, 225 F.3d 1234, 1239 (11th Cir. 2000). (f). The doctrine of unconstitutional conditions Prohibits Georgia Attorney General's precondition that Plaintiff had another remedy: The Unconstitutional-conditions doctrine is a rule which describes that the government cannot condition a person's receipt of a governmental benefit on the waiver of a constitutionally protected right. This rule states that the government cannot force a person to choose between two constitutionally protected rights. The Attorneys General stated in their Brief regarding Respondent Fuller's revocation of Plaintiffs intervenor status ... "Sundy has an adequate remedy at law, that is, to properly file a motion to intervene in the Hall County Case and then properly file his dispositive motions for consideration. " at Doc. 34-1, page 3. In other words, when Plaintiff has already been granted the status of intervenor upon proper Motion to intervene and/or the adverse parties have consented to intervention in Federal court, it appears Plaintiff is under a condition in Hall County to force Plaintiff to waive the benefit/right according to him by the federal court or choose between the benefit of Federal right to court or another adequate remedy at law. It is obvious that this condition is unconstitutional. (g). A private person has the right to bring charges upon an application for an arrest warrant against a Judge who violates their duty under OCGA § 45-ll-4(b): Upon the apparently illegal conduct of disqualified Judge Fuller, Plaintiff is relying upon the intent of the Georgia General Assembly in O.C.G.A. § 45-11-4 (b) providing "It is apparent that the legislature intended by this enactment to require faithfulness to public trust upon the part of the officials therein named. To secure this conduct the officials not only are "required to perform" the acts required of them by law, but are equally forbidden to commit under the "color of office" acts not authorized by laws." Cargile v. State, 67 Ga. App. 610, 21 S.E. 2d 326, (1942). Page 20 of25 Case 2:16-cv-00123-WCO Document 47-1 Filed 08/11/16 Page 20 of 25 In overcoming the failure to state claim for relief"[ t ]he procurement of an arrest warrant is not peculiar to the official duties of a peace officer, any private citizen may do so and the procedure followed is the same." Cleland v. U S. Fidelity & Guaranty Ins. Co., 99 GA. App. 130, 107 SE 2d 904 (1959) (h). Respondent Judge Fuller is not immune from declaratory relief, prohibition or other eguitiable relief: Plaintiff is entitled to declaratory relief regarding the full force and effect of federal court Orders to resolve the rights and status of the parties. OCGA § 9-4-2 (a) provides for declaratory judgments in cases of actual controversy. Cramer v. Spalding County, 261 Ga. 570, 572 (2) ( 409 S.E.2d 30) (1991). "[A] court may not declare the rights of parties when there is no actual or justiciable controversy; it has no province to determine whether or not a statute, in the abstract, is valid." (Citations omitted.) Fourth Street Baptist Church c. v. Bd. of Registrars, 253 Ga. 368, 369 (1) ( 320 S.E.2d 543) (1984). "Actual controversy means a justiciable controversy where there are interested parties asserting adverse claims on an accrued set of facts." Cramer, supra. After the court determines whether or not the Federal court order is valid in a State court until it is set aside by a Federal court, disregarding the issue of the voidness or erroneousness of a Federal court order, the controversy is: The Plaintiff has asserted that Respondent Judge Fuller is bound to perform his duties according to the statues of the State of Georgia to give the Plaintiff his constitutional right to court while Respondent Judge Fuller asserts that he is NOT bound by the statutes of the State of Georgia because the Federal court's orders are void and that he has not violated OCGA § 15-6-21(b) nor OCGA § 15-6-21(c) nor OCGA § 15-6-13. A declaratory judgment is appropriate to determine the constitutionality of Respondent Fuller's actions in light of the Statutes of the State of Georgia and whether they are binding and effective upon Respondent Fuller as outlined by the Georgia Legislature and Plaintiffs 14th Amendment right to court, to due process, including notice and hearing, and property rights and interests. Plaintiff is entitled to declaratory relief regarding Respondent Judge Fuller's obligation to obey existing Georgia statutes. The factors relevant in deciding whether to hear a Page 21 of25 Case 2:16-cv-00123-WCO Document 47-1 Filed 08/11/16 Page 21 of 25 declaratory judgment action are equitable in nature. See Kerotest Mfg. Co. v. C-0-Two Fire Equip. Co., 342 U.S. 180, 183, 72 S.Ct. 219, 221, 96 L.Ed. 200 (1952). "Our court has previously recognized convenience of the parties and the forum's connection with the controversy as relevant, albeit nonexclusive, factors [in granting declaratory judgment]. See Amerada Petroleum Corp. v. Marshall, 381F.2d 661, 663 (5th Cir. 1967). Respondent Fuller is not immune from Declaratory judgment and Plaintiff has stated a claim by requesting relief other then monetary such as declaratory judgment. Judicial immunity does not bar a claim for prospective injunctive and declaratory relief and Respondent Fuller is not immune from injunctive or declaratory relief under current provisions of 42 U.S.C. § 1983. Likewise, the Plaintiff contends the Respondent Fuller is required to verify his answer under OCGA § 9-10-111. "A complaint will not dismissed for failure to state a claim, even though inartistically drawn and lacking in allegations of essential facts, if it cannot be said that under no circumstances will the party be able to recover." Crockard v. Publishers, Saturday Evening Post, Fr.Serv 20, 19 F.R.D. 511, DCED Pa 19 (1958) CONCLUSION On the one hand, Plaintiff has not one single issue of "Fact" that the adversary can dispute, On the other hand, the ultimate issue of "Law" in this case, irrespective of the Fact that the Federal court order(s) may very well be erroneous, but with reasons there are no verified answers to the verified complaint, and when the adversary cannot produce supporting Laws to dispute the Plaintiffs claims, the issue of Law is whether or not a Federal court order is valid in a State court until it is set aside by a Federal court. For the foregoing grounds, and for those set forth in Pro se Plaintiffs Motion, supported by a separate Statement of Facts Not in Dispute, Pro se Plaintiff requests the Court enter summary judgment to obtain declaratory judgment in his favor. Page 22 of25 Case 2:16-cv-00123-WCO Document 47-1 Filed 08/11/16 Page 22 of 25 Respectfully submitted this 11th day of August 2016. TimSundy c/o Suite 119, Box 14 6065 Roswell Road Sandy Springs, GA 30328 Page 23 of25 Case 2:16-cv-00123-WCO Document 47-1 Filed 08/11/16 Page 23 of 25 ENDNOTES 111 Brown v. Johnson, 251 Ga. 436 (306 SE2d 655) (1983) granting filing of mandamus action against Superior Court judges under the 1983 Constitution of the State of Georgia 121 A complete list of all the material facts is contained in the separate Statement of Material Facts Not in Dispute (SMF) filed pursuant to Local Rule 56.1. As required by the Rule, each numbered paragraph in the SMF includes a supporting citation to evidence proving such fact. 131 OCGA § 15-6-21 (b) In all counties with more than 100,000 inhabitants, it shall be the duty of the judge of the superior, state, or city court, unless providentially hindered or unless counsel for the plaintiff and the defendant agree in writing to extend the time, to decide promptly, within 90 days after the same have been argued before him or submitted to him without argument, all motions for new trials, injunctions, demurrers, and all other motions of any nature. 141 § 15-6-13 (a) When from any cause a judge of the superior court is disqualified from presiding in a matter, he shall procure the services of another superior court judge to try the matter, even if he has to call for a special term of court for that purpose. (b) Failure of a judge to comply with subsection (a) of this Code section within a reasonable time, when it is in his power to do so, is a ground of impeachment. 151 § 15-6-2l(c) When he or she has so decided, it shall be the duty of the judge to file his or her decision with the clerk of the court in which the cases are pending and to notify the attorney or attorneys of the losing party of his or her decision. Said notice shall not be required if such notice has been waived pursuant to subsection (a) of Code Section 9-11-5. 161 § 15-6-21 ( d) If any judge fails or refuses, unless providentially hindered or unless counsel for the plaintiff and the defendant agree in writing to extend the time, to obey the provisions of subsections (a) through (c) of this Code section, or if any judge repeatedly or persistently fails or refuses to decide the various motions, demurrers, and injunctions coming before him in the manner provided by such subsections, such conduct shall be grounds for impeachment and the penalty therefore shall be his removal from office. Page 24 of25 Case 2:16-cv-00123-WCO Document 47-1 Filed 08/11/16 Page 24 of 25 CERTIFICATE OF SERVICE The undersigned hereby certifies that was served a true and accurate copy of this BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT PURSUANT TO RULE 56 FRCP TO OBTAIN A DECLARATORY JUDGMENT PURSUANT TO TITLE 28 U.S.C. § 2201 WITH A TRIAL BY JURY IN RE: RESPONDENT C. ANDREW FULLER AND DEFENDANTS FRIENDSHIP PAVILION ACQUISITION COMPANY LLC AND MICHAEL B. WEINSTEIN BY TIM SUNDY via U. S. mail addressed as follows: Christian Alexander Fuller, State of Georgia Law Department, 40 Capitol Square S.W., Atlanta, GA 30334-1300; Michael B. Weinstein, MBW Law, LLC, 949 Image Avenue- Suite B, Atlanta, GA 30318; Mary Jo Volkert, State of Georgia Law Department, 40 Capitol Square S.W., Atlanta, GA 30334-1300; Thomas Ling, Arsenal Real Estate Partners, 1 776 on the Green, 6th Floor, 67 Park Place East, Morristown, New Jersey 07960; Arsenal Real Estate Fund 11-IDF, LP, 1776 on the Green, 6th Floor, 67 Park Place East, Morristown, New Jersey 07960; Gary Picone, Arsenal Real Estate Partners, 1776 on the Green, 6th Floor, 67 Park Place East, Morristown, New Jersey 07960; Lori M. Beranek, Office of U.S Attorney, Northern D.G., 75 Spring St. S.W., Atlanta, GA 30303 Respectfully submitted 11th August 2016. Tim Sundy c/o Suite 119, Box 142 6065 Roswell Road Sandy Springs, GA 30328 Page 25 of25 Case 2:16-cv-00123-WCO Document 47-1 Filed 08/11/16 Page 25 of 25 Tim Sundy Plaintiff, vs. FIL5.�t�g�� IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA AtJG 11 2016 GAINESVILLE DIVISION JAMES N HATT By: � EN, Clerk '- Dep0ty Clerf( Civil Action Case No.: 2:16-cv-00123-WCO FRIENDSHIP PAVILION ACQUISITION COMPANY, LLC-a Delaware company; et al. Companion Cases: 2015-CV-001366A and 2:15-cv-00149-RWS and 2016-CV-000982A Defendants BY SPECIAL APPEARANCE STATEMENT OF MATERIAL FACTS NOT IN DISPUTE IN RE: RESPONDENT C. ANDREW FULLER, AND DEFENDANTS FRIENDSHIP PAVILION ACQUISITION COMPANY, AND MICHAEL WEINSTEIN BY TIM SUNDY I, Tim Sundy, Plaintiff, by special appearance state that I am the Affiant and that I am competent to testify, and affirms the following material facts are true and correct to the best of my knowledge and belief: 1. It is undisputed that Affiant's Motion to Intervene in US. District Court case ("USDC") 2:15-cv-00149-RWS was unopposed and was granted by Judge Richard W. Story on 6 August 2015 [Doc 1-1, page 28] 2. It is undisputed that the 6 August 2015 Order by Story is regular on its face. [Doc 1-1, page 28] 3. It is undisputed that the 25 September 2015 Order Compelling Payment of Rent into the Registry is regular on its face. [Doc. 1-1, page 49, docket entry 09/25/2015] [Doc. 42 - Exhibit K] 4. It is undisputed that the 5 October 2015 Order granting a Writ of Possession to Friendship Pavilion Acquisition Company, LLC ("FPAC") is regular on its face. [Doc. 1-1, page 49, docket entry 10/05/2015] [Doc 42 - Exhibit L] 5. It is undisputed that none of the Orders issued in USDC 2:15-cv-00149-RWS were judicially attacked by motion of any party in the Court ofrendition. [Doc. 1-1, pages 47-52] 6. It is undisputed that none of the Orders issued in USDC 2:15-cv-00149-RWS were judicially modified nor vacated nor set aside in the Court ofrendition. [Doc. 1-1, pages 4 7- 52] Case 2:16-cv-00123-WCO Document 47-2 Filed 08/11/16 Page 1 of 7 7. It is undisputed that Defendants FPAC, GDOT, Arsenal, Picone, Weinstein and Ling, responding to the finality of the Order granting Affiant intervenor status, replied to Affiant's motions and pleadings in USDC 2:15-cv-00149-RWS. [Doc. 1-1, pages 47-52] 8. It is undisputed that on 4 December 2015, Hall County Superior Court received a copy of the 2 December 2015 order remanding USDC 2:15-cv-00149-RWS to Hall County Superior Court case ("HCSC") 2015-CV-001366A with Judge C. Andrew Fuller Presiding. [Doc 1-1,page 34, 12/4/2015 docket entry] 9. It is undisputed that on 23 December 2015, Affiant relying on an order regular on its face issued in federal court, filed a Motion for Summary Judgment as Intervenor Third-party Plaintiff against Defendant Friendship Pavilion Acquisition Company LLC ("FP AC") et al. in HCSC 2015-CV-001366A [Doc 1-1, page 34, 12/23/2015 docket entry] 10. It is undisputed that the Hall County Superior Court docket reflects that Defendants FPAC et al. failed to answer to Affiant's Motion for Summary Judgment in HCSC 2015-CV- 001366A, though answering others. [Doc. 1-1, page 35] 11. It is undisputed that on 21 March 2016, Affiant filed Notice to Court of Non-Consent, stating that Affiant did not consent to extend the time beyond 90 days for determination on Affiant's Motion for Summary Judgment as a matter oflaw, pursuant to O.C.G.A. § 15-6- 21(b) in HCSC 2015-CV-001366A. [Doc. 1-1, page 36-39] 12. It is undisputed that the Hall County Superior Court docket in HCSC 2015-CV-001366A reflects that Respondent Fuller did not make a determination on Affiant' s Motion for Summary Judgment within 90 days despite Affiant's 21March 2016 notice to the Court of non-consent. [Doc. 1-1, page 35] 13. It is undisputed that the Hall County Superior Court docket in HCSC 2015-CV-OO 1366A reflects that in the March-April Term of the Court, within five days of Respondent Judge Fuller proceeding over 90 days of Affiant's Motion for Summary Judgment, that Affiant filed a Motion for Disqualification of Respondent Judge C. Andrew Fuller on 25 March 2016. [Doc. 1-1, page 35, docket entry 03/25/2016] 14. It is undisputed that the Hall County Superior Court docket in HCSC 2015-CV-001366A reflects that Respondent Fuller did not procure a qualified judge to rule on Affiant's Motion for Disqualification. [Doc. 1-1, page 35] 15. It is undisputed that the Hall County Superior Court docket in HCSC 2015-CV-OO l 366A reflects that Respondent Fuller did not make any determination on Affiant's Motion for Disqualification. [Doc. 1-1, page 3 5] 16. It is undisputed that none of the Orders issued in USDC 2:15-cv-00149-RWS were judicially attacked by motion of any party after remand in HCSC 20 l 5-CV-00 l 366A [Doc. 1-1, pages 34-35] 2 Case 2:16-cv-00123-WCO Document 47-2 Filed 08/11/16 Page 2 of 7 17. It is undisputed that none of the Orders issued in USDC 2:15-cv-00149-RWS were modified nor vacated nor set aside in HCSC 2015-CV-001366A prior to the 18 April 2016 status hearing. [Doc. 1-1, pages 34-35] 18. It is undisputed that on 20 April 2016 Affiant filed Affiant's objection in HCSC 2015-CV- 001366A to the 18 April 2016 hearing held by Respondent Judge Fuller for which Affiant was not noticed to attend. [Doc. 1-1, pages 56-57] 19. It is undisputed that the Hall County Superior Court docket in HCSC 2015-CV-001366A reflects that Respondent Fuller was silent for the five months following remand from USDC until the 18 April 2016 calendar call. [Doc. 1-1, page 34-35] 20. It is undisputed that the rights vested in Affiant under the USDC Order granting intervenor status were exercised by Affiant throughout the proceedings without challenge or attack until the April 18 2016 calendar call. [Doc. 1-1, pages 47-52], [Doc. 1-1, page 34-35] 21. It is undisputed that the Respondent Fuller, confronting a Notice of Non-Consent as well as a Motion for Disqualification, has a real and substantial interest in abrogating the USDC Order granting the Affiant intervenor status. [Doc. 1-1, pages 34-35] 22. It is undisputed that in Affiant's 20 April 2016 objection, Affiant objected to Respondent Judge Fuller nullifying and, in his finding of facts, revoking Affiant's status as intervenor Defendant granted by USDC order, as supported by the transcript. [Doc. 1-1, pages 56-57 ] 23. It is undisputed that on 20 April 2016, with Affiant's objection to the ignoring of the 6 August 2015 USDC Federal Order granting Affiant intervenor status, that Affiant furnished the Court with a copy of the 6 August 2015 USDC Order. [Doc. 1-1, pages 59-61 ] 24. It is undisputed that the portion of the regular on its face Order nullified by Judge Fuller was not set aside by the court of rendition nor any Federal Court. [Doc 1-1, page 28] [Doc, 1-1, page 47-52, USDC Docket] 25. It is undisputed that the Hall County Superior Court docket reflects that by the beginning of the May-June term of the court on 2 May 2016, that Respondent Judge Fuller neither issued a written order nor did "Ms. Burton" prepare an order pursuant to the 18 April 2016 hearing from which Affiant could appeal. [Doc. 1-1, page 35] 26. It is undisputed that Affiant has no means of appealing the issue of effectiveness and validity of the USDC Orders absent a written order from Respondent Fuller containing Respondent Fuller's tyrannically partiality in his findings of fact and law at the 18 April 2016 hearing and, even though Affiant may agree that the orders are erroneous, that Affiant denied an ordinary remedy to appeal. [Doc. 1-1, page 35] 3 Case 2:16-cv-00123-WCO Document 47-2 Filed 08/11/16 Page 3 of 7 27. It is undisputed that FPAC did not respond to Affiant's Motion for Summary Judgment because Attorney Weinstein admitted he was in agreement that Judge Fuller would revoke at the 18 April 2016 hearing a regular erroneous Federal Order that was not set aside by the Federal Court. [Doc. 1-1, page 35] 28. It is undisputed that the Hall County docket showing that FPAC et al. did not respond to Affiant's Motion for Summary Judgment is conclusive as a matter of law that Attorney Defendant Weinstein is in support of Defendant Thomas Ling putting a false affidavit into a government entity. [Doc. 1-1, page 35] [Doc. 1-1, page 48, docket entry 16, Exhibit#lO] 29. It is undisputed that the erroneous or void order of eviction would effectively be used by the Hall County Sheriff to levy on Affiant's property to enhance the false affidavit of Defendant Tom Ling, consistent with the negation of due process which Defendant Weinstein understood would issue with void or erroneous Federal orders upon remand. [Doc. 1-1, page 49, docket entry 10/05/2015] [Doc. 42-Exhibit L] [Doc. 1-1, page 48, docket entry 16, Exhibit # 10] 30. It is undisputed that without an ordinary remedy, the March-April term having ended and Respondent Fuller having issued no written Order from which Affiant could appeal, Affiant's only option was to resort to an extraordinary remedy. [Doc 1-1, page 26] 31. It is undisputed that Plaintiff commenced this Brown v. Johnson1 action on 18 May 2016 in Hall County Superior Court by filing VERIFIED PETITION FOR WRIT OF MANDAMUS OR, IN THE ALTERNATIVE, WRIT OF PROHIBITION OR EX DELICTO REMEDY IN THE NATURE OF A COMMON LAW WRIT OF QUO WARRANTO OR A BIVENS CAUSE OF ACTION FOR DAMAGES FROM FRAUD AND DECEIT, initiating 2016-CV-000982A. [Doc 1-1, page 26] 32. It is undisputed that the Hall County Superior Court Clerk assigned the Brown v. Johnson action, which named Respondent Fuller as a respondent, to Respondent Judge Fuller. [Doc 42, Exhibit I, page 2, docket entry 05/31/2016] 33. It is undisputed that service was completed on Respondent C. Andrew Fuller and Defendant Richard W. Story in HCSC 2016-CV-000982A on 19 May 2016 by the Hall County Sheriff's Office with delivery of Summons and copy of the Verified Petition. [Doc. 24-1, pages 1-2] 34. It is undisputed that on 31 May 2016, Respondent C. Andrew Fuller disqualified and procured Superior court Judge Gosselein of the same circuit as Respondent C. Andrew Fuller to hear case #2016CV000982A. [Doc 42, Exhibit I, page 2, docket entry 05/31/2016] I Brown v. Johnson, 251 Ga. 436 (306 SE2d 655) ( 1983) granting mandamus action against Superior Court judges under the 1983 Constitution of Georgia 4 Case 2:16-cv-00123-WCO Document 47-2 Filed 08/11/16 Page 4 of 7 35. It is lll disputed that Defendants Friendship Pavilion Acquisition Company and Michael Weinstein were served a copy of the 14 June 2016 Notice of Removal by Assistant U.S. Attorney Lori Berranek. [Doc 1, page 7] 36. It is undisputed that service was completed in USDC on Defendant Friendship Pavilion Acquisition Company on 6 July 2016 with delivery of Summons and copy of the Verified Petition. [Doc. 13] 37. It is undisputed that service was completed in USDC on Defendant Michael Weinstein on 6 July 2016 with delivery of Summons and copy of the Verified Petition. [Doc. 14] 38. It is undisputed that all Defendants and specifically Respondents Fuller, FP AC and Weinstein to date have failed to file a verified answer to Affiant's Verified Petition and/or Affiant's Verified Amended Petition in either State Court or Federal Court as required by the Official Code of Georgia ("OCGA") § 9-10-111 [Doc. 24 ], USDC Docket 39. It is lllldisputed that on 14 Jlllle 2016, Defendant Story, by and through the United States Attorney for the Northern District of Georgia ("USDOJNDGA"), removed HCSC 2016-CV-000982A to USDC North Georgia-Gainesville Division. [Doc. l] 40. It is undisputed that the Case Initiating Documents filed by USDOJNDGA on 14 June 2016 indicate that no payment was received for the removal. [Doc. 1] 41. It is undisputed that the HCSC 2016-CV-000982A was assigned USDC case number 2:15-cv-00123-WCO upon removal. 42. It is lllldisputed that the Notice of Removal filed by USDOJNDGA in USDC cited only 28 U.S.C.§ 1442(a)(l) and 28 U.S.C.§ 2679 as grounds for removal [Doc. 1, page 2] 43. It is lllldisputed that USDOJNDGA filed no certification by the Attorney General with the Notice of Removal that Defendant Richard W. Story was acting within the scope of his office or employment at the time of the incident out of which the claim arose. [Doc. 1] 44. It is undisputed that USDOJNDGA certified Service of Process by U.S. mail on 14 June 2016 of the Notice of Removal on Defendants C. Andrew Fuller, Michael Weinstein, Friendship Pavilion Acquisition Company LLC ("FP AC") and Georgia Department of Transportation. [Doc 1, page 7] 45. It is undisputed that HCSC Clerk of Courts docketed the notice of removal of civil action #2016CV000982A to USDC on 14 June 2016. [Doc 42, Exhibit I, page 2] 46. It is undisputed that on 1 7 June 2016, Respondent C. Andrew Fuller filed into Hall County Superior Court Respondent Fuller's unverified answer and defenses to 5 Case 2:16-cv-00123-WCO Document 47-2 Filed 08/11/16 Page 5 of 7 Plaintiffs Verified Petition in HCSC 2016-CV -000982A as well as a motion to dismiss. [Doc. 24-5] [Doc 42, Exhibit I, page 2, docket entry 06/17/2016] 47. It is undisputed that on 17 June 2016, Respondent Fuller admitted in the HCSC Brown v. Johnson case 2016-CV-000982A that Respondent Judge Fuller held a status hearing on 18 April 2016 in Hall County Superior Court case 2015-CV-001366A. [Doc. 24-5] 48. It is undisputed that Affiant was deprived of tangible personal property without compensation, as well as other property and investments, under an erroneous or void order of eviction. [Doc.42 - Exhibit J] The undersigned in compliance with 28 USC§ 1746, further declares under penalty of perjury that the preceding BY SPECIAL APPEARANCE STATEMENT OF MATERIAL FACTS NOT IN DISPUTE IN RE: RESPONDENT C. ANDREW FULLER, AND DEFENDANTS FRIENDSHIP PAVILION ACQUISITION COMPANY, AND MICHAEL WEINSTEIN BY TIM SUNDY is true and correct. Executed on this \ii) day of August 2016. Tim Sundy c/o Suite 119, Box 6065 Roswell Road Sandy Springs, GA 30328 6 Case 2:16-cv-00123-WCO Document 47-2 Filed 08/11/16 Page 6 of 7 CERTIFICATE OF SERVICE The undersigned hereby certifies that was served a true and accurate copy of this BY SPECIAL APPEARANCE STATEMENT OF MATERIAL FACTS NOT IN DISPUTE IN RE: RESPONDENT C. ANDREW FULLER, AND DEFENDANTS FRIENDSHIP PAVILION ACQUISITION COMPANY, AND MICHAEL WEINSTEIN BY TIM SUNDY via U. S. mail addressed as follows: Christian Alexander Fuller, State of Georgia Law Department, 40 Capitol Square S.W., Atlanta, GA 30334-1300; Michael B. Weinstein, MBW Law, LLC, 949 Image Avenue - Suite B, Atlanta, GA 30318; Mary Jo Volkert, State of Georgia Law Department, 40 Capitol Square S.W., Atlanta, GA 30334-1300; Thomas Ling, Arsenal Real Estate Partners, 1776 on the Green, 6th Floor, 67 Park Place East, Morristown, New Jersey 07960; Arsenal Real Estate Fund 11-IDF, LP, 1776 on the Green, 6th Floor, 67 Park Place East, Morristown, New Jersey 07960; Gary Picone, Arsenal Real Estate Partners, 1776 on the Green, 6th Floor, 67 Park Place East, Morristown, New Jersey 07960; Lori M. Beranek, Office of U.S Attorney, Northern D.G., 75 Spring St. S.W., Atlanta, GA 30303 Respectfully submitted 11 August 2016. � :s:eu;B:42 6065 Roswell Road Sandy Springs, GA 30328 7 Case 2:16-cv-00123-WCO Document 47-2 Filed 08/11/16 Page 7 of 7