Iviewit Patentgate Fraud Jumps Into Anderson Appeal

09-5059-CV
United States Court of Appeals for the Second Circuit
CHRISTINE C. ANDERSON, Plaintiff-Appellant,
--v--
THOMAS J. CAHILL, SHERRY K. COHEN, and DAVID SPOKONY, Defendants-Appellees

MOTION FOR LEAVE TO FILE AMICUS CURIAE BRIEF

P. STEPHEN LAMONT, PRO SE
35 LOCUST AVENUE, RYE, NEW YORK 10580
(914) 217-0038

P. Stephen Lamont, individually, and on behalf of shareholders of Iviewit Holdings, Inc. respectfully moves this Court for leave to file an Amicus Curiae Brief in the instant appeal of Christine C. Anderson v. Thomas J. Cahill, et al. (CA2 Docket No. 09-509-cv, filed November 25, 2009). Amicus Curiae clearly have an interest relating to the “property or transaction which is the subject of the appeal,” i.e., “retaliatory discharge on account of plaintiff’s complaints of whitewashing and corruption,” or, in the case of Amicus Curiae, the sabotage of intellectual property and the subsequent unpaid royalties resulting from whitewashing and corruption. Additionally, Amicus Curiae have both an organizational and a representative interest in this litigation of the issues that are the subject of this appeal, to wit whitewashing and corruption. From an organizational standpoint, a principle function of Amicus Curiae’s existence is to engage in business activity whereby original content creators and others would execute license agreements to benefit from the value propositions of the inventions, and pay royalties for such non-exclusive use. Accordingly, Amicus Curiae have an interest in seeing that conspiracies to whitewash attorney disciplinary complaints are adjudicated along the lines of the relief requested in instant appeal herein, especially when the United States Patent and Trademark Office has signaled that “what’s going on in your New York complaints,” or words to that effect, prior to giving Amicus Curiae the relief necessary to continue their patent applications.

Date: June 22, 2010

Attorney for Amicus Curiae
P. Stephen Lamont, Pro Se
35 Locust Avenue, Rye, N.Y. 10580
(914) 217-0038

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09-5059-CV

United States Court of Appeals for the Second Circuit


CHRISTINE C. ANDERSON,

Plaintiff - Appellant,
--v--
THOMAS J. CAHILL, SHERRY K. COHEN, and DAVID SPOKONY,

Defendants-Appellees

AMICUS CURIAE BRIEF

P. STEPHEN LAMONT, PRO SE
35 LOCUST AVENUE, RYE, NEW YORK 10580
(914) 217-0038

Table of Contents

IDENTIFICATION OF THE AMICUS CURIAE

INTEREST IN THE CASE
STATEMENT OF THE BASIS FOR JURISDICTION
SUMMARY OF ARGUMENT
ARGUMENT
A. DISTRICT COURT’S RELIANCE ON ROOKER-FELDMAN DOCTRINE

B. IMMUNITY ANALYSIS WITHIN THE ORDER
1. Eleventh Amendment Does Not Bar Suits for Declaratory or Injunctive Relief

2. Explicit §5 Override
3. The District Court’s Order Cannot Claim Judicial and Qualified Immunity

CONCLUSION

Table of Authorities

Cases

Atascadero State Hospital v. Scanlon, 473 U.S. 234, 105 S.Ct. 3142, 87 L.Ed.2d 171 (1985) 9
District of Columbia Court of Appeals v. Feldman, 460 US. 462,483 n. 16 (1983) 7
Edelman v. Jordan, 415 U.S. 651 (1974) 8 -- Ex Parte Young, 209 U.S. 123, 160 (1908) 8
Exxon Mobil Corp. v. Saudi Basic Industries Corp., 544 U.S. 280 (2005) 7
Kostok v. Thomas, 105 F.3d 65, 69 (2d Cir. 1997) 9
Mitchum v. Foster, 407 U.S. 225,238-39 (1972) 9 -- U.S.C. 28 §1331 6

Constitutional Provisions

§5 of the Fourteenth Amendment 7, 8 -- Eleventh Amendment 7, 8

Statutes

28 U.S.C. § 1291 6 -- 28 U.S.C. §1254(1) 6 -- 28 U.S.C. §1331 6 -- U.S.C. 42 § 1983 9

IDENTIFICATION OF THE AMICUS CURIAE

The Amicus Curiae parties in this instant action are Plaintiffs, Plaintiff-Appellants, and Petitioners in the following cases:

Bernstein, et al v. Appellate Division First Department Departmental Disciplinary Committee, et al. (07-cv-11196, S.D.N.Y filed December 12, 2007), Opinion and Order filed August 8, 2008 granting Defendants’ Motion to Dismiss.

Bernstein, et al v. Appellate Division First Department Departmental Disciplinary Committee, et al. (08-cv-4873, CA2 NY, filed October 3, 2008), Opinion and Order filed January 5, 2010 dismissing appeal, Opinion and Order filed January 22, 2010 denying Motion for Reconsideration.

Lamont, et al v. Appellate Division First Department Departmental Disciplinary Committee, et al. (Docket No. _____________, U.S., filed April 22, 2010).

INTEREST IN THE CASE

Amicus Curiae clearly have an interest relating to the “property or transaction which is the subject of the appeal,” i.e., “retaliatory discharge on account of plaintiff’s complaints of whitewashing and corruption,” or, in the case of Amicus Curiae, the sabotage of intellectual property and the subsequent unpaid royalties resulting from whitewashing and corruption.
Additionally, Amicus Curiae, have both an organizational and a representative interest in this litigation of the issues that are the subject of this appeal, to wit, whitewashing and corruption. From an organizational standpoint, a principle function of Amicus Curiae’s existence is to engage in business activity whereby original content creators and others would execute license agreements to benefit from the value propositions of the Inventions, and pay royalties for such non-exclusive use. Accordingly, Amicus Curiae have an interest in seeing that conspiracies to whitewash attorney disciplinary complaints are adjudicated along the lines of the instant appeal, especially when the United States Patent and Trademark Office has signaled that “what’s going on in your New York complaints,” or words to that effect, prior to giving Amicus Curiae the relief necessary to continue their patent applications. Amicus Curiae’s interests may not be adequately represented by Plaintiff-Appellant Anderson. Thus, Amicus Curiae’s interests, as a practical matter, may be impaired or impeded by its inability to protect these interests without supporting the appeal, particularly given the fact that an adverse ruling by the Court could result in the continuation of the patent sabotage conspiracy, countless unpaid royalties to Amicus Curiae, and the resultant unwillingness of the United States Patent and Trademark Office to issue patents to Amicus Curiae based on the inventions. It remains at best uncertain whether the current Plaintiff-Appellant Anderson’s request for relief will encompass all possible issues related to the whitewashing and corruption in hearing attorney disciplinary complaints. It is much more likely that current Plaintiff-Appellant Anderson in this case will only develop the limited issues pertaining to her individual situation and therefore only seek the relief that would provide her individual remedy. Amicus Curiae will bring to the case a variety of fact patterns involving both conspiracies to whitewash attorney disciplinary complaints and the occurrences of civil racketeering among the same group of Defendants, in part; thus, Amicus Curiae’s support sharpens the argument on both sides and provides the Court with a more useful framework of advocacy from which to issue its decision.

STATEMENT OF THE BASIS FOR JURISDICTION

The District Court had jurisdiction under U.S.C. 28 §1331, and issued its Opinion and Order on August 8, 2008. A Motion for Reconsideration was filed on August 18, 2008, and the District Court denied the Motion on August 19, 2008. A Notice of Appeal was filed on September 4, 2008, and the Courts of Appeals for the Second Circuit has jurisdiction under U.S.C. 28 § 1291. The Court of Appeals dismissed the appeal on January 5, 2010. A Motion for Reconsideration was filed on January 12, 2010, and the Court of Appeals issued its final judgment on January 22, 2010. A Petition for a Writ of Certiorari was filed on April 22, 2010, and the United States Supreme Court has jurisdiction under U.S.C. 28 §1254(1).

SUMMARY OF ARGUMENT

1. Is a fundamental underpinning of Rooker-Feldman doctrine that the proper forum to appeal State court decisions is in State court (Exxon Mobil Corp. v. Saudi Basic Industries Corp., 544 U.S. 280 (2005))?

2. Does §5 of the Fourteenth Amendment grant Congress the power to enforce, by appropriate legislation, the provisions of that Amendment, and if so, does this Amendment abrogate the immunity provided by the Eleventh Amendment?

3. Is the purpose behind the enactment of 42 U.S.C. § 1983 to secure the protection of Plaintiff-Appellant’s constitutional rights against infringement by State governments and State actors who purportedly act under the authority of State law?

ARGUMENT

Amicus Curiae maintain the following:

A. District Court’s Reliance on Rooker-Feldman Doctrine - In Amicus Curiae’s proceedings, the District Court invoked the Rooker-Feldman doctrine as a means to support its Order in granting Amicus Curiae’s Respondents’ Motions to Dismiss. A recent decision of the U.S. Supreme Court in Exxon Mobil Corp. v. Saudi Basic Industries Corp., 544 U.S. 280 (2005), makes clear that claim preclusion is a separate doctrine entirely. Exxon stipulates the requisite elements that must be met for the Rooker-Feldman doctrine to apply (See also District of Columbia Court of Appeals v. Feldman, 460 US. 462,483 n. 16 (1983)). None of the factors of Exxon are present in the instant appeal; the Rooker-Feldman doctrine simply does not apply.
B. Immunity Analysis within the Order Regarding Immunity, Amicus Curiae’s Complaint, Amended Complaint, Opposition Memorandums, Appellant Brief, and Petition for a Writ of Certiorari pray for injunctive relief; this was clearly stated.

1. Eleventh Amendment Does Not Bar Suits for Declaratory or Injunctive Relief - The District Court’s bald assertion that in Amicus Curiae’s proceedings the Complaint lacked any foundation upon which the District Court can grant legal relief is clearly erroneous. The Eleventh Amendment does not preclude suit against State officers for the kind of injunctive and declaratory relief at issue here. If a State official acts in contravention of the Constitution, pursuant to an unconstitutional statute, or in a manner that violates an individual's constitutionally protected rights, suit to enjoin the offending behavior is proper and does not run afoul of a State's sovereign immunity. (See Ex Parte Young, 209 U.S. 123, 160 (1908), Edelman v. Jordan, 415 U.S. 651 (1974)). Additionally, Ex Parte Young and Edelman v. Jordan provide that the District Court could have provided retroactive monetary relief against an officer sued in his individual capacity, as bringing an action against an officer in his individual capacity does not implicate State sovereignty.

2. Explicit §5 Override - §5 of the Fourteenth Amendment grants Congress the power to enforce, by appropriate legislation, the provisions of that Amendment; courts have recognized that this new Amendment, again a consensus of the people, abrogates the immunity provided by the Eleventh Amendment. In Atascadero State Hospital v. Scanlon, 473 U.S. 234, 105 S.Ct. 3142, 87 L.Ed.2d 171 (1985), this Court said that Congress can use its Fourteenth Amendment power to override a State's Eleventh Amendment protection.

3. The District Court’s Order Cannot Claim Judicial and Qualified Immunity. - Furthermore, in their proceedings, the District Court cannot allow Amicus Curiae’s Respondents to use the guise of State authority as a license for violating Amicus-Curiae’s constitutional rights. Indeed, the entire purpose behind the enactment of U.S.C. 42 § 1983 was to secure the protection of individuals' constitutional rights against infringement by State governments and State actors who purportedly act under the authority of State law; Section 1983 creates a private cause of action for damages (as well as injunctive relief) against those "persons" responsible for the deprivation (See Mitchum v. Foster, 407 U.S. 225,238-39 (1972)).
In Kostok v. Thomas, 105 F.3d 65, 69 (2d Cir. 1997), the court determined that declaratory and prospective injunctive relief are available, and that the Plaintiff-Appellants' claims brought under 42 U.S.C. § 1983 need not be dismissed.

CONCLUSION

For all the foregoing reasons, Amicus Curaie respectfully supports that this Court reverse the judgment entered herein, with a finding of fact in favor of Plaintiff-Appellant; or if the Court does not feel that it would be justified by the facts in so doing that it should remand the case for a fair and impartial trial before an unprejudiced jury, on proper evidence, and under correct instructions as the law may deem just and proper.

Date: June 22, 2010

Respectfully submitted,

P. Stephen Lamont, Pro Se
Attorney for Amicus Curiae
P. Stephen Lamont, Pro Se
35 Locust Avenue, Rye, N.Y. 10580
Tel.: (914) 217-0038

CERTIFICATE OF COMPLIANCE WITH F.R.A.P. RULE 32(a)(7)

The undersigned, P. Stephen Lamont, Pro Se, furnishes the following in compliance with F.R.A.P Rule 32(a)(7): I hereby certify that this brief conforms to the rules contained in F.R.A.P Rule 32(a)(7) for a brief produced with a proportionally spaced font. The length of this brief is 1365 words.

P. Stephen Lamont, Pro Se
Attorney for Amicus Curiae
35 Locust Avenue, Rye, N.Y. 10580
Tel.: 914) 217-0038