4-23-18 DktEnt 138 Petitions Rehearing Enbanc PDF

Case: 15-15566, 04/23/2018, ID: 10847766, DktEntry: 138, Page 1 of 103
Docket No. 15-15566
IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT
AREK R. FRESSADI, ET AL.,
Plaintiffs - Appellants,
vs.
ARIZONA MUNICIPAL RISK RETENTION POOL (“AMRRP”), ET AL.,
Defendants - Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF ARIZONA
DISTRICT COURT NO. CV-14-01231-PHX-DJH
THE HONORABLE DIANE J. HUMETEWA, DISTRICT JUDGE
PETITIONS FOR REHEARING AND REHEARING EN BANC
AREK R. FRESSADI, Petitioner, Plaintiff, and Appellant pro se

10780 FULLERTON RD.
TUCSON, AZ 85736
Telephone: 520.216.4103
Email: arek@fressadi.com
i
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES .................................................................................... ii
FRAP 35 & 40 STATEMENTS / SUMMARY ARGUMENT .................................1
• The panel’s decision directly conflicts with the Fifth and Fourteenth
Amendments, and well-established decisions by the U.S. Supreme Court,
Ninth Circuit, and other courts of appeals, and substantially affects a rule of
national application in which there is an overriding need for national uniformity.
• The proceeding involves a question of exceptional national importance:

If courts allow government to avoid due process and equal protection (pre-
deprivation notice and a hearing) to take property without just compensation,
and bar redress by Statutes of Limitations, is it a judicial takings?
BACKGROUND & ARGUMENT ...........................................................................9
A. Cave Creek’s Continuing Violations Compels Just Compensation per

A.R.S. § 9-500.12(H) ......................................................................................9
B. Cave Creek’s Continuous Violations of A.R.S. §§ 9-500.12 & 9-500.13

and Its Zoning & Subdivision Ordinances Are Predicate Acts. ...................12
C. Quiet Title and Additional Conflicts Warrant Rehearing, En Banc .............12
CONCLUSION .......................................................................................................15
CERTIFICATE OF COMPLIANCE
ADDENDUM A: Panel Decision
ADDENDUM B: Request For Publication with Lists of Contravening Cases
ADDENDUM C: Letter To Cave Creek To Correct Continuing Violations
ADDENDUM D: Cave Creek Predicate Acts List 2001-Present
ADDENDUM E: Statutory Addendum
CERTIFICATE OF SERVICE
ii
TABLE OF AUTHORITIES
Cases Page(s)
Aetna Ins. Co. v. Kennedy 301 U.S. 389, 393 (1937) ................................................4
Agins v. City of Tiburon, 447 U.S. 255 (1980) ........................................................11
Atkins v. Union Pac. R.R.,685 F.2d 1146 (9th Cir. 1982) .................................14, 15
Automobile Club of Mich. v. Commissioner, 353 U.S. 180 (1957) ................... 12-13
Backus v. State, 203 P.3d 499 - Ariz: Supreme Court 2009 ....................................11
Bailey v. Glover, 88 U.S. (21 Wall) 342 (1874) ................................................14, 15
Bangerter v. Petty, 225 P.3d 874 - Utah: Supreme Court 2009 ..............................12
Bank One, Arizona v. Rouse, 887 P.2d 566 - Ariz: Court of Appeals,
1st Div., Dept. D 1994) ............................................................................... 7-8
Board of Regents v. Roth, 408 U.S. 564 (1972) ......................................................14
Blair v. City of Pomona, 223 F.3d 1074 (9th Cir. 2000) ...........................................6
Board of Comm'rs of Bryan Cty. v. Brown, 520 U.S. 397 (1997) .............................6
BUTCHERS' UNION CO. v. Crescent City Co., 111 U.S. 746 (1884) .....................2
Calmat of Ariz. v. State ex rel. Miller, 176 Ariz. 190, 859 P.2d 1323 (1993) ...........8
Carey v. Piphus, 435 U.S. 247 (1978) .....................................................................14
Chambers v. Nasco, Inc., 501 U.S. 32 (1991) .........................................................14
City of Canton v. Harris, 489 U.S. 378 (1989) .........................................................6
Chicago, B. & QR Co. v. Chicago, 166 U.S. 226 (1897) ...................................... 1-2
City of Tucson v. Morgan, 475 P.2d 285 (Ariz. Ct. App. 1970)..............................12
Clark v. Tinnin, 81 Ariz. 259, 304 P.2d 947 (1956) ..................................................8
Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (1985) .....................................3
Cook v. Town of Pinetop-Lakeside, 232 Ariz. 173, 303 P.3d 67 (App.2013) ....12,15
Coppell v. Hall, 74 U.S. (7 Wall.) 542 (1868)) ..................................................... 7-8
Donoghue v. Orange County, 848 F.2d 926 (9th Cir.1987) ....................................13
Dowling v. United States, 493 U.S. 342 (1990) ........................................................9
Dolan v. City of Tigard, 512 U.S. 374 (1994) ...........................................................1
DUWA, Inc. v. City of Tempe, 203 Ariz. 181, 52 P.3d 213 (App.2002)) ..................8
Ex Parte Young, 209 U.S. 123 (1908) .....................................................................15
First English Evangelical Lutheran Church v. County of Los Angeles,
482 U.S. 304 (1987) ........................................................................................1
Fuentes v. Shevin, 407 U.S. 67, 95 (1972) ................................................................4
Gibson v. County of Washoe, Nev., 290 F.3d 1175 (9th Cir. 2002) ..........................6
Gutowsky v. County of Placer, 108 F.3d 256 (9th Cir. 1997) ........................... 11-12
Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238 (1944) ..............14, 15
Hewitt v. Helms, 459 U.S. 460 (1983) .......................................................................7
Hexcel Corp. v. Ineos Polymers, Inc., 681 F.3d (9th Cir. 2012) .............................15
Huseman v. Icicle Seafoods, Inc., 471 F.3d 1116 (9th Cir. 2006) ...........................14
iii
In re Napster, Inc. Copyright Litigation, 479 F.3d 1078 (9th Cir. 2007)................14
Irwin v. Dep't of Veterans Affairs, 498 U.S. 89 (1990) ...........................................14
Jacobson v. Hannifin, 627 F.2d 177 (9th Cir. 1980) .................................................7
Holland v. Florida, 130 S.Ct. 2549 (2010) .............................................................15
Johnson v. Zerbst, 304 U.S. 458, 464 (1938) ............................................................4
Kaiser Steel Corp. v. Mullins, 455 U.S. 72 (1982) ....................................................8
Knox v. Davis, 260 F.3d 1009 (9th Cir. 2001).........................................................11
Kougasian v. TMSL, Inc., 359 F.3d 1136 (9th Cir. 2004) .......................................15
Krupski v. Costa Crociere S.p.A., 560 U.S. 538 (2010) ..........................................15
Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992) ......................1, 15
Lukovsky v. City & County of San Francisco, 535 F.3d 1044 (9th Cir. 2008) .......15
McDowell Residential Properties, LLC v. City Of Avondale,
Ariz: Court of Appeals, 1st Div., Dept.B 2010) ..............................................8
Marbury v. Madison, 5 U.S. 137 (1803) ..................................................................2
Massachusetts v. EPA, 549 U.S. 497 (2007) ......................................................... 4-5
Mathews v. Eldridge, 424 U.S. 319 (1976) .........................................................2, 14
Mennonite Bd. Of Missions v. Adams, 462 U.S. 791 (1983) .....................................3
Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1 (1978) ................................3
Monell v. Dep't of Soc. Servs., 436 U.S. 658 (1978) .................................................6
Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950) ..................3, 8
National Union Indem. Co. v. Bruce Bros., Inc.,
44 Ariz. 454, 38 P.2d 648 (1934))............................................................... 7-8
Nollan v. California Coastal Commission, 483 U.S. 825 (1987) ..............................1
O'Loghlin v. Cnty. of Orange, 229 F.3d 871 (9th Cir. 2000) .................... 6-7, 11, 15
Ohio Bell Telephone Co. v. Public Utilities Comm'n, 301 U.S. 292 (1937) .............4
Oviatt v. Pearce, 954 F.2d 1470 (9th Cir.1992) ........................................................6
Parham v. J.R., 442 U.S. 584, 606-07 (1979) ...........................................................3
Pennoyer v. Neff, 95 U.S. 714 (1878) .....................................................................15
Pouncil v. Tilton, 704 F.3d 568 (9th Cir. 2012) ......................................................11
Ritchie v. Krasner, 221 Ariz. 288, 211 P.3d 1272 (App. 2009) ..............................13
Rotella v. Wood, 528 U.S. 549 (2000) .....................................................................12
Socop-Gonzalez v. I.N.S., 272 F.3d 1176 (9th Cir. 2001) .......................................15
Sugar Cane Growers Cooperative of Fla. v. Veneman,
289 F.3d 89 (C.A.D.C.2002) ....................................................................... 4-5
State v. Mabery Ranch, Co., 216 Ariz. 233, 165 P.3d 211 (App.2007) ....................8
Stop the Beach Renourishment, Inc. v. Fla. Dep't of Envtl. Prot.,
560 U.S. 702 (2010) ........................................................................................5
Supermail Cargo, Inc. v. US, 68 F. 3d 1204 (9th Cir. 1995)...................................15
TwoRivers v. Lewis, 174 F.3d 987 (9th Cir. 1999) ..................................................13
United States v. James Daniel Good Real Property, 510 U.S. 43 (1993) .................2
iv
United States v. Lovasco, 431 U.S. 783 (1977) .........................................................9

United States v. Peters, 9 U.S. 115 (1809) ................................................................8
United States v. Throckmorton, 98 U.S. 61 (1878) .................................................15
Vanhorne v. Dorrance, 2 U.S. 304 (1795) ................................................................1
Walk v. Ring, 202 Ariz. 310, 44 P.3d 990 (2002)....................................................13
World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286 (1980) ................... 14-15
Zinermon v. Burch, 494 U.S. 113 (1990) ................................................................13
ZRIHAN v. WELLS FARGO BANK, NA, Dist. Court, D. Arizona 2014 .................12
CONSTITUTIONS, STATUTES, ORDINANCES,

CODES, RULES, AND REGULATIONS*
Federal
42 U.S.C. § 1983 .............................................................................................1, 6, 13
U.S. Constitution, Fifth Amendment ...........................................................1, 5, 9, 11
U.S. Constitution, Fourteenth Amendment ...................................................1, 2, 5, 9
U.S. Constitution, Article VI, Cl. 2, Supremacy Clause .....................................9, 10
FRAP, Rule 35 ...........................................................................................................1
FRAP, Rule 40 ...........................................................................................................1
Federal Rules of Civil Procedure, Rule 15 ..............................................................17
Federal Rules of Civil Procedure, Rule 60 ..............................................................17
State
Arizona Constitution, Article 2, Section 17 ..............................................................8
Arizona Constitution, Article 18, Section 6 ..............................................................3
A.R.S. § 9-463.02 ....................................................................................................15
A.R.S. § 9-463.03 ....................................................................................................15
A.R.S. § 9-500.12** ................................. ii, 2, 3, 4, 5, 6, 8, 9, 10, 11, 12, 13, 14, 15
A.R.S. § 9-500.13** ................................... ii, 1, 2, 3, 4, 5, 6, 8, 9, 10, 11, 12, 13, 14
A.R.S. § 12-821.01 ......................................................................................13, 14, 15
A.R.S. § 12-1101 ...............................................................................................12, 15
A.R.S. § 12-1102 ...............................................................................................12, 15
A.R.S. § 12-1103 ...............................................................................................12, 15
A.R.S. § 12-1104 .....................................................................................................12
A.R.S. § 13-2314.04 ..........................................................................................11, 15
A.R.S. § 33-420 .................................................................................................12, 11
A.R.S. § 39-161 .................................................................................................11, 12
Town of Cave Creek

Cave Creek Zoning Ordinance, Section 1.7 ....................................................4, 7, 10
Cave Creek Zoning Ordinance, Section 2.3 ........................................................5, 10
v
OTHER AUTHORITIES
Charter of Liberty, 39th Article ..................................................................................2

Magna Carta art. XXXIX (1215) ............................................................................... 2
Wealth of Nations, Adam Smith, Bk. I. Chap. 10......................................................2
* See Addendum E for statutes, ordinances, codes, rules, and constitutional law
whenever mentioned in the brief. Citations to Addendum are otherwise mostly
omitted to save words.
** A.R.S. §§ 9-500.12 & 9-500.13 abbreviated as “§§9-500.12/13” herein.
vi
FRAP 35 & 40 STATEMENTS / SUMMARY ARGUMENT
The Panel’s decision eviscerates due process, equal protection, and just
compensation rights in the Fifth and Fourteenth Amendments to conflict with all
rulings in Arizona Revised Statute (“A.R.S.”) §9-500.131 for property owners in
Arizona and can be detrimentally applied all across America. The decision conflicts
with well-established Supreme Court and 9th Circuit rulings to raise a question of
exceptional national importance: If courts allow government to avoid due process
and equal protection (pre-deprivation notice and a hearing) to take property without
just compensation, and bar redress by Statutes of Limitations (“SOL”), is it a
judicial takings?
Appellant’s §1983 claims arise from rights of the Fifth Amendment providing,
“No person shall…be deprived of life, liberty, or property2, without due process of
law3; nor shall private property be taken for public use, without just compensation,”
1
A.R.S.§9-500.13: “Compliance with court decisions: A city or town or an
agency or instrumentality of a city or town shall comply with the United States
supreme court cases of Dolan v. City of Tigard, _____ U.S. _____ (1994),
Nollan v. California Coastal Commission, 483 U.S. 825 (1987), Lucas v. South
Carolina Coastal Council, _____ U.S. _____ (1992), and First English
Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304 (1987), and
Arizona and federal appellate court decisions that are binding on Arizona cities
and towns interpreting or applying those cases.”[emphasis added]
2
Per Vanhorne v. Dorrance, 2 U.S. 304, 310-12 (1795): “From these passages
it is evident; that the right of acquiring and possessing property, and having it
protected, is one of the natural, inherent, and unalienable rights of man.”
[emphasis added]
3
Chicago, B. & QR Co. v. Chicago, 166 U.S. 226, 241 (1897): "Due process
of law requires, first, the legislative act authorizing the appropriation, pointing out
1
and Fourteenth Amendment providing, "No State shall…deprive any person of life,
liberty, or property, without due process of law; nor deny to any person within its
jurisdiction the equal protection of the laws." U.S.Const.Amend.XIV,§1. According
to Chief Justice Marshal in Marbury v. Madison, 5 U.S. 137, 1 Cranch 137, 163-64
(1803), every right has a remedy or it is no right at all.4 Fressadi’s rights to due
process and equal protection to build on his property5 are inalienable.
The law is well-established that any deprivation of private property (even civil
forfeiture6) by a government entity requires pre-deprivation notice and a hearing.
See United States v. James Daniel Good Real Property, 510 U.S. 43 (1993). In other
words, Defendant Town of Cave Creek must provide mandatory due process per
Arizona Revised Statute (“A.R.S.”) §§ 9-500.12 & 9-500.13 (“§§9-500.12/13”) prior
how it may be made and how the compensation shall be assessed; and, second, that
the parties or officers proceeding to make the appropriation shall keep within the
authority conferred, and observe every regulation which the act makes for the
protection or in the interest of the property owner, except as he may see fit
voluntarily to waive them." 2 Story Const. §1956.
4
Based on Common law derived from the Charter of Liberty in its 39th article
per the Magna Carta art. XXXIX (1215).
5
See, e.g. BUTCHERS' UNION CO. v. Crescent City Co., 111 U.S. 746, 757
(1884), quoting Adam Smith’s Wealth of Nations, Bk. I. Chap. 10: “Among these
unalienable rights, as proclaimed in that great document, is the right of men to
pursue their happiness, by which is meant the right to pursue any lawful business or
vocation, in any manner not inconsistent with the equal rights of others, which may
increase their prosperity or develop their faculties, so as to give to them their
highest enjoyment…It has been well said that 'the property which every man has in
his own labor, as it is the original foundation of all other property, so it is the most
sacred and inviolable.'”[emphasis added]
6
The Court applied the three-part inquiry balancing in Mathews v. Eldridge,
424 U.S. 319. The Court held absent exigent circumstances, the Due Process clause
requires the government to provide notice and a meaningful opportunity to be heard
before seizing real property subject to civil forfeiture. Good, 510 U.S. at 54.
2
to depriving Petitioner/Appellant-Plaintiff Arek R. Fressadi of improvements land,
or easements for entitlements. A.R.S.§9-500.12(B) codifies the requirement for
notice and a hearing: “The city or town shall notify the property owner that the
property owner has the right to appeal the city’s or town’s action pursuant to this
section and shall provide a description of the appeal procedure. The city or town
shall not request the property owner to waive the right of appeal or trial de novo at
any time during the consideration of the property owner's request.”[emphasis added]
A.R.S.§9-500.12(B) aligns with Arizona's unambiguous Constitution that protects
"the right of action to recover damages for injuries." Art.18,§6.
Cave Creek’s requirements for notice must comply with Mullane7 v. Central
Hannover Bank & Trust Co., 339 U.S. 306 (1950),8 and Mennonite Bd. Of Missions
v. Adams, 462 U.S. 791 (1983). However, Cave Creek has continuously violated
due process protections in §§9-500.12/13 as its official policy since October 2001 to
cause a series of predicate acts in continuing violation. Each and every day that
Cave Creek fails to provide due process is a separate criminal violation punishable
7
The U.S. Supreme Court consistently applies the Mullane standard in the
pre-deprivation context, namely, the requirement of notice reasonably calculated to
provide interested parties with an opportunity to be heard. See, e.g., Cleveland Bd.
of Educ. v. Loudermill, 470 U.S. 532, 542 (1985); Parham v. J.R., 442 U.S. 584,
606-07 (1979); Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1, 18 (1978).
8
“An elementary and fundamental requirement of due process in any
proceeding which is to be accorded finality is notice reasonably calculated, under
all the circumstances, to apprise interested parties of the pendency of the action and
afford them an opportunity to present their objections.” Mullane at 314.
3
as a Class One Misdemeanor per §1.7 of Cave Creek’s Zoning Ordinance, such that
SOL has not begun to run. By Cave Creek continuously violating §§9-500.12/13,
the Town violated federal and state law and its own Town ordinances to convert
Fressadi’s property into an unbuildable, unsellable, illegal subdivision.
Waiver is the "intentional relinquishment or abandonment of a known right."
Johnson v. Zerbst, 304 U.S. 458, 464 (1938). Waiver of due process or property
rights must be clear and unequivocal. See Fuentes v. Shevin, 407 U.S. 67, 95 (1972)
("[W]aiver of constitutional rights in any context must, at the very least, be clear.");
Aetna Ins. Co. v. Kennedy, 301 U.S. 389, 393 (1937) (stating that courts should
"indulge every reasonable presumption against waiver" in a civil case where
fundamental rights were at issue). Courts "do not presume acquiescence in the loss
of fundamental rights." Ohio Bell Telephone Co. v. Public Utilities Comm'n, 301
U.S. 292, 307 (1937).
The panel’s application of SOL prior to Fressadi receiving fundamental rights
of pre-deprivation notice and a hearing as codified in §9-500.12(B), and just
compensation and equal protection per A.R.S. §§ 9-500.12(E)&(H) and 9-500.13, is
to deny Fressadi his rights to due process and property by forfeiture. As such, the
panel’s decision conflicts with Massachusetts v. EPA, 549 U.S. 497, 518 (2007)
(quoting Sugar Cane Growers Cooperative of Fla. v. Veneman, 289 F.3d 89, 94-95
(C.A.D.C.2002)(“A litigant who alleges a deprivation of a procedural protection to
4
which he is entitled never has to prove that if he had received the procedure the
substantive result would have been altered. All that is necessary is to show that
the procedural step was connected to the substantive result.”)[emphasis added].
Actions by the judicial branch, just like actions by the legislative or executive
branches, can constitute a taking under the Fifth and Fourteenth Amendments. See
Stop the Beach Renourishment, Inc. v. Florida Dept. of Envtl. Protection, 560 U.S.
702, 714 (2010) (“the Takings Clause bars the State from taking private property
without paying for it, no matter which branch is the instrument of the taking”). As
further stated by Justice Scalia, "if…a court declares that what was once an
established right of private property no longer exists, it has taken that property."
Id.at 715. However, there is no taking unless a party can show that before a court
decision they were clearly entitled to the right which the decision took away. Id.
Before the court’s decision, Fressadi was clearly entitled to his rights to due process
and equal protection as protected by the Fifth and Fourteenth Amendments, his
right to his career, and his right to develop his property, which the court took away
(Addendum A)––a takings. Fressadi is entitled to just compensation for these
continuing violations by an award of damages per §9-500.12(H).
The Town’s Zoning Administrator must ensure Cave Creek complies with
federal law as codified in §§9-500.12/13 per Town’s Zoning Ordinance §2.3(C)(2):
The Zoning Administrator shall perform all actions required by the Town’s Zoning
5
ordinance including the giving of notice, scheduling of hearings, preparation of
reports, receiving and processing appeals. Opening Brief, DktEntry 40 at 46-47.
Fressadi alleged in Claim 1 of his Complaint that he was denied due process
protection by Cave Creek committing continuing violations of its zoning ordinance
to violate Federal law in §§9-500.12/13. Doc.1-1. Cave Creek’s Town Clerk admitted
on August 29, 2016, that the Town has continuously violating §§9-500.12/13 as its
Official Policy since October 2001, to affect Takings not just from Fressadi, but
hundreds of Cave Creek property owners (see DktEntry 56, incorporated herein).9
As such, the panel’s ruling conflicts with O'Loghlin v. Cnty. of Orange, 229 F.3d
871, 875 (9th Cir.2000) ("[I]f a discriminatory act takes place within the limitations
period and that act is related and similar to acts that took place outside the limitations
9
“A local government entity is liable under §1983 when ‘action pursuant to
official municipal policy of some nature cause[s] a constitutional tort.’” Oviatt v.
Pearce, 954 F.2d 1470, 1473-74 (9th Cir.1992) (quoting Monell v. Dep't of Soc.
Servs., 436 U.S. 658, 691 (1978)). A local governmental entity may also be liable if
it has a “policy of inaction and such inaction amounts to a failure to protect
constitutional rights.” Id. at 1474 (citing City of Canton v. Harris, 489 U.S. 378, 388
(1989)); see also Monell, 436 U.S. at 690-91. None of the Defendants dispute that
Cave Creek concealed its failure to follow Federal procedural due process as
codified in A.R.S. §§9-500.12/13.
The Canton Court recognized that when the need to remedy the omission "is so
obvious, and the inadequacy so likely to result in the violation of constitutional
rights,…the policymakers of the city can reasonably be said to have been deliberately
indifferent to the need." 489 U.S. at 390. A jury may infer that a municipality made
such a deliberate choice "when a municipal actor disregarded a known or obvious
consequence of his action." Board of Comm'rs of Bryan Cty. v. Brown, 520 U.S. 397,
410 (1997). Whether a local government has displayed a policy of deliberate
indifference to the constitutional rights of its citizens is generally a jury question.
Oviatt, 954 F.2d at 1478; Blair v. City of Pomona, 223 F.3d 1074, 1079 (9th
Cir.2000); Gibson v. County of Washoe, Nev., 290 F.3d 1175 (9th Cir.2002).
6
period, all the related acts—including the earlier acts—are actionable as part of a
continuing violation.") Zoning Ordinance §1.7 states: “Any person [i.e., the Zoning
Administrator or Cave Creek as a corporate person] who violates any provision of
this Ordinance, and any amendments thereto, shall be guilty of a Class One
misdemeanor punishable as provided in the Cave Creek Town Code and state law;
and each and every day of continued violation shall be a separate offense, punishable
as described. [emphasis added] It “contains mandatory language” that significantly
constrains the decision-maker's discretion. Jacobson v. Hannifin, 627 F.2d 177,180
(9th Cir.1980). See Hewitt v. Helms, 459 U.S. 460, 471 (1983) (language of an
unmistakably mandatory character, requiring that certain procedures "shall," "will,"
or "must" be employed). Cave Creek waived SOL by incorporating the Continuing
Violation Doctrine into its Zoning Ordinance. SOL never runs on zoning/subdivision
criminal violations. Courts cannot uphold contracts based on illegality.10
10
See Bank One, Arizona v. Rouse, 887 P.2d 566 - Ariz: Court of Appeals, 1st
Div., Dept.D 1994: “[W]e refuse to allow the courts to be used to enforce a contract
that is contrary to law and common sense. As our supreme court stated in National
Union Indem. Co. v. Bruce Bros., Inc., 44 Ariz. 454, 38 P.2d 648 (1934):
"... In such cases there can be no waiver. The defense [of illegality] is allowed,
not for the sake of the defendant, but of the law itself. The principle is
indispensable to the purity of its administration. It will not enforce what it has
forbidden and denounced. The maxim, ex dolo malo non oritur actio, is
limited by no such qualification. The proposition to the contrary strikes us as
hardly worthy of serious refutation. Whenever the illegality appears, whether
the evidence comes from one side or the other, the disclosure is fatal to the
case. No consent of the defendant can neutralize its effect. A stipulation in the
most solemn form to waive the objection, would be tainted with the vice of the
7
Fressadi’s federal claims involved novel and complex issues of State law that
were inextricably intertwined with parallel proceedings taking place in CV2006-
014822. The illegality of Cave Creek’s continuing violation of federal law in
§§9-500.12/13 is a civil enforcement matter of first impression.11 District Court
dismissed Fressadi’s complaint based on SOL res judicata in CV2009-050821 that
violated federal court rulings supra.12
original contract, and void for the same reasons. Wherever the contamination
reaches, it destroys. The principle to be extracted from all the cases is, that the
law will not lend its support to a claim founded upon its violation...."
44 Ariz. at 466-67, 38 P.2d at 653, quoting Coppell v. Hall, 74 U.S. (7 Wall.) 542,
558, 19 L.Ed. 244 (1868) (citations omitted).’ See also Clark v. Tinnin, 81 Ariz.
259, 263, 304 P.2d 947, 950 (1956) (waiver and estoppel cannot be invoked against
void contract); cf. Kaiser Steel Corp. v. Mullins, 455 U.S. 72, 83, 102 S.Ct. 851, 70
L.Ed.2d 833 (1982) (courts have duty to determine whether contract violates federal
law before enforcing it).”
11
Only one case mentions A.R.S.§9-500.12 since it was enacted in 1995, but is
“Not for Publication” and does not address lack of Mullane notice per §9-500.12(B),
McDowell Residential Properties, LLC v. City Of Avondale, Ariz: Court of Appeals,
1st Div., Dept.B 2010: “Under the Arizona Constitution, property shall not be "taken
or damaged" without just compensation. Ariz. Const. Art.2, §17. In inverse
condemnation cases, Arizona law "has only recognized a `taking' of property where
the government either assumes actual possession of the property or places a legal
restraint upon the property that substantially diminishes or destroys the owner's right
to, and use and enjoyment of, the property." State v. Mabery Ranch, Co., 216 Ariz.
233, 242, ¶35, 165 P.3d 211, 220 (App.2007)(quoting DUWA, Inc. v. City of Tempe,
203 Ariz. 181, 184, ¶16, 52 P.3d 213, 216 (App.2002)). Our supreme court has
described Article 2, §17, as "self-executing." Calmat of Ariz. v. State ex rel. Miller,
176 Ariz. 190, 192, 859 P.2d 1323, 1325 (1993) (injured party "must therefore be
compensated, even though no specific statutory procedure governs this recovery").”
12
United States v. Peters, 9 U.S.115,136 (1809)(“If States may, at will, annul
the judgments of the courts of the United States, and destroy the rights acquired
under those judgments, the constitution itself becomes a solemn mockery; and the
nation is deprived of the means of enforcing its laws by the instrumentality of its
own tribunals.”)
8
The panel’s ruling allows municipalities to violate due process to affect a
Takings of property without notice, recourse, or remedy in violation of the Fifth
and Fourteenth Amendments, Supremacy Clause, and related procedural
protections per Arizona’s §§9-500.12/13 to affect hundreds of property owners. A
due process violation occurs where the conduct violates those "fundamental
conceptions of justice which lie at the base of our civil and political institutions
and which define the community's sense of fair play and decency." Dowling v.
United States, 493 U.S. 342, 352-53 (1990); United States v. Lovasco, 431 U.S.
783, 790, (1977)(citations omitted). Cave Creek’s illegal conduct must be stopped,
corrected, and punished to prevent future harms.
BACKGROUND & ARGUMENT
Incorporating the above herein, plus Addendum B (DktEntry 127 Request for
Publication listing many U.S. Supreme Court and 9th Circuit cases the Panel’s
Decision contravenes), Addendum C (Fressadi’s 12/23/18 letter to Cave Creek’s
Zoning Administrator to correct continuing violations), Addendum D (Cave Creek
Predicate Acts List 2001-Present); and Addendum E (Const./Statutes/Ordinances),
Fressadi further argues:
A. Cave Creek’s Continuing Violations Compels Just Compensation per

A.R.S.§9-500.12(H).
On discovery in 2013 of Cave Creek’s continuing violation of §§9-500.12/13
9
that caused many other continuing violations,13 Fressadi moved to amend CV2006-
014822, his initial lawsuit dealing with due process and property rights regarding his
Cave Creek development. When his motion was denied, he filed LC2014-000206 to
compel Arizona Superior Court judges and Cave Creek to uphold the Supremacy
Clause and comply with Federal law in §§9-500.12/13. Per Cave Creek’s Zoning
Ordinance §2.3, the Zoning Administrator “SHALL” abide by Federal/State Law
and Town Ordinances and remedy all violations, but Cave Creek and its Zoning
Administrator have refused and therefore must be compelled. The Zoning
Administrator has a duty to enforce the Town’s Subdivision Ordinance as part of the
Zoning Ordinance. SEE Addendums C,D,E. Per Zoning Ordinance §2.3(C)(2), the
Zoning Administrator is “[t]o perform all administrative actions required by this
Ordinance, including the giving of notice, scheduling of hearings, preparation of
reports…”(i.e. notice of rights/hearing per §§9-500.12/13, takings reports, nexus of
proportionality reports) per §9-500.12. Per Zoning Ordinance §1.7(A):“Any person
[to include Cave Creek, its officials, and employees] who violates any provision of
this Ordinance, and any amendments therein, shall be guilty of a Class One
misdemeanor punishable as provided in the Cave Creek Town Code and state law
13
After Plaintiff discovered the “undefined subdivision” designation of his
property on Maricopa County Assessor’s Office website in 2013, he was told only a
court can correct his property. Per Lisa J. Bowey, Director of Litigation for
Maricopa County Assessor’s Office in 2014: “If the Court enters a Judgment striking
the split(s), please forward a copy of the Judgment to us and we will make the
necessary changes.” Opening Brief, DktEntry 40 at 23. A court has yet to correct.
10
[$2,500/day/person, $20,000/day/corporation i.e. Cave Creek; A.R.S. §9-500.12(H),
§13-2314.04, §33-420, §39-161]; and EACH DAY of continued violation shall be
a separate offense, punishable as described.14” Cave Creek’s regulation of
Fressadi’s land did not advance legitimate state interests. "[T]he Fifth Amendment is
violated when land-use regulation `does not substantially advance legitimate state
interests or denies an owner economically viable use of his land.'" Lucas, 505 U.S. at
1016 (emphasis omitted)(quoting Agins v. City of Tiburon, 447 U.S. 255, 260
(1980)). By overlooking this fact, the Panel’s decision conflicts with Pouncil v.
Tilton, 704 F.3d 568, 579 (9th Cir.2012), Knox v. Davis, 260 F.3d 1009,1013 (9th
Cir.2001)(a continuing violation occurs where there are continuing unlawful acts).
The continuing violation doctrine is an equitable doctrine designed "to prevent a
defendant from using its earlier illegal conduct to avoid liability for later illegal
conduct of the same sort." O'Loghlin v. County of Orange, 229 F.3d 871, 875
(9thCir.2000). "[I]f a discriminatory act [procedural due process / zoning violation]
takes place within the limitations period and that act is related and similar to acts
that took place outside the limitations period, all the related acts—including the
earlier acts—are actionable as part of a continuing violation." Id. Plaintiff’s
complaint and filings exposed Cave Creek’s continuing unlawful acts since 2001,
14
Cave Creek’s Zoning Ordinance and §§9-500.12/13 & 12-821.01(B),(C),(G)
act in concert “to give effect to an entire statutory system,” to include tolling the
statutes of limitation. Backus v. State, 203 P.3d 499,¶¶10-11–Ariz: Supreme Court
2009 (citation omitted).
11
such that the continuing violation doctrine applies. See Gutowsky v. County of
Placer, 108 F.3d 256, 259-60 (9th Cir.1997).
B. Cave Creek’s Continuous Violation of A.R.S.§§9-500.12/13 and its

Zoning & Subdivision Ordinances Are Predicate Acts.
The U.S. Supreme Court in 2000 held in Rotella v. Wood, 528 U.S. 549, that
the four-year statute of limitations period begins as soon as a plaintiff discovers his
injury, regardless of when the fraud causing that injury is discovered. Fressadi
discovered the predicate acts in 2013. Predicate acts span from 2001 to present and
comply with the federal definition of “continuing violations,” argued as an ongoing
pattern of racketeering in Claims 1,4,7,11. Fressadi can easily amend his complaint
to argue RICO claims with fraud specificity. See Addendum D.
C. Quiet Title and Additional Conflicts Warrant Rehearing, En Banc.
Fressadi submitted this case to State Court in order to Quiet Title pursuant to
A.R.S. §§ 33-420, 39-161, and 12-1101 et seq. See Claim 9, Complaint. There is
no SOL to Quiet Title15 as Fressadi still possesses the lot in dispute.
Government cannot be estopped from correcting their mistakes of law, e.g.,
15
There are no statutes of limitations for undisturbed ownership of land for
Quiet Title as claimed in the Complaint. See ZRIHAN v. WELLS FARGO BANK,
NA, Dist. Court, D.Arizona 2014: “"[A] cause of action to quiet title for the
removal of the cloud on title is a continuous one and never barred by limitations
while the cloud exists." Cook v. Town of Pinetop-Lakeside, 303 P.3d 67, 70 (Ariz.
Ct.App.2013)(quoting City of Tucson v. Morgan, 475 P.2d 285, 287 (Ariz.Ct.App.
1970)).” Many states have adopted this law. See also Bangerter v. Petty, 225 P.3d
874, n.8–Utah: Supreme Court 2009, citing State cases within various Federal
Districts. See Complaint, Doc.1-1 at 29-33, 9th Claim.
12
Automobile Club of Mich. v. Commissioner, 353 U.S. 180 (1957). Arizona’s tolling
provisions are consistent with Federal law where a claim accrues when the plaintiff
knows or has reason to know of the injury, which is the basis of the action. See
TwoRivers v. Lewis, 174 F.3d 987, 991-92 (9th Cir.1999). Tolling provisions in
Arizona are based on the discovery rule; "until the plaintiff possesses a minimum
knowledge sufficient to recognize that a `wrong occurred and caused injury.'"
Ritchie v. Krasner, 221 Ariz. 288, 304, ¶57, 211 P.3d 1272, 1288 (App.2009)
(citing Walk v. Ring, 202 Ariz. 310, 316, ¶22, 44 P.3d 990, 996 (2002)). As such,
the panel’s decision conflicts with Zinermon v. Burch, 494 U.S. 113,126(1990)
(“The constitutional violation actionable under §1983 [for a procedural due process
claim] is not complete when the deprivation occurs; it is not complete unless and
until the State fails to provide due process.”).
Further, the Panel’s decision conflicts with Donoghue v. Orange County, 848
F.2d 926, 931 (9th Cir.1987)("The [equitable tolling] doctrine suspends the statute of
limitations pending exhaustion of administrative remedies, even though no statute
makes exhaustion a condition of the right to sue."). The equitable tolling doctrine is
built into A.R.S.§§9-500.12/13 and §12-821.01(B)&(C), which the Panel’s ruling
eviscerates in the statutes’ intent to conflict with all case law in §9-500.13. The Panel
overlooked that Claims 1,3,4,6,7,8 of the Complaint alleged that Cave Creek had
committed constructive fraud or fraud on the court to deny Fressadi his rights in
13
§§9-500.12/13 & §12-821.01(B)&(C) and prevent him from discovering the true
nature of his claims to file a complaint in a timely manner. As such, the Panel’s
decision conflicts with Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 96 (1990),16
Bailey v. Glover, 88 U.S. (21 Wall) 342, 349 (1874)17, and Huseman v. Icicle
Seafoods, Inc., 471 F.3d 1116, 1121 (9thCir.2006)(quoting Atkins v. Union Pac.R.R.,
685 F.2d 1146, 1149 (9thCir.1982)).18 See also Hazel-Atlas Glass Co. v. Hartford-
Empire Co., 322 U.S. 238, 244-45 (1944); Carey v. Piphus, 435 U.S. 247 (1978);
Board of Regents v. Roth, 408 U.S. 564 (1972); Mathews v. Eldridge. Cave Creek
Defendants engaged in willful deception (e.g., In re Napster, Inc. Copyright
Litigation, 479 F.3d 1078, 1097 (9thCir.2007)) and a "trail of fraud19" (Hazel-Atlas v.
Hartford Co., 322 U.S. 238, 250 (1944)) to cause rulings to be rendered in violation
16
“We have allowed equitable tolling in situations where the claimant has
actively pursued his judicial remedies by filing a defective pleading during the
statutory period, or where the complainant has been induced or tricked by his
adversary's misconduct into allowing the filing deadline to pass.”
17
“[Statutes of limitation] were enacted to prevent frauds; to prevent parties
from asserting rights after the lapse of time had destroyed or impaired the evidence
which would show that such rights never existed, or had been satisfied, transferred,
or extinguished, if they ever did exist. To hold that by concealing a fraud, or by
committing a fraud in a manner that it concealed itself until such time as the party
committing the fraud could plead the statute of limitations to protect it, is to make
the law which was designed to prevent fraud the means by which it is made
successful and secure.”
18
“[C]onduct or representations by the defendants which tend to lull the
plaintiff into a false sense of security, can estop the defendant from raising the
statutes of limitations, on the general equitable principle that no man may take
advantage of his own wrong.”
19
Courts have inherent equity power to vacate judgments obtained by fraud.
Chambers v. NASCO, Inc., 501 U.S. 32, 44 (1991).
14
of due process and therefore void. World-Wide Volkswagen Corp. v. Woodson, 444
U.S. 286, 291 (1980), citing Pennoyer v. Neff, 95 U.S. 714, 732-733 (1878).
CONCLUSION
The Panel’s ruling makes a mockery of justice. It rewards municipalities to
violate due process and take property without recourse; rewarding fraudulent acts
by giving “clearing the docket” a higher priority than its oaths of office. The Panel’s
decision conflicts with Continuing Violations20, Constructive Fraud21, Discovery
Rule22, Relation Back Doctrine23, Arizona Quiet Title,24 Equitable Tolling &
Estoppel25 such that consideration by the full court is necessary to secure and
maintain uniformity of the courts’ decisions. See list of cases in Addendum B,
incorporated herein. For the foregoing reasons, the Court should grant panel
rehearing or rehearing en banc for relief requested in his Opening and Reply Briefs
(DktEntries 40 & 103-1).26
Dated: Tucson, Arizona, April 23, 2018.

/s/ Arek R. Fressadi
Arek R. Fressadi, Plaintiff-Appellant pro se
20
i.e. Ex Parte Young, Lucas, O’Loghlin; §9-500.12(B),(E),(H), §9-463.02, §9-463.03.
21
i.e. Hazel-Atlas Glass, Throckmorton(1878), Hexel Corp., Kougasian; §13-2314.04.
22
i.e. Bailey v. Glover, Hazel-Atlas, Atkins v. Union Pacific, Krupski; §12-821.01(B).
23
i.e. Krupski; Fed.R.Civ.P. 15(c)/Committee Notes, herein RICO predicate acts list.
24
No SOL in Arizona per Cook v. Town of Pinetop-Lakeside; A.R.S.§12-1101 et seq.
25
i.e. Socop-Gonzalez, Supermail, Holland v. Florida; Lukovsky; FRCP 60(d)(3).
26
See, e.g., Western Pac. R.R. Corp. v. Western Pac. R.R., 345 U.S. 247, 270 (1953).
("determinations en banc are indicated whenever it seems likely that a majority of all
the active judges would reach a different result than the panel assigned to hear a case
or which has heard it.")(Frankfurter, J., concurring)(emphasis supplied).
15
CERTIFICATE OF COMPLIANCE FOR CASE NO. 15-15566
This brief is accompanied by a motion for leave to file oversize Petitions pursuant
to Circuit Rules 35(b)(2)(a) and 40-1(a) and is 4,499 words, measured with
Microsoft Word 2003, excluding the portions exempted by Fed. R. App. P.
32(a)(7)(B)(iii), if applicable.
I certify that pursuant to Fed. R. App. P. 32(a)(7)(C), the attached Petitions are
proportionally spaced, has a typeface of 14 points or more.
DATED: Tucson, Arizona, April 23, 2018.

16
ADDENDUM A
Case: 15-15566, 04/23/2018, ID: 10847766, DktEntry: 138, Page 24 of 103 (1 of 8)
Case: 15-15566, 10/26/2017, ID: 10632475, DktEntry: 124-1, Page 1 of 3
NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS OCT 26 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
AREK FRESSADI; FRESSADI DOES I-III, No. 15-15566
Plaintiffs-Appellants, D.C. No. 2:14-cv-01231-DJH
v.
MEMORANDUM*
ARIZONA MUNICIPAL RISK
RETENTION POOL, (AMRRP); et al.,
Defendants-Appellees.
Appeal from the United States District Court

for the District of Arizona
Diane J. Humetewa, District Judge, Presiding
Submitted October 23, 2017**
Before: McKEOWN, WATFORD, and FRIEDLAND, Circuit Judges.
Arek Fressadi appeals pro se from the district court’s judgment dismissing
his 42 U.S.C. § 1983 action alleging federal and state law claims. We have
jurisdiction under 28 U.S.C. § 1291. We review de novo a district court’s
dismissal on statute of limitations grounds. Lukovsky v. City & County of San
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Francisco, 535 F.3d 1044, 1047 (9th Cir. 2008). We affirm.
The district court properly dismissed Fressadi’s § 1983 claims because
Fressadi failed to file his action within the applicable two-year statute of
limitations. See id. at 1048 (in § 1983 suits, federal courts use the forum state’s
statute of limitations for personal injury actions; § 1983 claims accrue when the
plaintiff knows or has reason to know of the injury which is the basis of the
action); Cholla Ready Mix, Inc. v. Civish, 382 F.3d 969, 974 (9th Cir. 2004)
(Arizona provides two-year statute of limitations for personal injury claims).
The district court did not abuse its discretion in declining to exercise
supplemental jurisdiction over Fressadi’s state law claims after dismissing
Fressadi’s federal claims. See 28 U.S.C. § 1367(c)(3) (permitting district court to
decline supplemental jurisdiction if it has “dismissed all claims over which it has
original jurisdiction”); Costanich v. Dep’t of Soc. & Health Servs., 627 F.3d 1101,
1107 (9th Cir. 2010) (standard of review).
The district court did not abuse its discretion in declining to grant Fressadi
leave to file an amended complaint. See Chappel v. Lab. Corp., 232 F.3d 719, 725
(9th Cir. 2000) (“A district court acts within its discretion to deny leave to amend
when amendment would be futile . . . .”).
2 15-15566
In light of our disposition, we do not consider Fressadi’s contentions
regarding the merits of his claims.
We do not consider matters not specifically and distinctly raised and argued
in the opening brief, or arguments and allegations raised for the first time on
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
State defendant-appellees’ request for judicial notice (Docket Entry No. 66)
is granted.
Fressadi’s motion seeking waiver of the requirement to submit hard copies
of his opening brief and reply brief (Docket Entry No. 100) is granted.
Fressadi’s motion to file an enlarged reply brief (Docket Entry No. 102) is
granted. The Clerk shall file Fressadi’s reply brief submitted at Docket Entry No.
103.
All other pending motions and requests (Docket Entry Nos. 38, 53, 54, 55,
56, 86, 101, 111, 119, and 120) are denied.
AFFIRMED.
3 15-15566
ADDENDUM B
Molly Dwyer, Clerk of Court November 7, 2017

Office of the Clerk Served/Filed via CM/ECF
U.S. Court of Appeals for the Ninth Circuit
P.O. Box 193939
San Francisco, CA 94119-3939
Request to Publish Court Memorandum, Case #15-15566, DktEntry 124-1
Dear Ms. Dwyer:
Pursuant to Circuit Rules 36-4 and 36-2(a),(b),(c),(d),(e), Plaintiff-Appellant Arek R. Fressadi

respectfully requests that the Panel’s Memorandum, DktEntry 124-1 in Fressadi, et al v.
Arizona Municipal Risk Retention Pool, et al, be published according to 9th Circuit standards
in preparation of filing Petitions for Rehearing and Rehearing En Banc per FRAP 35 and 40.
The Panel’s ruling is catastrophic––it fosters municipalities to continually violate

federal and state law, and their own ordinances, without redress or remedy. The ruling
undermines well-established case law of the U.S. Supreme Court, 9th, and other circuits
regarding the Doctrines of Equitable Tolling and Equitable Estoppel to vanquish procedural
due process notice protection by relying on Defendants’ fraudulent abuse of Statues of
Limitations. It also undermines well-established law and the Relations Back Doctrine per
Fed.R.Civ.P. Rule 15(c) that permits pro se Plaintiffs to amend a Complaint, especially
given the newly discovered evidence proving Defendants’ misconduct, to which they
admitted. See Opening Brief (“OB”) DktEntry 40 and Reply Brief (“RB”) DktEntry 103,
incorporated herein. See also DktEntry 56, the Motion for Judicial Notice that contained the
evidence, which this Court denied in order to issue its ruling.
This case is a matter of first impression, “[i]nvolv[ing] a legal or factual issue of unique
interest or substantial public importance”––violations of the Supremacy Clause to time bar
claims that involve continuing violations1 by a municipality evoking state statutes of
limitations based on fraud, Circuit Rule 36-2(d). The Doctrines of Equitable Tolling and
Equitable Estoppel due to extrinsic fraud and fraud on the court are main arguments
throughout the Opening and Reply Briefs. The Panel’s ruling “alters” and “modifies” these
Doctrines by ignoring them in a manner that “shocks the conscience,” relying exclusively on
statutes of limitations without considering these well-established exceptions. Circuit Rules
36-2(a)&(d). The ruling “dispos[es] of a case in which there is a published opinion by a lower
court or administrative agency,” where District Court also overlooked pleadings of extrinsic
fraud and fraud on the court throughout the Complaint (Doc. 1-1, incorporated herein), failed
to permit pro se Plaintiff to amend the Complaint prior to Rule 12(b) dismissal, and failed to
comprehend how federal questions affected supplemental jurisdiction. Circuit Rule 36-2(e).
Considering the Opening Brief, Reply Brief, and Motions for Judicial Notice (DktEntries 56,
101 et seq., 120, incorporated herein), the Panel’s ruling “[c]riticizes existing law” to make a
mockery of justice. The generic overbroad memorandum causes criticism of the Ninth Circuit
and existing law by its evasion and omission of the facts, evidence, and well-established
cases that are contrary to the ruling. Circuit Rule 36-2(c). It appears the Panel did not read
pro se Plaintiffs’ filings, only government Defendants’ assertions and District Court’s rulings.
As such, this Court facilitates the continuation of Defendants’ fraud, which must be corrected.
1
Fressadi argued continuing constitutional violations and that his property is still a non-conforming
subdivision violating Town ordinances, rendering all permits void and unlawful to sell per A.R.S. § 9-
463.03, which can only be remedied by court order. (OB at 16-18, 23)
_________________________________________________________________________________________________________
ArekFressadi@gmail.com • 520.216.4103 • 10780 Fullerton Road, Tucson AZ 85736
This Court has made a perilous precedent by issuing unpublished memoranda. According
to Director James C. Duff, reducing the cost of operating the Judiciary is a top priority.2 As
such, it appears that not publishing court rulings has nothing to do with justice but is merely
a cost containment measure. In the words of Justice John Paul Stevens’ dissent in County
of Los Angeles v. Kling, 474 U.S. 936, 938 (1985), the 9th Circuit’s decision not to publish
its opinion is “plainly wrong,” likening it to “spawning a body of secret law.” Ridding of cases
by issuing unpublished rulings that goes against well-established case law has unintended
consequences of eroding our Republic. It makes the pursuit of justice a bad joke.
According to the 9th Circuit’s 2015 Annual Report, new appeals by pro se litigants numbered
5,855, accounting for 49.3 percent of all appeals opened during the year.3 According to the
U.S. Courts’ website, pro se filings increased 18 percent in 2016.4 The Ninth Circuit has
issued ~11,500 unpublished rulings.5 Given the proliferation of pro se filings and the shortage
of qualified judges,6 publication of Fressadi v. AMRRP, et al, will warn the public, especially
pro se litigants, that reliance on U.S. Supreme Court and Ninth Circuit rulings is misplaced.
Not only is DktEntry 124-1 inconsistent with controlling U.S. Supreme Court decisions such
as Mullane, Nollan, Dolan, Throckmorton, Hazel-Atlas, Roth, Zinermon, Mathews v.
Eldridge, and relevant Ninth Circuit published opinions such as Socop-Gonzalez, Oviatt,
Supermail, O'Loghlin, Karim-Panahi, Lopez v. Smith, US v. Estate of Stonehill, Santa
Maria v. Pacific Bell, but it is also inconsistent with previous decisions made by the Senior
Panel member. See DktEntry 124-1 at 1-2, Lukovsky v. City & Cnty. of San Francisco, 535
F.3d 1044, 1051-52 (9th Cir. 2008)7 (Equitable estoppel "focuses primarily on the actions
taken by the defendant to prevent a plaintiff from filing suit[.]") (citation omitted) (emphasis in
original) On August 29, 2016, Defendant Town of Cave Creek admitted that it prevented
Plaintiff from timely filing suit by failing to provide Notice and opportunity to appeal exactions
and dedications as required by Mullane and Arizona State law, A.R.S. § 9-500.12(B)8, and
provided evidence of federal and state law violations as its official policy per Monell since
October 2001. Unbeknownst to Fressadi at the time and due to his detrimental reliance on
the Town’s instructions issued under color of law that “5 or more” lots formed a subdivision,
Cave Creek converted his 3-lot split into a 4-lot non-conforming subdivision without proper
due process, and concealed the continuing violations from Fressadi and the courts since the
conversion occurred in October 2001, including continuing to issue void permits as if the
property was lawful to hide its fraudulent scheme. The burden shifts to the Town per Federal
2
http://www.uscourts.gov/news/2016/02/12/judiciary-transmits-fiscal-year-2017-budget-request-congress
3
http://www.ce9.uscourts.gov/publications/AnnualReport2015.pdf The 2016 Annual Report is unavailable.
4
http://www.uscourts.gov/statistics-reports/judicial-business-2016
5
https://www.ca9.uscourts.gov/search_results.php?q=%22not%20for%20publication%22 Time period
on website is unknown. This Court refuses to fully disclose statistics for Not for Publication rulings.
Google Scholar shows that the Ninth Circuit issued ~7,000 unpublished memoranda since 2016:
https://scholar.google.com/scholar?as_ylo=2016&q=%22not+for+publication%22&hl=en&as_sdt=4,114,129
6
“Approximately 12 percent of all Article III judgeships are vacant. Additionally, the last omnibus judgeship
bill was enacted in 1990; some courts have no vacancies but have a dire need for new judgeships.”
http://www.uscourts.gov/statistics-reports/annual-report-2016
7
It appears the Panel read Defendants’ Lukovski citation in their Answering Brief (DktEntry 76 at 14-15,
29-30) and did not at all read Plaintiffs’ Reply clearly explaining how Defendants’ argument was misplaced,
overlooking Lukovski’s explanation of Equitable Tolling/Estoppel Doctrines. Lukovski received notice.
Plaintiffs never received notice as required by federal and state law, and discovered the constitutional tort
claims from Defendants’ fraudulent scheme in 2013 (RB at 31&n.42; OB at 27-28).
8
“The city or town shall notify the property owner that the property owner has the right to appeal the
city’s or town’s action pursuant to this section and shall provide a description of the appeal procedure.
The city or town shall not request the property owner to waive the right of appeal or trial de novo at any
time during the consideration of the property owner's request.”
2 15-15566
Rule of Evidence 3019, A.R.S. § 9-500.12, especially §(e)10, and per A.R.S. § 9-500.1311 to
prove whether it complied with Federal Law as the statutes were enacted to provide upon
landmark U.S. Supreme Court decisions. By Cave Creek committing extrinsic fraud and
fraud on the court, the municipality knowingly utilize the statutes of limitations to affect
Fressadi and hundreds of Cave Creek property owners, inspiring other municipalities to do
the same12. See the Town’s log of properties, DktEntry 56 at 20 & 137-146, acquired via the
Freedom of Information Act on 8/29/16. As thoroughly argued in his Opening and Reply
Briefs, Fressadi discovered his “injury” of the constitutional tort in 2013––that Cave
Creek violated Federal procedural due process as codified in A.R.S. §§ 9-500.12 & 9-500.13
to affect all substantive claims––thus he TIMELY filed his Complaint in 2014, especially
considering that every day of continuing violations is a new offense. (OB at 27-28)
Partial list of U.S. Supreme Court cases that the Panel’s ruling contradicts:
Bailey v. Glover, 88 U.S. (21 Wall) 342, 349, 22 L.Ed. 636, 639 (1874) (The doctrine of equitable
tolling pauses the statute of limitations when the Defendants “conceal a fraud” or “commit[] a
fraud in a manner that it concealed itself until such time as the party committing the fraud could
plead the statute of limitations to protect it.”) (OB at 50-51, 61; RB at 49)
Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972) (Secure
benefits of entitlements by existing law, procedural due process) (OB at 35, 39)
Carey v. Piphus, 435 U.S. 247, 259 (1978) (Procedural due process protections, “judgment
concerning causation and magnitude of injury necessary to accord meaningful compensation
for invasion of [constitutional] rights,” i.e. procedural due process) (RB at 13, 63)
Chambers v. Nasco, Inc., 501 U.S. 32, 44, 111 S.Ct. 2123, 115 L.Ed.2d 27 (1991) (Fraud on the
court; sanctions)(OB at 29-30; RB at 107-108; Circuit Advisory Committee Note Rule 46-2(8))
Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542 (1985) (Affirms Mullane; require notice
and pre-deprivation opportunity to be heard) (OB at 44)
Cooper v. Aaron, 358 U.S. 1, 78 S. Ct. 1401 (1958) (Acts against the Constitution are violations
of oath to support it thus make rulings void) (OB at 35; RB at 45)
County of Sacramento v. Lewis, 523 U.S. 833, 845-46, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998)
(Due process violations that “shock the conscience;” right to fundamental fairness) (OB at 35)
Davis v. Scherer, 468 US 183 (1984) (“A plaintiff who seeks damages for violation of
constitutional or statutory rights may overcome the defendant official's qualified immunity only
by showing that those rights were clearly established at the time of the conduct at issue.”)
Dolan v. City of Tigard, 512 U.S. 374 (1994) (Fifth and Fourteenth Amendments, “there must be
a rough proportionality between the condition imposed and the projected impact of the
proposed development,” “the city has the burden of establishing the constitutionality of its
conditions,” "nor shall private property be taken for public use, without just compensation") (OB
at 15, 162-164; RB at 17; A.R.S. §§ 9-500.12 & 9-500.13)
Edgar v. MITE Corp., 457 U.S. 624 (1982) (Any state law that violates federal law is void) (RB at
28, 44-45; State’s statutes of limitations as applied violate Supremacy Clause)
9
“[T]he party against whom a presumption is directed has the burden of producing evidence to rebut
the presumption.”
10
“In all proceedings under this section the city or town has the burden to establish that there is an
essential nexus between the dedication or exaction and a legitimate governmental interest and that the
proposed dedication, exaction or zoning regulation is roughly proportional to the impact of the proposed
use, improvement or development or, in the case of a zoning regulation, that the zoning regulation does
not create a taking of property in violation of section 9-500.13. If more than a single parcel is involved this
requirement applies to the entire property.” (emphasis added)
11
“9-500.13: Compliance with court decisions A city or town or an agency or instrumentality of a city or
town SHALL comply with the United States supreme court cases of Dolan v. City of Tigard, _____
U.S. _____ (1994), Nollan v. California Coastal Commission, 483 U.S. 825 (1987), Lucas v. South
Carolina Coastal Council, _____ U.S. _____ (1992), and First English Evangelical Lutheran Church
v. County of Los Angeles, 482 U.S. 304 (1987), and Arizona and federal appellate court decisions
that are binding on Arizona cities and towns interpreting or applying those cases.” (emphasis added)
12
Cave Creek’s Attorney Jeffrey Murray also represents Defendant Arizona Municipal Risk Retention
Pool (AMRRP), Cave Creek’s surety. AMRRP advises and represents seventy-six (76) municipalities.
3 15-15566
Elder v. Holloway, 510 U.S. 510, 512 (1994) (In assessing whether the law was clearly
established at the time, the court is to consider all relevant legal authority, whether cited by the
parties or not.) (OB at 37)
Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007) (Upholds Estelle & Haines: pro se complaint to
be liberally construed and held to less stringent standards) (OB at 33)
Estelle v. Gamble, 429 U.S. 97 (1976) (Defendants’ “acts or omissions sufficiently harmful to
evidence deliberate indifference,” “A document filed pro se is "to be liberally construed” and
“must be held to less stringent standards than formal pleadings drafted by lawyers") (OB at 33)
Ex parte Virginia, 100 U.S. 339, 347 (1880) (Judicial Takings, equal protection; “[N]o agency of
the State, or of the officers or agents by whom its powers are exerted, shall deny to any person
within its jurisdiction the equal protection of the laws. Whoever, by virtue of public position
under a State government, deprives another of property, life, or liberty, without due process of
law, or denies or takes away the equal protection of the laws, violates the constitutional
inhibition; and as he acts in the name and for the State, and is clothed with the State's power,
his act is that of the State. This must be so, or the constitutional prohibition has no meaning.
Then the State has clothed one of its agents with power to annul or to evade it.”) (RB at 44)
Ex parte Young, 209 U.S. 123 (1908) (Eleventh Amendment does not prevent federal courts
from granting prospective injunctive relief to prevent a continuing violation of federal law; an
unconstitutional statute is void, such as statutes of limitations as applied)
Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280 (2005) (Rooker-Feldman does not
bar "a district court from exercising subject-matter jurisdiction simply because a party attempts
to litigate in federal court a matter previously litigated in state court.") (RB at 37, 43)
First English Evangelical Church of Glendale v. County of Los Angeles, 482 U.S. 304 (1987)
(“[T]he compensation remedy is required by the Constitution” whenever the government effects
a taking.) (OB at 162-164; RB at 46; A.R.S. §§ 9-500.12 & 9-500.13)
Forman v. Davis, 371 U.S. 178 (1962) (“Leave to amend should be ‘freely given’ by the court”)
(RB at 60)
Glus v. Brooklyn Eastern Dist. Terminal, 359 US 231 (1959) ("... no man may take advantage of
his own wrong. Deeply rooted in our jurisprudence this principle has been applied in many
diverse classes of cases by both law and equity courts and has frequently been employed to
bar inequitable reliance on statutes of limitations.")
Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972)(Pro se complaint must
be liberally construed and held to less stringent standards) (OB at 33, 53)
Hanson v. Denckla, 357 US 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283, (1958) (Procedural due
process and equal protection per Mullane, judicial takings) (OB at 60)
Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238, 246 (1944) (Vacate rulings based
on equitable doctrine of fraud on the court, delayed discovery due to fraudulent scheme, fraud
on the court “is a wrong against the institutions set up to protect and safeguard the public,
institutions in which fraud cannot complacently be tolerated consistently with the good order of
society”) (OB at 34)
Holland v. Florida, 560 U.S. 631 (2010) (Affirms Hazel-Atlas, equitable tolling due to
extraordinary circumstances, “The "flexibility" inherent in "equitable procedure" enables courts
"to meet new situations [that] demand equitable intervention, and to accord all the relief
necessary to correct...particular injustices.") (RB at 54)
Krupski v. Costa Crociere S.p.A., 130 S.Ct. 2485, 560 U.S. 538 (2010) (Delayed discovery rule
and Relation Back Doctrine, “"[T]he purpose of relation back [is] to balance the interests of the
defendant protected by the statute of limitations with the preference expressed in the Federal
Rules of Civil Procedure in general, and Rule 15 in particular, for resolving disputes on their
merits.") (OB at 28; RB at 62)
Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992) (Continuing violations must be
remedied; Fifth and Fourteenth Amendment violations of Takings, Due Process, and Just
Compensation Clauses are unlawful, violations for deprivation of economically beneficial use
of property) (OB at 51, 162-164; A.R.S. §§ 9-500.12 & 9-500.13)
4 15-15566
Massachusetts v. EPA, 549 U.S. 497, 127 S.Ct. 1438, 167 L.Ed.2d 248 (2007) (Procedural due
process violations, “All that is necessary is to show that the procedural step was connected to
the substantive result.") (RB at 14, 41)
Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (Affirms Mullane, procedural due process
protections, mandatory notice, “The fundamental requirement of due process is the opportunity
to be heard at a meaningful time and in a meaningful manner.”) (OB at 47, 61; RB at 50)
Mennonite Bd. Of Missions v. Adams, 462 U.S. 791 (1983) (Affirms Mullane, “Notice by mail or
other means as certain to ensure actual notice is a minimum constitutional precondition to a
proceeding which will adversely affect the liberty or property interests of any party.”) (RB at 17)
Miree v. DeKalb County, 433 U.S. 25, 27 n. 2, 97 S.Ct. 2490, 53 L.Ed.2d 557 (1977). (“In
reviewing the sufficiency of a complaint in the context of a motion to dismiss we, of course,
treat all of the well-pleaded allegations of the complaint as true.”) (OB at 47-48)
Mireles v. Waco, 502 U.S. 9 (1991) (Affirms Ex parte Virginia, “The Court…has recognized that a
judge is not absolutely immune from criminal liability”) (RB at 44; Fressadi pled that State
judges facilitated pattern of racketeering per A.R.S. §§ 13-1003 & 13-1004(A)&(C) and
violated the Supremacy Clause thus ruling without jurisdiction)
Monell v. Dep't of Soc. Servs., 436 U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978)
(Constitutional tort injury by government’s policy or custom, “Local governing bodies, therefore,
can be sued directly under § 1983 for monetary, declaratory, or injunctive relief where, as here,
the action that is alleged to be unconstitutional implements or executes a policy statement,
ordinance, regulation, or decision officially adopted and promulgated by that body's officers.")
(OB at 38; RB at 13, 28, 31, 34-35, 46)
Monroe v. Pape, 365 U. S. 167, 173-174 (1961) ("`Misuse of power, possessed by virtue of state
law and made possible only because the wrongdoer is clothed with the authority of state law, is
action taken "under color of" state law'" within the meaning of 42 USC § 1983; “to provide a
federal remedy where the state remedy, though adequate in theory, was not available in
practice) (OB at 45-46)
Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950) (Due process per the
14th Amendment requires notice “reasonably calculated, under all the circumstances, to
apprise interested parties of the pendency of the action and afford them an opportunity to
present their objections.") (OB at 42-43, 44, 49, 52; RB at 39, 50, 61)
Nollan v. California Coastal Commission, 483 U.S. 825 (1987) (Government action affects a
taking if there is no substantial legitimate government interest and it denies economical viable
use of land, including investment-backed expectations; “One of the principal purposes of the
Takings Clause is "to bar Government from forcing some people alone to bear public burdens
which, in all fairness and justice, should be borne by the public as a whole.”) (OB at 16, 39,
162-164; RB at 17; 162-164; A.R.S. §§ 9-500.12 & 9-500.13)
Palazzolo v. Rhode Island, 533 U.S. 606 (2001) (Affirms Nollan & Lucas, taking of property
without compensation in violation of the Takings Clause of the Fifth Amendment binding upon
the State through the Due Process Clause of the Fourteenth Amendment) (OB at 16)
Rooker-Feldman Doctrine: Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923) &
District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983) (Rooker-Feldman
doctrine does not bar subject matter jurisdiction when a federal plaintiff alleges a cause of
action for extrinsic fraud on a state court and seeks to set aside a state court judgment
obtained by that fraud.) (OB at 34; RB at 16, 37, 42, 43)
(In re) Sawyer, 124 U.S. 200 (1888) (When a court does not comply with the Constitution, its
orders are void) (OB at 35)
Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683 (1974) ("The issue is not whether a plaintiff will
ultimately prevail but whether the claimant is entitled to offer evidence to support the claims."
“[S]ince Ex parte Young, 209 U. S. 123 (1908), it has been settled that the Eleventh
Amendment provides no shield for a state official confronted by a claim that he had deprived
another of a federal right under the color of state law.") (OB at 35)
5 15-15566
Shaw v. Delta Air Lines, 463 U.S. 85, 96 n.14 (1983) (“A plaintiff who seeks injunctive relief from
state regulation, on the ground that such regulation is pre-empted by a federal statute which, by
virtue of the Supremacy Clause of the Constitution, must prevail, thus presents a federal question
which the federal courts have jurisdiction under 28 U. S. C. § 1331 to resolve.”) (OB at 60)
Stop the Beach Renourishment, Inc. v. Fla. Dep't of Envtl. Prot., 130 S. Ct. 2592, 2602 (2010)
(Judicial Takings: “In sum, the Takings Clause bars the State from taking private property
without paying for it, no matter which branch is the instrument of the taking…If a legislature or
a court declares that what was once an established right of private property no longer exists, it
has taken that property.”) (OB at 62-63; RB at 47-49)
U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 513 U.S. 18, 25 (1994) (28 U.S.C. §
2106 is “[t]he statute that supplies the power of vacatur.” "A party who seeks review of the
merits of an adverse ruling, but is frustrated by the vagaries of circumstance, ought not in
fairness be forced to acquiesce in the judgment.") (See United States v. Munsingwear)
United States v. Munsingwear, 340 U.S. 36, 39 (1950) (The equitable remedy of vacatur ensures
that "those who have been prevented from obtaining the review to which they are entitled [are]
not…treated as if there had been a review.") This is the current state of the Panel’s ruling.
United States v. Throckmorton, 98 US 61 (1878) (“There is no question of the general doctrine
that fraud vitiates the most solemn contracts, documents, and even judgments.” Extrinsic fraud
is “[w]here the unsuccessful party has been prevented from exhibiting fully his case, by fraud
or deception practised on him by his opponent, as by keeping him away from court, a false
promise of a compromise.”)
Zinermon v. Burch, 494 U.S. 113, 126, 127 (1990) (“The constitutional violation actionable under
§1983 [for a procedural due process claim] is not complete when the deprivation occurs; it is
not complete unless and until the State fails to provide due process.” “[T]o determine whether
a constitutional violation has occurred, it is necessary to ask what process the State provided,
and whether it was constitutionally adequate.”) (OB at 46-47; RB at 38)
Partial list of 9th Circuit cases that the Panel’s ruling contradicts:
Alvarez v. Hill, 518 F.3d 1152, 1157-58 (9th Cir. 2008) (viewing the complaint most favorably to
the plaintiff on a motion to dismiss means that it need not identify the source of the claim, only
provide notice under Fed. Civ. P. 8) (OB at 38)
Atkins v. Union Pacific R. Co., 685 F.2d 1146, 1149 (9th Cir. 1982) ("[C]onduct or representations
by the defendants which tend to lull the plaintiff into a false sense of security, can estop the
defendant from raising the statutes of limitations, on the general equitable principle that no man
may take advantage of his own wrong." See Glus v. Brooklyn Eastern Dist. Terminal, 359 US
231 (1959)) (RB at 32)
Ballaris v. Wacker Siltronic Corp., 370 F.3d 901, 908 (9th Cir. 2004) (“Where, as here, the
question presented is one of law, we consider it in light of “all relevant authority,” regardless of
whether such authority was properly presented in the district court.” See Elder v. Holloway,
510 U.S. 510, 516 (1994)) (OB at 37)
Cervantes v. City of San Diego, 5 F.3d 1273 (9th Cir. 1993) (A motion to dismiss on statute of
limitations grounds cannot be granted if “the complaint, liberally construed in light of our ‘notice
pleading' system, adequately alleges facts showing the potential applicability of the equitable
tolling doctrine.”) (OB at 34, 48)
Cooper v. Ramos, 704 F.3d 772, 778 (9th Cir. 2012) (Rooker-Feldman doctrine "does not preclude
a plaintiff from bringing an ìndependent claim' that, though similar or even identical to issues
aired in state court, was not the subject of a previous judgment by the state court.") (RB at 43)
Eitel v. McCool, 782 F.2d 1470 (9th Cir. 1986) (The first factor the Court considers is the
possibility of prejudice to the plaintiff if default judgment is not granted.) (RB at 57, 59)
Hexcel Corp. v. Ineos Polymers, Inc., 681 F.3d 1055, 1060 (9th Cir. 2012) (“A statute of
limitations may be tolled if the defendant fraudulently concealed the existence of a cause of
action in such a way that the plaintiff, acting as a reasonable person, did not know of its
existence.”) (RB at 30)
6 15-15566
Hensley v. US, 531 F.3d 1052, 1057-58 (9th Cir. 2008) (“Equitable tolling focuses primarily on
the plaintiff's excusable ignorance of the limitations period.” Equitable tolling applies to cases
involving fraudulent concealment. See also Socop-Gonzalez v. INS and Supermail) (OB at 52)
Huseman v. Icicle Seafoods, Inc., 471 F.3d 1116 (9th Cir. 2006) (“Equitable estoppel, sometimes
called fraudulent concealment, "focuses primarily on the actions taken by the defendant in
preventing a plaintiff from filing suit.... [including] the plaintiff's actual and reasonable reliance
on the defendant's conduct or representations."”) (RB at 32; NB––Dissenting opinion holds
true to equitable doctrines while the same Judge who ruled in Fressadi’s case did not)
Johnson v. Henderson, 314 F.3d 409, 414 (9th Cir. 2002) (“Equitable estoppel…may come into
play if the defendant takes active steps to prevent the plaintiff from suing in time—a situation
[often referred to as] fraudulent concealment.”) (OB at 52)
Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 621, 623 (9th Cir.1988) ("[A] claim of
municipal liability under section 1983 is sufficient to withstand a motion to dismiss even if the
claim is based on nothing more than a bare allegation that the individual officers' conduct
conformed to official policy, custom, or practice.") (OB at 36, 53; RB at 31-32, 33-34)
Kougasian v. TMSL, Inc., 359 F.3d 1136, 1140-41 (9th Cir. 2004) (holding the Rooker-Feldman
doctrine did not bar a federal plaintiff from seeking to set aside a state court judgment obtained
by extrinsic fraud because "[e]xtrinsic fraud on a court is, by definition, not an error by that
court") (OB at 34; RB at 38, 39)
Lee v. City of Los Angeles, 250 F.3d 668, 689-690 (9th Cir. 2001) (Judicial Notice––The court is
permitted to consider material which is properly submitted as part of the complaint, documents
that are not physically attached to the complaint if their authenticity is not contested and the
plaintiff's complaint necessarily relies on them, and matters of public record.) (OB at 33-34)
(In re) Levander, 180 F.3d 1114, 1118, 1119 (9th Cir. 1999) ("a federal court may amend a
judgment or order under its inherent power when the original judgment or order was obtained
through fraud on the court." Fraud on the court " èmbrace [s] only that species of fraud which
does or attempts to, defile the court itself, or is a fraud perpetrated by officers of the court so
that the judicial machinery cannot perform in the usual manner its impartial task of adjudging
cases that are presented for adjudication.'") (OB at 29-30)
Lopez v. Smith, 203 F.3d 112 (9th Cir. 2000) (en banc) (A district court must construe a pro se
pleading "liberally" to determine if it states a claim and, prior to dismissal, tell a plaintiff of
deficiencies in his complaint and give plaintiff an opportunity to cure them.) (RB at 62)
Lukovsky v. City & County of San Francisco, 535 F.3d 1044, 1047 (9th Cir. 2008) (“"Equitable
tolling" focuses on "whether there was excusable delay by the plaintiff: If a reasonable plaintiff
would not have known of the existence of a possible claim within the limitations period, then
equitable tolling will serve to extend the statute of limitations for filing suit until the plaintiff can
gather what information he needs." Equitable estoppel, on the other hand, focuses primarily on
actions taken by the defendant to prevent a plaintiff from filing suit, sometimes referred to as
"fraudulent concealment."”) (OB at 36; RB at 31&n.42) NB––Lukovsky received notice thus
equitable tolling did not apply, but Fressadi never received notice as required by law
per A.R.S. §§ 9-500.12(b) and did not discover his constitutional tort claims until 2013
due to extrinsic fraud and fraud on the court, thus equitable tolling/estoppel applies.
Morales v. City of Los Angeles, 214 F.3d 1151, 1153, 1155 (9th Cir. 2000) (A motion to dismiss
on statute of limitations grounds cannot be granted if "the complaint, liberally construed in light
of our `notice pleading' system, adequately alleges facts showing the potential applicability of
the equitable tolling doctrine. ") (OB at 48)
Mullis v. US Bankruptcy Court, Dist. of Nevada, 828 F.2d 1385 (9th Cir.1987) (Judicial notice of
evidence and other court rulings per Fed.R.Evid. 201; a judge is immune for deprivation of
constitutional rights unless their acts are in clear absence of all jurisdiction) (OB at 37)
O'Loghlin v. County of Orange, 229 F.3d 871,875 (9th Cir. 2000) (The continuing violation doctrine
is an equitable doctrine designed "to prevent a defendant from using its earlier illegal conduct to
avoid liability for later illegal conduct of the same sort." "[I]f a discriminatory act [procedural due
process/equal protection violation] takes place within the limitations period and that act is related
and similar to acts that took place outside the limitations period, all the related acts—including
the earlier acts—are actionable as part of a continuing violation.") (RB at 33)
7 15-15566
Outdoor Media Group, Inc. v. City of Beaumont, 506 F.3d 895, 900 (9th Cir. 2007) (The court is
to "accept all factual allegations in the complaint as true and construe the pleadings in the light
most favorable to the nonmoving party." The court may consider “matters properly subject to
judicial notice.”) (OB at 36)
Oviatt v. Pearce, 954 F.2d 1470, 1473-74 (9th Cir.1992) (Abides by Monell, deliberate indifference
is a question for the jury, “A local government entity is liable under §1983 when ‘action pursuant
to official municipal policy of some nature cause[s] a constitutional tort.’”) (OB at 38, 40-41)
Pumphrey v. K.W. Thompson Tool Co., 62 F.3d 1128-33 (9th Cir. 1995) (A finding of fraud on
the court "must involve an unconscionable plan or scheme which is designed to improperly
influence the court in its decision." "[E]ven assuming [the plaintiff] was not diligent in
uncovering the fraud, the district court was still empowered to set aside the verdict, as the
court itself was a victim of the fraud.") (OB at 31, 54, 57)
Santa Maria v. Pacific Bell, 202 F.3d 1170, 1175 (9th Cir. 2000) ("Equitable tolling may be applied
if, despite all due diligence, a plaintiff is unable to obtain vital information bearing on the
existence of his claim." "If a reasonable plaintiff would not have known of the existence of a
possible claim within the limitations period, then equitable tolling will serve to extend the statute
of limitations for filing suit until the plaintiff can gather what information he needs.") (OB at 36)
Smith v. Jackson, 84 F.3d 1213, 1217 (9th Cir. 1996) (Plaintiffs' allegations of concealment and
the factual nature of the equitable tolling inquiry preclude dismissal on limitations grounds; When
analyzing a complaint for failure to state a claim, “[a]ll allegations of material fact are taken as
true and construed in the light most favorable to the non-moving party.”) (OB at 47-48, 50)
Socop-Gonzalez v. INS, 272 F. 3d 1176, 1193 (9th Cir. 2001) (en banc) (“We will apply equitable
tolling in situations where, "`despite all due diligence, [the party invoking equitable tolling] is
unable to obtain vital information bearing on the existence of the claim.'" Supermail) (OB at 52)
Supermail Cargo, Inc. v. United States, 68 F.3d 1204 (9th Cir. 1995) (A motion to dismiss based
on the statute of limitations cannot be granted.) (OB at 34, 52)
TwoRivers v. Lewis, 174 F.3d 987,991 (9th Cir.1999)(Under federal law, "a claim accrues when the
plaintiff knows or has reason to know of the injury which is the basis of the action.")(RB at 40)
US v. Estate of Stonehill, 660 F.3d 415, 443 (9th Cir. 2011) (Rule 60 (b), which governs relief
from a judgment or order, provides no time limit on courts' power to set aside judgments based
on a finding of fraud on the court; In determining whether fraud constitutes fraud on the court,
the relevant inquiry is not whether fraudulent conduct `prejudiced the opposing party,' but
whether it "harm [ed] the integrity of the judicial process.'") (OB at 13, 31, 54, 55, 57)
For reasons stated, Appellant requests this Court to publish its Memorandum from case
#15-15566, DktEntry 124-1, to face its conviction of violating well-established law and failing
to uphold the constitution in order to evade holding Defendants’ accountable for the
malfeasance they concealed from Fressadi and the courts over the years to obstruct justice.
Publishing the ruling will ease the process to appeal the Panel’s misguided ruling in
Appellant’s forthcoming Petition for Rehearing and Petition for Rehearing En Banc.13
This letter will be served on all parties by using the Court’s CM/ECF system.
Cordially,
Arek R. Fressadi
13
The time to file Petitions extends 14 days after the Court’s order on publication per Circuit Rule 40-2.
8 15-15566
I hereby certify that the foregoing Request for Publication of Appellant

Arek R. Fressadi was electronically filed with the Clerk of the Court for the United
States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF
system on November 7, 2017.
I certify that all participants in the case are registered CM/ECF users and
that service will be accomplished by the appellate CM/ECF system.

9 15-15566
ADDENDUM C
Ian Cordwell, Director of Planning, Zoning Administrator

Town of Cave Creek
37622 N. Cave Creek Rd.
Cave Creek, AZ 85331
December 23, 2017
Dear Ian,
For years you told me that you made mistakes; that you were ordered to do so sometimes, but
you never said what the mistakes were or who ordered you to make them. As nothing prevents
you from correcting your mistakes, I submit the following:
Pursuant to A.R.S. §9-463.01, the Town Council of Cave Creek SHALL regulate and SHALL
exercise authority over the subdivision of all lands within its corporate limits. The Town adopted
a Subdivision Ordinance that SHALL apply to all land in the corporate limits of Cave Creek per
Section 1.1(A)(1)1 of the Subdivision Ordinance, which supplements A.R.S. §§ 9-463.01 and 9-
463.04 per Section 1.1(A)(3): “Any land in the incorporated area of the Town of Cave Creek
which may be classified under the definition of a subdivision SHALL be subject to ALL of the
provisions of this Subdivision Ordinance.” [emphasis added]
Under color of law, on which I detrimentally relied, you told me in 2001 to develop parcels 211-
10-010 and 211-10-003 by a “series of lot splits;” that in consideration for down zoning the
density on these parcels from 18,000 sq ft lots to ¾ acre lots, the Town would allow me to build
out 8 homes rather than plat a subdivision. You also said that a subdivision was “5 or more lots.”
Years later, I discovered that A.R.S. §9-463.02 defines a subdivision and A.R.S. §9-463.03
renders the sale of any portion of a subdivision unlawful until a final plat map is recorded.
Subdivision Ordinance Sections 1.1(A)(2) & 1.1(A)(4) limit the subdivision process and sale of
subdivided property in Cave Creek. Specifically, the subdivision of any parcel of land into
four (4) or more parcels must comply with the ordinance.
The Subdivision Ordinance is incorporated into the Zoning Ordinance per Section 1.1(B) of the
Zoning Ordinance. In any conflict of regulation, the more restrictive shall govern per Section
1.1(C) of the Zoning Ordinance.
Carrie Dyrek admitted on August 29, 2016, that Cave Creek stopped complying with A.R.S. §§ 9-
500.12 & 9-500.13 as its official policy when I applied to split parcel 211-10-010 into three lots in
October 2001. Jodi Netzer witnessed Carrie’s admission. Carrie provided evidence requested
through the Freedom of Information Act that Cave Creek knew its duty to abide by A.R.S. §9-
500.12 and complied to varying degrees from 1997 to September 2001, but completely stopped
thereafter. By violating A.R.S. §9-500.12, Cave Creek denied due process to avoid its burden to
establish the nexus of proportionality for requiring the exaction of a 25-foot wide strip of land from
parcel 211-10-010 to approve the split of parcel 211-10-010 on December 31, 2001, Maricopa
County Recorded Document (“MCRD”) 2002-0256784. The Town surreptiously turned this strip
of land into “Parcel A” to approve sewer permits in 2003, and required the survey to say it was
dedicated in 2003 without complying with A.R.S. §9-500.12 or the Subdivision Ordinance, MCRD
2003-0488178. Sometime between 2003 and 2013, Maricopa County Assessor’s Office issued
“Parcel A” a parcel number, #211-10-010D, and classified the split of parcel 211-10-010 into lots
211-10-010 A, B, C, & D as an “undefined subdivision.” I never received notice or explanation as
1
All cited Ordinances herein refer to those adopted or in effect in the 2003 Ordinance booklets.
_________________________________________________________________________________________________________
ArekFressadi@gmail.com • 520.216.4103 • 10780 Fullerton Road, Tucson AZ 85736
to why or how “Parcel A” had to be dedicated to Cave Creek. Cave Creek never established the
nexus of proportionality for the dedication nor just compensation such that it was never dedicated
per Section 2.4(D)(2)(b)(2) of the Subdivision Ordinance (“Execution of the dedication shall be
certified by a notary public”).
Section 2.3(C) of the Zoning Ordinance establishes your duties as the Zoning Administrator.
Section 2.3(D) establishes the limitations of your power as Zoning Administrator. Pursuant to
Section 2.3(C)(1), you are required to establish rules, procedures, and forms to provide for
processing of applications or requests for action under the provisions of the Zoning Ordinance.
Per Section 2.3(C)(2), you are required to perform ALL administrative actions required by this
Ordinance to include giving notice, scheduling of hearings, and preparing reports. It is
your duty that Cave Creek complies with Federal law in A.R.S. §§ 9-500.12 & 9-500.13 when
the Town exacts land, improvements, or dedications of easements to approve entitlements.
By violating your duty to perform ALL administrative actions that require Cave Creek to comply
with A.R.S. §§ 9-500.12 & 9-500.13, you violated your oath of office. You / Cave Creek exacted a
25-foot wide strip of land that converted my “metes & bounds” survey of parcel 211-10-010 into a
4-lot non-conforming subdivision. A “metes and bounds” survey is not a final plat map vetted by
the Planning Commission and Town Council. Further, lot 211-10-010D blocked access to lots
211-10-010 A, B, & C. Per Section 1.1(B)(1) of the Subdivision Ordinance, you shall enforce the
Subdivision Ordinance. By violating your duties in Section 2.3(C)(2) of the Zoning Ordinance, the
Town violated A.R.S. §9-500.12 for you to approve the “metes & bounds” survey of parcel 211-
10-010 into 4 lots on December 31, 2001, in violation of Sections 1.1(A)(1-4), (B), (C), & (D),
6.1(A), 6.2(B)(4), 6.3(A), and Chapter 2 especially 2.5(E) of the Subdivision Ordinance.
Per Section 1.1(B)(2) of the Subdivision Ordinance, ALL officials and employees of the Town who
are vested with the authority to issue permits SHALL ONLY issue permits or otherwise perform
duties in accordance with the Subdivision Ordinance. Because no lot split from parcel 211-10-010
is entitled to a building permit per Section 6.3(A) of the Subdivision Ordinance, any permit issued
to a non-conforming lot of parent parcel 211-10-010 conflicts with Section 6.3(A) of the Subdivision
Ordinance as to be void per Section 1.4 of the Zoning Ordinance.
As such, each and every lot split from parcel 211-10-010 and all permits issued to these lots
violates the Subdivision Ordinance to be a separate offense punishable against you, Cave Creek,
and other complicit Town officials per Sections 1.7(A),(B),&(C) of the Zoning Ordinance. Per
Sections 1.1(C), 1.5, & 1.7 of the Zoning Ordinance, you have no discretion but to order the use of
all improvements discontinued on lots in parcel 211-10-010 and order the property vacated. Per
Section 1.7(A),(B),&(C), each and every day that you do not order the use of improvements on
lots in parcel 211-10-010 discontinued and the land vacated is a continued violation that shall be a
separate offense against you and Cave Creek punishable as described in Section 1.7(A).
August 5, 2002. http://www.cavecreek.org/Archive.aspx?ADID=154

In furtherance of your instruction to develop parcels 211-10-010 and 211-10-003 by a “series of
lot splits,” The Cybernetics Group applied to split parcel 211-10-003 into two (2) lots. Once again,
you violated your duty as Zoning Administrator by failing to notice The Cybernetics Group of its
right to a hearing and a takings report per A.R.S. §9-500.12 when Cave Creek required a 25-foot
wide strip of land along Schoolhouse Road as a condition to approve the lot split. The Town had
the burden to establish the nexus of proportionality and provide a takings report for this 3rd lot /
25-foot wide strip of land.
Page 2 of 6
As part of a civil conspiracy, you told Town Council that “the issue is land planning and where the
line is crossed that separates lot splitting and the subdivision processes,” but you didn’t tell Town
Council that the “series of lot splits” was by your instruction; that you violated your duties as
Zoning Administrator per Section 2.3(C)(2) of the Zoning Ordinance for Cave Creek to exact a
strip of land, a 4th lot to transform the split of parcel 211-10-010 into a non-conforming subdivision
by failing to follow Federal law, State statutes, and Town ordinances. You said that parcel 211-10-
010 was split into 3 lots, when in fact it was already a non-conforming subdivision of 4 lots. Based
on my 12.5% interest in Cybernetics, Town Council denied the Cybernetics lot split, but 211-10-
003 was NEVER part of a parent parcel with 211-10-010. As it was painfully obvious that the
principles in “A Pattern Language” would never manifest in Cave Creek, Cybernetics sold parcel
211-10-003 to Keith Vertes contingent upon Vertes obtaining a lot split of parcel 211-10-003.
April 21, 2003. http://www.cavecreek.org/Archive.aspx?ADID=246

You told Town Council that Vertes applied to split parcel 211-10-003 into 3 lots; that “all 3 lots
would be considered hillside in that they have slopes of 15% or more so the Zoning Code on them
is hillside.” You told Town Council “that there is a required sewer line by the Town Engineering
Department to be placed on property to the north [211-10-010 lots]. This property [211-10-003]
has its own access and would be required to tie into sewer given that it is within 300 feet.”
You did not tell Town Council that Cave Creek required a strip of land, “Parcel A,” to approve the
“metes & bounds” survey of parcel 211-10-003, which converted the lot split into a non-conforming
subdivision of 4 lots that violated Subdivision Ordinance Sections 1.1(A)(1-4),(B),(C),&(D), 6.1(A),
6.2(B)(4), 6.3(A) & Chapter 2 especially 2.5(E).
You did not tell Town Council that you were required to order the use of the sewer constructed on
parcel 211-10-010 discontinued per Sections 1.5 & 1.7 of the Zoning Ordinance because the
subdivision of 211-10-010 into 4 lots did not comply with Sections 1.1(A)(1-4),(B),(C),&(D), 6.1(A),
6.2(B)(4), 6.3(A) & Chapter 2 especially 2.5(E) of the Subdivision Ordinance; such that the lots
were not entitled to building permits; such that the sewer permits issued to the 211-10-010 lots
conflicted with Zoning Ordinance and thus void per Section 1.4 of the Zoning Ordinance.
Additionally, you failed to comply with A.R.S. §9-500.12 per Section 2.3 of the Zoning Ordinance
when the Town required easements on parcel 211-10-010 for the ultra vires sewer and required
the 211-10-003 lots to connect to the ultra vires sewer on my property to approve the non-
conforming subdivision of parcel 211-10-003 into four (4) lots.
On August 16, 2003, you misrepresented that 211-10-003’s 4th lot “Parcel A” had been dedicated
to the Town of Cave Creek on MCRD #2003-1312578 to violate A.R.S. §33-420. In fact, the 25-
foot wide strip of land was never dedicated to Cave Creek per of Section 2.4(D)(2)(b)(2) of the
Subdivision Ordinance. “Parcel A” on MCRD #2003-1312578 became lot 211-10-003D, which
continues to block legal and physical access to lots 211-10-003A, B, & C and blocks the
easement on lots 211-10-003 A & B in violation of Section 5.1 of the Zoning Ordinance.
Thinking at the time that the lot splits of parcels 211-10-010 and 211-10-003 were lawful as
Cave Creek continued to issue permits and never disclosed the non-conforming subdivision
status of the lots, a Home Owners Association (“HOA”) was executed by and between myself as
the owner of lots 211-10-010 A, B, & C and Keith Vertes of GV Group LLC, purporting that the
LLC was the owner of lots 211-10-003 A, B, & C. The agreement ran with the lots to provide
mutual and reciprocal access to the easements on the 211-10-003 lots and the 211-10-010 lots.
The intent of the agreement required mutual and reciprocal easement access to comply with
Zoning Ordinance Section 5.1, especially 5.1(C)(3) (“the route of legal and physical access shall
Page 3 of 6
be the same”) & 5.1(C)(8), and Subdivision Ordinance Section 2.5(A)(6) (“No non-public way or
driveway shall provide access to more than three (3) residential lots”). Mutual and reciprocal
access was also required to build an adjoining driveway over parcels 211-10-003 & 211-10-010 to
facilitate 211-10-003’s Hillside designation per Section 5.11 of the Zoning Ordinance.
However, GV Group LLC did not own lots 211-10-003 A, B, & C and Vertes sold lot 211-10-003A
to Jocelyn Kremer the day before executing the HOA to not bind the lot and to block access to
the 211-10-003 easement ab initio. Additionally, access to the 211-10-003 easement was
blocked by the 25-foot wide sliver of land, now lot 211-10-003D, which was never dedicated to
Cave Creek as you, Carrie, and Mayor Vincent Francia attested.
In hindsight, the HOA violated the Zoning Ordinance ab initio. The HOA intended one driveway
to serve a build out of nine (9) residential lots. You said we could disregard Section 5.1(C)(8) of
the Zoning Ordinance if the HOA shared mutual and reciprocal access of the 211-10-003 & 211-
10-010 easements. But lot 211-10-003D (a/k/a “Parcel A” on MCRD #2003-1312578) blocked
legal and physical access to the 211-10-003 easement in violation of Section 5.1 of the Zoning
Ordinance. As such, the HOA not only violates Section 5.1(C)(8) of the Zoning Ordinance, but
also 2.5(A)(6) of the Subdivision Ordinance. Therefore, the HOA did not comply with Zoning
Ordinance Sections 1.1(C) & 1.3(B) (if this Ordinance imposes higher standards or greater
restrictions, the provisions of this Ordinance shall prevail).
In 2004, I invoiced Cave Creek for the repair and extension of the Town’s sewer not knowing at
the time that the lots and sewer violated the Subdivision & Zoning Ordinances. In response, you
placed me “under investigation” on February 28, 2004, for alleged ”potential violations” of the “lot
splits” of parcels 211-10-010 & 211-10-003, and “red tagged” all building permits to the lots. You
later told me that you were ordered to write that letter of the bogus investigation, which contains
no explanation of why or how “potential violations” existed. The Town Marshal said “reassemble
the lots,” which I did, but recording a reassemblage was only construed for tax purposes by the
County. According to Maricopa County Assessor’s Office in 2014, only a Court can undo Cave
Creek’s subdivision violations by striking the lot splits.
Nonetheless, you approved building permits to construct homes on non-conforming subdivided

lots 211-10-003 A, B, & C based on drawings that violated hillside coverage restrictions, using
an ultra vires sewer and access from my property, in violation of A.R.S. § 9-500.12, Subdivision
Ordinance Sections 1.1(A)(1-4),(B),(C),&(D), 6.1(A), 6.2(B)(4), 6.3(A) & Chapter 2 especially
2.5(E), and Zoning Ordinance Sections 5.1, 1.3, 1.5, 1.4, 1.7, & 2.3(C)(4).
In violation of Section 2.3(E)(1) of the Zoning Ordinance, you did not transmit plans and permits
(i.e. all records) to the Board of Adjustment for the variance applications for lots 211-10-003 C & B.
The variance applications rely on the HOA. The applications claim that “blocked access” to my
property was the cause of the excessive disturbance on lots 211-10-003 C & B. However, you had
notice that the HOA was rescinded in 2005 because it was disavowed by REEL, BMO Harris Bank,
and Kremer due to Vertes’s breach ab initio, such that plans and permits for lots 003 B & C using
access from my property violates Sections 5.1 of the Zoning Ordinance.
Per Subdivision Ordinance Section 1.1(A)(4): No person shall subdivide any parcel of land into
four (4) or more lots except in compliance with this Ordinance. Cave Creek’s requirement to
exact strips of land that became 4th lots caused the unlawful subdivision of parcels 211-10-010
and 211-10-003.
Page 4 of 6
It is your duty to enforce the Subdivision & Zoning Ordinances per Sections 1.5 & 2.3 of the
Zoning Ordinance and Section 1.1 of the Subdivision Ordinance, also incorporated in the Zoning
Ordinance per Section 1.1(B). Based on A.R.S. §9-463.03 and Subdivision Ordinance Section
1.1(A)(2), the sale of lots 211-10-003 A, B, C, & D, and the sale of lots 211-10-010 A & C are
unlawful because there are no recorded final plat maps of these lots that conform to the Town’s
Subdivision Ordinance. Because YOU violated your duty to enforce the Ordinances, I did not
know that it was unlawful to sell any part of parcels 211-10-010 or 211-10-003.
Pursuant to Subdivision Ordinance Section 1.1(A)(5), no lot within a subdivision can be altered or
further divided without the approval of Town Council. Parcel 211-10-010 was subdivided into 4
lots. It’s a subdivision. Since the further split of lot 211-10-010A was not approved by Town
Council such that lots 211-10-010 L, M, & N do not conform to the Subdivision Ordinance and
are therefore unsuitable for building and not entitled to building permits per Subdivision
Ordinance Sections 1.1(A)(1-4),(B),(C),&(D), 6.1(A), 6.2(B)(4), 6.3(A) & Chapter 2 especially
2.5(E), and Zoning Ordinance Sections 5.1, 1.3, 1.5, 1.4, 1.7, & 2.3(C)(4).
Per Section 2.3(C)(11), you had authority to refer all permit applications for 211-10-010 or 211-
10-003 lots to the Planning Commission. The division of these parcels into 4 lots each rendered
the properties unsuitable for building and not entitled to building permits per Section 6.3(A), yet
you continue their unlawful use and continue to issue void permits. In violation of A.R.S. §9-
500.12(C) and Section 2.3(C)(2) of the Zoning Ordinance, no takings report was ever generated
as required.
Each and every day that you fail to enforce the Subdivision & Zoning Ordinances as required
per Sections 1.5 & 2.3 of the Zoning Ordinance shall be a separate offense punishable per
Section 1.7 of the Zoning Ordinance. Per Section 1.7(A) of the Zoning Ordinance effective when
you approved my lot split and began issuing me permits to my property in 2001, if you or the
Town (i.e. any person) violates any provision of the Town’s Ordinances, you (and Cave Creek)
shall be guilty of a Class One misdemeanor punishable as provided in the Cave Creek Town
Code and state law for each day of continued violation. Knowing that you and other town
officials could be liable for violating the Town Ordinances, in bad faith, you and the Prosecuting
Attorney requested that this language be changed to a Civil Code Infraction in 2005. All of the
above are continuing violations of Cave Creek’s Ordinances, caused or created by you as
Zoning Administrator on behalf of the Town, requiring the use of parcels 211-10-003 & 211-10-
010 discontinued and the parcels vacated to Quiet Title in conformance with the Subdivision
Ordinance and A.R.S. §9-463.03. See Zrihan v. Wells Fargo Bank, NA, Dist. Court, D. Arizona
2014: “"[A] cause of action to quiet title for the removal of the cloud on title is a continuous one
and never barred by limitations while the cloud exists." Cook v. Town of Pinetop-Lakeside, 303
P.3d 67, 70 (Ariz. Ct. App. 2013) (quoting City of Tucson v. Morgan, 475 P.2d 285, 287 (Ariz.
Ct. App. 1970)).”
Since it is well established law2 that you and Cave Creek can correct mistakes of law at any
time, the purpose of this letter is to establish a clear line, a date certain, as to whether you and
Cave Creek intend to resolve these matters. Per Section 2.3(D) of the Zoning Ordinance, you
may not make any changes in the uses permitted in any zoning classification or zoning district
2
See Thomas and King, Inc. v. City of Phoenix, 92 P. 3d 429 - Ariz: Court of Appeals, 1st Div., Dept. B 2,
2004, relying upon “Valencia Energy v. Ariz. Dep't of Revenue, 191 Ariz. 565, 576, ¶ 35, 959 P.2d 1256,
1267 (1998), and Rivera v. City of Phoenix, 925 P. 2d 741 - Ariz: Court of Appeals, lst Div., Dept. D
1996.”
Page 5 of 6
or make any changes in the terms of the Zoning Ordinance. As such, you have no discretion to
change “SHALL” provisions of the Zoning Ordinance.
My family and I have been substantially aggrieved by your decisions that violate your duty to
enforce the Zoning and Subdivision Ordinance as outlined above. Each and every day that you
fail to correct your mistakes becomes a separate violation punishable as outlined in Section 1.7
of the Zoning Ordinance. As such, per Zoning Ordinance Section 2.3(E)(1), this letter is our
request for your decision to correct your dereliction of duties as outlined above.
Per Zoning Ordinance Section 2.3(E)(2), I hereby request your decision in writing, via certified
mail, return receipt requested as to your intention to correct the continuing violations of the
zoning and subdivision ordinances that you and other Cave Creek officials or employees
knowingly concealed from me since 2001 as outlined above.
Cordially,
Arek R. Fressadi
Cc: Town Council, Town Manager, Jeff Murray, Esq.
Page 6 of 6
ADDENDUM D
TOWN OF CAVE CREEK’S PREDICATE ACTS

& CONTINUING VIOLATIONS
To argue RICO claims with fraud specificity.
1) May 2001: In civil conspiracy, Town Manager Usama Abujbarah,

Town paper publisher Donald Sorchych, and Zoning Administrator
Ian Cordwell concoct a surreptitious 1st Amendment retaliation
scheme to harm Arek R. Fressadi’s business, reputation, and property
by violating federal and state due process as required in A.R.S. §§ 9-
500.12 & 9-500.13 (“9-500.12/13”) and town ordinances to transform
his property into an illegal subdivision.
2) July 2001: In violation of the Town’s Zoning & Subdivision
Ordinances, Cave Creek’s Zoning Administrator tells Fressadi to
develop parcels 211-10-003 & 211-10-010 by a “series of lot splits”
rather than plat a subdivision.
3) July 2001: Under color of law and in violation of the Town’s Zoning
& Subdivision Ordinances, Zoning Administrator tells Fressadi, who
is detrimentally reliant on the Town’s/Cordwell’s instructions, that a
subdivision is “5 or more lots” instead of “4 or more.”
4) October 2001 to present: Cave Creek violates A.R.S. §§ 9-500.12/13
as its Official Policy when Fressadi applies for his first lot split for
parcel 211-10-010 in 2001 to cause continuing violations of federal
and state law and Town ordinances, which Fressadi discovered in
2013. The Town admitted its violations to Fressadi in 2016 after
providing evidence via the Freedom of Information Act (“FOIA”) .
Each and every day that Cave Creek fails to follow §§ 9-500.12/13
regarding any exaction of land, improvement or dedication of
easement for any Cave Creek property owner is a separate
violation/predicate act punishable per Section 1.7 of the Town’s
Zoning Ordinance.
5) Each and every day that the Zoning Administrator does not follow §§
9-500.12/13 for any property in Cave Creek is a separate
violation/predicate act per Sections 1.7 and 2.3 of the Town’s Zoning
Ordinance. Cave Creek’s Official Policy has affected hundreds of
Cave Creek property owners.
6) December 31, 2001: Without providing Plaintiffs Fressadis notice and
hearing per A.R.S. §§ 9-500.12 & 9-500.13, Cave Creek requires the
civil engineer to redraw the 3-lot survey of parcel 211-10-010 to
exclude a 25-foot strip of land along the parcel’s eastern edge.
7) February 2002: Abujbarah fraudulently induces Fressadi to repair and

extend the Town’s sewer with the promise of reimbursement.
8) April 2002: Cave Creek violates A.R.S. §§ 9-500.12 & 9-500.13 to
require Fressadi to dedicate easements in order to issue permits
without nexus of proportionality.
9) 3/13/02, 4/16/03, 4/17/03: Without providing Plaintiffs notice and
hearing per A.R.S. §§ 9-500.12 & 9-500.13, in order to final approve
Fressadi’s sewer repair and extension, Cave Creek required the civil
engineer to redraw and record the land survey to define the omitted
25-foot strip of land as “Parcel A” as “conveyed” to Cave Creek when
it was not; that Cave Creek would “handle the paperwork,” which
never happened such that Cave Creek caused the recording of the
survey to contain a material misstatement in violation of A.R.S. §33-
420, where each and every day is a separate criminal predicate act
violation per Section 1.7 of the Town’s Zoning Ordinance.
10) 8/5/02: The 2nd series of lot splits application per Zoning Administrator,
with adjacent parcel 211-10-003; Town Council denies a lot split of
211-10-003 by claiming Fressadi’s adjoining lots renders the assembly
a subdivision (adding Fressadi’s “3” lots in 211-10-003 plus the
proposed 2 for parcel 211-10-003) by falsely claiming that 211-10-003
& 211-10-010 were part of a parent parcel when they were not. Town
Council and the Zoning Administrator did not inform Fressadi that his
parcel 211-10-010 was already an illegal “non-conforming subdivision”
of 4 lots.
11) 2003-present: In violation of A.R.S. §§ 9-500.12 & 9-500.13,
Maricopa County Assessor’s Office classifies parcel 211-10-010 an
“undefined subdivision,” to transform “Parcel A” into 4th lot 211-10-
010D. As such, Cave Creek’s violation A.R.S. §§ 9-500.12 & 9-500.13
to exact a 4th lot cause Fressadi’s parcel 211-10-010 to be a “non-
conforming subdivision” in violation of Sections 1.1(A)(2), 1.1(A)(4),
6.1(A)(7), and 6.3(A) of the Subdivision Ordinance, where each and
every day of each and every subdivision violation is a separate
criminal predicate act per Section 1.7 of the Zoning Ordinance.
12) 2002 to 2017: In violation of A.R.S. §§ 9-500.12 & 9-500.13, Cave
Creek issued permits to lots unlawfully split or subdivided from parcel
211-10-010. As Cave Creek’s exaction of a 4th lots caused 211-10-010
to be a “non-conforming subdivision,” in violation of Sections
6.1(A)(7) and §6.3(A) of the Subdivision Ordinance such that the lots
are unsuitable for building and not entitled to permits. Any permit
issued to any 211-10-010 lot is in violation of Sections 1.1(A)(2),
1.1(A)(4), 1.1(B), 1.1(C), and 1.4 of the Zoning ordinance such that
the Zoning Administrator must enforce and order the sewer,
structures, and land vacated, and the use discontinued per Sections
1.5, 1.7(C), and 2.3 of the Zoning Ordinance, where each and every
day of each and every violation is a separate, criminal continuing
violation of predicate act punishable as provided in Section 1.7(A) of
the Zoning Ordinance.
13) 2002 to 2013: By issuing permits to Fressadi’s lots and to 211-10-003,
Cave Creek fraudulent induced Fressadi into believing that the splits
of parcels 211-10-010 and 211-10-003 were lawful and the permits
vested.
14) 2002 to present: By continuing to issue lot splits and permits for 211-
10-010 lots and 211-10-003 lots, Cave Creek fraudulent induced all
successor parties in interest into believing that the splits of parcels
211-10-010 and 211-10-003 are lawful and the permits vested.
15) 9/18/03 to present: In violation of A.R.S. §§ 9-500.12 & 9-500.13,
Cave Creek required a strip of land along the eastern edge of parcel
211-10-003, “Parcel A,” to be dedicated to Cave Creek to approve the
survey split of parcel 211-10-003 into three lots. Unbeknownst to
Fressadi at the time, “Parcel A was never dedicated––it became a 4th
lot 211-10-003D. Believing that parcels 211-10-010 and 211-10-003
were lawfully split, Fressadi negotiated a reciprocal/mutual/shared
easement agreement with the owner of parcel 211-10-003 to share the
cost of access, driveway improvements, and related utilities. The
agreement required reciprocal access to the easement in parcel 211-10-
003 (“003”). In civil conspiracy with the owner of parcel 211-10-003,
Cave Creek caused the recording of the survey of parcel 211-10-003 to
contain a material misstatement in violation of A.R.S. § 33-420. Cave
Creek attested that the strip of land, “Parcel A,” was dedicated to the
Town when in fact, it was not. The strip of land blocked access to the
003 easement to breach the reciprocal easement agreement ab initio as
a predicate act, AND transformed “Parcel A” into lot 211-10-003D.
Cave Creek violated A.R.S. §§ 9-500.12, 9-500.13, and 33-420 to
exact a 4th lot and cause parcel 211-10-003 to be a “non-conforming
subdivision” in violation of Sections 1.1(A)(2), 1.1(A)(4), 6.1(A)(7),
and 6.3(A) of the Subdivision Ordinance, where each and every day of
each and every subdivision violation is a separate criminal predicate
act per Section 1.7 of the Zoning Ordinance. Fressadi discovered the
4th lot that blocked access ab initio when a subsequent owner offered
him 211-10-003D to purchase in 2012/2013.
16) 4/21/03 to present: In violation A.R.S. §§ 9-500.12 & 9-500.13, Cave

Creek required adjacent lots 211-10-003 to connect into Fressadi’s
sewer without notice and hearing to establish the nexus of
proportionality and just compensation. Unknown to Fressadi until 2013,
because Cave Creek’s requirements for a strip of land were 4th lots,
Fressadi’s 211-10-010 lots and adjacent lots 211-10-003 are each non-
conforming subdivisions and not entitled to permits, such that the sewer
permits are void per Sections 1.1(B), 1.1(C), and 1.4 of the Zoning
ordinance; that the Zoning Administrator must enforce and order the
sewer, structures, and land vacated and the use discontinued per
Sections 1.5, 1.7(C), and 2.3 of the Zoning Ordinance, where each and
every day of each and every violation is a separate, criminal continuing
violation of predicate act punishable as provided in Section 1.7(A0 of
the Zoning Ordinance.
17) 9/18/03 to 2010: In violation A.R.S. §§ 9-500.12 & 9-500.13, Cave
Creek issued permits to lots 211-10-003 A, B, & C based off access
and utilities from Fressadi’s property, a private takings, without notice
and hearing to establish the nexus of proportionality and just
compensation. Cave Creek issued permits to the 211-10-003 lots that
are landlocked because of the existing lot 211-10-003D (25-foot
strip). The permits violate the Hillside Ordinance and rely on 211-10-
010 access and utilities based on a Home Owners Association that is
void ab initio. Cave Creek allowed owners of 211-10-003 lots to build
an elevated driveway adjacent to Fressadi’s property in violation of
grading and Hillside Ordinances.
18) 10/16/03 to present: In violation of A.R.S. §§ 9-500.12/13, Cave
Creek caused the recording the survey of parcel 211-10-003 to contain
a material misstatement in violation of A.R.S. § 33-420. Cave Creek
fraudulently induced Fressadi into executing the HOA to share mutual
and reciprocal access to the 003 lots, when in fact “Parcel A” on the
HOA-incorporated 003 survey blocked access the 003 portion of the
HOA driveway to breach and render the HOA illegal ab initio as Cave
Creek converted both parcels into non-conforming subdivisions.
19) 2/27/04: After Cave Creek promised reimbursement for installing a
sewer that serves an area of town as an incentive to build it, the Town
reneged after it was built, and owners of the 211-10-003 lots also
refused to pay. By violating of §§ 9-500.12/13, Cave Creek placed
Fressadi under “criminal investigation” when Fressadi billed the
Town for the sewer.
20) 11/21/2005: To reduce the Town’s liability and that of its state actors,
Cave Creek’s Zoning Administrator and Prosecuting Attorney submit
changes to the Zoning Ordinance to reduce zoning violations from
Class One Misdemeanors to Town Code Infractions.
21) 2010 Foreclosure, 2011 Sale: Subsequent owners of the 211-10-003
lots (most notably BMO Harris Bank who foreclosed on lots 211-10-
003 B, A, & D) also refused to equitably contribute to the cost of
repairing and extending the sewer. Cave Creek and the subsequent lot
owners caused Fressadi to be insolvent such that BMO Harris bank
(subsequent owner of 211-10-003 B, A, D after Keith Vertes)
foreclosed on Fressadi’s home on lot 211-10-010A, and Maricopa
County Sheriff’s Office sold it in violation of A.R.S. § 9-643.03 as
there is no final plat map of a subdivision.
22) On or about 10/8/10, BMO Harris Bank had the Town Cave Creek
arrest Fressadi for moving rocks on his own property. BMO falsely
claimed that the rocks were on their property. The Prosecuting
Attorney told the Court Administrator that he filed charges against
Fressadi to please the Town Manager. When some of the Prosecuting
Attorney’s shenanigans were made public, the Town Council fired the
Prosecuting Attorney and the Complaint was dismissed. CR2010-
0109 (Cave Creek) Municipal Court filed 12/22/2010, transferred as
JC2011-065147 (Maricopa County Justice Courts).
23) On or about 11/28/11, BMO Harris Bank had Maricopa County
Sheriff’s Office falsely arrest Fressadi for trespassing on his own
property. Fressadi was incarcerated and tasered twice, causing
physical injury. JC2012-065297 (Desert Ridge Justice Court of
Maricopa County). Maricopa County Attorneys dismissed the case.
24) 10/6/09 & 1/12/10 (Variances to REEL for 211-10-010C), 10/12/10
(Variance to M&I Bank/BMO for 211-10-010B): By violating §§ 9-
500.12/13, Cave Creek issued (void) variances to (unlawful) lots 211-
10-010 B & C for self-imposed excessive disturbance of land based on
trumped up charges that Fressadi had to allow his neighbors to use his
driveway, but that he blocked their access. However, as stated above,
the 003 lots are not entitled to permits as the lots are a non-conforming
subdivision, such that any requirement for a variance is self-imposed.
25) 2012 to ongoing: Cave Creek split 211-10-010A into 3 lots and continue
to issue permits to these lots within the non-conforming subdivision.
26) 2002 to 2012: Don Sorchych / Sonoran News published disparaging
articles to put Plaintiffs in a false light as part of the fraudulent
scheme based on Cave Creek’s predicate acts.
27) 2001 to Ongoing: Cave Creek continues to commit constructive fraud

and fraud on the court to obtain favorable rulings based on Statutes of
Limitations (“SOL”) rather than remedying the continuing violations.
28) CV2009-050821 (Appeals 1 CA-CV 12-0238, CV 13-0209): Cave
Creek commits fraud on the court, failing to disclose Cave Creek’s
violation of A.R.S. §§ 9-500.12 & 9-500.13 to convert Plaintiffs’
property into a subdivision and steal the sewer.
29) CV2009-050924 (Appeal 1 CA-CV 11-0051 / Descendant Case CV-
12-0212-PR): Cave Creek failed to disclose Cave Creek’s violation of
A.R.S. §§ 9-500.12 & 9-500.13 to convert the 211-10-003 lots into a
subdivision and issued (void) permits to the 211-10-003 houses based
on access and utilities from Fressadi’s property––aa takings––
especially ultra vires sewer.
30) 3/24/10: Cave Creek submitted notice in Special Action LC2010-
000109-001DT (predecessor of case 15-15566 at the 9th Circuit)
claiming to have submitted a “Certified Record” of information
relating to this matter to Cave Creek’s BOA. The full record was not
sent and the BOA has yet to make a ruling.
31) Cave Creek’s violation of §§ 9-500.12/13 and failure to disclose this
damaging information was a predicate act to affect the outcomes of;
a. CV2000-011913
b. G02-1330 & G03-0202
c. CV03-00031RA / Appeal LC2004-000419-001DT
d. CV2006-014822 / Appeals 1 CA-CV 11-0728, 1 CA-CV 12-
0435, 1 CA-CV 12-0601
e. ROC 09-2934
f. LC2010-000109-001DT
g. CV2010-029559
h. CV2010-013401
i. CV2010-004383
j. CV2011-014289
k. 4:11-bk-01161-EWH / Appeal AZ-11-1209
l. CV2012-016136
m. 4:12-CV-00876-FRZ / CV-13-00252-PHX-SLG
n. LC2006-000206 / CV-14-01231-PHX-DJH / 15-15566
32) Cave Creek continues to request favorable rulings based on SOL
rather than remedying the continuing violations, in civil conspiracy
with its surety, Arizona Municipal Risk Retention Pool (AMRRP),
sharing the same attorney, Jeff Murray.
ADDENDUM E
ADDENDUM INDEX
Constitutions, Statutes, Ordinances, Codes, Rules, and Regulations

ADD. # LAW PAGE #

Federal
1 28 U.S.C. § 1983 ................................................................................................. 1-2
2 U.S. Constitution, Fifth Amendment ............................................................. 3
3 U.S. Constitution, Fourteenth Amendment ........................................... 4-5
4 U.S. Constitution, Article VI, Cl. 2, Supremacy Clause ....................... 6-7
5 FRAP, Rule 35 .................................................................................................. 8-11
6 FRAP, Rule 40 ............................................................................................... 12-14
7 Fed. R. Civ. P. 15 .......................................................................................... 15-21
8 Fed. R. Civ. P. 60 .......................................................................................... 22-26
State of Arizona
9 Arizona Constitution, Article 2, Section 17 ............................................ 27
10 Arizona Constitution, Article 18, Section 6 ............................................ 28
11 A.R.S. § 9-463.02 ................................................................................................ 29
12 A.R.S. § 9-463.03 ................................................................................................ 30
13 A.R.S. § 9-500.12 ......................................................................................... 31-32
14 A.R.S. § 9-500.13 ................................................................................................ 33
15 A.R.S. § 12-821.01 .............................................................................................. 34
16 A.R.S. § 12-1101 ................................................................................................. 35
17 A.R.S. § 12-1102 ................................................................................................. 36
18 A.R.S. § 12-1103 ................................................................................................. 37
19 A.R.S. § 12-1104 ................................................................................................. 38
i
ADD. # LAW PAGE #

State of Arizona (Cont.)
20 A.R.S. § 13-2314.04 .................................................................................... 39-42
21 A.R.S. § 33-420 .................................................................................................... 43
22 A.R.S. § 39-161 .................................................................................................... 44
Town of Cave Creek
23 Cave Creek Zoning Ordinance, Section 1.7 ............................................. 45
24 Cave Creek Zoning Ordinance, Section 2.3 ...................................... 46-48
ii
Page 3951 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1983
the purposes of this order as the order applies to pro- PART IV—ESTABLISHMENT OF THE PRESIDENT’S
grams administered by it; and is directed to cooperate COMMITTEE ON EQUAL OPPORTUNITY IN HOUSING
with the Committee, to furnish it, in accordance with [Revoked. Ex. Ord. No. 12259, Dec. 31, 1980, 46 F.R.
law, such information and assistance as it may request 1253; Ex. Ord. No. 12892, § 6–604, Jan. 17, 1994, 59 F.R.
in the performance of its functions, and to report to it 2939.]
at such intervals as the Committee may require.
SEC. 203. Each such department and agency shall, PART V—POWERS AND DUTIES OF THE PRESIDENT’S
within thirty days from the date of this order, issue COMMITTEE ON EQUAL OPPORTUNITY IN HOUSING
such rules and regulations, adopt such procedures and SEC. 501. [Revoked. Ex. Ord. No. 12259, Dec. 31, 1980, 46
policies, and make such exemptions and exceptions as F.R. 1253; Ex. Ord. No. 12892, § 6–604, Jan. 17, 1994, 59 F.R.
may be consistent with law and necessary or appro- 2939.]
priate to effectuate the purposes of this order. Each SEC. 502. (a) The Committee shall take such steps as
such department and agency shall consult with the it deems necessary and appropriate to promote the co-
Committee in order to achieve such consistency and ordination of the activities of departments and agen-
uniformity as may be feasible. cies under this order. In so doing, the Committee shall
consider the overall objectives of Federal legislation
relating to housing and the right of every individual to
PART III—ENFORCEMENT participate without discrimination because of race,
color, religion (creed), sex, disability, familial status or
SEC. 301. The Committee, any subcommittee thereof, national origin in the ultimate benefits of the Federal
and any officer or employee designated by any execu- programs subject to this order.
tive department or agency subject to this order may (b) The Committee may confer with representatives
hold such hearings, public or private, as the Commit- of any department or agency, State or local public
tee, department, or agency may deem advisable for agency, civic, industry, or labor group, or any other
compliance, enforcement, or educational purposes. group directly or indirectly affected by this order; ex-
SEC. 302. If any executive department or agency sub- amine the relevant rules, regulations, procedures, poli-
ject to this order concludes that any person or firm (in- cies, and practices of any department or agency subject
cluding but not limited to any individual, partnership, to this order and make such recommendations as may
association, trust, or corporation) or any State or local be necessary or desirable to achieve the purposes of
public agency has violated any rule, regulation, or pro- this order.
cedure issued or adopted pursuant to this order, or any (c) The Committee shall encourage educational pro-
nondiscrimination provision included in any agreement grams by civic, educational, religious, industry, labor,
or contract pursuant to any such rule, regulation, or and other nongovernmental groups to eliminate the
procedure, it shall endeavor to end and remedy such basic causes of discrimination in housing and related
violation by informal means, including conference, con- facilities provided with Federal assistance.
ciliation, and persuasion unless similar efforts made by SEC. 503. [Revoked. Ex. Ord. No. 12259, Dec. 31, 1980, 46
another Federal department or agency have been un- F.R. 1253; Ex. Ord. No. 12892, § 6–604, Jan. 17, 1994, 59 F.R.
successful. In conformity with rules, regulations, pro- 2939.]
cedures, or policies issued or adopted by it pursuant to PART VI—MISCELLANEOUS
Section 203 hereof, a department or agency may take
such action as may be appropriate under its governing SEC. 601. As used in this order, the term ‘‘depart-
laws, including, but not limited to, the following: ments and agencies’’ includes any wholly-owned or
mixed-ownership Government corporation, and the
It may— term ‘‘State’’ includes the District of Columbia, the
(a) cancel or terminate in whole or in part any agree- Commonwealth of Puerto Rico, and the territories of
ment or contract with such person, firm, or State or the United States.
local public agency providing for a loan, grant, con- SEC. 602. This order shall become effective imme-
tribution, or other Federal aid, or for the payment of diately.
a commission or fee; [Functions of President’s Committee on Equal Oppor-
tunity in Housing under Ex. Ord. No. 11063 delegated to
(b) refrain from extending any further aid under any
Secretary of Housing and Urban Development by Ex.
program administered by it and affected by this order
Ord. No. 12892, § 6–604(a), Jan. 17, 1994, 59 F.R. 2939, set
until it is satisfied that the affected person, firm, or
out as a note under section 3608 of this title.]
State or local public agency will comply with the rules,
regulations, and procedures issued or adopted pursuant § 1983. Civil action for deprivation of rights
to this order, and any nondiscrimination provisions in-
cluded in any agreement or contract; Every person who, under color of any statute,
(c) refuse to approve a lending institution or any ordinance, regulation, custom, or usage, of any
other lender as a beneficiary under any program admin- State or Territory or the District of Columbia,
istered by it which is affected by this order or revoke subjects, or causes to be subjected, any citizen
such approval if previously given. of the United States or other person within the
SEC. 303. In appropriate cases executive departments jurisdiction thereof to the deprivation of any
and agencies shall refer to the Attorney General viola- rights, privileges, or immunities secured by the
tions of any rules, regulations, or procedures issued or Constitution and laws, shall be liable to the
adopted pursuant to this order, or violations of any party injured in an action at law, suit in equity,
nondiscrimination provisions included in any agree-
or other proper proceeding for redress, except
ment or contract, for such civil or criminal action as
he may deem appropriate. The Attorney General is au- that in any action brought against a judicial of-
thorized to furnish legal advice concerning this order ficer for an act or omission taken in such offi-
to the Committee and to any department or agency re- cer’s judicial capacity, injunctive relief shall
questing such advice. not be granted unless a declaratory decree was
SEC. 304. Any executive department or agency af- violated or declaratory relief was unavailable.
fected by this order may also invoke the sanctions pro- For the purposes of this section, any Act of Con-
vided in Section 302 where any person or firm, includ- gress applicable exclusively to the District of
ing a lender, has violated the rules, regulations, or pro- Columbia shall be considered to be a statute of
cedures issued or adopted pursuant to this order, or the the District of Columbia.
nondiscrimination provisions included in any agree-
ment or contract, with respect to any program affected (R.S. § 1979; Pub. L. 96–170, § 1, Dec. 29, 1979, 93
by this order administered by any other executive de- Stat. 1284; Pub. L. 104–317, title III, § 309(c), Oct.
partment or agency. 19, 1996, 110 Stat. 3853.)
1
§ 1984 TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 3952
CODIFICATION feating, in any manner, the due course of justice

R.S. § 1979 derived from act Apr. 20, 1871, ch. 22, § 1, 17 in any State or Territory, with intent to deny to
Stat. 13. any citizen the equal protection of the laws, or
Section was formerly classified to section 43 of Title to injure him or his property for lawfully enforc-
8, Aliens and Nationality. ing, or attempting to enforce, the right of any
AMENDMENTS person, or class of persons, to the equal protec-
tion of the laws;
1996—Pub. L. 104–317 inserted before period at end of
first sentence ‘‘, except that in any action brought (3) Depriving persons of rights or privileges
against a judicial officer for an act or omission taken If two or more persons in any State or Terri-
in such officer’s judicial capacity, injunctive relief tory conspire or go in disguise on the highway
shall not be granted unless a declaratory decree was or on the premises of another, for the purpose of
violated or declaratory relief was unavailable’’.
depriving, either directly or indirectly, any per-
1979—Pub. L. 96–170 inserted ‘‘or the District of Co-
lumbia’’ after ‘‘Territory’’, and provisions relating to son or class of persons of the equal protection of
Acts of Congress applicable solely to the District of Co- the laws, or of equal privileges and immunities
lumbia. under the laws; or for the purpose of preventing
or hindering the constituted authorities of any
EFFECTIVE DATE OF 1979 AMENDMENT
State or Territory from giving or securing to all
Amendment by Pub. L. 96–170 applicable with respect persons within such State or Territory the equal
to any deprivation of rights, privileges, or immunities protection of the laws; or if two or more persons
secured by the Constitution and laws occurring after conspire to prevent by force, intimidation, or
Dec. 29, 1979, see section 3 of Pub. L. 96–170, set out as
threat, any citizen who is lawfully entitled to
a note under section 1343 of Title 28, Judiciary and Ju-
dicial Procedure. vote, from giving his support or advocacy in a
legal manner, toward or in favor of the election
§ 1984. Omitted of any lawfully qualified person as an elector for
President or Vice President, or as a Member of
CODIFICATION
Congress of the United States; or to injure any
Section, act Mar. 1, 1875, ch. 114, § 5, 18 Stat. 337, citizen in person or property on account of such
which was formerly classified to section 46 of Title 8, support or advocacy; in any case of conspiracy
Aliens and Nationality, related to Supreme Court re-
set forth in this section, if one or more persons
view of cases arising under act Mar. 1, 1875. Sections 1
and 2 of act Mar. 1, 1875 were declared unconstitutional engaged therein do, or cause to be done, any act
in U.S. v. Singleton, 109 U.S. 3, and sections 3 and 4 of in furtherance of the object of such conspiracy,
such act were repealed by act June 25, 1948, ch. 645, § 21, whereby another is injured in his person or prop-
62 Stat. 862. erty, or deprived of having and exercising any
right or privilege of a citizen of the United
§ 1985. Conspiracy to interfere with civil rights States, the party so injured or deprived may
(1) Preventing officer from performing duties have an action for the recovery of damages occa-
sioned by such injury or deprivation, against
If two or more persons in any State or Terri-
any one or more of the conspirators.
tory conspire to prevent, by force, intimidation,
or threat, any person from accepting or holding (R.S. § 1980.)
any office, trust, or place of confidence under CODIFICATION
the United States, or from discharging any du-
ties thereof; or to induce by like means any offi- R.S. § 1980 derived from acts July 31, 1861, ch. 33, 12
Stat. 284; Apr. 20, 1871, ch. 22, § 2, 17 Stat. 13.
cer of the United States to leave any State, dis-
Section was formerly classified to section 47 of Title
trict, or place, where his duties as an officer are 8, Aliens and Nationality.
required to be performed, or to injure him in his
person or property on account of his lawful dis- § 1986. Action for neglect to prevent
charge of the duties of his office, or while en-
Every person who, having knowledge that any
gaged in the lawful discharge thereof, or to in-
of the wrongs conspired to be done, and men-
jure his property so as to molest, interrupt,
tioned in section 1985 of this title, are about to
hinder, or impede him in the discharge of his of-
be committed, and having power to prevent or
ficial duties;
aid in preventing the commission of the same,
(2) Obstructing justice; intimidating party, wit- neglects or refuses so to do, if such wrongful act
ness, or juror be committed, shall be liable to the party in-
If two or more persons in any State or Terri- jured, or his legal representatives, for all dam-
tory conspire to deter, by force, intimidation, or ages caused by such wrongful act, which such
threat, any party or witness in any court of the person by reasonable diligence could have pre-
United States from attending such court, or vented; and such damages may be recovered in
from testifying to any matter pending therein, an action on the case; and any number of per-
freely, fully, and truthfully, or to injure such sons guilty of such wrongful neglect or refusal
party or witness in his person or property on ac- may be joined as defendants in the action; and if
count of his having so attended or testified, or the death of any party be caused by any such
to influence the verdict, presentment, or indict- wrongful act and neglect, the legal representa-
ment of any grand or petit juror in any such tives of the deceased shall have such action
court, or to injure such juror in his person or therefor, and may recover not exceeding $5,000
property on account of any verdict, present- damages therein, for the benefit of the widow of
ment, or indictment lawfully assented to by the deceased, if there be one, and if there be no
him, or of his being or having been such juror; widow, then for the benefit of the next of kin of
or if two or more persons conspire for the pur- the deceased. But no action under the provisions
pose of impeding, hindering, obstructing, or de- of this section shall be sustained which is not
2
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U.S. Constitution › Fifth Amendment
Fifth Amendment
The Fifth Amendment creates a number of rights relevant to both criminal and civil legal
proceedings. In criminal cases, the Fifth Amendment guarantees the right to a grand jury, forbids
“double jeopardy,” and protects against self-incrimination. It also requires that “due process of
law” be part of any proceeding that denies a citizen “life, liberty or property” and requires the
government to compensate citizens when it takes private property for public use.
Learn more...
Amendment V
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a
presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or
in the militia, when in actual service in time of war or public danger; nor shall any person be
subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in
any criminal case to be a witness against himself, nor be deprived of life, liberty, or property,
without due process of law; nor shall private property be taken for public use, without just
compensation.
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14th Amendment
The Fourteenth Amendment addresses many aspects of citizenship and the rights of citizens. The
most commonly used -- and frequently litigated -- phrase in the amendment is "equal protection of
the laws", which figures prominently in a wide variety of landmark cases, including Brown v. Board of
Education (racial discrimination), Roe v. Wade (reproductive rights), Bush v. Gore (election recounts),
Reed v. Reed (gender discrimination), and University of California v. Bakke (racial quotas in
education). See more...
Amendment XIV
Section 1.
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are
citizens of the United States and of the state wherein they reside. No state shall make or enforce any
law which shall abridge the privileges or immunities of citizens of the United States; nor shall any
state deprive any person of life, liberty, or property, without due process of law; nor deny to any
person within its jurisdiction the equal protection of the laws.
Section 2.
Representatives shall be apportioned among the several states according to their respective
numbers, counting the whole number of persons in each state, excluding Indians not taxed. But
when the right to vote at any election for the choice of electors for President and Vice President of
the United States, Representatives in Congress, the executive and judicial officers of a state, or the
members of the legislature thereof, is denied to any of the male inhabitants of such state, being
twenty-one years of age, and citizens of the United States, or in any way abridged, except for
participation in rebellion, or other crime, the basis of representation therein shall be reduced in the
proportion which the number of such male citizens shall bear to the whole number of male citizens
twenty-one years of age in such state.
Section 3.
No person shall be a Senator or Representative in Congress, or elector of President and Vice
President, or hold any office, civil or military, under the United States, or under any state, who,
having previously taken an oath, as a member of Congress, or as an officer of the United States, or
as a member of any state legislature, or as an executive or judicial officer of any state, to support the
Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or
given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each
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House, remove such disability.
Section 4.
The validity of the public debt of the United States, authorized by law, including debts incurred for
payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be
questioned. But neither the United States nor any state shall assume or pay any debt or obligation
incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or
emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.
Section 5.
The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
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Article VI
All debts contracted and engagements entered into, before the adoption of this Constitution,
shall be as valid against the United States under this Constitution, as under the Confederation.
This Constitution, and the laws of the United States which shall be made in pursuance thereof;
and all treaties made, or which shall be made, under the authority of the United States, shall be
the supreme law of the land; and the judges in every state shall be bound thereby, anything in the
Constitution or laws of any State to the contrary notwithstanding.
The Senators and Representatives before mentioned, and the members of the several state
legislatures, and all executive and judicial officers, both of the United States and of the several
states, shall be bound by oath or affirmation, to support this Constitution; but no religious test
shall ever be required as a qualification to any office or public trust under the United States.
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Supremacy Clause
See Preemption; constitutional clauses.

Article VI, Paragraph 2 of the U.S. Constitution is commonly referred to as the Supremacy Clause. It
establishes that the federal constitution, and federal law generally, take precedence over state laws, and
even state constitutions. It prohibits states from interfering with the federal government's exercise of its
constitutional powers, and from assuming any functions that are exclusively entrusted to the federal
government. It does not, however, allow the federal government to review or veto state laws before they
take effect.

Last updated in June of 2017 by Stephanie Jurkowski.
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FRAP 35. EN BANC DETERMINATION
(a) When Hearing or Rehearing En Banc May Be Ordered. A majority of the circuit
judges who are in regular active service and who are not disqualified may order that an
appeal or other proceeding be heard or reheard by the court of appeals en banc. An en
banc hearing or rehearing is not favored and ordinarily will not be ordered unless:
(1) en banc consideration is necessary to secure or maintain uniformity of the court’s
decisions; or
(2) the proceeding involves a question of exceptional importance.
(b) Petition for Hearing or Rehearing En Banc. A party may petition for a hearing or
rehearing en banc.
(1) The petition must begin with a statement that either:
(A) the panel decision conflicts with a decision of the United States Supreme
Court or of the court to which the petition is addressed (with citation to the
conflicting case or cases) and consideration by the full court is therefore
necessary to secure and maintain uniformity of the court’s decisions; or
(B) the proceeding involves one or more questions of exceptional importance,
each of which must be concisely stated; for example, a petition may assert
that a proceeding presents a question of exceptional importance if it
involves an issue on which the panel decision conflicts with the
authoritative decisions of other United States Courts of Appeals that have
addressed the issue.
(2) Except by the court’s permission:
(A) a petition for an en banc hearing or rehearing produced using a computer
must not exceed 3,900 words; and
(B) a handwritten or typewritten petition for an en banc hearing or rehearing
must not exceed 15 pages.
(3) For purposes of the limits in Rule 35(b)(2), if a party files both a petition for panel
rehearing and a petition for rehearing en banc, they are considered a single
document even if they are filed separately, unless separate filing is required by
local rule.
(c) Time for Petition for Hearing or Rehearing En Banc. A petition that an appeal be heard
initially en banc must be filed by the date when the appellee’s brief is due. A petition for
a rehearing en banc must be filed within the time prescribed by Rule 40 for filing a
petition for rehearing.
8
(d) Number of Copies. The number of copies to be filed must be prescribed by local rule
and may be altered by order in a particular case.
(e) Response. No response may be filed to a petition for an en banc consideration unless the
court orders a response. (f) Call for a Vote. A vote need not be taken to determine
whether the case will be heard or reheard en banc unless a judge calls for a vote.
(As amended Apr. 1, 1979, eff. Aug. 1, 1979; Apr. 29, 1994, eff. Dec. 1, 1994; Apr. 24, 1998,
eff. Dec. 1, 1998; Apr. 25, 2005, eff. Dec. 1, 2005; Apr. 28, 2016, eff. Dec. 1, 2016.)
CIRCUIT RULE 35-1. PETITION FOR REHEARING EN BANC

Where a petition for rehearing en banc is made pursuant to FRAP 35(b) in conjunction with a
petition for panel rehearing, a reference to the petition for rehearing en banc, as well as to the
petition for panel rehearing, shall appear on the cover of the petition. (Rev. 12/1/09)
When the opinion of a panel directly conflicts with an existing opinion by another court of
appeals and substantially affects a rule of national application in which there is an overriding
need for national uniformity, the existence of such conflict is an appropriate ground for
petitioning for rehearing en banc. (Rev. 12/1/09)
CIRCUIT RULE 35-2. OPPORTUNITY TO RESPOND

Where a party petitions for hearing or rehearing en banc, the Court will not order a hearing or
rehearing en banc without giving the other parties an opportunity to express their views whether
hearing or rehearing en banc is appropriate. Where no petition for en banc review is filed, the
Court will not ordinarily order a hearing or rehearing en banc without giving counsel an
opportunity to respond on the appropriateness of such a hearing. (Rev. 12/1/09)
CIRCUIT RULE 35-3. LIMITED EN BANC COURT

The en banc court, for each case or group of related cases taken en banc, shall consist of the
Chief Judge of this circuit and 10 additional judges to be drawn by lot from the active judges of
the Court. In the absence of the Chief Judge, an 11th active judge shall be drawn by lot, and the
most senior active judge on the panel shall preside. (Rev. 1/1/06, 7/1/07)
The drawing of the en banc court will be performed by the Clerk or a deputy clerk of the Court in
the presence of at least one judge and shall take place on the first working day following the date
of the order taking the case or group of related cases en banc.
If a judge whose name is drawn for a particular en banc court is disqualified, recused, or knows
that he or she will be unable to sit at the time and place designated for the en banc case or cases,
9
the judge will immediately notify the Chief Judge who will direct the Clerk to draw a
replacement judge by lot. (Rev. 1/1/06)
In appropriate cases, the Court may order a rehearing by the full court following a hearing or
rehearing en banc.
Cross Reference:
• FRAP 40. Petition for Panel Rehearing on page 160
CIRCUIT ADVISORY COMMITTEE NOTE TO RULES 35 ‑ 1 TO

35 ‑ 3
(1) Calculation of Filing Deadline. Litigants are reminded that a petition for rehearing en
banc must be received by the clerk in San Francisco on the due date. See FRAP 25(a)(1)
and (2)(A) and Circuit Rule 25-2; see also United States v. James, 146 F.3d 1183 (9th
Cir. 1998). (Rev. 12/1/02; 12/1/09; 1/1/12)
(2) Petition for Rehearing En Banc. When the clerk receives a timely petition for rehearing
en banc, copies are sent to all active judges. If the panel grants rehearing it so advises
the other members of the Court, and the petition for rehearing en banc is deemed rejected
without prejudice to its renewal after the panel completes action on the rehearing. Cases
are rarely reheard en banc.
If no petition for rehearing en banc has been submitted and the panel votes to deny
rehearing an order to that effect will be prepared and filed.
If a petition for rehearing en banc has been made, any judge may, within 21 days from
receipt of the en banc petition, request the panel to make known its recommendation as to
en banc consideration. Upon receipt of the panel’s recommendation, any judge has 14
days to call for en banc consideration, whereupon a vote will be taken. If no judge
requests or gives notice of an intention to request en banc consideration within 21 days
of the receipt of the en banc petition, the panel will enter an order denying rehearing and
rejecting the petition for rehearing en banc.
Any active judge who is not recused or disqualified and who entered upon active service
before the request for an en banc vote is eligible to vote. A judge who takes senior status
after a call for a vote may not vote or be drawn to serve on the en banc court. This rule is
subject to two exceptions: (1) a judge who takes senior status during the pendency of an
en banc case for which the judge has already been chosen as a member of the en banc
court may continue to serve on that court until the case is finally disposed of; and (2) a
senior judge may elect to be eligible, in the same manner as an active judge, to be
selected as a member of the en banc court when it reviews a decision of a panel of which
the judge was a member.
The En Banc Coordinator notifies the judges when voting is complete. If the
10
recommendation or request fails of a majority, the En Banc Coordinator notifies the

judges and the panel resumes control of the case. The panel then enters an appropriate
order denying en banc consideration. The order will not specify the vote tally.
(3) Grant of Rehearing En Banc. When the Court votes to rehear a matter en banc, the
Chief Judge will enter an order so indicating. The vote tally is not communicated to the
parties. The three-judge panel opinion shall not be cited as precedent by or to this Court
or any district court of the Ninth Circuit, except to the extent adopted by the en banc
court. (Rev. 1/1/00)
After the en banc court is chosen, the judges on the panel decide whether there will be
oral argument or additional briefing. If there is to be oral argument, the Chief Judge (or
the next senior active judge as the case may be) will enter an order designating the date,
time and place of argument. If no oral argument is to be heard, the Chief Judge will
designate a date, time, and place for a conference of the en banc court. That date will
ordinarily be the submission date of the case. If any issues have been isolated for specific
attention, the order may also set forth those issues and additional briefing may be
ordered. (Rev. 1/03; 12/1/09)
Cross Reference:
• FRAP 32. Form of Briefs, Appendices, and Other Papers on page 134, specifically, FRAP
32(c)(2)
• FRAP 40. Petition for Panel Rehearing on page 160
CIRCUIT RULE 35-4. FORMAT; NUMBER OF COPIES

(a) Format/Length of Petition and Answer
The format and length of a petition for rehearing en banc and any answer shall be
governed by Circuit Rule 40-1(a).
The petition or answer must be accompanied by the completed certificate of compliance

found at Form 11. (New 7/1/00)
(b) Number of Copies
If the petition is not required to be filed electronically, a petition for rehearing en banc
shall be filed in an original. (Rev. 12/1/09)
11
FRAP 40. PETITION FOR PANEL REHEARING
(a) Time to File; Contents; Answer; Action by the Court if Granted.

(1) Time. Unless the time is shortened or extended by order or local rule, a petition
for panel rehearing may be filed within 14 days after entry of judgment. But in a
civil case, unless an order shortens or extends the time, the petition may be filed
by any party within 45 days after entry of judgment if one of the parties is:
(A) the United States;
(B) a United States agency;
(C) a United States officer or employee sued in an official capacity; or
(D) a current or former United States officer or employee sued in an individual
capacity for an act or omission occurring in connection with duties
performed on the United States’ behalf—including all instances in which
the United States represents that person when the court of appeals’
judgment is entered or files the petition for that person.
(2) Contents. The petition must state with particularity each point of law or fact that
the petitioner believes the court has overlooked or misapprehended and must
argue in support of the petition. Oral argument is not permitted.
(3) Answer. Unless the court requests, no answer to a petition for panel rehearing is
permitted. But ordinarily rehearing will not be granted in the absence of such a
request.
(4) Action by the Court. If a petition for panel rehearing is granted, the court may do
any of the following:
(A) make a final disposition of the case without reargument;
(B) restore the case to the calendar for reargument or resubmission; or
(C) issue any other appropriate order.
(b) Form of Petition; Length. The petition must comply in form with Rule 32. Copies must
be served and filed as Rule 31 prescribes. Except by the court’s permission:
(1) a petition for panel rehearing produced using a computer must not exceed 3,900
words; and
(2) a handwritten or typewritten petition for panel rehearing must not exceed 15
pages.
(As amended Apr. 30, 1979, eff. Aug. 1, 1979; Apr. 29, 1994, eff. Dec. 1, 1994; Apr. 24, 1998,
eff. Dec. 1, 1998; Apr. 26, 2011, eff. Dec. 1, 2011; Apr. 28, 2016, eff. Dec. 1, 2016.)
12
CIRCUIT RULE 40-1. FORMAT; NUMBER OF COPIES

[Previous text Abrogated 1/1/99]
(a) Format/Length of Petition and Answer
The format of a petition for panel rehearing or rehearing en banc and any answer is
governed by FRAP 32(c)(2). The petition may not exceed 15 pages unless it complies
with the alternative length limitation of 4,200 words. An answer, when ordered by the
Court, must comply with the same length limits as the petition.
If an unrepresented litigant elects to file a form brief pursuant to Circuit Rule 28-1, a
petition for panel rehearing or for rehearing en banc need not comply with FRAP 32.
The petition or answer must be accompanied by the completed certificate of compliance

found at Form 11. (New 7/1/00; Rev. 12/1/16)
(b) Number of Copies
If the petition is not required to be filed electronically, an original shall be filed. (Rev.
12/1/09)
(c) Copy of Panel Decision
The petition for panel or en banc rehearing shall be accompanied by a copy of the panel’s
order, memorandum disposition or opinion being challenged. (New 7/1/06)
Cross Reference:
• FRAP 32. Form of Briefs, Appendices, and Other Papers on page 134, specifically, FRAP
32(c)(2)
• Circuit Rule 28-1. Briefs, Applicable Rules on page 108
CIRCUIT ADVISORY COMMITTEE NOTE TO RULE 40-1

Litigants are reminded that a petition for rehearing must be received by the Clerk in San
Francisco on the due date. See FRAP 25(a)(1) and (2)(A) and Circuit Rule 25-2; see also United
States v. James, 146 F.3d 1183 (9th Cir. 1998). (Rev. 12/1/02; 12/1/09; 1/1/12)
13
CIRCUIT RULE 40-2. PUBLICATION OF PREVIOUSLY

UNPUBLISHED DISPOSITION
An order to publish a previously unpublished memorandum disposition in accordance with
Circuit Rule 36-4 extends the time to file a petition for rehearing to 14 days after the date of the
order of publication or, in all civil cases in which the United States or an agency or officer
thereof is a party, 45 days after the date of the order of publication. If the mandate has issued, the
petition for rehearing shall be accompanied by a motion to recall the mandate. (Rev. 1/96)
14
Rule 15. Amended and Supplemental Pleadings | Federal Rules of Civ... https://www.law.cornell.edu/rules/frcp/rule_15
Cornell Law School
Federal Rules of Civil Procedure › TITLE III. PLEADINGS AND MOTIONS › Rule 15. Amended and
Supplemental Pleadings
Rule 15. Amended and Supplemental Pleadings

(a) AMENDMENTS BEFORE TRIAL.
(1) Amending as a Matter of Course. A party may amend its pleading once as a matter of
course within:
(A) 21 days after serving it, or
(B) if the pleading is one to which a responsive pleading is required, 21 days after service
of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f),
whichever is earlier.
(2) Other Amendments. In all other cases, a party may amend its pleading only with the
opposing party's written consent or the court's leave. The court should freely give leave when
justice so requires.
(3) Time to Respond. Unless the court orders otherwise, any required response to an
amended pleading must be made within the time remaining to respond to the original pleading
or within 14 days after service of the amended pleading, whichever is later.
(b) AMENDMENTS DURING AND AFTER TRIAL.
(1) Based on an Objection at Trial. If, at trial, a party objects that evidence is not within the
issues raised in the pleadings, the court may permit the pleadings to be amended. The court
should freely permit an amendment when doing so will aid in presenting the merits and the
objecting party fails to satisfy the court that the evidence would prejudice that party's action or
defense on the merits. The court may grant a continuance to enable the objecting party to
meet the evidence.
(2) For Issues Tried by Consent. When an issue not raised by the pleadings is tried by the
parties’ express or implied consent, it must be treated in all respects as if raised in the
pleadings. A party may move—at any time, even after judgment—to amend the pleadings to
conform them to the evidence and to raise an unpleaded issue. But failure to amend does not
affect the result of the trial of that issue.
(c) RELATION BACK OF AMENDMENTS.
(1) When an Amendment Relates Back. An amendment to a pleading relates back to the date
of the original pleading when:
(A) the law that provides the applicable statute of limitations allows relation back;
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(B) the amendment asserts a claim or defense that arose out of the conduct, transaction,
or occurrence set out—or attempted to be set out—in the original pleading; or
(C) the amendment changes the party or the naming of the party against whom a claim is
asserted, if Rule 15(c)(1)(B) is satisfied and if, within the period provided by Rule 4(m) for
serving the summons and complaint, the party to be brought in by amendment:
(i) received such notice of the action that it will not be prejudiced in defending on the
merits; and
(ii) knew or should have known that the action would have been brought against it, but
for a mistake concerning the proper party's identity.
(2) Notice to the United States. When the United States or a United States officer or agency
is added as a defendant by amendment, the notice requirements of Rule 15(c)(1)(C)(i) and (ii)
are satisfied if, during the stated period, process was delivered or mailed to the United States
attorney or the United States attorney's designee, to the Attorney General of the United States,
or to the officer or agency.
(d) SUPPLEMENTAL PLEADINGS. On motion and reasonable notice, the court may, on just terms,
permit a party to serve a supplemental pleading setting out any transaction, occurrence, or event
that happened after the date of the pleading to be supplemented. The court may permit
supplementation even though the original pleading is defective in stating a claim or defense. The
court may order that the opposing party plead to the supplemental pleading within a specified
time.
NOTES
(As amended Jan. 21, 1963, eff. July 1, 1963; Feb. 28, 1966, eff. July 1, 1966; Mar. 2, 1987, eff.
Aug. 1, 1987; Apr. 30, 1991, eff. Dec. 1, 1991; Pub. L. 102–198, §11(a), Dec. 9, 1991, 105 Stat.
1626; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 30, 2007, eff. Dec. 1, 2007; Mar. 26, 2009, eff. Dec. 1,
2009.)
NOTES OF ADVISORY COMMITTEE ON RULES—1937
See generally for the present federal practice, [former] Equity Rules 19 (Amendments
Generally), 28 (Amendment of Bill as of Course), 32 (Answer to Amended Bill), 34 (Supplemental
Pleading), and 35 (Bills of Revivor and Supplemental Bills—Form); U.S.C., Title 28, §§399 [now
1653] (Amendments to show diverse citizenship) and [former] 777 (Defects of Form;
amendments). See English Rules Under the Judicature Act (The Annual Practice, 1937) O. 28, r.r.
1–13; O. 20, r. 4; O. 24, r.r. 1–3.
Note to Subdivision (a). The right to serve an amended pleading once as of course is common.
4 Mont.Rev.Codes Ann. (1935) §9186; 1 Ore.Code Ann. (1930) §1–904; 1 S.C.Code (Michie,
1932) §493; English Rules Under the Judicature Act (The Annual Practice, 1937) O. 28, r. 2.
Provision for amendment of pleading before trial, by leave of court, is in almost every code. If
there is no statute the power of the court to grant leave is said to be inherent. Clark, Code
Pleading, (1928) pp. 498, 509.
Note to Subdivision (b). Compare [former] Equity Rule 19 (Amendments Generally) and code
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provisions which allow an amendment “at any time in furtherance of justice,” (e. g., Ark.Civ.Code
(Crawford, 1934) §155) and which allow an amendment of pleadings to conform to the evidence,
where the adverse party has not been misled and prejudiced (e.g., N.M.Stat.Ann. (Courtright,
1929) §§105–601, 105–602).
Note to Subdivision (c). “Relation back” is a well recognized doctrine of recent and now more
frequent application. Compare Ala.Code Ann. (Michie, 1928) §9513; Ill.Rev.Stat. (1937) ch. 110,
§170(2); 2 Wash.Rev.Stat.Ann. (Remington, 1932) §308–3(4). See U.S.C., Title 28, §399 [now
1653] (Amendments to show diverse citizenship) for a provision for “relation back.”
Note to Subdivision (d). This is an adaptation of Equity Rule 34 (Supplemental Pleading).
NOTES OF ADVISORY COMMITTEE ON RULES—1963 AMENDMENT
Rule 15(d) is intended to give the court broad discretion in allowing a supplemental pleading.
However, some cases, opposed by other cases and criticized by the commentators, have taken
the rigid and formalistic view that where the original complaint fails to state a claim upon which
relief can be granted, leave to serve a supplemental complaint must be denied. See Bonner v.
Elizabeth Arden, Inc., 177 F.2d 703 (2d Cir. 1949); Bowles v. Senderowitz, 65 F.Supp. 548
(E.D.Pa.), rev'd on other grounds, 158 F.2d 435 (3d Cir. 1946), cert. denied, Senderowitz v.
Fleming, 330 U.S. 848, 67 S.Ct. 1091, 91 L.Ed. 1292 (1947); cf. LaSalle Nat. Bank v. 222 East
Chestnut St. Corp., 267 F.2d 247 (7th Cir.), cert. denied, 361 U.S. 836, 80 S.Ct. 88, 4 L.Ed.2d 77
(1959). But see Camilla Cotton Oil Co. v. Spencer Kellogg & Sons, 257 F.2d 162 (5th Cir. 1958);
Genuth v. National Biscuit Co., 81 F.Supp. 213 (S.D.N.Y. 1948), app. dism., 177 F.2d 962 (2d Cir.
1949); 3 Moore's Federal Practice 15.01 [5] (Supp. 1960); 1A Barron & Holtzoff, Federal Practice
& Procedure 820–21 (Wright ed. 1960). Thus plaintiffs have sometimes been needlessly remitted
to the difficulties of commencing a new action even though events occurring after the
commencement of the original action have made clear the right to relief.
Under the amendment the court has discretion to permit a supplemental pleading despite the
fact that the original pleading is defective. As in other situations where a supplemental pleading
is offered, the court is to determine in the light of the particular circumstances whether filing
should be permitted, and if so, upon what terms. The amendment does not attempt to deal with
such questions as the relation of the statute of limitations to supplemental pleadings, the
operation of the doctrine of laches, or the availability of other defenses. All these questions are
for decision in accordance with the principles applicable to supplemental pleadings generally. Cf.
Blau v. Lamb, 191 F.Supp. 906 (S.D.N.Y. 1961); Lendonsol Amusement Corp. v. B. & Q. Assoc.,
Inc., 23 F.R.Serv. 15d. 3, Case 1 (D.Mass. 1957).
Rule 15(c) is amplified to state more clearly when an amendment of a pleading changing the
party against whom a claim is asserted (including an amendment to correct a misnomer or
misdescription of a defendant) shall “relate back” to the date of the original pleading.
The problem has arisen most acutely in certain actions by private parties against officers or
agencies of the United States. Thus an individual denied social security benefits by the Secretary
of Health, Education, and Welfare may secure review of the decision by bringing a civil action
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against that officer within sixty days. 42 U.S.C. §405(g) (Supp. III, 1962). In several recent cases
the claimants instituted timely action but mistakenly named as defendant the United States, the
Department of HEW, the “Federal Security Administration” (a nonexistent agency), and a
Secretary who had retired from the office nineteen days before. Discovering their mistakes, the
claimants moved to amend their complaints to name the proper defendant; by this time the
statutory sixty-day period had expired. The motions were denied on the ground that the
amendment “would amount to the commencement of a new proceeding and would not relate
back in time so as to avoid the statutory provision * * * that suit be brought within sixty days * * *”
Cohn v. Federal Security Adm., 199 F.Supp. 884, 885 (W.D.N.Y. 1961); see also Cunningham v.
United States, 199 F.Supp. 541 (W.D.Mo. 1958); Hall v. Department of HEW, 199 F.Supp. 833
(S.D.Tex. 1960); Sandridge v. Folsom, Secretary of HEW, 200 F.Supp. 25 (M.D.Tenn. 1959). [The
Secretary of Health, Education, and Welfare has approved certain ameliorative regulations under
42 U.S.C. §405(g). See 29 Fed.Reg. 8209 (June 30, 1964); Jacoby, The Effect of Recent Changes
in the Law of “Nonstatutory” Judicial Review, 53 Geo.L.J. 19, 42–43 (1964); see also Simmons v.
United States Dept. HEW, 328 F.2d 86 (3d Cir. 1964).]
Analysis in terms of “new proceeding” is traceable to Davis v. L. L. Cohen & Co., 268 U.S. 638
(1925), and Mellon v. Arkansas Land & Lumber Co., 275 U.S. 460 (1928), but those cases
antedate the adoption of the Rules which import different criteria for determining when an
amendment is to “relate back”. As lower courts have continued to rely on the Davis and Mellon
cases despite the contrary intent of the Rules, clarification of Rule 15(c) is considered advisable.
Relation back is intimately connected with the policy of the statute of limitations. The policy of
the statute limiting the time for suit against the Secretary of HEW would not have been offended
by allowing relation back in the situations described above. For the government was put on
notice of the claim within the stated period—in the particular instances, by means of the initial
delivery of process to a responsible government official (see Rule 4(d)(4) and (5). In these
circumstances, characterization of the amendment as a new proceeding is not responsive to the
realty, but is merely question-begging; and to deny relation back is to defeat unjustly the
claimant's opportunity to prove his case. See the full discussion by Byse, Suing the “Wrong”
Defendant in Judicial Review of Federal Administrative Action: Proposals for Reform, 77
Harv.L.Rev. 40 (1963); see also Ill.Civ.P.Act §46(4).
Much the same question arises in other types of actions against the government (see Byse,
supra, at 45 n. 15). In actions between private parties, the problem of relation back of
amendments changing defendants has generally been better handled by the courts, but incorrect
criteria have sometimes been applied, leading sporadically to doubtful results. See 1A Barron &
Holtzoff, Federal Practice & Procedure §451 (Wright ed. 1960); 1 id. §186 (1960); 2 id. §543
(1961); 3 Moore's Federal Practice, par. 15.15 (Cum.Supp. 1962); Annot., Change in Party After
Statute of Limitations Has Run, 8 A.L.R.2d 6 (1949). Rule 15(c) has been amplified to provide a
general solution. An amendment changing the party against whom a claim is asserted relates
back if the amendment satisfies the usual condition of Rule 15(c) of “arising out of the conduct * *
* set forth * * * in the original pleading,” and if, within the applicable limitations period, the party
brought in by amendment, first, received such notice of the institution of the action—the notice
need not be formal—that he would not be prejudiced in defending the action, and, second, knew
or should have known that the action would have been brought against him initially had there not
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been a mistake concerning the identity of the proper party. Revised Rule 15(c) goes on to provide
specifically in the government cases that the first and second requirements are satisfied when
the government has been notified in the manner there described (see Rule 4(d)(4) and (5). As
applied to the government cases, revised Rule 15(c) further advances the objectives of the 1961
amendment of Rule 25(d) (substitution of public officers).
The relation back of amendments changing plaintiffs is not expressly treated in revised Rule
15(c) since the problem is generally easier. Again the chief consideration of policy is that of the
statute of limitations, and the attitude taken in revised Rule 15(c) toward change of defendants
extends by analogy to amendments changing plaintiffs. Also relevant is the amendment of Rule
17(a) (real party in interest). To avoid forfeitures of just claims, revised Rule 17(a) would provide
that no action shall be dismissed on the ground that it is not prosecuted in the name of the real
party in interest until a reasonable time has been allowed for correction of the defect in the
manner there stated.
The amendments are technical. No substantive change is intended.
The rule has been revised to prevent parties against whom claims are made from taking unjust
advantage of otherwise inconsequential pleading errors to sustain a limitations defense.
Paragraph (c)(1). This provision is new. It is intended to make it clear that the rule does not
apply to preclude any relation back that may be permitted under the applicable limitations law.
Generally, the applicable limitations law will be state law. If federal jurisdiction is based on the
citizenship of the parties, the primary reference is the law of the state in which the district court
sits. Walker v. Armco Steel Corp., 446 U.S. 740 (1980). If federal jurisdiction is based on a federal
question, the reference may be to the law of the state governing relations between the parties.
E.g., Board of Regents v. Tomanio, 446 U.S. 478 (1980). In some circumstances, the controlling
limitations law may be federal law. E.g., West v. Conrail, Inc., 107 S.Ct. 1538 (1987). Cf.
Burlington Northern R. Co. v. Woods, 480 U.S. 1 (1987); Stewart Organization v. Ricoh, 108 S.Ct.
2239 (1988). Whatever may be the controlling body of limitations law, if that law affords a more
forgiving principle of relation back than the one provided in this rule, it should be available to
save the claim. Accord, Marshall v. Mulrenin, 508 F.2d 39 (1st cir. 1974). If Schiavone v. Fortune,
106 S.Ct. 2379 (1986) implies the contrary, this paragraph is intended to make a material change
in the rule.
Paragraph (c)(3). This paragraph has been revised to change the result in Schiavone v. Fortune,
supra, with respect to the problem of a misnamed defendant. An intended defendant who is
notified of an action within the period allowed by Rule 4(m) for service of a summons and
complaint may not under the revised rule defeat the action on account of a defect in the pleading
with respect to the defendant's name, provided that the requirements of clauses (A) and (B) have
been met. If the notice requirement is met within the Rule 4(m) period, a complaint may be
amended at any time to correct a formal defect such as a misnomer or misidentification. On the
basis of the text of the former rule, the Court reached a result in Schiavone v. Fortune that was
inconsistent with the liberal pleading practices secured by Rule 8. See Bauer, Schiavone: An Un-
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Fortune-ate Illustration of the Supreme Court's Role as Interpreter of the Federal Rules of Civil
Procedure , 63 NOTRE DAME L. REV. 720 (1988); Brussack, Outrageous Fortune: The Case for
Amending Rule 15(c) Again, 61 S. CAL. L. REV. 671 (1988); Lewis, The Excessive History of
Federal Rule 15(c) and Its Lessons for Civil Rules Revision, 86 MICH. L. REV. 1507 (1987).
In allowing a name-correcting amendment within the time allowed by Rule 4(m), this rule allows
not only the 120 days specified in that rule, but also any additional time resulting from any
extension ordered by the court pursuant to that rule, as may be granted, for example, if the
defendant is a fugitive from service of the summons.
This revision, together with the revision of Rule 4(i) with respect to the failure of a plaintiff in an
action against the United States to effect timely service on all the appropriate officials, is
intended to produce results contrary to those reached in Gardner v. Gartman, 880 F.2d 797 (4th
cir. 1989), Rys v. U.S. Postal Service, 886 F.2d 443 (1st cir. 1989), Martin's Food & Liquor, Inc. v.
U.S. Dept. of Agriculture, 14 F.R.S.3d 86 (N.D. Ill. 1988). But cf. Montgomery v. United States
Postal Service, 867 F.2d 900 (5th cir. 1989), Warren v. Department of the Army, 867 F.2d 1156 (8th
cir. 1989); Miles v. Department of the Army, 881 F.2d 777 (9th cir. 1989), Barsten v. Department of
the Interior, 896 F.2d 422 (9th cir. 1990); Brown v. Georgia Dept. of Revenue, 881 F.2d 1018 (11th
cir. 1989).
CONGRESSIONAL MODIFICATION OF PROPOSED 1991 AMENDMENT
Section 11(a) of Pub. L. 102–198 [set out as a note under section 2074 of this title] provided
that Rule 15(c)(3) of the Federal Rules of Civil Procedure as transmitted to Congress by the
Supreme Court to become effective on Dec. 1, 1991, is amended. See 1991 Amendment note
below.
The amendment conforms the cross reference to Rule 4 to the revision of that rule.
COMMITTEE NOTES ON RULES—2007 AMENDMENT
The language of Rule 15 has been amended as part of the general restyling of the Civil Rules
to make them more easily understood and to make style and terminology consistent throughout
the rules. These changes are intended to be stylistic only.
Former Rule 15(c)(3)(A) called for notice of the “institution” of the action. Rule 15(c)(1)(C)(i)
omits the reference to “institution” as potentially confusing. What counts is that the party to be
brought in have notice of the existence of the action, whether or not the notice includes details
as to its “institution.”
Rule 15(a)(1) is amended to make three changes in the time allowed to make one amendment
as a matter of course.
Former Rule 15(a) addressed amendment of a pleading to which a responsive pleading is

required by distinguishing between the means used to challenge the pleading. Serving a
responsive pleading terminated the right to amend. Serving a motion attacking the pleading did
not terminate the right to amend, because a motion is not a “pleading” as defined in Rule 7. The
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right to amend survived beyond decision of the motion unless the decision expressly cut off the
right to amend.
The distinction drawn in former Rule 15(a) is changed in two ways. First, the right to amend
once as a matter of course terminates 21 days after service of a motion under Rule 12(b), (e), or
(f). This provision will force the pleader to consider carefully and promptly the wisdom of
amending to meet the arguments in the motion. A responsive amendment may avoid the need to
decide the motion or reduce the number of issues to be decided, and will expedite determination
of issues that otherwise might be raised seriatim. It also should advance other pretrial
proceedings.
Second, the right to amend once as a matter of course is no longer terminated by service of a
responsive pleading. The responsive pleading may point out issues that the original pleader had
not considered and persuade the pleader that amendment is wise. Just as amendment was
permitted by former Rule 15(a) in response to a motion, so the amended rule permits one
amendment as a matter of course in response to a responsive pleading. The right is subject to
the same 21-day limit as the right to amend in response to a motion.
The 21-day periods to amend once as a matter of course after service of a responsive pleading
or after service of a designated motion are not cumulative. If a responsive pleading is served
after one of the designated motions is served, for example, there is no new 21-day period.
Finally, amended Rule 15(a)(1) extends from 20 to 21 days the period to amend a pleading to
which no responsive pleading is allowed and omits the provision that cuts off the right if the
action is on the trial calendar. Rule 40 no longer refers to a trial calendar, and many courts have
abandoned formal trial calendars. It is more effective to rely on scheduling orders or other pretrial
directions to establish time limits for amendment in the few situations that otherwise might allow
one amendment as a matter of course at a time that would disrupt trial preparations. Leave to
amend still can be sought under Rule 15(a)(2), or at and after trial under Rule 15(b).
Abrogation of Rule 13(f) establishes Rule 15 as the sole rule governing amendment of a
pleading to add a counterclaim.
Amended Rule 15(a)(3) extends from 10 to 14 days the period to respond to an amended
pleading.
AMENDMENT BY PUBLIC LAW
1991 —Subd. (c)(3). Pub. L. 102–198 substituted “Rule 4(j)” for “Rule 4(m)”.

civil procedure
‹ Rule 14. Third-Party Practice up Rule 16. Pretrial Conferences; Scheduling;

Management ›
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Rule 60. Relief from a Judgment or Order | Federal Rules of Civil Pr... https://www.law.cornell.edu/rules/frcp/rule_60
Cornell Law School
Federal Rules of Civil Procedure › TITLE VII. JUDGMENT › Rule 60. Relief from a Judgment or Order
Rule 60. Relief from a Judgment or Order

(a) CORRECTIONS BASED ON CLERICAL MISTAKES; OVERSIGHTS AND OMISSIONS. The court may correct
a clerical mistake or a mistake arising from oversight or omission whenever one is found in a
judgment, order, or other part of the record. The court may do so on motion or on its own, with or
without notice. But after an appeal has been docketed in the appellate court and while it is
pending, such a mistake may be corrected only with the appellate court's leave.
(b) GROUNDS FOR RELIEF FROM A FINAL JUDGMENT, ORDER, OR PROCEEDING. On motion and just
terms, the court may relieve a party or its legal representative from a final judgment, order, or
proceeding for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable diligence, could not have been
discovered in time to move for a new trial under Rule 59(b);
(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct

by an opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied, released, or discharged; it is based on an earlier
judgment that has been reversed or vacated; or applying it prospectively is no longer
equitable; or
(6) any other reason that justifies relief.
(c) TIMING AND EFFECT OF THE MOTION.
(1) Timing. A motion under Rule 60(b) must be made within a reasonable time—and for
reasons (1), (2), and (3) no more than a year after the entry of the judgment or order or the date
of the proceeding.
(2) Effect on Finality. The motion does not affect the judgment's finality or suspend its
operation.
(d) OTHER POWERS TO GRANT RELIEF. This rule does not limit a court's power to:
(1) entertain an independent action to relieve a party from a judgment, order, or proceeding;
(2) grant relief under 28 U.S.C. §1655 to a defendant who was not personally notified of the
action; or
(3) set aside a judgment for fraud on the court.
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(e) BILLS AND WRITS ABOLISHED. The following are abolished: bills of review, bills in the nature of
bills of review, and writs of coram nobis, coram vobis, and audita querela.
NOTES
(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Dec. 29, 1948, eff. Oct. 20, 1949; Mar. 2, 1987,
eff. Aug. 1, 1987; Apr. 30, 2007, eff. Dec. 1, 2007.)
NOTES OF ADVISORY COMMITTEE ON RULES—1937
Note to Subdivision (a). See [former] Equity Rule 72 (Correction of Clerical Mistakes in Orders
and Decrees); Mich.Court Rules Ann. (Searl, 1933) Rule 48, §3; 2 Wash.Rev.Stat.Ann.
(Remington, 1932) §464(3); Wyo.Rev.Stat.Ann. (Courtright, 1931) §89–2301(3). For an example of
a very liberal provision for the correction of clerical errors and for amendment after judgment, see
Va.Code Ann. (Michie, 1936) §§6329, 6333.
Note to Subdivision (b). Application to the court under this subdivision does not extend the
time for taking an appeal, as distinguished from the motion for new trial. This section is based
upon Calif.Code Civ.Proc. (Deering, 1937) §473. See also N.Y.C.P.A. (1937) §108; 2 Minn.Stat.
(Mason, 1927) §9283.
For the independent action to relieve against mistake, etc., see Dobie, Federal Procedure,
pages 760–765, compare 639; and Simkins, Federal Practice, ch. CXXI (pp. 820–830) and ch.
CXXII (pp. 831–834), compare §214.
Subdivision (a). The amendment incorporates the view expressed in Perlman v. 322 West
Seventy-Second Street Co., Inc. (C.C.A.2d, 1942) 127 F.(2d) 716; 3 Moore's Federal Practice
(1938) 3276, and further permits correction after docketing, with leave of the appellate court.
Some courts have thought that upon the taking of an appeal the district court lost its power to
act. See Schram v. Safety Investment Co. (E.D.Mich. 1942) 45 F.Supp. 636; also Miller v. United
States (C.C.A.7th, 1940) 114 F.(2d) 267.
Subdivision (b). When promulgated, the rules contained a number of provisions, including
those found in Rule 60(b), describing the practice by a motion to obtain relief from judgments,
and these rules, coupled with the reservation in Rule 60(b) of the right to entertain a new action
to relieve a party from a judgment, were generally supposed to cover the field. Since the rules
have been in force, decisions have been rendered that the use of bills of review, coram nobis, or
audita querela, to obtain relief from final judgments is still proper, and that various remedies of
this kind still exist although they are not mentioned in the rules and the practice is not prescribed
in the rules. It is obvious that the rules should be complete in this respect and define the practice
with respect to any existing rights or remedies to obtain relief from final judgments. For extended
discussion of the old common law writs and equitable remedies, the interpretation of Rule 60,
and proposals for change, see Moore and Rogers, Federal Relief from Civil Judgments (1946) 55
Yale L.J. 623. See also 3 Moore's Federal Practice (1938) 3254 et seq.; Commentary, Effect of
Rule 60b on Other Methods of Relief From Judgment (1941) 4 Fed.Rules Serv. 942, 945; Wallace
v. United States (C.C.A.2d, 1944) 142 F.(2d) 240, cert. den. (1944) 323 U.S. 712.
The reconstruction of Rule 60(b) has for one of its purposes a clarification of this situation. Two
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types of procedure to obtain relief from judgments are specified in the rules as it is proposed to
amend them. One procedure is by motion in the court and in the action in which the judgment
was rendered. The other procedure is by a new or independent action to obtain relief from a
judgment, which action may or may not be begun in the court which rendered the judgment.
Various rules, such as the one dealing with a motion for new trial and for amendment of
judgments, Rule 59, one for amended findings, Rule 52, and one for judgment notwithstanding
the verdict, Rule 50(b), and including the provisions of Rule 60(b) as amended, prescribe the
various types of cases in which the practice by motion is permitted. In each case there is a limit
upon the time within which resort to a motion is permitted, and this time limit may not be
enlarged under Rule 6(b). If the right to make a motion is lost by the expiration of the time limits
fixed in these rules, the only other procedural remedy is by a new or independent action to set
aside a judgment upon those principles which have heretofore been applied in such an action.
Where the independent action is resorted to, the limitations of time are those of laches or
statutes of limitations. The Committee has endeavored to ascertain all the remedies and types of
relief heretofore available by coram nobis, coram vobis, audita querela, bill of review, or bill in the
nature of a bill of review. See Moore and Rogers, Federal Relief from Civil Judgments (1946) 55
Yale L.J. 623, 659–682. It endeavored then to amend the rules to permit, either by motion or by
independent action, the granting of various kinds of relief from judgments which were permitted
in the federal courts prior to the adoption of these rules, and the amendment concludes with a
provision abolishing the use of bills of review and the other common law writs referred to, and
requiring the practice to be by motion or by independent action.
To illustrate the operation of the amendment, it will be noted that under Rule 59(b) as it now
stands, without amendment, a motion for new trial on the ground of newly discovered evidence
is permitted within ten days after the entry of the judgment, or after that time upon leave of the
court. It is proposed to amend Rule 59(b) by providing that under that rule a motion for new trial
shall be served not later than ten days after the entry of the judgment, whatever the ground be
for the motion, whether error by the court or newly discovered evidence. On the other hand, one
of the purposes of the bill of review in equity was to afford relief on the ground of newly
discovered evidence long after the entry of the judgment. Therefore, to permit relief by a motion
similar to that heretofore obtained on bill of review, Rule 60(b) as amended permits an application
for relief to be made by motion, on the ground of newly discovered evidence, within one year
after judgment. Such a motion under Rule 60(b) does not affect the finality of the judgment, but a
motion under Rule 59, made within 10 days, does affect finality and the running of the time for
appeal.
If these various amendments, including principally those to Rule 60(b), accomplish the purpose
for which they are intended, the federal rules will deal with the practice in every sort of case in
which relief from final judgments is asked, and prescribe the practice. With reference to the
question whether, as the rules now exist, relief by coram nobis, bills of review, and so forth, is
permissible, the generally accepted view is that the remedies are still available, although the
precise relief obtained in a particular case by use of these ancillary remedies is shrouded in
ancient lore and mystery. See Wallace v. United States (C.C.A.2d, 1944) 142 F.(2d) 240, cert. den.
(1944) 323 U.S. 712; Fraser v. Doing (App.D.C. 1942) 130 F.(2d) 617; Jones v. Watts (C.C.A.5th,
1944) 142 F.(2d) 575; Preveden v. Hahn (S.D.N.Y. 1941) 36 F.Supp. 952; Cavallo v. Agwilines, Inc.
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(S.D.N.Y. 1942) 6 Fed.Rules Serv. 60b.31, Case 2, 2 F.R.D. 526; McGinn v. United States (D.Mass.
1942) 6 Fed.Rules Serv. 60b.51, Case 3, 2 F.R.D. 562; City of Shattuck, Oklahoma ex rel. Versluis
v. Oliver (W.D.Okla. 1945) 8 Fed.Rules Serv. 60b.31, Case 3; Moore and Rogers, Federal Relief
from Civil Judgments (1946) 55 Yale L.J. 623, 631–653; 3 Moore's Federal Practice (1938) 3254 et
seq.; Commentary, Effect of Rule 60b on Other Methods of Relief From Judgment, op. cit. supra.
Cf. Norris v. Camp (C.C.A.10th, 1944) 144 F.(2d) 1; Reed v. South Atlantic Steamship Co. of
Delaware (D.Del. 1942) 6 Fed.Rules Serv. 60b.31, Case 1; Laughlin v. Berens (D.D.C. 1945) 8
Fed.Rules Serv. 60b.51, Case 1, 73 W.L.R. 209.
The transposition of the words “the court” and the addition of the word “and” at the beginning
of the first sentence are merely verbal changes. The addition of the qualifying word “final”
emphasizes the character of the judgments, orders or proceedings from which Rule 60(b) affords
relief; and hence interlocutory judgments are not brought within the restrictions of the rule, but
rather they are left subject to the complete power of the court rendering them to afford such relief
from them as justice requires.
The qualifying pronoun “his” has been eliminated on the basis that it is too restrictive, and that
the subdivision should include the mistake or neglect of others which may be just as material and
call just as much for supervisory jurisdiction as where the judgment is taken against the party
through his mistake, inadvertence, etc.
Fraud, whether intrinsic or extrinsic, misrepresentation, or other misconduct of an adverse

party are express grounds for relief by motion under amended subdivision (b). There is no sound
reason for their exclusion. The incorporation of fraud and the like within the scope of the rule also
removes confusion as to the proper procedure. It has been held that relief from a judgment
obtained by extrinsic fraud could be secured by motion within a “reasonable time,” which might
be after the time stated in the rule had run. Fiske v. Buder (C.C.A.8th, 1942) 125 F.(2d) 841; see
also inferentially Bucy v. Nevada Construction Co. (C.C.A.9th, 1942) 125 F.(2d) 213. On the other
hand, it has been suggested that in view of the fact that fraud was omitted from original Rule
60(b) as a ground for relief, an independent action was the only proper remedy. Commentary,
Effect of Rule 60b on Other Methods of Relief From Judgment (1941) 4 Fed.Rules Serv. 942, 945.
The amendment settles this problem by making fraud an express ground for relief by motion; and
under the saving clause, fraud may be urged as a basis for relief by independent action insofar as
established doctrine permits. See Moore and Rogers, Federal Relief from Civil Judgments (1946)
55 Yale L.J. 623, 653–659; 3 Moore's Federal Practice (1938) 3267 et seq. And the rule expressly
does not limit the power of the court, when fraud has been perpetrated upon it, to give relief
under the saving clause. As an illustration of this situation, see Hazel-Atlas Glass Co. v. Hartford
Empire Co. (1944) 322 U.S. 238.
The time limit for relief by motion in the court and in the action in which the judgment was
rendered has been enlarged from six months to one year.
It should be noted that Rule 60(b) does not assume to define the substantive law as to the
grounds for vacating judgments, but merely prescribes the practice in proceedings to obtain
relief.
It should also be noted that under §200(4) of the Soldiers’ and Sailors’ Civil Relief Act of 1940
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(50 U.S.C. [App.] §501 et seq. [§520(4)]), a judgment rendered in any action or proceeding
governed by the section may be vacated under certain specified circumstances upon proper
application to the court.
The amendment substitutes the present statutory reference.
The amendment is technical. No substantive change is intended.
The language of Rule 60 has been amended as part of the general restyling of the Civil Rules
to make them more easily understood and to make style and terminology consistent throughout
the rules. These changes are intended to be stylistic only.
The final sentence of former Rule 60(b) said that the procedure for obtaining any relief from a
judgment was by motion as prescribed in the Civil Rules or by an independent action. That
provision is deleted as unnecessary. Relief continues to be available only as provided in the Civil
Rules or by independent action.

civil procedure
‹ Rule 59. New Trial; Altering or Amending a up Rule 61. Harmless Error ›
Judgment
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17. Eminent domain; just compensation for private property taken; public use as judicial question
Section 17. Private property shall not be taken for private use, except for private ways of necessity, and for drains, flumes, or
ditches, on or across the lands of others for mining, agricultural, domestic, or sanitary purposes. No private property shall be
taken or damaged for public or private use without just compensation having first been made, paid into court for the owner,
secured by bond as may be fixed by the court, or paid into the state treasury for the owner on such terms and conditions as the
legislature may provide, and no right of way shall be appropriated to the use of any corporation other than municipal, until full
compensation therefor be first made in money, or ascertained and paid into court for the owner, irrespective of any benefit from
any improvement proposed by such corporation, which compensation shall be ascertained by a jury, unless a jury be waived as in
other civil cases in courts of record, in the manner prescribed by law. Whenever an attempt is made to take private property for a
use alleged to be public, the question whether the contemplated use be really public shall be a judicial question, and determined
as such without regard to any legislative assertion that the use is public.
© 2018 Arizona State Legislature. All Rights Reserved
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6. Recovery of damages for injuries
Section 6. The right of action to recover damages for injuries shall never be abrogated, and the amount recovered shall not be
subject to any statutory limitation, except that a crime victim is not subject to a claim for damages by a person who is harmed
while the person is attempting to engage in, engaging in or fleeing after having engaged in or attempted to engage in conduct
that is classified as a felony offense.
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9-463.02. Subdivision defined; applicability
A. "Subdivision" means improved or unimproved land or lands divided for the purpose of financing, sale or lease, whether
immediate or future, into four or more lots, tracts or parcels of land, or, if a new street is involved, any such property which is
divided into two or more lots, tracts or parcels of land, or, any such property, the boundaries of which have been fixed by a
recorded plat, which is divided into more than two parts. "Subdivision" also includes any condominium, cooperative, community
apartment, townhouse or similar project containing four or more parcels, in which an undivided interest in the land is coupled
with the right of exclusive occupancy of any unit located thereon, but plats of such projects need not show the buildings or the
manner in which the buildings or airspace above the property shown on the plat are to be divided.
B. The legislative body of a municipality shall not refuse approval of a final plat of a project included in subsection A under
provisions of an adopted subdivision regulation because of location of buildings on the property shown on the plat not in
violation of such subdivision regulations or on account of the manner in which airspace is to be divided in conveying the
condominium. Fees and lot design requirements shall be computed and imposed with respect to such plats on the basis of parcels
or lots on the surface of the land shown thereon as included in the project. This subsection does not limit the power of such
legislative body to regulate the location of buildings in such a project by or pursuant to a zoning ordinance.
C. "Subdivision" does not include the following:
1. The sale or exchange of parcels of land to or between adjoining property owners if such sale or exchange does not create
additional lots.
2. The partitioning of land in accordance with other statutes regulating the partitioning of land held in common ownership.
3. The leasing of apartments, offices, stores or similar space within a building or trailer park, nor to mineral, oil or gas leases.
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9-463.03. Violations
It is unlawful for any person to offer to sell or lease, to contract to sell or lease or to sell or lease any subdivision or part thereof
until a final plat thereof, in full compliance with provisions of this article and of any subdivision regulations which have been duly
recorded in the office of recorder of the county in which the subdivision or any portion thereof is located, is recorded in the
office of the recorder, except that this shall not apply to any parcel or parcels of a subdivision offered for sale or lease, contracted
for sale or lease, or sold or leased in compliance with any law or subdivision regulation regulating the subdivision plat design and
improvement of subdivisions in effect at the time the subdivision was established. The county recorder shall not record a plat
located in a municipality having subdivision regulations enacted under this article unless the plat has been approved by the
legislative body of the municipality.
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9-500.12. Appeals of municipal actions; dedication or exaction; excessive reduction in property value; burden of proof; attorney fees
A. Notwithstanding any other provision of this chapter, a property owner may appeal the following actions relating to the owner's
property by a city or town, or an administrative agency or official of a city or town, in the manner prescribed by this section:
1. The requirement by a city or town of a dedication or exaction as a condition of granting approval for the use, improvement or
development of real property. This section does not apply to a dedication or exaction required in a legislative act by the governing body
of a city or town that does not give discretion to the administrative agency or official to determine the nature or extent of the dedication
or exaction.
2. The adoption or amendment of a zoning regulation by a city or town that creates a taking of property in violation of section 9-500.13.
B. The city or town shall notify the property owner that the property owner has the right to appeal the city’s or town’s action pursuant to
this section and shall provide a description of the appeal procedure. The city or town shall not request the property owner to waive the
right of appeal or trial de novo at any time during the consideration of the property owner's request.
C. The appeal shall be in writing and filed with or mailed to a hearing officer designated by the city or town within thirty days after the
final action is taken. The municipality shall submit a takings impact report to the hearing officer. No fee shall be charged for filing the
appeal.
D. After receipt of an appeal, the hearing officer shall schedule a time for the appeal to be heard not later than thirty days after receipt.
The property owner shall be given at least ten days' notice of the time when the appeal will be heard unless the property owner agrees to
a shorter time period.
E. In all proceedings under this section the city or town has the burden to establish that there is an essential nexus between the
dedication or exaction and a legitimate governmental interest and that the proposed dedication, exaction or zoning regulation is roughly
proportional to the impact of the proposed use, improvement or development or, in the case of a zoning regulation, that the zoning
regulation does not create a taking of property in violation of section 9-500.13. If more than a single parcel is involved this requirement
applies to the entire property.
F. The hearing officer shall decide the appeal within five working days after the appeal is heard. If the city or town does not meet its
burden under subsection E of this section, the hearing officer shall:
1. Modify or delete the requirement of the dedication or exaction appealed under subsection A, paragraph 1 of this section.
2. In the case of a zoning regulation appealed under subsection A, paragraph 2 of this section, the hearing officer shall transmit a
recommendation to the governing body of the city or town.
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G. If the hearing officer modifies or affirms the requirement of the dedication, exaction or zoning regulation, a property owner
aggrieved by a decision of the hearing officer may file, at any time within thirty days after the hearing officer has rendered a
decision, a complaint for a trial de novo in the superior court on the facts and the law regarding the issues of the condition or
requirement of the dedication, exaction or zoning regulation. In accordance with the standards for granting preliminary
injunctions, the court may exercise any legal or equitable interim remedies that will permit the property owner to proceed with the
use, enjoyment and development of the real property but that will not render moot any decision upholding the dedication, exaction
or zoning regulation.
H. All matters presented to the superior court pursuant to this section have preference on the court calendar on the same basis as
condemnation matters, and the court shall further have the authority to award reasonable attorney fees incurred in the appeal and
trial pursuant to this section to the prevailing party. The court may further award damages that are deemed appropriate to
compensate the property owner for direct and actual delay damages on a finding that the city or town acted in bad faith.
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9-500.13. Compliance with court decisions
A city or town or an agency or instrumentality of a city or town shall comply with the United States supreme court cases of Dolan
v. City of Tigard, _____ U.S. _____ (1994), Nollan v. California Coastal Commission, 483 U.S. 825 (1987), Lucas v. South Carolina
Coastal Council, _____ U.S. _____ (1992), and First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304
(1987), and Arizona and federal appellate court decisions that are binding on Arizona cities and towns interpreting or applying
those cases.
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12-821.01. Authorization of claim against public entity, public school or public employee
A. Persons who have claims against a public entity, public school or a public employee shall file claims with the person or persons
authorized to accept service for the public entity, public school or public employee as set forth in the Arizona rules of civil
procedure within one hundred eighty days after the cause of action accrues. The claim shall contain facts sufficient to permit the
public entity, public school or public employee to understand the basis on which liability is claimed. The claim shall also contain a
specific amount for which the claim can be settled and the facts supporting that amount. Any claim that is not filed within one
hundred eighty days after the cause of action accrues is barred and no action may be maintained thereon.
B. For the purposes of this section, a cause of action accrues when the damaged party realizes he or she has been damaged and
knows or reasonably should know the cause, source, act, event, instrumentality or condition that caused or contributed to the
damage.
C. Notwithstanding subsection A, any claim that must be submitted to a binding or nonbinding dispute resolution process or an
administrative claims process or review process pursuant to a statute, ordinance, resolution, administrative or governmental
rule or regulation, or contractual term shall not accrue for the purposes of this section until all such procedures, processes or
remedies have been exhausted. The time in which to give notice of a potential claim and to sue on the claim shall run from the
date on which a final decision or notice of disposition is issued in an alternative dispute resolution procedure, administrative
claim process or review process. This subsection does not prevent the parties to any contract from agreeing to extend the time
for filing such notice of claim.
D. Notwithstanding subsection A, a minor or an insane or incompetent person may file a claim within one hundred eighty days
after the disability ceases.
E. A claim against a public entity or public employee filed pursuant to this section is deemed denied sixty days after the filing of
the claim unless the claimant is advised of the denial in writing before the expiration of sixty days.
F. This section applies to all causes of action that accrue on or after July 17, 1994.
G. If a genuine issue of material fact exists as to whether the requirements of this section have been complied with, the issue
shall be resolved before a trial on the merits and at the earliest possible time.
H. This section does not apply to any claim for just compensation pursuant to chapter 8, article 2.1 of this title.

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12-1101. Parties; claim; service on attorney general
A. An action to determine and quiet title to real property may be brought by any one having or claiming an interest therein,
whether in or out of possession, against any person or the state when such person or the state claims an estate or interest in the
real property which is adverse to the party bringing the action.
B. When the state is made defendant a copy of the summons and complaint shall be served upon the attorney general.
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12-1102. Complaint
The complaint shall:
1. Be under oath.
2. Set forth generally the nature and extent of plaintiff's estate.
3. Describe the premises.
4. State that plaintiff is credibly informed and believes defendant makes some claim adverse to plaintiff. When the state is made
defendant, the complaint shall set forth with particularity or on information or belief the claim of the state adverse to plaintiff.
5. Pray for establishment of plaintiff's estate and that defendant be barred and forever estopped from having or claiming any
right or title to the premises adverse to plaintiff.
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12-1103. Disclaimer of interest and recovery of costs; request for quit claim deed; disclaimer of interest by state
A. If defendant, other than the state, appears and disclaims all right and title adverse to plaintiff, he shall recover his costs.
B. If a party, twenty days prior to bringing the action to quiet title to real property, requests the person, other than the state,
holding an apparent adverse interest or right therein to execute a quit claim deed thereto, and also tenders to him five dollars for
execution and delivery of the deed, and if such person refuses or neglects to comply, the filing of a disclaimer of interest or right
shall not avoid the costs and the court may allow plaintiff, in addition to the ordinary costs, an attorney's fee to be fixed by the
court.
C. If, after appropriate investigation, it appears to the attorney general that the state claims no right or title to the property
adverse to plaintiff, he may file a disclaimer of right and title.
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12-1104. Allegation of lien or interest claimed by adverse party; jurisdiction of court to enter decree
A. In an action to quiet title to real property, if the complaint sets forth that any person or the state has or claims an interest in or
a lien upon the property, and that the interest or lien or the remedy for enforcement thereof is barred by limitation, or that
plaintiff would have a defense by reason of limitation to an action to enforce the interest or lien against the real property, the
court shall hear evidence thereon.
B. If it is proved that the interest or lien or the remedy for enforcement thereof is barred by limitation, or that plaintiff would
have a defense by reason of limitation to an action to enforce the interest or lien against the real property, the court shall have
jurisdiction to enter judgment and plaintiff shall be entitled to judgment barring and forever estopping assertion of the interest
or lien in or to or upon the real property adverse to plaintiff.
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13-2314.04. Racketeering; unlawful activity; civil remedies by private cause of action; definitions
A. A person who sustains reasonably foreseeable injury to his person, business or property by a pattern of racketeering activity, or by a
violation of section 13-2312 involving a pattern of racketeering activity, may file an action in superior court for the recovery of up to treble
damages and the costs of the suit, including reasonable attorney fees for trial and appellate representation. If the person against whom a
racketeering claim has been asserted, including a lien, prevails on that claim, the person may be awarded costs and reasonable attorney fees
incurred in defense of that claim. No person may rely on any conduct that would have been actionable as fraud in the purchase or sale of
securities to establish an action under this section except an action against a person who is convicted of a crime in connection with the fraud, in
which case the period to initiate a civil action starts to run on the date on which the conviction becomes final.
B. The superior court has jurisdiction to prevent, restrain and remedy a pattern of racketeering activity or a violation of section 13-2312
involving a pattern of racketeering activity, after making provision for the rights of all innocent persons affected by the violation and after a
hearing or trial, as appropriate, by issuing appropriate orders.
C. Before a determination of liability these orders may include, but are not limited to, entering restraining orders or prohibitions or taking such
other actions, including the acceptance of satisfactory performance bonds, the creation of receiverships and the enforcement of constructive
trusts, in connection with any property or other interest subject to damage or other remedies or restraints pursuant to this section as the court
deems proper.
D. After a determination of liability these orders may include, but are not limited to:
1. Ordering any person to divest himself of any interest, direct or indirect, in any enterprise.
2. Imposing reasonable restrictions on the future activities or investments of any person, including prohibiting any person from engaging in the
same type of endeavor as the enterprise engaged in, the activities of which affect the laws of this state, to the extent the constitutions of the
United States and this state permit.
3. Ordering dissolution or reorganization of any enterprise.
4. Ordering the payment of up to treble damages to those persons injured by a pattern of racketeering activity or a violation of section
13-2312 involving a pattern of racketeering activity.
5. Prejudgment interest on damages, except that prejudgment interest may not be awarded on any increase in the damages authorized under
paragraph 4 of this subsection.
6. A person or enterprise that acquires any property through an offense included in the definition of racketeering in section 13-2301,
subsection D or a violation of section 13-2312 is an involuntary trustee. The involuntary trustee and any other person or enterprise, except a
bona fide purchaser for value who is reasonably without notice of the unlawful conduct and who is not knowingly taking part in an illegal
transaction, hold the property, its proceeds and its fruits in constructive trust for the benefit of persons entitled to remedies under this section.
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E. A defendant convicted in any criminal proceeding is precluded from subsequently denying the essential allegations of the criminal
offense of which the defendant was convicted in any civil proceedings. For the purpose of this subsection, a conviction may result from a
verdict or plea including a no contest plea.
F. Notwithstanding any law prescribing a lesser period but subject to subsection A of this section, the initiation of civil proceedings
pursuant to this section shall be commenced within three years from the date the violation was discovered, or should have been
discovered with reasonable diligence, and ten years after the events giving rise to the cause of action, whichever comes first.
G. The standard of proof in actions brought pursuant to this section is the preponderance of evidence test.
H. A person who files an action under this section shall serve notice and one copy of the pleading on the attorney general within thirty
days after the action is filed with the superior court. This requirement is jurisdictional. The notice shall identify the action, the person and
the person's attorney. Service of the notice does not limit or otherwise affect the right of the state to maintain an action under section
13-2314 or to intervene in a pending action nor does it authorize the person to name this state or the attorney general as a party to the
action.
I. On timely application, the attorney general may intervene in any civil action or proceeding brought under this section if the attorney
general certifies that in the attorney general's opinion the action is of special public importance. On intervention, the attorney general
may assert any available claim and is entitled to the same relief as if the attorney general has instituted a separate action.
J. In addition to the state's right to intervene as a party in any action under this section, the attorney general may appear as amicus curiae
in any proceeding in which a claim under this section has been asserted or in which a court is interpreting section 13-2301, 13-2312,
13-2313, 13-2314.01, 13-2314.02 or 13-2315 or this section.
K. A civil action authorized by this section is remedial and not punitive and does not limit and is not limited by any other previous or
subsequent civil or criminal action under this title or any other provision of law. Civil remedies provided under this title are supplemental
and not mutually exclusive, except that a person may not recover, for an action brought pursuant to this section, punitive damages or
emotional injury damages in the absence of bodily injury.
L. A natural person shall not be held liable in damages or for other relief pursuant to this section based on the conduct of another unless
the fact finder finds by a preponderance of the evidence that the natural person authorized, requested, commanded, ratified or
recklessly tolerated the unlawful conduct of the other. An enterprise shall not be held liable in damages or for other relief pursuant to
this section based on the conduct of an agent, unless the fact finder finds by a preponderance of the evidence that a director or high
managerial agent performed, authorized, requested, commanded, ratified or recklessly tolerated the unlawful conduct of the agent. A
bank or savings and loan association insured by the federal deposit insurance corporation or a credit union insured by the national credit
union administration shall not be held liable in damages or for other relief pursuant to this section for conduct proscribed by section
13-2317, subsection B, paragraph 1, based on acquiring or maintaining an interest in or transporting, transacting, transferring or
receiving funds belonging to a person other than the person presenting the funds, unless the fact finder finds by a preponderance of the
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View Document https://www.azleg.gov/viewdocument/?docName=https://www.azleg.go...
M. Notwithstanding subsection A of this section, a court shall not award costs, including attorney fees, if the award would be unjust because
of special circumstances, including the relevant disparate economic position of the parties or the disproportionate amount of the costs,
including attorney fees, to the nature of the damage or other relief obtained.
N. If the court determines that the filing of any pleading, motion or other paper under this section was frivolous or that any civil action or
proceeding was brought or continued under this section in bad faith, vexatiously, wantonly or for an improper or oppressive reason, it shall
award a proper sanction to deter this conduct in the future that may include the costs of the civil action or proceeding, including the costs of
investigation and reasonable attorney fees in the trial and appellate courts.
O. Notwithstanding any other law, a complaint, counterclaim, answer or response filed by a person in connection with a civil action or
proceeding under this section shall be verified by at least one party or the party's attorney. If the person is represented by an attorney, at
least one attorney of record shall sign any pleading, motion or other paper in the attorney's individual name and shall state the attorney's
address.
P. The verification by a person or the person's attorney and the signature by an attorney required by subsection O of this section constitute
a certification by the person or the person's attorney that the person or the person's attorney has carefully read the pleading, motion or
other paper and, based on a reasonable inquiry, believes all of the following:
1. It is well grounded in fact.
2. It is warranted by existing law or there is a good faith argument for the extension, modification or reversal of existing law.
3. It is not made for any bad faith, vexatious, wanton, improper or oppressive reason, including to harass, to cause unnecessary delay, to
impose a needless increase in the cost of litigation or to force an unjust settlement through the serious character of the averment.
Q. If any pleading, motion or other paper is signed in violation of the certification provisions of subsection P of this section, the court, on its
own motion or on the motion of the other party and after a hearing and appropriate findings of fact, shall impose on the person who verified
it or the attorney who signed it, or both, a proper sanction to deter this conduct in the future, including the costs of the proceeding under
subsection N of this section.
R. If any pleading, motion or other paper includes an averment of fraud or coercion, it shall state these circumstances with particularity with
respect to each defendant.
S. In any civil action or proceeding under this section in which the pleading, motion or other paper does not allege a crime of violence as a
racketeering act:
1. The term "racketeer" shall not be used in referring to any person.
2. The terms used to refer to acts of racketeering or a pattern of racketeering activity shall be "unlawful acts" or "a pattern of unlawful
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T. In this section, unless the context otherwise requires:
1. "Acquire" means for a person to do any of the following:
(a) Possess.
(b) Act so as to exclude another person from using the person's property except on the person's own terms.
(c) Bring about or receive the transfer of any interest in property, whether to himself or to another person, or to secure performance of a
service.
2. "Gain" means any benefit, interest or property of any kind without reduction for expenses of acquiring or maintaining it or incurred for
any other reason.
3. "Pattern of racketeering activity" means either:
(a) At least two acts of racketeering as defined in section 13-2301, subsection D, paragraph 4, subdivision (b), item (iv), (v), (vi), (vii), (viii),
(ix), (x), (xiii), (xv), (xvi), (xvii), (xviii), (xix), (xx), (xxiv) or (xxvi) that meet the following requirements:
(i) The last act of racketeering activity that is alleged as the basis of the claim occurred within five years of a prior act of racketeering.
(ii) The acts of racketeering that are alleged as the basis of the claim were related to each other or to a common external organizing
principle, including the affairs of an enterprise. Acts of racketeering are related if they have the same or similar purposes, results,
participants, victims or methods of commission or are otherwise interrelated by distinguishing characteristics.
(iii) The acts of racketeering that are alleged as the basis of the claim were continuous or exhibited the threat of being continuous.
(b) A single act of racketeering as defined in section 13-2301, subsection D, paragraph 4, subdivision (b), item (i), (ii), (iii), (xi), (xii), (xiv),
(xxi), (xxii), (xxiii), (xxv), (xxvii) or (xxviii).
4. "Proceeds" means any interest in property of any kind acquired through or caused by an act or omission, or derived from the act or
omission, directly or indirectly, and any fruits of this interest, in whatever form.
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VIEW DOCUMENT
33-420. False documents; liability; special action; damages; violation; classification
A. A person purporting to claim an interest in, or a lien or encumbrance against, real property, who causes a document asserting
such claim to be recorded in the office of the county recorder, knowing or having reason to know that the document is forged,
groundless, contains a material misstatement or false claim or is otherwise invalid is liable to the owner or beneficial title holder
of the real property for the sum of not less than five thousand dollars, or for treble the actual damages caused by the recording,
whichever is greater, and reasonable attorney fees and costs of the action.
B. The owner or beneficial title holder of the real property may bring an action pursuant to this section in the superior court in
the county in which the real property is located for such relief as is required to immediately clear title to the real property as
provided for in the rules of procedure for special actions. This special action may be brought based on the ground that the lien is
forged, groundless, contains a material misstatement or false claim or is otherwise invalid. The owner or beneficial title holder
may bring a separate special action to clear title to the real property or join such action with an action for damages as described
in this section. In either case, the owner or beneficial title holder may recover reasonable attorney fees and costs of the action if
he prevails.
C. A person who is named in a document which purports to create an interest in, or a lien or encumbrance against, real property
and who knows that the document is forged, groundless, contains a material misstatement or false claim or is otherwise invalid
shall be liable to the owner or title holder for the sum of not less than one thousand dollars, or for treble actual damages,
whichever is greater, and reasonable attorney fees and costs as provided in this section, if he wilfully refuses to release or
correct such document of record within twenty days from the date of a written request from the owner or beneficial title holder
of the real property.
D. A document purporting to create an interest in, or a lien or encumbrance against, real property not authorized by statute,
judgment or other specific legal authority is presumed to be groundless and invalid.
E. A person purporting to claim an interest in, or a lien or encumbrance against, real property, who causes a document asserting
such claim to be recorded in the office of the county recorder, knowing or having reason to know that the document is forged,
groundless, contains a material misstatement or false claim or is otherwise invalid is guilty of a class 1 misdemeanor.
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VIEW DOCUMENT
39-161. Presentment of false instrument for filing; classification
A person who acknowledges, certifies, notarizes, procures or offers to be filed, registered or recorded in a public office in this
state an instrument he knows to be false or forged, which, if genuine, could be filed, registered or recorded under any law of this
state or the United States, or in compliance with established procedure is guilty of a class 6 felony. As used in this section
"instrument" includes a written instrument as defined in section 13-2001.
44
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45
46
47
48
Form ll・ Certificate ofCompliance Pursuant to
9th Circuit Ru量es 35-4 and 40"1 for Case Number / rノ5言ちら
Note: This fom must be signed by the a請Omey Or uurePreSented litigant and a〃a(脇ed to the back 4’
each cqpy Qfthepetition or answer.
I certify血at pursuant to Circuit Rule 35-4 or 40-1, the attached petition for panel
rehearing佃etition for rehearing en banc/answer to petition (check applicable option):
区C ontains WOrds (Petitions and answers must not exceed 4,200 words),
and is prepared in a fomat, tyPe face, and type style that complies with Fed. R. App.
P. 32(a)(4)-(6).
□ Is in compliance with Fed・ R. App. P. 32(a)(4)-(6) and does not exceed 15 pages.
Signature of Attomey or
Unrepresented Litigant
÷ 〆/ 輝了’
(一’s/一’plus typed name is acceptable for electronically-filed documents)
作ev. 12〃〃の
Docket No. 15-15566
I hereby certify that the foregoing Petitions of Appellant Arek R. Fressadi

was electronically filed with the Clerk of the Court for the United States Court of
Appeals for the Ninth Circuit by using the appellate CM/ECF system on April 23,
2018.
I certify that all participants in the case are registered CM/ECF users and
that service will be accomplished by the appellate CM/ECF system.


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Case: 15-15566, 04/23/2018, ID: 10847766, DktEntry: 138, Page 1 of 103

Docket No. 15-15566

IN THE UNITED STATES COURT OF APPEALS

AREK R. FRESSADI, ET AL.,

ARIZONA MUNICIPAL RISK RETENTION POOL (“AMRRP”), ET AL.,

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

PETITIONS FOR REHEARING AND REHEARING EN BANC

AREK R. FRESSADI, Petitioner, Plaintiff, and Appellant pro se

FRAP 35 & 40 STATEMENTS / SUMMARY ARGUMENT .................................1

• The proceeding involves a question of exceptional national importance:

BACKGROUND & ARGUMENT ...........................................................................9

A. Cave Creek’s Continuing Violations Compels Just Compensation per

B. Cave Creek’s Continuous Violations of A.R.S. §§ 9-500.12 & 9-500.13

C. Quiet Title and Additional Conflicts Warrant Rehearing, En Banc .............12

ADDENDUM A: Panel Decision

ADDENDUM B: Request For Publication with Lists of Contravening Cases

ADDENDUM C: Letter To Cave Creek To Correct Continuing Violations

ADDENDUM D: Cave Creek Predicate Acts List 2001-Present

ADDENDUM E: Statutory Addendum

United States v. Lovasco, 431 U.S. 783 (1977) .........................................................9

CONSTITUTIONS, STATUTES, ORDINANCES,

Town of Cave Creek

Charter of Liberty, 39th Article ..................................................................................2

** A.R.S. §§ 9-500.12 & 9-500.13 abbreviated as “§§9-500.12/13” herein.

FRAP 35 & 40 STATEMENTS / SUMMARY ARGUMENT

rulings in Arizona Revised Statute (“A.R.S.”) §9-500.131 for property owners in

exceptional national importance: If courts allow government to avoid due process

just compensation, and bar redress by Statutes of Limitations (“SOL”), is it a

jurisdiction the equal protection of the laws." U.S.Const.Amend.XIV,§1. According

process and equal protection to build on his property5 are inalienable.

forfeiture6) by a government entity requires pre-deprivation notice and a hearing.

Arizona Revised Statute (“A.R.S.”) §§ 9-500.12 & 9-500.13 (“§§9-500.12/13”) prior

to depriving Petitioner/Appellant-Plaintiff Arek R. Fressadi of improvements land,

or easements for entitlements. A.R.S.§9-500.12(B) codifies the requirement for

A.R.S.§9-500.12(B) aligns with Arizona's unambiguous Constitution that protects

"the right of action to recover damages for injuries." Art.18,§6.

Fressadi’s property into an unbuildable, unsellable, illegal subdivision.

Waiver is the "intentional relinquishment or abandonment of a known right."

"indulge every reasonable presumption against waiver" in a civil case where

U.S. 292, 307 (1937).

The panel’s application of SOL prior to Fressadi receiving fundamental rights

of pre-deprivation notice and a hearing as codified in §9-500.12(B), and just

compensation and equal protection per A.R.S. §§ 9-500.12(E)&(H) and 9-500.13, is

(C.A.D.C.2002)(“A litigant who alleges a deprivation of a procedural protection to

the procedural step was connected to the substantive result.”)[emphasis added].

(Addendum A)––a takings. Fressadi is entitled to just compensation for these

continuing violations by an award of damages per §9-500.12(H).

federal law as codified in §§9-500.12/13 per Town’s Zoning Ordinance §2.3(C)(2):

ordinance including the giving of notice, scheduling of hearings, preparation of

reports, receiving and processing appeals. Opening Brief, DktEntry 40 at 46-47.

protection by Cave Creek committing continuing violations of its zoning ordinance

Administrator or Cave Creek as a corporate person] who violates any provision of

as described. [emphasis added] It “contains mandatory language” that significantly

constrains the decision-maker's discretion. Jacobson v. Hannifin, 627 F.2d 177,180

unmistakably mandatory character, requiring that certain procedures "shall," "will,"

or "must" be employed). Cave Creek waived SOL by incorporating the Continuing

criminal violations. Courts cannot uphold contracts based on illegality.10

were inextricably intertwined with parallel proceedings taking place in CV2006-

014822. The illegality of Cave Creek’s continuing violation of federal law in

§§9-500.12/13 is a civil enforcement matter of first impression.11 District Court

dismissed Fressadi’s complaint based on SOL res judicata in CV2009-050821 that

violated federal court rulings supra.12

The panel’s ruling allows municipalities to violate due process to affect a