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LAW OFFICES OF
PHILIP J. BERG
555 Andorra Glen Court, Suite 12
Lafayette Hill, PA 19444-2531
PHILIP J. BERG
CATHERINE R. BARONE
BARBARA MAY
(610) 825-3134
January 7, 2011
My office is in receipt of your letter, at the direction of the Court, requesting the
Appellees response as to whether the Third Circuit Court of Appeals has jurisdiction to
entertain the appeal filed by Appellant, Attorney Orly Taitz.
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Case: 10-3000 Document: 003110402972 Page: 2 Date Filed: 01/07/2011
As this Court is aware, failure to identify and/or argue an issue in their Opening
Brief constitutes Waiver of those issues on Appeal. It should also be noted it is not
permissible to appeal a Court’s Opinion or Memorandum, see In the Matter of Chelsea
Hotel Corp., 241 F.2d 846, 848 (3d Cir. 1957) (“[I]t is settled that an appeal may not be
taken from an opinion. It is only the definitive order or judgment which follows the
opinion which is reviewable by appeal.). Therefore, Appellees will only respond to the
jurisdictional issues pertaining to the actual Orders identified and argued in the
Appellants Brief
The only Orders addressed in Appellants Brief were the Court’s Order of June
25, 2009, Docket Entry No. 76 dismissing Defendants Rock Salt Publishing and James
Sundquist; and the Court’s Order of June 3, 2010, Docket Entry No. 118; and the
Court’s Order of June 22, 2010, Docket Entry No. 124 severing and transferring the
underlying case.
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I. The June 25, 2009 Order, Docket Entry No. 76, Dismissal of
Defendants James Sundquist and Rock Salt Publishing is
time barred, therefore this Court lacks Jurisdiction
Appellant Orly Taitz and Defend our Freedoms Foundations, Inc. are
attempting to Appeal the Court’s Order of June 25, 2009 [Docket Entry No. 76],
however the Appeal to this particular Order is time barred.
This Order of June 25, 2009 is a Final Order dismissing two (2)
Defendants, James Sundquist and Rock Salt Publishing to save diversity, and
therefore, any appeal thereto had to have been filed within thirty [30] days of the
Order, which would have been on or before July 25, 2009. See Federal Rules of
Appellate Procedure, Rules 3 and 4. Here, Appellants are attempting to appeal
this Order over a year later.
In a civil case, the Notice of Appeal “must be filed with the district clerk
within 30 days after the judgment or order appealed from is entered." Fed. R.
App. P. 4(a)(1). The Supreme Court has made it abundantly clear that, because
this time limit derives from statute, it is jurisdictional, and no judicially-created
doctrine of unique circumstances may excuse such an untimely appeal from being
dismissed. See Bowles v. Russell, 551 U.S. 205, 209-214, 127 S. Ct. 2360, 168 L.
Ed. 2d 96 (2007) ("[T]he timely filing of a notice of appeal in a civil case is a
jurisdictional requirement."); Browder v. Director, Dep't of Corrections, 434 U.S.
257, 264, 98 S. Ct. 556, 54 L. Ed. 2d 521 (1978). (A notice of appeal in a civil
case in which the United States is not a party must be filed within 30 days of the
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entry of the order or judgment being appealed. See Fed. R. App. P. 4(a)(1)). The
time limit of Rule 4(a)(1) for commencing an appeal is mandatory and
jurisdictional, Bowles v. Russell, 551 U.S. 205, 209-214, 127 S. Ct. 2360, 168 L.
Ed. 2d 96 (2007); Browder v. Director, Dep't of Corrections, 434 U.S. 257, 264,
98 S. Ct. 556, 54 L. Ed. 2d 521 (1978).
For the aforementioned reasons, the Third Circuit Court of Appeals lacks
jurisdiction over this Appeal.
II. The Orders of June 3, 2010, Docket Entry No. 118; and the Order
of June 22, 2010, Docket Entry No.’s 124 Severing and
Transferring the underlying Case to California and Texas, where
the Defendants are located, are not appealable Orders and
therefore this Court lacks Jurisdiction:
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Litig., 401 F.3d 143; 2005 U.S. App. LEXIS 4012; 61 Fed. R. Serv. 3d
(Callaghan) 79 (3d Cir. 2005) at *30 (Courts of Appeals acquire jurisdiction over
appeals through final Orders under 28 U.S.C. § 1291).
The Third Circuit Court of Appeals has held, “In general, an order
transferring a case is not a final order and, hence, not appealable.” In re United
States, 2001 U.S. App. LEXIS 25231 (3d Cir 2001) (quoting Nascone v.
Spudnuts, Inc., 735 F.2d 763, 764 (3d Cir. 1984).
Appellant, Attorney Orly Taitz claims the Court lacked Jurisdiction to issue
the Orders to Sever and Transfer the underlying case to California and Texas
where the Defendants are located. This simply is not the case.
As this Court is aware, even if diversity were lacking, which it is not and
was not, the District Court had the inherent power to transfer the case to the
proper jurisdiction. Appellees case was filed within the jurisdictional time limits.
California Court’s require these types of cases to be filed within one [1] year.
The events giving rise to the underlying action began occurring on or about April
17, 2009. Had the District Court dismissed Appellees action, it would have
barred Appellees claims and any redress in which they are entitled. If a case is
filed in the wrong jurisdiction, and the statute has run, it has been the long
standing of our Court’s that transfer pursuant to 28 U.S.C. §1406(a) would be
proper in lieu of dismissal. See Jumara v. State Farm Ins. Co., 55 F.4d 873, 878
(3d Cir. 1995); 17A Moores Federal Practice, §5524(2); Lafferty v. Gito St. Riel,
495 F. 3d 72 (3d Cir. 2007).
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The transferee forum's limitations statute applies, and the date of the initial
filing in the improper forum counts as the date of the filing in the transferee
forum for limitations purposes, when the case is transferred, rather than
dismissed, under statute governing filing case in improper venue. Lafferty v. St.
Riel, 495 F.3d 72 (3d Cir. 2007).
The District Court analyzed the case under 28 U.S.C. § 1404(a), and
Ordered the case transferred to the United States District Court for the Central
District of California and the Western District of Texas where the Defendants are
located, thereby granting Defendants' (Appellants) request for transfer. “[O]rders
granting or denying motions to transfer under 28 U.S.C. § 1404(a) or 28 U.S.C. §
1406(a) are not immediately appealable under 28 U.S.C. § 1291 as collaterally
final orders. It is irrelevant for these purposes whether the motion to transfer is
based on a forum selection clause, the convenience of witnesses, or other factors.”
Nascone v. Spudnuts, Inc., 735 F.2d 763, 772-73 (3d Cir.1984). See also
McCreary Tire & Rubber Co. v. CEAT S.p.A., 501 F.2d 1032 (3d Cir.1974) (“An
order transferring an action pursuant to 28 U.S.C. § 1404(a) or refusing to make
such a transfer is interlocutory and unappealable under § 1291.”).
The only way this Court would have had jurisdiction to review the Orders
severing and transferring the underlying case is if they would have fallen under
the Collateral Order Doctrine, which they do not; and/or if Appellants would
have filed for certification of Appeal of the Orders in question pursuant to 28
U.S.C. §1292(b); or by the filing of a Writ of Mandamus, none of which were
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done and they are now time barred. See Wright Miller & Cooper 15 Fed. Prac. &
Proc., Juris. §3855 (3d ed. 2007).
III. Appellees are entitled to Attorney Fees and Costs; and Appellees hope
this Court will Sanction Attorney Orly Taitz for filing this frivolous
Appeal, wasting Judicial Resources; costing Appellees large amounts
of money in Attorney Fees and Costs; and for delaying the proceedings
from moving forward, which has been prejudicial to the Appellees:
Appellant, Attorney Orly Taitz who is licensed to practice law in this very
Court was placed on notice on three [3] separate occasions that the Orders she
was attempting to Appeal were time barred and not appealable Orders. First, on
July 9, 2010 in the District Court, see Docket Entry No. 132; on July 27, 2010
when Appellees filed their Motion to Dismiss the instant Appeal with this Court;
and on November 7, 2010 when Appellees filed their Appellees Brief. Despite
this, Appellant Attorney Orly Taitz failed to withdraw her appeal. The case was
further delayed as a result of Appellant Attorney Orly Taitz’s continued non-
compliance with the Court’s Rules and Procedures as demonstrated by the Docket
in this Court. The case was further delayed as a result of Appellant Attorney Orly
Taitz’s failure to comply with the Federal Rules of Civil Procedure, Federal Rules
of Appellate Procedure and this Court’s Local Rules in violation of Fed. R. Civ.
P. 11, Fed. R. App. P. 46 and the Third Circuit L.A.R. 46.1.
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This Court has the inherent power to issue an Order to Show Cause upon
Appellant, Orly Taitz as to why she should not be sanctioned for the filing of the
frivolous appeal which Appellees were forced to respond to and this Court was
forced to address. Appellant, Orly Taitz, as an Attorney, had a duty to be familiar
and comply with the Federal Rules of Civil Procedure, Federal Rules of Appellate
Procedure and this Court’s local Rules. Had Appellant Attorney Taitz complied,
she would have never attempted to appeal non-appealable Orders, wasting this
Court’s Judicial Recourses; stalling and delaying the Plaintiffs (Appellees) Case;
and costing the Appellees extensive Appellate Fees and costs
“c) Disciplinary Power of the Court over Attorneys. A court of appeals may, after
reasonable notice and an opportunity to show cause to the contrary, and after hearing, if
requested, take any appropriate disciplinary action against any attorney who practices before
it for conduct unbecoming a member of the bar or for failure to comply with these rules or
any rule of the court.”
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Appellees renew their Motion to Dismiss the instant Appeal; for Attorney
Fees; and for Costs which was filed with this Court on July 27, 2010.
IV. CONCLUSION:
For the reasons stated herein, the instant Appeal must be Dismissed as this
Court clearly lacks jurisdiction. In addition, Appellees must be awarded attorney
fees in the amount of Twenty-Five Thousand [$25,000.00] Dollars for the time
spent defending against this frivolous Appeal and costs in the amount of Six
Hundred [$600.00] Dollars for the printing and binding of Appellees Brief and
Appendices, again defending against this frivolous Appeal.
Respectfully,
Philip J. Berg
PJB:jb
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