February 23, 2001, (Filed March 01, 2001) MOTION TO ALTER OR AMEND JUDGMENT AND/OR HAVE JUDGMENT VACATED UNDER FEDERAL RULES OF CIVIL PROCEDURE RULE 59(e). This document requests Judge Doty to amend and/or vacate his February 13, 2001 ORDER. Please note that LAMBROS raises four excellent issues with the most important being that the Minnesota Supreme Court decision CANNOT be applied retroactively. See, DZIBUBAK vs. MOTT, 503 N.W.2d 771, was decided on August 6, 1993 and LAMBROS' trial ended on January 15, 1993. Therefore, FAULKNER did not have immunity. Also an excellent overview on the new U.S. Supreme Court case GLOVER vs. U.S., No. 99-8576 (2001) which proves that PREJUDICE occurs if an attorney's ineffectiveness increases a prisoners time by one day. The issue of CAUSATION is a matter of fact to be decided by a jury, not a judge, is covered in issue four. The motion is a total of eleven (11) pages which includes a one page certificate of service.
CERTIFICATE OF SERVICE
LAMBROS vs. FAULKNER, et al., CIVIL CASE NO. 98-1621(DSD/JMM)
I hereby state under the penalty of perjury that a true and correct copy of the following:
a. MOTION TO ALTER OR AMEND JUDGEMENT AND/OR HAVE JUDGEMENT VACATED UNDER FEDERAL RULES OF CIVIL PROCEDURE RULE 59(e). Dated February 23, 2001
was served on the following this 23rd day of February, 2001, via U.S. Mail through the prison authorities, to:
1. Clerk of the Court,
District of Minnesota, 316 North Robert Street, St.
Paul, Minnesota 55101. One original and one copy.
2. Attorney Gregory J.
Stenmoe, BRIGGS & MORGAN, 2400 IDS CENTER. 80 South
Eighth Street, Minneapolis, Minnesota 55402.
3. Attorney Donna Rae Johnson and Attorney Deborah Ellis, 700 St. Paul Bldg., 6 West Fifth Street, St. Paul, Minnesota 55102.
4. Internet release to
BOYCOTT BRAZIL SUPPORTERS and HUMAN RIGHTS GROUPS
5. LAMBROS family members.
Signed: John Gregory Lambros
End of Certificate of Service
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
JOHN GREGORY LAMBROS
CHARLES W. FAULKNER, SUED AS ESTATE/WILL/BUSINESS INSURANCE OF DECEASED ATTORNEY CHARLES W. FAULKNER
SHEILA REGAN FAULKNER
FAULKNER & FAULKNER, Attorneys at Law
JOHN & JANE DOE
NOTION TO ALTER OR AMEND JUDGMENT AND/OR HAVE JUDGMENT VACATED UNDER FEDERAL RULES OF CIVIL PROCEDURE RULE 59(e)
COMES NOW Plaintiff JOHN GREGORY LAMBROS (hereinafter Movant), in the above-entitled action pursuant to Federal Rules of Civil Procedure, Rule 59(e). Although Rule 59(e) explicitly authorizes a court only to "alter or amend" its judgment, a party seeking to have a judgment vacated may also do so under Rule 59(e). See, VREEKEN vs. DAVIS, 718 F.2d 343 (10th Cir. 1983) (Rule 59(e) refers only to alteration or amend of a "Judgment," but it has been construed as permitting the trial court to vacate and set aside orders disposing of actions before trial, including dismissal orders.) See, FINANCIAL SERVICES CORP. vs. WEINDRUCH, 764 F.2d 197 (7th Cir. 1985); AMERICAN LIFE ASSURANCE CO. vs. PLANNED MARKETING ASSOC. INC., 389 F.Supp. 1141 (ED Va. 1974).
The effects of this timely filed Rule 59(e) Motion suspends the finality of the judgment for purposes of appeal and TOLLS the running of the 30 day period within which notice of appeal must be filed. See, Fed.R. App.P. Rule 4(a)(4); VREEKEN vs. DAVIS, 718 F.2d 343 (10th Cir. 1983).
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Rule 59(e) of the Federal Rules of Civil Procedure allows this filing within ten (10) days of entry of judgment/order. See, MOORE vs. ST. LOUIS MUSIC SUPPLY CO., 526 F.2d 801 (8th Cir. 1975); VARLEY vs. TAMPAX INC., 855 F.2d 696 (10th Cir. 1988).
1. On February 14, 2001, Judge Doty, ORDERED:
a. Defendant's motion to dismiss or for summary judgment [Doc. No. 90] is granted.
b. Plaintiff's motion for appointment of a legal expert [Doc. No. 100] is denied as moot.
2. Plaintiff LAMBROS received the February 14, 2001, ORDER on
February 22, 2001, via Attorney Stenmoe. (A poor quality copy)
3. Plaintiff LAMBROS' TRIAL ended on. JANUARY 15, 1993, with guilty verdicts.
4. The Minnesota Supreme Court decision in DZIUBAK vs. MOTT, 503 N.W.2d 771, was decided on AUGUST 6, 1993. The decision was based upon common law tort principles, not Minnesota Statute, thus the Minnesota Supreme Court is the final arbiter. The decision grants immunity to Minnesota Public defenders.
5. Judge Doty affirmed the magistrate judge's conclusion that the Minnesota Supreme Court would LIKELY EXTEND its GRANT OF IMMUNITY to defendant's in this action. Therefore, dismissing plaintiff's malpractice claim.
6. Judge Doty dismissed plaintiff's claims on the MERITS, stating plaintiff was NOT PREJUDICED.
ISSUE ONE (1):
MINNESOTA SUPREME COURT DECISIONS CANNOT BE APPLIED RETROACTIVELY WITHOUT DIRECTIVE REQUIRING RETROACTIVE APPLICATION.
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7. Applying retroactively analysis to the August 6, 1993, Minnesota Supreme Court decision in DZIUBAK vs. MOTT, would interfere with Plaintiff LAMBROS' VESTED RIGHTS. The Court decision DID NOT state a directive requiring retroactive application. See, LANDGRAF vs. USI FILM PRODUCTS, 511 U.S. 24, 128 L.Ed.2d 229 (1994).
8. On December 1, 2000, the ILLINOIS SUPREME COURT ruled, "apart from the statute, public defenders DO NOT enjoy sovereign immunity from malpractice actions." in a concurring opinion, Justices Freeman and McMorrow, reached the same result as the majority by APPLYING RETROACTIVITY ANALYSIS set forth in LANDGRAF, Id.. See, JOHNSON vs. HALLORAN, Ill. No. 895949 (12/1/00).
9. On December 18, 2000, the California Supreme Court ruled that PUBLIC DEFENDERS ARE NOT IMMUNIZED FROM MALPRACTICE LIABILITY for their TRIAL ERRORS. See, BARNER vs. LEEDS, Cal. No. S070377, 12/18/00, affirming 63 CrL 111.
10. The Fifth Circuit stated in COX vs. SCHWEIKER, 684 F.2d 310, 311 Head Note 9, (5th Cir. 1982), "In a case involving a judge-made COMMON-LAW PRINCIPLE, NO RIGHTS VEST OR EVEN ARISE UNTIL THE JUDGE HAS DECLARED WHAT THE LAW IS whereas in case of a statute the entitlement vests once a person fulfills statutory requirements and it vests despite the fact that an adjudicator has misapplied the statute, and subsequent legislative amendment to those entitlements do not affect prior vested rights unless the legislature so declared.''
11. Plaintiff is requesting this court to ORDER that the Minnesota Supreme Court decision in DZIUBAK can not be applied retroactively to defendants.
ISSUE TWO (2):
EX POST FACTO CLAUSE PREVENTS THE MINNESOTA SUPREME COURT RULING IN DZIUBAK vs. MOTT, TO NEGATIVELY AFFECT PLAINTIFF LAMBROS AND OFFERING DEFENDANTS A GRANT OF IMMUNITY IN THIS ACTION.
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12. The EX POST FACTO CLAUSE simply restated the well-established principle that a new law may only be applied to conduct occurring AFTER the date of its enactment. See, MILLER vs. FLORIDA, 96 L.Ed2d 351, 354 Head Note 4 (1987)
13. An "ex post facto law" is one that reaches back in time to punish acts which occurred before enactment of the law; a penal statute may also be ex post facto enactment if it adds a new punishment to the one that was in effect when the crime was committed. See, PEELER vs. HECKLER, 781 F.2d 649, Head Note 1 (8th Cir. 1986). Plaintiff LAMBROS believes that damages that may be incurred by Defendants may qualify within the punitive purposes of "ex post facto.",
14. In MILLER vs. FLORIDA, Id. 354, the Supreme Court stated, on the other hand, a change in the law that alters a SUBSTANTIAL RIGHT can be ex post facto even if the statute takes a seemingly PROCEDURAL FORM."
15. Plaintiff LAMBROS' trial ended on JANUARY 15, 1993 and the Minnesota Supreme Court ruled on DZIUBAK vs. MOTT, on AUGUST 6, 1993.
ISSUE THREE (3):
PLAINTIFF LAMBROS WAS PREJUDICED UNDER THE PREJUDICE PRONG OF STRICKLAND vs. WASHINGTON, 466 U.S. 668 (1984), AS TO DEFENDANT'S DEFICIENT PERFORMANCE THAT LE TO AN INCREASED PRISON SENTENCE FOR PLAINTIFF LAMBROS.
16. Judge Doty stated in his February 13, 2001, filed February 14, 2001, ORDER, "With respect to the magistrate's judge's conclusions concerning the MERITS of plaintiff's malpractice and RICO claims, the court agrees that plaintiff has adduced no evidence upon which a rational fact-finder could conclude that defense counsel's conduct in any way PREJUDICED plaintiff's defense OR that defendants coerced witnesses to give false testimony in plaintiff's criminal case. Therefore, dismissal of plaintiff's claims on the MERITS is appropriate
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and defendants' motion for summary judgment is granted." See, ORDER, pages 3 and 4.
17. COUNSEL ERROR REGARDING SENTENCE NEEDN'T CAUSE SIGNIFICANT INCREASE TO BE "PREJUDICIAL." On January 9, 2001, the United States Supreme Court stated in GLOVER vs. U.S., No. 99-8576, that "Deficient performance by counsel that leads to an increase in a prison sentence imposed under the U.S. Sentencing Guidelines is "PREJUDICIAL" under the Sixth Amendment test for counsel effectiveness REGARDLESS OF THE AMOUNT OF THE INCREASE. The court overturned an appellate court's ruling that a sentence increase is not "PREJUDICIAL" under STRICKLAND vs. WASHINGTON, 466 U.S. 668 (1984), unless it is "SIGNIFICANT." In the GLOVER case the petitioner filed a 28 U.S.C. §2255 petition before the court as to his convictions of money laundering, racketeering, and tax evasion. At sentencing, the prosecution opposed the grouping of the money laundering counts with the other convictions. Defense counsel did not submit papers opposing the issue or offer much oral argument on it. The same attorney failed to raise the grouping issue at all on appeal. The fact that the counts were not grouped resulted in a sentence of imprisonment that was six to 21 longer than it would have been if grouping had occurred. The Supreme Court saw no authority for the proposition that a minimal amount of additional incarceration time CANNOT CONSTITUTE PREJUDICE in the context of a claim of ineffective assistance of counsel. On the contrary, it said, prior cases suggest that "ANY AMOUNT OF ACTUAL JAIL TIM HAS SIXTH AMENDMENT SIGNIFICANCE." THE CLAIM HERE IS THAT COUNSEL FAILED TO CHALLENGE A CORRECTABLE ERROR IN THE SENTENCING COURT'S CALCULATION, THE COURT EMPHASIZED.
18. Therefore, if GLOVER was "PREJUDICED" by a sentence of imprisonment that was six to 21 months longer than he should of received, Plaintiff LAMBROS was surely "PREJUDICED" by the fact that he received and was told by by Defendant's that he could only receive a MANDATORY LIFE SENTENCE WITHOUT
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PAROLE during his PLEA BARGAIN NEGOTIATIONS which was not true and overturned by the Eighth Circuit Court of Appeals in 1995. Then during resentencing for the illegal sentence the Court followed the Extradition Treaty between BRAZIL and the United States by sentencing plaintiff LAMBROS to THIRTY (30) YEARS, the most Brazilian Law offers. See, U.S. vs. LAMBROS, 65 F.3d 698 (8th Cir. 1995). PLAINTIFF LAMBROS WAS PREJUDICED. This example is not inclusive of all issues within plaintiff's complaint, only one very strong example of PREJUDICE.
ISSUE FOUR (4):
UNDER MINNESOTA THE ISSUE OF CAUSATION IS MATTER OF FACT TO BE DECIDED BY A JURY, NOT JUDGE. See, St. Paul, Fire & Marine Insurance Company, vs. Honeywell , 2000 WL 685007 (Minn. App. 2000)
19. This Court stated that Plaintiff claims were without MERIT. BLACK'S LAW DICTIONARY, Seventh Edition defines MERITS: "The elements or grounds of a claim or defense; the substantive considerations to be taken into account in deciding a case, as opposed to extraneous or technical points."
20. The procedure of presenting the evidence that SHOULD HAVE BEEN OFFERED AT THE TRIAL AND PLEA BARGAIN NEGOTIATIONS of this underlying action is known as a "SUIT-WITHIN-A-SUIT" or "TRIAL-WITHIN-A-TRIAL." This is the accepted and traditional means of resolving the issues involved in the underlying proceeding in LEGAL MALPRACTICE ACTIONS. See, TOGSTAD vs. VESELY, OTTO, MILLER & KEEFE, 291 N.W.2d 686 (Minn. 1980); CHRISTY vs.SALITERMAN, 288 Minn. 144, 179 N.W.2d 288 (1970).
21. EVIDENTIARY CONSIDERATIONS. Normally, in a LEGAL MALPRACTICE action, the issues of negligence, proximate cause and damage MUST be decided by the TRIER OF FACT BASED ON THE RECREATED EVIDENCE. In a jury trial, the jury
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is instructed as the jury should have been instructed [or the government would be instructed as to the laws of BRAZIL] in the underlying action. NIKA vs. DANZ, 199 Ill.App.3d 296, 145 Ill.Dec. 255, 556 N.E.2d 873 (1990). Where there was no objection, a plaintiff augmented such evidence with the opinion of the judge and jurors in the prior action concerning what would" have happened had the attorney not erred. WATWOOD vs. BRADFORD, 72 A.2d 41 (D.C.Mun.App. 1950).
22. PROVING THE UNDERLYING ACTION - THE BURDEN OF PROOF: In General: In an action to recover damages caused by the attorney's malpractice, the plaintiff has the burden of proving EVERY ESSENTIAL ELEMENT of the cause of action. See, GODBOUT vs. NORTON, 262 N.W.2d 374 (Minn. 1977), cert. denied, 437 U.S. 901, 98 S.Ct. 3086, 57 L.Ed.2d 1131 (1978); CHRISTY vs. SALITERMAN, 288 Minn. 144, 179 N.W.2d 288 (1970).
23. Thus, the plaintiff must establish (1) the attorney-client relationship or other basis of duty, (2) the WRONGFUL ACT OR OMISSION, (3) the proximate CAUSATION of damage, and (4) the measure of those damages. See, SUKOFF vs. LEMKIN, 202 Cal.App.3d 740, 249 Cal. Rptr. 42 (1988)(quoting text).
24. A plaintiff is said to have a multiple burden of proof where the attorney's error allegedly impaired the plaintiff's CAUSE OF ACTION or DEFENSE. This means that the plaintiff must establish not only the attorney's negligence but also that there should have been a better result in the underlying lawsuit or matter. See, ROSS vs. ADELMAN, 725 S.W.2d 896 (Mo. App. 1987).
25. The OBJECTIVE of the TRIAL-WITHIN-A-TRIAL CONCEPT IS TO ESTABLISH CAUSATION, i.e. that the attorney's negligence caused injury, which means that the plaintiff does have the burden of proving two cases in one lawsuit. See, CHRISTY vs. SALITERMAN, 288 Minn. 144, 179 N.W.2d 288 (1970).
26. CAUSATION: IN OTHER WORDS, THIS PLAINTIFF MUST SHOW [AS HE HAS] THAT, MORE LIKELY THAN NOT, THE ATTORNEY'S [DEFENDANT] CONDUCT WAS A SUBSTANTIAL FACTOR IN CAUSING THE UNFAVORABLE RESULT. See, 2175 LEMOINE AVENUE CORP. vs. FINCO, INC., 272 N.J. Super. 478, 640 A.2d 346 (1994); KEISTER vs. TALBOTT, 182
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W.Va. 745, 391 S.E.2d 895 (1990); SHERRY vs. DIERCKS, 29 Wash. App. 433, 628 P.2d 1336 (1981).
27. Plaintiff LAMBROS has allowed the EIGHTH CIRCUIT COURT OF APPEALS to show defendants' conduct was a substantial factor in causing unfavorable results to Plaintiff. See, U.S. vs. LAMBROS, 65 F.3d 698 (8th Cir. 1995) (Defendant [LAMBROS] who was convicted of a conspiracy to distribute cocaine WAS NOT subject to statute's MANDATORY LIFE SENTENCE, where statute did not take effect until will after conspiracy end date charged in indictment. Id. at 698 Head Note 1.) Plaintiff LAMBROS was resentenced to thirty (30) years as per Brazilian Law due to the Extradition Treaty between Brazil and the U.S.
28. Therefore, the Eighth Circuit decided the underlying legal issue of whether the defendants' erred and the trier of FACTS now transfers and should be decided by a JURY whether defendants' where negligent In a jury trial, the court's function is to instruct the JURY on the standard of care, and the JURY'S function is to apply that standard to the evidence of the case. See, DAUGHERTY vs. RUNNER, 581 S.W.2d 12 (Ky.App. 1978). The decision of negligence is for the trier of fact.
29. Moreover, under MINNESOTA CASE LAW, the issue of CAUSATION is a FACT to be decided by a JURY, NOT A JUDGE. See, ST. PAUL, FIRE & MARINE INSURANCE COMPANY, vs. HONEYWELL, 2000 WL 685007 (Minn.App. 2000), (holding CAUSATION is a question of FACT FOR THE JURY'S FINDING and therefore, in concluding appellant failed to establish CAUSATION, the district court "IMPERMISSIBLY WEIGHED EVIDENCE AND JUDGED WITNESS CREDIBILITY.) (Citation omitted). Therefore, Magistrate Judge Mason erred when he recommended this case be dismissed because a genuine question of material fact did not exist for a jury to decide.
30. Lawyers are always expected to know what is proper and improper pursuant to the law, PATTERSON vs. JEWISH HOSPITAL & MEDICAL CENTER, (1978) 94
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Misc. 2d 680, 405 NYS2d 194, affd (2nd Dept) 65 App Div 2d 553, 409 NYS2d 124, and to present the wisest course to the client. See, THUNDERSHIELD vs. SOLEM, (1977, DC SD) 429 F.Supp. 944, aff'd (CA8 SD) 565 F.2d 1018, cert. denied, 55 LEd2d 805.
31. Official immunity is for officials, not for citizen who do not hold office. This immunity protects officials from personal liability in civil actions for mistakes, or even negligence. However, when an official violates a person's constitutional rights, or commits a crime, then, ipso facto, he is stripped of his office, and becomes an individual, fully answerable for his misdeeds. FRAUD, something that by the meaning of the word itself can only be done knowingly, would strip an official of his office, and make him liable in a civil action as an individual. FRAUD by a public defender certainly would strip him of his official immunity and make him liable as an individual. This is beautifully explained in Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974), in which the Supreme Court of the United States lectures on the meaning and history of official immunity. Where an attorney recklessly and unknowledgeably renders an opinion on a subject, he may be held liable for FRAUDULENT MISREPRESENTATION. See, BERKMAN vs. COHN (1933) 111 NJL 229, 168 A 290. BALLENTINE'S LAW DICTIONARY, 3rd Edition (1969), defines FRAUD to incorporate the surrendering of legal rights of another individual within its definition, along with the suppression of the truth, or other device contrary to the plain rules of common honesty.
32. Attorney's are ABSOLUTELY RESPONSIBLE FOR RESEARCHING CASE LAW DECISIONS AS WELL AS ALL TEMPORARY SUPPLEMENTAL OFFICIAL TEXTS OF THE CASE LAW SUCH AS ADVANCE SHEETS. See, PROCANIK vs. CILLO, 206 NJ Super 270, 502 A2d 94.
33. Plaintiff LAMBROS requests this court to DISMISS Defendants' motion to dismiss or for summary judgment.
34. I declare under penalty of perjury that the foregoing is true and correct. Executed on: February 23, 2001.
John Gregory Lambros
For more information write (snail mail) JOHN GREGORY LAMBROS directly at:
JOHN GREGORY LAMBROS
Prisoner No. 00436-124
U. S. Penitentiary Leavenworth
PO Box 1000
Leavenworth, KS 66048-1000
THANK YOU FOR YOUR SUPPORT AND ASSISTANCE IN MY BOYCOTT OF BRAZILIAN PRODUCTS.