Defendant Ralph Irwin's Objections to Magistrate Judge's Report and Recommendations (Doc# 8), Case...

7/30/2019 Defendant Ralph Irwin's Objections to Magistrate Judge's Report and Recommendations (Doc# 8), Case number 1

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UNITED STATES DISTRICT COURTFOR THESOUTHERN DISTRICT OF FLORIDA

C No 13-21 177 - C1V - Lenard / O'Sullivan 1Se .

FILED by DAFi 2 5 2213

STEVEN .LARIMORECLERK U s Dls'r c'r..D. of F?L. - MIXMI

RODNEY IRW IN,Plaint?

V.

RALPH IRW IN,De#ndant.

IDEFENDANT'S OBR CTION S TO M AGISTM TE JUDGE'S

REPORT AND RFCOM M ENDATIONS1, RALPH IRWIN, Major, USAF (Ret.), Defendant (Pro Se), on behalf of myself, father

ORVAL IRW IN as the statutorily preferred personal representative per all his valid, repeatedly2 d his grandchildren DAVID IRW IN & JESSICA W AYiled and served advance directives, an

who stand to be unjustly deprived of their entire inheritance, and purmlant to FRCP 72, file myOBJECTIONS to the Magistrate Judge's Report (R&R, DE# 5) IA-11 that recommends the''Motion to Proceed In Forma Pauperis (DE# 3, 4/4/13) be DENIED and that the action IA-21be REMANDED to state court sua spontefor the reasons stated herein. ''l Removal from 12-1243 CA. Related cases: M inmi-Dade County Probate 08-704-M H; 08-1496-G17-03and 1 1-2053-CP-03; and also 3DCA 09-3164; 09-1308; 09-2201; 09-2544; l 1-2771; 12-2507 & 12-2865.? M arch 30,2001 Comm tencv Affidavit, Desir ation of Health Care Surrogate, Living W ill Declarationand Durable Power of Attorney that directs me (p. 3, ! 141 ''...to prosecute, defend and settle all actionsor t?/er legal....proceedings touching myproperty or afairs or any manner in which 1 may be concernedin any wtzp including to appeal litigation on my behalf'- and Dec. 4, 2003 Last Will and Testament thatorders (AIX. IVj IE-45, A-1; E-57, A-1 & E-97, A-41 ''I hereby give and bequeath #om my estate tzpamount equal ftp-/ive (5%) percent ofthe aggregate value ofmy net probate estate and my homesteaJ toeach of my grandchildren. '' AIl have been repeatedly filed & served, and no verified sttement existsstating a belief any of the above directives are invalid - nor has there been any such ruling in any Court!

Case 1:13-cv-21177-JAL Document 8 Entered on FLSD Docket 04/26/2013 Page 1 of 13


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Fnw fh/pgs are mor: jmportapl than familv & stlppolfnc those wh0 risk f/ldr lives to profect our freedoms.

ln addition to the MAGISTRATE JUDGE'S R&R IA-1l and DEFENDANT'S NOTICE OFREMOVAL IA-2l, also Attached (A1 for Court's convenience are a few chosen filed Exhibits (El:A-3 - Plaintifcs COMPLAINT FOR PARTITION lE-4l.A-4 - Plaintiff's NOTICE OF FILING DEPARTMENT OF DEFENSE MANPOWER DATACENTER - STATUS REPORT - M LHP IRWIN - NOT ON ACTIVE DUTY IE-131.A-5 - Plaintiff's MOTION FOR DEFAULT IE-211.A-6 - Defendant's NOTICE OF FILING DEPARTM ENT OF DEFENSE M ANPOW ER DATACENTER - STATUS REPORT - RALPH IRW IN - ON ACTIW DUTY- Ae PROOF OF OVERFORTY (40) YEARS OF SERVICE TO FAMILY, COMMUNITY, STATE AND COUNTRY IE-151

BACKGROUNDA superb, detailed and concise summary of the relevant historical facts and background

of all the related cases is shown in the Defendant's sworn and certitied January 29, 2013 filedGQSEEKING L GAL REPM SENTATION' LETTER MAILED TO OVER FOUR HUNDRED (400)

'' hereafter, Gluetter'' and/or cited simply as Exhibit 85 1E-851.3TTORNEYS AND LAW FIRMS,As stated at the beginning of this Letter:1I spent 15 years of my life and sacrificed much caring for the daily needs of my parents -only to be followed by spending 5 years and htmdreds of hours & thousands of dollarsdefending my & Dad's rights when there's been NO aflirm ative allegation or showingl've done ANYTHING legally or morally wrong. The ONLY thing l'm guilty of isholding OTHERS accountable for their unfair actions and violations of law. For doing so- and in addition to the (past) money already lost - l (now have recently lost an additional$30,000 due to the Plaintiff proceeding in State Court following my iNotice of Removal''(total loss of over $100.000)J. The MERITS of my complaints - and 58 ttgenuine issuesf terial facts'' gshown on pp. 27-31 of this Letter (E-85)1 - must be addressedl'' 4ma

3 S lso this Letter's accompanying,relevant Jan 29 2013 filed AFFIDAVIT OF RALPH IRWIN IE-841.e a ,4 N te: Corrections to the amount have changed again due to the Plaintiff & Circuit Court's continuationof State proceedings and refuxal to abide by 28 USC 1446(d), mandating that once a Notice of Removalis filed and served .'the State court shallproceed nofurther unless and until the ctzae is remanded ''



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Answer to (Doc# 1-1) Civil Cover Sheet V1 requirement to identify Related Case JudMes:,'1) Maria Korvick'' (Miami-Dade Co. Chief Probate Judge, Minmi-Dade Courthouse)',2) Joseph Farina'' (Eleventh Judicial Circuit Court Judge, Minmi-Dade Courthouse)''3) Beatrice Butchko''tEleventh Judicial Circuit Court Judge, Miami-Dade Courthouse)''4) Victoria Sigler'' (Eleventh Judicial Circuit Court Judge, M iami-Dade Courthouse)(All the names ofthe Third District Court ofAppeal Judges omitted due to lack ofspace)Answer to this Court's Civil Cover Sheet requirement to identify the Cause of Action:''M ultitude of Legal Actions Taken in Violation of SERVICEM EM BERS CIVILRELIEF ACT - 50 U.S.C. app. jj 521; 522; 513; 524; and 526. '' (Doc# 1-1)Ntzmber of times SERVICEM EM BERS CIVIL RELIEF ACT, SCM , and references to.

50 U.S.C.A. an. sections of the Code appear in the attached Defendant's Notice of Removal:TW ENTY-SIX - and cited on the majority of pages in Defendant's Notice of Removal.N umber of times SERVICEM EM BERS CIVIL RELIEF ACT, SCRA - or any such law

or similar reference thereof - appear in the M agistrate Jtidge's Report and Recommendations:ZEROAs a combat veteran who has served his County in support of every major contlict from

Vietnnm to Afghanistnn, 1 sternly object - as 1 believe any servicemember and general publicwould - to the M agistrate Judge's intentional, coldhearted, and underhanded omissions.9. lt's inconceivable - as it would be to any reasonable person - that the M agistrate Judge,after a ''liberal '' and ''less stringent standard'' review .'of the applicable Alings and the law ''(R&R, p. 11, could possibly overlook reporting there exists a clear, concise and well-supportedFederal Cause of Action under the SERVICEMEM BERS CIVIL RELIEF ACT, as shown by theDefendant's filed exhibits (re e.g., A-3 - 61 - of which this Court has EXCLUSIVE jurisdiction.

3



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STANDARD OF REVIEWA pro se litigant's pleadings are to be construed liberally and held to a less stringentstandard than formal pleadings drafted by lawyers. .. .. this rule means that if the courtcan reasonablv read the pleadings uto state a valid claim on which the plaintiff couldprevaile it slwuld 40 so despite the plaintiff s failme to cite proper lezal authority . . .. orhis tmfam iliaritv with pleading requirem ents.'' Hall v. Bellmon, 935 F.2d 1 106, 1 1 10(10th Cir. 1991) (Emphasis added).

10. And - as shown on page 9, !! 28 & 29 of the Defendant's attached Notice of Removal:The Supreme Court dictates the SERVICEM EM BERS CIVIL RELIEF ACT bettliberally construed to protect those who have been obliged to drop their own affairs totake up the burdens of the nation.'' Boone v. f ightner, 319 U.S. 561, 575 (1943). Andalso - Etto be Iiberally construed to prevent the civil rights of a servicemem ber from beingadversely affected while serving in the military.'' j 502. lt wasn'tl''The Supreme Court also directs that the SERVICEMEMBERS CIVIL RELIEF ACTttmust be read with an eye friendly to those who dropped their affairs to answer theircountry's cal1.'' Le Maistre v. Leffers, 333 U. S. 6 (1948). As shown, in both Probate &5ircuit Courts (and Federal Court) - and before feur 5 Judges - it was just the opposite!

The primary justifkation for Notice of Removal is the Plaintiffs deliberate violation of :The SERVICEMEMBERS CIVIL RELIEF ACT ISClkAI, 50 U.S.C. app.p section 521:(c) Penalty for making or using false affidavit. A person who makes or uses an affidavitpermitted under subsection (b) (or a statement, declaration, veritkation, or certificate asauthorized under subsection (b)(4)) knowing it to be false, shall be tined as provided intitle 18, United States Code, or imprisoned for not more than one year, or both IWS' citedand unmistakably shown on page 10 the Dejkndant 'sjlledNotice ofRemoval (Doc# 1)j.

12. Though this was not the first violation of the Defendant's federal riuhts under the SCRA.13. The first relates back to the Probate Case & coordinated actions of the Plaintiff, attorneyCheryl Silverman, and the many tmlawful actions and ''rulings '' of Probate Judge M aria Korvick

' k ith USAF Special Operations. 6uring the tim e l d been recalled back to active duty to wor w

5 c tedrrec .6 8 f Notice of Removalee e.g., pages &- o4



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The M agistrate Judge's tReport and Recommendations'' contain malw mistakes andomissions that need to be corrected, and l object to its entirety - specifically:15. Magistrate Judge states having reviewed the ''applicablejllings and the 1aw ''(R&R, p. 11.16. Extremely relevant is precisely what 'Tlings '' the Magistrate Judge fotmd I'applicable, ''and what did he detennine not ''applicable '' - particularly in regard to the Removal's attachedProbate Court 'yllings '' from which the Circuit case directly arose (re e.g, Doc# 1 Exh. A-1-131.17. Sam e goes for ''the law. '' Did the M agistrate Judge review the law as it applied toSERVICEM EM BERS CIVIL RELIEF ACT - or - as it applied to the Defendant's allegationsand filed showings relating to the County Probate & Circuit Court actions, and the numerous . ..

. .... twell-docum ented, supported instances of repeated unethical conduct and w11111violations of state and federal civil and criminal statutes - and constitutional 1aw -pemetrated for the most part by SERGIO MENDEZ, Esq. Ire pp. 31-431, CHERYLSILVERMAN, Esq. gre pp. 2-32 k A-21, MARIA KORVICK, Judge gre pp. 2-321,WILLIAM GLASKO, Esq. (re pp. 2-3, 6, 9-1 1, 15-17, 21, 23, 27-29), DAVIDMANGIERO, Esq. (re pp. 10-1 1, 14, 28-291, ANDREW BERMAN, Esq. (pp. 13-141,ELLEN GRUBm , Clerk (re pp. 13, 15, 17 & 301, STEVE LOSNER, Esq. (re pp. 1, 11,20-25, 34 & 421, WILLIAM LOSNER, Chairman, 1St National Bank of South Florida (repp. 1, 1 1, 18 & 241, RODNEY IRWIN, (throughoutl, and FEDERAL OFFICIALS of theOFFICE OF THE COMPTROLLER OF THE CURRENCY (OCC) (re pp. 19-201.''IE-851

18. Lack of speciticity in what was reviewed makes it impossible to frame an accurate reply.19. l object to the Magistrate Judge's lonM list of informapauperis case citations (R&R, p. ljunder ANALYSIS that implv my motion to proceed informapauperis (Doc# 3) is not warranted.20. And I object he did so without making any finding in regard to the merits of the Motion.21. The M otion's accompanying applications made the necessary showing. Accordingly, theCourt should grant the request, and not deny it without first finding aIl present & potential shown

7cause of actions lack merit and/or federal jurisdiction, a114 thus lack likely f'uttlre federal review:7 Regardless of whether this matter is removed or not, it's obvious other Federal Complaints will follow.



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Gtl-laines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 595-96, 30 L.Ed.2d 652 (1972);Hannon, 728 F.2d at 1409. This circuit has adopted the stnndard in Conley v. Gibson,355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957), to determine the sum ciencyof a complaint for purposes of section 1915(d), i.e., that ''a complaint should not bedismissed for failure to state a claim unless it appears beyond doubt that the plaintiff canprove no set of facts in support of his claim which would entitle him to relief.''' Pace v.Evans, 709 F.2d 1428, 1429 (1 11 Cir.1983) (quoting Conley v. Gibson, supra). ... Thetrial court must develop the facts of the pro se case until satissed about its lack of meritbefore dismissal under section 1915(d). Jones v. Bales, 58 F.R.D. 453, 464@ .D.Ga.1972) affd, 480 F.2d 805 (5th Cir.1973). The court usually requires service ofprocess and the defendant's answer before making such a decision.'' Phillips v.Mashbum, 746 F.2d 782, 784 (1 1th Cir. 1984) (per curinm) (Emphasis added).l object to the Magistrate Judge erroneously reporting (and hishrst attempted f%c/-?z.p ''):''The complaint in this case relqtes to the partition ofproperty located in Miami-DadeCounty Florida '' (R&R, p. 3) (Emphasis added).Plainly, the Removal primarily 'relates ' to the Federal Cause of Action shown (re ! l l J.

lt's not the Notice, but the Plaintitrs shown criminal violation of 50 U.S.C. app.j 521(c) that''relates '' directly to the Complaint for Partitiong//pr/pcrl.p located in Miami-Dadej.24. Ftuhennore, I also object to the Magistrate Judge's vague use of the word ''complaint. ''

lf the M agistrate Judge meant it to mean the Plaintiff s tlcomplaint for Partition,'' thenthe above sentence is entirely correct.However, if he meant it to mean the Defendant's Noticeof Removal, which merely includes complaints of the Plaintiff s Complaint, then the abovesentence is incorrect because it's vague, ambiguous, capricious - and also noticeably deceptive.

, gnd .. /j tgge ,,6. Clearly the latter is the case - as shown by 1) the Magistrate Judge s set t e sremark in ! 31, and 2) his lmsupported, over-ruled, off-point spermatic citation shown in ! 49used to prove ' my Removal - which he ridiculously claims (relates ' primarily to the Complaintfor Partition - is precluded since Federal Courts lackjurisdiction over such State actions.

Klf you call a tail a leg, how m any legs does a horse have?not m ake it a leg'' - Abraham Lincoln

Four. Calling a tail a leg does



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27. l object to the Magistrate Judge suggesting the following was entirely lawful, andom itting the many facts shown by the Defendant that surround & prove this stated action illicit:

''Final Judgement wtz- entered by the circuit court in Miami-Dade Ctl?z?z@ on September27, 2012. See Final Judgment ofpartition in Case No. 12-1243 CW 42 (DEIS 1-12 at 9-l 1,4/3/13) '' (R&R, p. 31.28. As the Plaintitrs crim inal scam of filing a false aftidavit followed by M otion for Default

' k (since 1 showed up at the 2* hearing dressed in USAF ?vnp/'v/nl, the Plaintiff, aidedidn t worby the opposition, were still intent on quicldy doing whatever it took to deny m e the opportunity

for due process before I had the chance to completely move back, settle in, retain legal counsel -and switch from fighting the war in Afghanistan to fighting my m anv on-going civil court battles.29. 'f'he ''Final Judgement'' hearing was an obvious shnm, and it was illegal for m anydifferent reasons - some of which will obviouslyjustify additional Federal Cause of Actions.30. For example, the hearing was conducted 1) just 26 days after l left active duty - and afterI had repeatedly and unlawfully been denied a mandatory Stay as was my Federal Right underthe SERVICEMEMBERS CIVIL RELIEF ACT; 2) after l'd been repeatedly denied access andFundamental ltight to appeal to the Third District Court of Appeals ever since 2009; and 3) all ofwhich can be traced directly back to Judge M aria Korvick's m any tmlawful actions, includingalso denying me the Fundament Right to access the Probate Court as a pro se party back in 2009(see e.g., Letter, pp. 34-38 & 39-41 and Exhibit 521.31. l object to the Magistrate Judge erroneously reporting that . . .''The defendant states that his First, Ff#/z and Fourteenth Amendment rights wereviolated when he wtu denied access to b0th the state trial court and the state appellate

court without proper just6cation in an action concerning reql property. See Notice ofRemoval (DE# 1 at .5, 4/3/13) '' (R&R, p. 3) (Emphasis added).



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First, once again the basis of the Removal is not k6an action concerning real property''lAnd second, here's what's actually stated ''at 5 '' and it doesn't ''concern realproperty'' at aII:#

ttAlso sworn, alleged & shown in this letter IE-85l & in my many Probate Court pleadings1) The involuntary, unnecessary &willfully unjust guardianship'' of ORVAL IRW IN(with greed being the motivating force); 2) false unsupported allegations; 3) substantialrepeated fraud; 4) denial of right to competent legal representation; 5) denial of the rightto access the court and right to petition the court for a redress of grievances as a state &federal court-recognized, pro se indigent, in forma pauperis litigate; 6) fraudulent,immaterial and unsupported findings, t'ulings and ordets; 7) theft; 8) collusion; 9)conspiracy; 10) denial of father's lawfully expressed wishes and indefinite Esuspension''of valid advance directives; 1 1) tm-filing of filed documents; 12) two ttlost'' original Willdocuments in custody of clerk and attorney; 13) faillzre to recognize a duplicate Will; 14)denial of the right to privacy; 15) denial of right to discovery; 16) financial exploiotionby the guardian'' and judicial oftkers; 17) denial of right to present evidence; 18) denialof right to evidentiary hearings; 19) denial, dismissal & striking of yet-to-be-heard filedand scheduled pleadings without just cause or explanation; 20) ttforced debt transfer'' andtaking of property ($64,522) without due process or writ of attachment; 21) omission ofpleadings from record on appeal' 22) ex parte communications, 23) the dismissal ofapm als and motions without just cause or expluation; 24) fraudulent ttTrust''; and 25)that Plaintiff, judicial officers and bank and federal officials participated in, and/orcondoned, encomaged, permitted or tolerated said violations, which clearly constitutes apolicy, custom and practice of unjustised, unreasonable and illegal activity perpetratedupon myself and my father in violation of, inter alia, the First, Fifth and Fourteenth,, 6mendments of the U .S. Constim tion.6 District courts have original jurisdiction of civil actions arising under the Constitution

and U.S.laws.28 USC j 1331 .33. I object to the Magistrate Judge's following very basicobservation - and doing sowithout making any specific reference to any of the ''letters, pleadings tt motions '' whatsoever:

(zqttached to the Notice ofRemoval are a number ofexhibits including letters, pleadingsand motions that were previouslyfled by the de#ndant with the state court. ''

34. Once again, the M agistrate Judge's lack of specificity as to what is or isn't tapplicable''makes it impossible to file a complete objection to his Report and Recommendations.

I certainly object to the Magiskate Judge's failure to cite any supporting docllments.

B



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1 object to Magistrate Judge's eaoneous, purposely r -specifk & trivialized report that...''The defendant alleges that his rights wcrc affected when some of his motions wereroutinely ''ignored'' by the state court and the plaintt continued to submit falseam davits regarding the defendant 's military status. See Notice ofRemoval (DE# 1 at 9-1 1, 4/3/13.). '' (R&R, p. 3)

37. First, it's important to review what's actually stated and shown in *iDEIL 1 at 9-11. ''38. Second, l again object to the Magiskate Judge knowingly avoiding making any mentionto num erous references - shown ''at 9-11 ''- of the SERVICEM EM BERS CIVIL RELIEF ACT.

Third, l object to the Magistrate Judge failing to identify what ''rights '' 1 allege were''affecteJ '' e.g., my Federal Rights tmder the SERVICEMEMBERS CIVIL RELIEF ACT.40. Fourth, I object to the Magistrate Judge's false assertion that 1 allege the Plaintiffsubmitted multiple 'false ay davits, '' when 1 alleged - and clearly showed - he submitted one.Finally, I object to the Magistrate Judge intentionally failing to recognize - and report - thatthe ''allegation '' (shown by Exh. 13 - A-4) that the Plaintiff submitted Gfalse affldavits regardingthe defendant 's military status '' establishes a Federal Cause of Action & Exclusive Jurisdiction,after 1) the Magistrate Judge claimed to have reviewed the ''applicable Alings and the /tzw ''(R&R, p 11 and 2) he S nds that thefacts asserted in the documentsfled by the defendant fail toconstitute J#l# cause t?f action Larising under the Constitution, Iaws.or treaties of the UnitedStates ' to invokejurisdiction under 28 ULS.C. # 1331 '' (R&R, p. 4) (emphasis added).41. l object to the Magistrate Judge's erroneous opiniom totally unsupported by facts, that. ..

''The dejkndant is essentially seeking review ofthe actions ofthe state courts, theplaint#and the plaint# 's attorneys. '' (R&R, p. 3)42. First, nowhere does the Defendant make such a request.

9



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Second, the M agistrate Judge's statement is extremely vague and ambiguous. W hat kindof treview '' what ttactions'' & what ttcourts''? lf implying the Federal Court has no jurisdictionover matters outside the confines of what was litigated in State Court, then he's simply wrong.44. Third, the Federal Court has exelusive jurisdiction over malw civil rights cause of actions- and that would include a ''review '' of a1l U.S. Constitution & Federal Law violations alleged ascommitted by the ''actions '' of the aplaintt'' - and judicial officers - dlzring State actions.45. Fourth, there are two prim ary reasons for the Defendant showing this Court the manyunlawful and tmethical ''actions t?f the state courts, theplaintt and the plaintW s attorneys. ''

That the Federal Court clearly has concurrent jurisdiction in regard to many of theState-Federal non-litigated allegations, cause of actions and claims shown; and . ..To convince this Court to retain supplemental jurisdiction over al1 of the non-federal,non-litigated shown allegations, cause of actions and claims - particularly since they formpart of the same case and controversy, and include a variety of remedies and claims thatinvolve the joinder and intervention of additional parties.

46. The effort in doing so does not equate to ''seeking review ofthe actions ofstate courts. ''The following case completely invalidates the M agistrate Judge's essential argtlment:As the Supreme Court explained in M arshall v. M arshall, 547 U.S. 293, 311-12, 126S.Ct. 1735, 164 L.Ed.2d 480 (2006) (citations omitted), llwhen one court is exercising inrem jurisdiction over a res, a second cotlrt will not mssume in rem jurisdiction over thesam e res. Thus, the probate exception reserves to state probate courts the probate orannulment of a will and the administration of a decedent's estate; it also precludes federalcourts from endeavoring to dispose of property that is in the custody of a state probatecourt. But it does not bar federal courts from adiudicatina matters outside thoseconfines and otherwise within federal iurisdiction.'' gEmphasis addedl



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48. W ithout getting into aIl the meanings the M arshall case has concerning my complaints,there can be Eg argument that this precedent case undoubtedly allows this Court jurisdiction ofSCRA violations during the tim e that Judge Korvick's probate proceeding were taking place.49. I object to the Magistrate Judge's following erroneous, vague quote & off-point case law:

G Absent limited circumstances which do not apply here, federal courts do not Jltzvejurisdiction to review state-court actions. See Seminal Tribe ofFla. v. Dep 't ofRevenue,Case No. 12-62238-C1% 2013 WL 118065, at *2 (S.D. Fla. Jan. 9, 2013) (stating that''Lalfederal district court generally does not have authority to rcview decisions made bya state court ofcompetentjurisdiction ')). '' (R&R, p. 3150. First, 1 know of NO GGseminal Tribe '' that exists in Florida (nor do 1 want to).51. Second, this wms not an appellate ruling.52. Third, issues had already reached the Supreme Court & they declined review (* l1.

Fotlrth, the plaintitrs claims were ''barred by the Tax Injunction Act'' (* 111, B1..6A t 1 # 8 c1. 3 ULS. Const. '' 8 -ifth, Attorney General Bondi wms arguing in regard to r . , ,

not Federal Law and exclusive federaljurisdiction and Article II1 as it applies in the instant case.55. Sixth, the M agistrate Judge's phrase ''absent limited circumstances which do not applyhere '' appears to be based on the following, but irrelevant, internal G*seminal Tribe '' citation:

tt-f'he Eleventh Circuit has identified two situations in which a party's federal claimswould be inextricably intertwined' with its state-court judgment: t(l) where the successof the federal claim would effectively nullify' the state-court judgment; and (2) wherethe federal claim tsucceeds only to the extent that the state court wrongly decided theissues.' '' Springer v. Penyman, 401 F. App'x 457, 458 (1 1th Cir.2010) (quoting Casale,558 F.3d at 1260)55 (* 111, A).

8 R Su reme Court of FloridaaCase No. SC1 1-1854 Seminole Tribe of Florida v. Florida Department ofp ,Revenue ttBrief on Jurisdiction of Florida Department of Revenue'' dated Nov. 7, 201 1 on Petition forReview from the Fourth District Court of Appeal Case No. 4910-456: See page 6, footnote 4 - %tlndeciding that tax levies on off-reservation fuel transactions do not violate the Indian Commerce Clause?h decision below did not construe the Clause itself. 4 ArtI j 8 c1. 3, U.S. Const. (providing thate ,Congress has the authority tsltlo regulate Commerce with foreign Nations, and among the several States,and with the lndian Tribes(.1'').''



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56. Magistrate Judge fails to identify orjustify the above, or explain how this might happen.57. Regardless, the Supreme Court Marshall decision trumps this Cottrt's Seminole ruling.58. Seventh, the Magistrate Judge also conspicuously fails to identify any circumstance when'ljkderal courts '' do ''havejurisdiction to review state-court actions. ''59. And finally, the unm entioned Rooker-Feldman Doctrine, regardless of it being outdatedand over-ruled, does not apply to the matter at hand since, for example, the Defendant's SCRAclaims unmistakably do not ''essentially seek rcvfew oftheprevious state-court action '' (* 1111.60. The real issue is whether this Court will recognize the Defendant's pmsnt Federal Causeof Action - the violation of the SERVICEMEMBERS CIVIL RELIEF ACT 50 U.S.C. app. j 521- and whether the Court has exclusive jurisdiction over it.61. Clearly, a 'ljkderal claim '' exists and l demand relief, which includes but not limited to,remedial relief, compensatory damages and other affirmative relief - including punitive damages.62. Furthermore, although the Defendant feels he's provided an abtmdance of suftkientevidence to establish jurisdictional threshold, if this Court believes its lacking then l respectfullyrequest it elicit additional evidence pursuant to the following'

ltW hile it is tmdoubtedly best to include all relevant evidence in the petition for rem ovaland m otion to remand, there is no good reason to keep a district court from eliciting orreviewing evidence outside the removal petition.'' Sierminski v. Transouth Fin. Corp. ,216 F.3d 945, 949 (1 1th Cir. 2000).

CONCLUSIONnot, and cannot, point out that a position is frivolous, orhe M agistrate Judge has

unsupported, or something based on a distortion of the record - or that the Defendant's shownfacts and laws don't support the principles for which they're cited. They speak for themselves.



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There is insuftkient evidenceand law shown by the Magistrate Judge to support hisrecom mendation. Therefore, for the many reasons shown here and in the Defendant's Notice ofRemoval this Court should decline to adopt the M agistrate Judge's Report and Recommendation,sustain the Defendant's objections, and grant the Motion to Proceed In Forma Pauperis.Underpenalty ofperjury I declare the abovefacts are true to the best of my knowledge and belle.fDated April 25, 2013. Respectfully subm ' ed,

=Ralgh l in, Pro SeMalor, USAF (Ret.)27331 SW 164 AveHomestead, FL 33031786-404-3288irwinz@bellsouthonet

CERTIFICATE OF SERVICEh b rtify that on the 26* of April 2013 I hand-delivered and filed this docum ent with theere y ceClerk of U.S. District Court, 400 North M iami Avenue, M iami, FL 33128 - along with aM OTION FOR EXTENTION OF TIM E TO ALLOW FOR FILING OF DEFENDANT'S OBJECTIONSTO MAGISTRATE JUDGE'S REPORT AND RECOMMENDATIONS - and sent a copy by bothU.S. Mail and e-mail ([email protected]) to the Plaintiffs attorney, SergioMendez, Esq. (Fla. Bar # 472761) 1500 San Remo Ave, Suite 290, Coral Gables, FL 33146,Phone: 305-667-0112, Fax: 305-667-1137.


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Defendant Ralph Irwin's Objections to Magistrate Judge's Report and Recommendations (Doc# 8), Case...

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