IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA,

Atlanta Division

JAMES B. STEGEMAN,

JANET D. MCDONALD,

Plaintiffs

vs.

SUPERIOR COURT STONE

MOUNTAIN JUDICIAL CIRCUIT;

SUPERIOR COURT JUDGE

CYNTHIA J. BECKER, in her

individual capacity;

GEORGIA POWER COMPANY;

BRIAN P. WATT, Esq., in his

Partnership, Professional and

Individual Capacities;

SCOTT A FARROW, Esq., in his

Partnership, Professional and

Individual Capacities;

Defendants

CIVIL ACTION

FILE NO: 1:08-CV-1971

RULE 60(b) RELIEF FROM

JUDGMENT

PLAINTIFFS‟ MOTION FOR RECONSIDERATION OF ORDER

DENYING PLAINTIFFS RELIEF FROM JUDGMENT

COMES NOW, Plaintiffs who file Plaintiffs’ Motion for Reconsideration

of Order Denying Plaintiffs Relief from Judgment. Plaintiffs Move the Court to

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Reconsider it‘s Order Denying them Relief, and to cite authority supporting this

Court‘s Ruling.

This Court has failed/refused to address the grounds for which Plaintiffs

requested relief under Rules 60(b)(2),(3),(4), and (6) and stated only that Plaintiffs

were barred by the one year statute of limitations, and what was not barred by the

one year statute of limitations, Judge Duffey himself has been deemed untimely

anyway.

Plaintiffs have shown through undisputed fact that there is newly discovered

evidence; that officers of the Court knowingly, willingly, wantonly, maliciously

and with intent to harm Plaintiffs fabricated and forged real property documents

and committed a fraud upon the court to obtain rulings in their favor and to defraud

the Plaintiffs.

Plaintiffs, only a few days ago, discovered that the Exhibits they had

attached to their Rule 60(b) Motion/Brief, appear nowhere on the Docket as having

been filed, and are not included as part of the Brief. It is unconscionable that due

to the legitimacy of Plaintiffs‘ claims, their evidence and pleadings are so

conclusive, that the Courts, the court‘s Clerks, and others who are officers of the

Court, have had to resort to removing documentation from Plaintiffs‘ filings,

falsifying docket reports, fabrication of evidence, creating fictional discovery

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disputes, signing and having Orders filed eighteen minutes before the hearing is set

to begin, and that a Judge would act as counsel for the defendants as the only

means to see that the defendants win this case.

It is further unconscionable that the Courts and their clerks have tampered

with and hindered Plaintiffs‘ ability to prosecute their case and their Right to

Appeal.

ARGUMENT AND CITATION OF AUTHORITIES

EXHIBIT 1: The Docket Report - clearly shows that the last entries prior

to Plaintiffs‘ Motion for Relief under Rule 60(b)(2),(3),(4), and (6), was on March

31, 2009, and July 08, 2009 respectively.1

The Docket Report, and History of Documents shows no Exhibits or

attachments included with the March 2010 Motion and Brief. Either the Court or

it‘s clerk removed the Exhibits of ―newly discovered evidence‖, and falsified the

date the Motion was delivered to the Court, so that the claim could be made that

Plaintiffs‘ motion was untimely.

I. FAILURE TO ADDRESS PLAINTIFFS‟ GROUNDS FOR RELIEF

1 *EXHIBIT 2 from the United States Postal Service, shows they delivered the

Motion and Brief on March 31, 2010; the Docket report shows April 1, 2010 Judge

Duffey claimed that the Motion was untimely, because of a one year statute of

limitation, thus the explanation of why the Motion was held until the following day

before being filed.

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Judge Duffey, failed/refused to address the grounds for which Plaintiffs

sought relief under FRCP Rules 60(b)(2),(3),(4), and (6); the three (3) page Ruling

failed/refused to cite authority for refusing to Grant Plaintiffs‘ Motion.

The Court complained that Plaintiffs had already filed a motion for

reconsideration [Doc.45, pg.3], and that ―successive motions will not be

entertained.‖ Plaintiffs have met the requirements for their Motion, they have

shown that there is new evidence which could not have been obtained prior to the

Court‘s Ruling, or in time for a Rule 59 motion for new trial; they have shown that

defendants committed fraud upon the court to obtain rulings in their favor; they

have shown that they were denied a fair and impartial tribunal thereby denied due

process which makes rough the Court‘s Rulings void; and other acceptable grounds

for the setting aside of the judgment. Nevertheless, the court ignored, and denied

Plaintiffs‘ Motion as a whole.

Further, the court is well aware that the Plaintiffs would be,2 and have been

2 Although in his Ruling, Judge Duffey stated that he was confident that Plaintiffs would

have the opportunity to bring their Civil and Constitutional Rights violations in front of

Judge Becker [Doc.20,pgs.19-20], Judge Duffey knew for a fact that Plaintiffs‘ case had

been dismissed with prejudice by Judge Becker in retaliation, the day after Judge Becker

was served with Summons and complaint. Nevertheless, Judge Duffey‘s claim of

confidence in Judge Becker, must have meant that he was confident that she would not

recuse herself and that even though neither she nor the Superior Court had jurisdiction

over Plaintiffs‘ real property at that point, that Judge Becker would see to it that Georgia

Power prevailed.

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denied the Right to seek redress of Civil and Constitutional Rights under color of

law in state court, and have no other avenue to seek redress for the violations.

Judge Duffey‘s Order dismissing under Younger states that Plaintiffs may have a

legitimate complaint, but should they come back to Federal Court, he will have the

case dismissed under ―res judicata, and collateral estoppel‖ [Doc.21,pg21],

guaranteeing the defendants that Plaintiffs will be blocked should they try to refile

their case.

A. Fed. R. Civ. P. Rule 60(b)(2) “newly discovered evidence which by

due diligence could not have been discovered in time to move for a new trial

under Rule 59(b)”

1. Newly discovered evidence shows that Georgia Power knowingly,

willingly, wantonly, maliciously and with the intent to defraud the Plaintiffs,

withheld vital information, thereby causing harm to Plaintiffs:

* EXHIBIT 3: Affidavit of Attorney Marcus Calloway page 2 ¶3 shows

that Dale Reiner from Georgia Power Co. contacted him on August 13, 2007 for a

title search; page 3, ¶10 shows that Mr. Reiner again contacted Mr. Calloway

November 20, 2007 to request a public records search. Defendants filed their

Verified Answer in Superior Court on December 3, 2007 well after Mr. Calloway‘s

research.

Having been denied all knowledge of Mr. Calloway and the services he had

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performed for Georgia Power, has violated due process of law, and kept pertinent

information from the Plaintiffs that would have assisted their prosecution of their

case.

"In general, relief is given under clause 6 in cases in which the

judgment was obtained by the improper conduct of the party in

whose favor it was rendered …." Section 2864, p. 213. See

generally, 11 C. (Wright & A. Miller, Federal Practice and

Procedure, § 2864 (1970))

Further, officers of the Court, secreted information, fabricated evidence, and

perjured themselves within the courts, thereby committed fraud upon the court to

obtain favorable rulings. The Court aided the defendants‘ and showed favoritism

toward the defendants by creating and adding defenses for them; Judge Duffey‘s

actions denied Plaintiffs due process of law, denied Plaintiffs a fair and impartial

tribunal. The Rulings are not merely voidable, they are void and must be set aside.

In Fisher v. Amaraneni, 565 So. 2d 84 (Ala. 1990), the court defined a

judgment as void if the court ―acted in a manner inconsistent with due process." Id.

at 86 (citing Wonder v. Southbound Records, Inc., 364 So. 2d 1173 (Ala. 1978)). It

should be noted here that a Rule 60(b)(4) motion involves a different standard of

review than the other Rule 60(b) subsections since the court held "[w]hen the grant

or denial turns on the validity of the judgment, discretion has no place for

operation. If the judgment is void it must be set aside ...." Fisher, 565 So. 2d at 87.

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The first time Georgia Power contacted Mr. Calloway, Plaintiffs‘ property

had yet to be trespassed onto and criminally damaged. Undisputed facts clearly

show that Georgia Power had actual knowledge that they lacked an easement over

Plaintiffs‘ property.3 This vital information had been secreted from Plaintiffs in

both the Superior Court, and in this Court, it is newly discovered evidence.

"Since attorneys are officers of the court, their conduct, if dishonest, would

constitute fraud on the court." H.K. Porter Co., Inc. v. Goodyear Tire & Rubber

Co., 536 F.2d at 1119‖ In Bulloch v. United States, 763 F.2d 1115 (10th Cir.

1985) held the following:

―Fraud on the court (other than fraud as to jurisdiction) is fraud

which is directed to the judicial machinery itself…. H.K. Porter

Co., Inc. v. Goodyear Tire & Rubber Co., 536 F.2d 1115 (6th

Cir.). It is thus fraud where the court or a member is corrupted or

influenced or influence is attempted or where the judge has not

performed his judicial function--thus where the impartial

functions of the court have been directly corrupted.‖

* EXHIBIT 4: Judge Becker‟s Order Granting Georgia Power Summary

Judgment and Prescriptive Easement to Georgia Power, shows the Order was

signed and file by 9:12 AM the morning that the hearing was supposed to begin at

9:30 AM. 3 Mr. Calloway further stated that Georgia Power had him look into the property again in

November, before Georgia Power filed their Verified Answer in Superior Court, showing

that Georgia Power‘s Verification in Superior Court was an act of fraud upon the Court

and perjury by Georgia Power‘s in house counsel.

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Plaintiffs have failed to comprehend how a Ruling claiming that Plaintiffs

failed to appear at the hearing [Ex.4] was already signed and filed, eighteen (18)

minutes before the hearing began. In DeKalb County Superior Court, the Judge is

not even in the courtroom at 9:30 AM.

* EXHIBIT 5: State and County Real Property Records4 show a ―sale‖ of

Plaintiffs‘ property to Georgia Power. The Order and references on their Deeds,

and Real Property Records at DeKalb County Property Tax Division [Ex.4,5] are

also ―newly discovered evidence that could not have been discovered in time to file

for FRCP Rule 59(b) new trial.

B. Fed. R. Civ. P. Rule 60(b)(3) Requirements: (This subsection of the Rule is

aimed at judgments which were unfairly obtained, not at those which are

factually incorrect.)

The conduct complained of must be such as prevented the losing party from

fully and fairly presenting his case or defense. Toledo Scales Co. v. Computing

Scale Co., 261 U.S. 399, 421, 43 S.Ct. 458, 464, 67 L.Ed. 719 (1923); Atchison,

Topeka & Santa Fe Ry. Co. v. Barrett, 246 F.2d 846, 849 (9th Cir. 1957); Rubens

v. Ellis, 202 F.2d 415, 417 (5th Cir. 1953). Although Rule 60(b)(3) applies to

4 As shown on file at the Superior Court Clerks Authority website:

http://www.gsccca.org

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misconduct in withholding information called for by discovery, Petry v. General

Motors Corp., 62 F.R.D. 357 (E.D.Pa.1974), it does not require that the

information withheld be of such nature as to alter the result in the case. Seaboldt v.

Pennsylvania RR. Co., 290 F.2d 296, 299-300 (3d Cir. 1961).5

The mere fact that Georgia Power‘s in house counsel perjured himself, and hid

the fact that there had been an examination of Plaintiffs‘ real property records and

Georgia Power‘s fraudulent easement documents, shows that pertinent information

and evidence was withheld ―that prevented‖ the Plaintiffs from ―fully and fairly

presenting their case.

C. Fed. R. Civ. P. Rule 60(b)(4)

Wright & Miller comments further on the nature of the "special showing"

necessary under subsection 6.

"In general, relief is given under clause 6 in cases in which the

judgment was obtained by the improper conduct of the party

in whose favor it was rendered …" Section 2864, p. 213.6

Georgia Power defendants‟ Memorandum of Law in Support of Motion

to Dismiss [Doc.3-2] pg. 10 is an implied admission that has never been disputed

or rebutted in any way:

5 See generally, 11 C. Wright & A. Miller, Federal Practice and Procedure, § 2861 (1970)

6 See generally, 11 C. Wright & A. Miller, Federal Practice and Procedure, § 2864 (1970)

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―committed fraud upon the court, maliciously and negligently

abused process within the Court, made false statements to and

within the Court, then requested the Court to Falsify a record for

them … Georgia Power and its attorneys sought to have the case

against it dismissed.‖

In essence, the Georgia Power defendants‘ statement results in their implied

admission, silent admission to the allegations of fraud, forgery, having the

Superior Court case dismissed through a fictional discovery dispute, conspiring

with the Superior Court defendants, and fraud upon the court to obtain rulings in

their favor consistent with the requirements for ―a void judgment‖. It has been

held that ―A void judgment is one that has been procured by extrinsic or collateral

fraud‖ Rook v. Rook, 233 Va. 92, 95, 353 S.E.2d 756, 758 (1987).

Plaintiffs‘ Motion and showing to the Court required the Court to ―vacate

the judgment under Rule 60(b)(4):

―Under Rule 60(b)(4) a deferential standard of review is not

appropriate because [i]f the underlying judgment is void, it is a

per se abuse of discretion for a district court to deny movant‘s

motion to vacate the judgment under Rule 60(b)(4).‖ Antoine v.

Atlas Turner, Inc., 66F.3d 105, 108 (5th Cir. 1995) (quoting

United States v. Indoor Cultivation Equip from High Tech

Indoor Garden Supply, 55 F.3d 1311, 1317 (7th Cir, 1995)). See

also Charles Alan Wright, Arthru R. Miller & Mary Kay Kane,

Federal Practice and Procedure §2862 (2d ed. 1995) (There is no

question of discretion on the part of the court when a motion is

under Rule 60(b)(4).‖

―As many circuits have recognized the absence of discretion under Rule

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60(b)(4) necessitates de novo review.‖ Sea-Land Serv., Inc. v. Caramica Europa

II, Inc., 160 F.3d 849, 852 (1st Cir. 1998); Carter v. Fenner, 136 F.3d 1000, 1005

(5th Cir. 1998); Wilmer v. Board of County Comm‘rs. Of Leavenworth County, 69

F.3d 406, 409 (10th Cir. 1995); Indoor Cultivation Equip., 55 F.3d @ 1317; Export

Group v. Reef Indus., Inc., 54 F.3d 1466, 1469 (9th Cir, 1995); Page v. Schweiker,

786 F.2d 150, 152 (3rd

Cir. 1986).

Because Judge Duffey denied Plaintiffs due process of law, he had to

disqualify himself, which he refused to do; he clearly acted ―outside of his legal

powers‖ Carter, 136 F.3d at 1005 (citation omitted); see also Antoine, 66 F.3d at

108 (quoting In re Edwards, 962 F.2d 641, 644 (7th

Cir. 1992)).

The Georgia Power defendants have never disputed that they fabricated the

easement document, and never rebutted Plaintiffs‘ showing that Mr. Wells never

existed. ―Fabrication of evidence… will constitute a fraud upon the court.‖ ―That

fraud which will dictate that the Ruling must be set aside.‖ As the district court

explained in United States v. International Telephone & Telegraph Corp., 349

F.Supp. 22, 29 (D.Conn.1972), aff'd without opinion, 410 U.S. 919, 93 S.Ct. 1363,

35 L.Ed.2d 582 (1973):

―Generally speaking, … the fabrication of evidence by a party in

which an attorney is implicated, will constitute a fraud on the

court. See Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322

U.S. 238, 64 S.Ct. 997, 88 L.Ed. 1250 (1944); Root Refin. Co. v.

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Universal Oil Products, 169 F.2d 514 (3d Cir. 1948) 7 J. Moore,

Federal Practice, ¶ 60.33 at 510-11.‖

Wright & Miller comments further on the nature of the "special showing"

necessary under subsection 6:

"In general, relief is given under clause 6 in cases in which the

judgment was obtained by the improper conduct of the party in

whose favor it was rendered‖

Defendants in both state and federal Courts worked a fraud upon the Court

to obtain judgments in their favor. See Bulloch v. United States, 763 F.2d held the

following:

―Fraud on the court… is directed to the judicial machinery itself

… H.K. Porter Co., Inc. v. Goodyear Tire & Rubber Co., 536

F.2d 1115 (6th Cir.). It is thus fraud where the court or a member

is corrupted or influenced or influence is attempted or where the

judge has not performed his judicial function--thus where the

impartial functions of the court have been directly corrupted.‖

"Since attorneys are officers of the court, their conduct, if

dishonest, would constitute fraud on the court." Porter, 536 F.2d

at 1119.‖

―Fraud upon the court" has been defined by the 7th Circuit:

"…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 can not perform in the usual manner its impartial task

of adjudging cases that are presented for adjudication." Kenner v.

C.I.R., 387 F.3d 689 (1968); 7 Moore's Federal Practice, 2d ed.,

p. 512, ¶ 60.23"

The Georgia Power defendants have made a mockery of the court(s); and the

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Court‘s clerks‘ apparent willingness to violate rules and procedures, shows a

furtherance of fraud upon the Court.‖ ―Fraud upon the court" has been defined by

the 7th Circuit Court of Appeals to "embrace 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 can not perform in the usual manner its impartial

task of adjudging cases that are presented for adjudication." Kenner v. C.I.R., 387

F.3d 689 (1968); 7 Moore's Federal Practice, 2d ed., p. 512, ¶ 60.23. The 7th

Circuit further stated "a decision produced by fraud upon the court is not in essence

a decision at all, and never becomes final."

Where Rule 60(b)(4) is properly invoked on the basis that the underlying

judgment is void, "'relief is not a discretionary matter; it is mandatory.'" Orner v.

Shalala, 30 F.3d 1307, 1310 (10th Cir. 1994) (quoting V.T.A., Inc. v. Airco, Inc.,

597 F.2d 220, 224 n.8 (10th Cir. 1979)).

Judge Duffey tried to claim that Plaintiffs‘ Motion was not timely, but sister

circuits have long held that ―Although Rule 60(b)(4) is ostensibly subject to the

"reasonable" time limit of Rule 60(b), at least one court has held that no time limit

applies to a motion under the Rule 60(b)(4) because a void judgment can never

acquire validity through laches. See Crosby v. Bradstreet Co., 312 F.2d 483 (2nd

Cir.) cert. denied, 373 U.S. 911, 83 S.Ct. 1300, 10 L.Ed.2d 412 (1963) where the

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court vacated a judgment as void 30 years after entry. See also Marquette Corp. v.

Priester, 234 F.Supp. 799 (E.D.S.C.1964) where the court expressly held that

clause Rule 60(b)(4) carries no real time limit.

There is no question, under 60(b)(4), Plaintiffs‘ Motion is timely, this

Court‘s Ruling is void, and Plaintiffs have made a proper showing, the ruling must

be set aside.

D. Fed. R. Civ. P Rule 60(b)(4)/60(b)(6)

II. TAMPERING WITH/HINDERING/DENYING RIGHT TO APPEAL

Appellant‘s Motion to Appeal in Forma Pauperis was Granted by District

Court December 26, 20087. Appellant filed Motion for Appointment of Counsel

January 7, 2009.

Judge Hull‟s Order Denying Plaintiff Mr. Stegeman‟s Motion for

Appointment of Counsel January 16, 2009, stated that Plaintiff Ms. McDonald

denied Ms. McDonald her Rights to Appeal. Motion for Reconsideration was

filed January 30, 2009, Denied February 11, 2009.

A. Denial of Ms. McDonald‟s Right to Appeal

Ms. McDonald was neither alerted to a defect in Plaintiffs‘ Notice of Appeal,

7 District Court Order Ruled that the Appeal is not frivolous, and that Appellant is

disabled with limited resources

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nor allowed to cure the defect. The U.S. Supreme Court has stated that Right to

Appeal is not lost due to a defect in Notice; Plaintiff/Appellant must be ―Noticed‖

and afforded opportunity to cure the defect‖. Becker 532 U.S. at 764, 766. Judge

Hull‘s Order Denying Appellant‘s Motion for Appointment of Counsel clearly

stated that Ms. McDonald was not part of the Appeal.

In Casanova v. Dubois, 289 F.3d 142, 145 (1st Cir. 2002) at 146 ―eighteen

months had passed after Notice of Appeal had been filed‖; ―based on Becker, the

dismissal of appeals …was unwarranted.‖ And in Wash v. Johnson, 343 F.3d

685 (5th Cir. 2003):

―The Supreme Court‘s holding in Becker,…is jurisdictional and

may be cured…once omission is called to a party‘s attention,

effectively overrules our holdings in Mikeska and Cater‖

―…based upon Becker and in agreement with our sister circuit‘s

reasoning in Casanova, we grant Moore‘s motions to reinstate

appeal and to reconsider the clerk‘s refusal to do so…‖

Appellant filed Motion to Recuse Judges Hull, Wilson and Marcus February

18, 2009; Georgia Power Appellees filed Objection February 23, 2009 to which

Appellant filed a Reply on March 6, 2009. The Motion went totally ignored.

The Appellate clerk ruled Motion to Recuse Moot, and dismissed the appeal

for want of prosecution [Doc.39] in violation of the 11th Circuit Court of

Appeals‘ own Rules and the FRAP, thereby she further violated Plaintiffs‘ Rights.

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B. Denial of Mr. Stegeman‟s Right to Appeal

From inception, the Appellate Clerk tampered with and hindered Plaintiffs‘

attempt to Appeal. Judge Hull saw to it that a Plaintiff Ms. McDonald was not

afforded opportunity to cure defect in Notice, and take part in the appeal; and the

Appellate Clerk failed to adhere to 11th Cir. R. 42-1(b), thereby denying Plaintiff

Mr. Stegeman his‘ Right to Appeal, obvious disparate treatment. Plaintiffs had

been treated differently than others in the same position, which resulted in

discrimination, Civil and Constitutional Rights violations, violations of equal

protection, and violation of ADA Title II.

On the subject of disparate treatment and discrimination, this Court held in

Nadler v. Harvey, No. 06-12692 (2007) C11.0001538 ―…occurs when a disabled

individual is treated differently than a non-disabled or less disabled individual…‖

The Supreme Court in Lane upheld Title II as ―valid § 5 legislation as it

applies to the class of cases implicating the accessibility of judicial services‖ 541

U.S. at 331.

―The Supreme Court further held that Title II enforces rights

under the Equal Protection Clause, …―a variety of other basic

constitutional guarantees, and infringements‖…‖an array of

rights subject to heightened constitutional scrutiny under the

Due Process Clause of the Fourteenth Amendment. Lane,

8 The case was before Judges Edmondson, Hull and Forrester

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541 U.S. at 522-523; accord Constantine, 411 F.3d at 486-487.

―Mere negative attitudes alone cannot justify disparate treatment

of those with disabilities‖ University of Ala. V. Garrett, 531 U.S.

356, 367 (2001).

C. Clerk‟s Violation of 11th Cir. R. 42-1(b)

―…when appellant fails to file a brief or other required papers

within the time permitted,…the clerk shall issue a notice…,

that upon expiration of 14 days from the date thereof the appeal

will be dismissed for want of prosecution if the default has not

been remedied by filing the brief….‖.

Plaintiff was not provided the Court of Appeals Local Rules, Rule 42-1(b)

Notice, which goes against U.S. Supreme Court Rulings on the issue. One doesn‘t

have to be extremely intelligent to conclude that Plaintiffs‘ Appeal had been

predetermined.

The United States Supreme Court, and sister circuits have long held that

that the late filing of a brief is ―insufficient to warrant dismissal‖, see Marcaida v.

Rascoe, 569 F.2d 828 (5th

Cir. 1978):

[26] This court is not required to dismiss every appeal which

does not meet the time limitations…In Phillips v. Employees

Mut. Liability Ins. Co., 239 F.2d 79, 80 n.2 (5th Cir. 1956), …the

late filing of briefs is „at most [a] non-jurisdictional

[defect]…which we consider insufficient to warrant

dismissal‘. See also King v. Laborers Internat‘l Union, 443 F.2d

273 (6th cir. 1971); United States v. Edwards, 366 F.2d 853 (2

Cir. 1966); cert. denied, 386 U.S. 908, 87 S, Ct. 852, 17 L.Ed. 2d

782 (1967); cf. Walker v. Matthews, 546 F.2d 814 (9th Cir. 1976)

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(late filing of record).

―In Childs v. Kaplan, 467 F.2d 628 (8th Cir. 1971), the court

held that the appeal of an appellant who did not file a brief would

not be dismissed for want of prosecution….‖

C Clerk‟s Communications

To the average lay person apprised of all the facts, would be forced to

conclude that this Court and it‘s clerk, working in harmony with the Appeals court

and it‘s clerk effectively halted Plaintiffs‘ ability to appeal the trial court‘s ruling.

The following shows to what extent the appellate clerk had been willing to go to

stop Plaintiffs‘ appeal.

* EXHIBIT 7: Letters received from the appellate clerk.

(a) 9 April 1, 2009 Plaintiff received, a copy of a Clerk to Clerk communication

that the Appeal had been Dismissed for failure to prosecute, and Motion to Recuse

was Moot.10

Motion to Recuse is an appealable Order that cannot become Moot

because the appellate court and it‘s Clerk chose to ignore it.

Appellant‘s Brief and Record Excerpts11

per April 6, 2009 conversation with

9 (a) thru (d) are subsections of Exhibit 7, i.e. Exhibit 7(a); 7(b), etc.

10 Appellant was not sent Notice, or an Order, he only received the Clerk to Clerk

communication which stated Appeal was dismissed and Motion to Recuse was Moot.

11 Records Excerpts consisted of: District Court Docket Sheet, Complaint, Answers from

both sets of Appellees, the Rulings/judgments Appealed, Certificates of Interested

Persons, and Certificates of Service.

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clerk, were hand delivered to the Court Clerk, via courier on April 13, 200912

(does not show filed until April 16, 2009).

(b) April 18, 2009 Appellant received a letter from the Appellate Clerk stating

Mr. Stegeman had failed to file a Motion to Reinstate.13

Plaintiff quickly, within

three (3) days, filed Motion to Reinstate the Appeal April 22, 2009.

(c) May 8, 2009 letter from the Appellate Clerk that the Court had not received

Order/judgment appealed from, or a Certificate of Service for Record Excerpts.

Although Appellant is 100% positive the documents had been submitted with the

Brief and Record Excerpts, he re-submitted them, via USPS Overnight signed for

by S. O‘Neal on May 15, 2009.

(d) May 22, 2009 letter stated ―if the corrections for the record excerpts were

not received within fourteen days, the motion to reinstate will be returned unfiled‖.

Plaintiff called the clerk, was told she was out of town for the week. Appellant

again sent the document.

12

Appellant quotes the date he received a communication from the Clerk; the date(s) he

references as filing or filed are the dates stamped ―FILED‖ on Appellant‘s copies;

Appellant calls to this Court‘s attention that he cannot be sure what was actually Filed, as

the Docket Report does not coincide with his ―Filed‖ copies. Appellant cannot say for

sure the document was ever even Filed, although his copy does reflect ―Filed‖, not

―Received‖, but ―Filed‖.

13 The telephone conversation with the Clerk informed Appellant that the only thing

needed to be filed was the Brief and Record Excerpts, which was timely complied with;

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July 09, 2009, Plaintiff Mr. Stegeman received Order Denying Motion to

Reinstate [Doc.40]; Denial of Appellant‘s Motion resulted in manifest injustice

brought about by misrepresentation, fraud, and fraud upon the Courts by

defendants in order to defraud the Plaintiffs and to obtain rulings in their favor in

Superior Court, the District Court, finally in the Appellate Court.

Further, as a disabled pro se litigant, Appellant has been subjected to

disparate treatment; denied his Fourth, Fifth and Fourteenth Amendment Rights,

ADA Title II, and the equal protection clause.

III. REFUSAL TO RULE ON RECUSAL UNTIL FINAL RULING

EFFECTIVELY DENIES THE LITIGANT‟s RIGHT TO A FAIR AND

IMPARTIAL TRIBUNAL, AND THE RIGHT TO APPEAL THE RULING

The verbal abuse, hostility, harassment, intimidation and denial of due

process bestowed upon the Plaintiffs in this case shows ―such a degree of

favoritism‖ and ―antagonism as to make fair judgment impossible‖ Liteky v.

United States, 510 U.S. 540, 114 S.Ct. 1147, 127 L.E.2d 474, (1994):

It is wrong in theory …, to suggest, as many opinions have, that

"extrajudicial source" is the only basis for establishing

disqualifying bias or prejudice. It is the only common basis, but

not the exclusive one, … A favorable or unfavorable

predisposition can also deserve to be characterized as "bias" or

"prejudice" because, … as to display clear inability to render fair

judgment. (That explains what some courts have called the

"pervasive bias" exception to the "extrajudicial source" doctrine.

See, e. g., Davis v. Board of School Comm'rs of Mobile County,

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517 F. 2d 1044, 1051 (CA5 1975), cert. denied, 425 U.S. 944

(1976)).

Judge Duffey, Jr., and the verbal assault upon these Plaintiffs falls within

the category of the ―pervasive bias exception to the extrajudicial source doctrine‖.

Obviously, the Judge‘s actions clearly show that he could not find in favor of

Plaintiffs whether every other Judge would have or not. The ―high degree of

favoritism and antagonism displayed by Judge Duffey against these Plaintiffs show

that a fair judgment was impossible.

Further, in Judge Duffey‘s Rulings, he continually addressed the defendants

first. Plaintiffs have read many of Judge Duffey‘s Rulings in other cases, which he

always addresses the Plaintiffs, and then the defendants as other Judges do. When

these particular Plaintiffs are before the Court, the defendants are discussed first;

showing his deep seated favoritism. There is no question that Judge Duffey had to

disqualify himself from sitting over this case due to prejudice/bias, and

favoritism/preferential treatment of the defendants, and his close affiliations with

the defendants.

Another example is the way he referred to and spoke of Judge Cynthia

Becker, ―Special Appearance by…‖ she filed no appearance at all; a litigant

cannot come in as a party if they filed a dispositive motion to dismiss and refuse

the court‘s jurisdiction.

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“appearance, n. Procedure. A coming into the court as a party

or interested person….‖14

“special appearance. 1. A defendant‘s pleading… court lacks

personal jurisdiction…‖15

―Should a judge not disqualify himself, then the judge is in

violation of the Due Process Clause of the United States

Constitution. United States v. Sciuto, 521 F,2d 842, 845 (7th Cir.

1996). (―The right to a tribunal free from bias or prejudice is

based, not on §144, but on the Due Process Clause‖).

Therefore, Orders by a Judge who has been disqualified by law, resulting in

a party being denied any property, could logically be viewed as having been

engaged in the Federal Crime of ―Interferences with Interstate Commerce‖.

Another perfect example of the bias/prejudice against these Plaintiffs is the

verbal assault and over twenty pages that it took to write an Order to Dismiss under

Younger Abstention, for lack of jurisdiction. The U.S. Supreme Court has held in

a long and venerable line of cases that, without proper jurisdiction, a court cannot

proceed at all, but can only note the jurisdictional defect and dismiss the suit. See,

e.g., Capron v. Van Noorden, 2 Cranch 126; Arizonans for Official English v.

Arizona, 520 U.S. 43. Bell v. Hood, supra; National Railroad Passenger Corp. v.

National Assn. of Railroad Passengers, 414 U.S. 453, 465, n. 13; Norton v.

Mathews, 427 U.S. 524, 531; Secretary of Navy v. Avrech, 418 U.S. 676 , 678 (per

14

Black’s Law Dictionary, 7th

Ed. pg. 94

15 Black’s Law Dictionary, 7

th Ed. pg. 95

- 23 -

curiam); United States v. Augenblick, 393 U.S. 348 ; Philbrook v. Glodgett, 421

U.S. 707, 721; and Chandler v. Judicial Council of Tenth Circuit, 398 U.S. 74,

86—88, distinguished. For a court to pronounce upon a law‘s meaning or

constitutionality when it has no jurisdiction to do so is, by very definition, an ultra

vires act. Pp. 8—17.

IV. UNITED STATES AND GEORGIA CONSTITUTIONS

Judge Duffey, Jr. ruled that he had investigated into the proceedings in

Superior Court16

and found no constitutional or due process violations. One can

only conclude that Judge Duffey has deemed Georgia statute concerning land

(which is to be strictly adhered to) unconstitutional, deemed that Georgia‘s

Supreme Court and Georgia Court of Appeals have ruled wrongly concerning real

property and easements; and deemed that The United States and State of Georgia

Constitutions concerning ―denial of life, liberty, or property without due process of

law‖ is either fictional, or only for a select few.

―A court should be cautious in exerting its inherent power and

‗must comply with the mandates of due process‖ First Bank of

Marietta v. Hartford Underwriters Insurance Company, 2002

U.S. App. LEXIS 21117, -25; 2002 FED App. 0356P (6th Cir.

16

Appellant has failed to find where a District Court Judge has authority to investigate

into proceedings of a state Court; further, by looking into the proceedings (Duffey fails to

explain what is meant by looking into the proceedings, one could deduce that he had ex-

parte communications with Judge Becker, or all of the Defendants) Duffey goes against

his own Ruling that the Federal Courts cannot be babysitters of state Courts.

- 24 -

2002); In Re Atlantic Pipe Corp., 304 F.3d 136, 143 (1st Cir.

2002)

Judge Becker in the Superior Court action, and a defendant, lacked personal

and subject matter jurisdiction over Plaintiffs and their real property, ruled in favor

of Georgia Power in the Superior Court proceeding after refusing to allow

Plaintiffs the right to participate in or file a responsive brief to Georgia Power‘s

Motion for Summary Judgment. Becker‘s ruling, a ruling obtained through fraud

and fraud upon the Court, violated due process of law, and Plaintiffs‘ right to a fair

and impartial tribunal.. Her Rulings go directly against Rulings of The Supreme

Court of Georgia which has consistently Ruled against utility companies having

prescriptive easement. The ruling isn‘t merely voidable, but it is Void on it‘s face.

PRAYER FOR RELIEF

There is absolutely no legitimate reason for the disparate treatment of these

Plaintiffs as they sought redress against state entities for acts which violated

Plaintiffs‘ Civil and Constitutional Rights under color of law, while Plaintiffs had

been attempting to exercise their statutory, civil and constitutional rights. Judge

Becker, without following mandatory Georgia statute for issues involving real

property and owners of the real property, granted Georgia Power what the Courts

have repeatedly insisted Georgia Power cannot be granted. Judge Becker aided

- 25 -

and assisted Georgia Power in the perpetration of several crimes.

When a party has been denied the fundamental right of due process of law,

real property taken without just and adequate compensation, they have a right to

seek redress against the state. The Courts are not a sacred palaces reserved only

for Judges and attorneys, in which the Judges have an obligation to attorneys, and

act and rule in a manner that will guarantee the attorneys, long successful careers

in the legal field.

The actions of the Courts in this matter, causes everyone who has read the

Briefs to question the integrity of the three Courts discussed above, and the

integrity of the Judicial system as a whole. Relief setting aside the Ruling is

necessary, required and just in this matter.

Respectfully submitted, this 4th day of May, 2010,

By: ______________________________

JAMES B. STEGEMAN, Pro Se

821 Sheppard Rd

Stone Mtn, GA 30083

(404) 300-9782

By: ______________________________

JANET D. MCDONALD, Pro Se

821 Sheppard Rd

Stone Mtn, GA 30083

(404) 300-9782

- 26 -

CERTIFICATE OF COMPLIANCE

In compliance with LR 7.1D, N.D. Ga., I certify that the foregoing Motion

has been prepared in conformity with LR 5.1, N.D. GA. This Motion was prepared

with Times New Roman (14 point) type, with a top margin of one and one-half

(1.5‖) inches and a left margin of one (1‖) inch, is proportionately spaced.

This 4th day of May, 2010

___________________________

JANET D. MCDONALD, Pro Se

- 27 -

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA,

Atlanta Division

JAMES B. STEGEMAN,

JANET D. MCDONALD,

Plaintiffs

vs.

SUPERIOR COURT STONE

MOUNTAIN JUDICIAL CIRCUIT,

et., al;

Defendants

CIVIL ACTION

FILE NO: 1:08-CV-1971

RELIEF FROM JUDGMENT

CERTIFICATE OF SERVICE

I Certify that I have this 4th day of May, 2010, served a true and correct

copy of the foregoing Plaintiffs’ Motion for Reconsideration of Order Denying

Plaintiffs Relief from Judgment. upon Defendants, through their attorney on file

by causing to be deposited with U.S.P.S., First Class Mail, proper postage affixed

thereto, addressed as follows:

Daniel S. Reinhardt Devon Orland

Troutman Sanders, LLP State of Georgia Dept. of Law

Bank of America Plaza – Suite 5200 40 Capitol Square, S.W.

600 Peachtree Street, NE Atlanta, GA 30334-1300

Atlanta, GA 30308-2216

_____________________________

JAMES B. STEGEMAN

821 Sheppard Rd,

Stone Mtn, GA 30083

(404) 300-9782