IN THE STATE OF MISSOURI WESTERN DISTRICT COURT OF APPEALS AT KANSAS CITY, MISSOURI

Transcription

1 IN THE STATE OF MISSOURI WESTERN DISTRICT COURT OF APPEALS AT KANSAS CITY, MISSOURI SAMUEL K. LIPARI ) Case No. WD70534 Petitioner ) (16 th Cir. Case No ) ) (Formerly Case No. WD70001) vs. ) ) NOVATION, LLC; et al ) Respondents ) APPELLANT S MOTION TO REMAND PREMATURE APPEAL Comes now the appellant Samuel K. Lipari, appearing pro se and respectfully requests that the court STATEMENT OF FACTS 1. The plaintiff/appellant made a motion to amend his complaint on January 5, 2008 after an order of the court adopting the remaining defendant Lathrop & Gage L.C. s November 12, 2008 motion for judgment on the pleadings was made by the trial court on December 29, The plaintiff/appellant had unsuccessfully opposed the motion in a November 17, 2008 answer as an untimely dismissal under Missouri Rules of Civil Procedure Rule (6) that should have been filed within 30 days of service of the petition on Lathrop & Gage L.C. on April 14, 2008 under Rule (a) and in violation of Rule 55.27(b) where the pleadings have not yet closed. 1

2 3. The plaintiff/appellant waited for an order on the Motion for Leave to Amend until the last day of his time to appeal before filing a Notice of Appeal on January 9, On January 13, 2009 the trial court entered an order granting leave to amend over the defendant s objection. 5. On the morning of January 14, 2009 the plaintiff/appellant telephoned the Office of the Clerk of the Western District Court of Appeals and ended up inquiring from Clerk of the Court Terrance G. Lord how to withdraw his notice of appeal. 6. Clerk of the Court Terrance G. Lord instructed the plaintiff/appellant to file a motion to voluntarily dismiss the appeal. 7. On information and belief there appears to have been an extrajudicial communication on the morning of January 14, 2009 in the form of an ex parte communication to Hon. Judge Michael W. Manners of the 16 th Circuit Court causing Hon. Judge Michael W. Manners to enter a new order prejudicing the plaintiff/appellant by withdrawing the order granting the amendment. 8. The plaintiff/appellant had earlier attempted to appeal in Western District Court of Appeals case no. WD70534 from the trial court s adoption of the defendants use of non final judgments in the US District Court for the District of Kansas as unlawful extra judicial influences violating controlling State of Missouri and Federal precedent on issue and claim preclusion. See exb. 1 First Notice of Appeal docket August 13, 2008 (also in WD70534 lgl. file v. 4, pg. 675). 2

3 9. The prior Western District Court of Appeals case no. WD70534 was prejudiced by the extra judicial communication of Lathrop & Gage L.C., a nonparty to the plaintiff/appellant s appeal in the form of a letter dated August 21, 2008 ( see exb. 2 also in WD70534 lgl. file v. 4, pg. 678) by Peter F. Daniel an attorney on Lathrop & Gage L.C. s business correspondence stationary addressed to the clerk of this court informing him that the trial court had entered judgment on some but not all parties and claims and ignoring the State of Missouri s provision for appeal from fewer than all parties under Missouri Rules of Civil Procedure Rule (b). 10. The extra judicial communication of Lathrop & Gage L.C. resulted in an August 27, 2008 Order of this court outside of the statutory appellate Due Process and signed by Western District Court of Appeals Staff Counsel Susan C. Sonnenberg ( see exb. 3 also in WD70534 lgl. file v. 4, pg. 679) directing the parties including the nonparty Lathrop & Gage L.C. to submit suggestions in support or against appellate jurisdiction but without relieving the plaintiff/appellant from the duty to provide a legal file of the record on review. 11. The extra judicial communication of Lathrop & Gage L.C. also appears to have resulted in this court denying the plaintiff/appellant the statutory appellate Due Process for the plaintiff/appellant s September 11, 2008 Motion to Transfer the Appeal to the Missouri Supreme Court prior to disposition under Rule Signed by Western District Court of Appeals Chief Judge Thomas H. Newton giving no evidence of submission to a panel and nullifying Missouri Rules of Civil 3

4 Procedure Rule (b). See exb. 4 September 19 Order of Chief Judge Thomas H. Newton. 12. The non final orders of the Kansas District Court adopted as extra judicial influences by the trial court at the suggestion of the defendant/appellees are currently on appeal in the Tenth Circuit US Court of Appeals as Medical Supply Chain, Inc. v. Novation et al; 10 th Cir. Case No See exb. 5 Appearance Docket of Tenth Circuit Case No The US Department of Justice Office of Inspector General has referred the failure to investigate and prosecute criminal conduct in procuring the underlying trial court judgment in Medical Supply Chain, Inc. v. Novation et al; 10 th Cir. Case No through extrinsic fraud to the Federal Bureau of Investigation Inspector. See exb. 6. SUGGESTION IN SUPPORT The trial court examined the contents of the petitioner s first proposed amended petition and found that the proposed amended petition cured any deficiencies in the pleading of the prior claims as required by Lowrey v. Horvath, 689 S.W.2d 625, 626 (Mo. banc 1985) (Content of that tendered but unfiled petition must therefore be examined as to sufficiency against a motion to dismiss, the allegations being given their most favorable intendment and inference). The defendants did not cross appeal from the trial court s granting of judgment for the remaining party Lathrop & Gage, L.C. 4

5 Rule provides that a trial court retains jurisdiction over a matter for thirty days after entry of judgment to amend, modify, vacate, reopen, or correct its judgment. The judgment then becomes final at the expiration of thirty days after its entry if no timely authorized after-trial motion is filed. Rule 81.05(a)(1). The trial court adopted the remaining defendant Lathrop & Gage L.C. s motion for judgment on the pleadings despite the plaintiff/appellant s argument the motion was in actuality a motion to dismiss. The plaintiff/appellant s motion to amend was not formally a motion for a new trial and may have not given the court authority to set aside the earlier judgments: Rule did not, however, authorize the trial court to treat Appellants' second petition filed on March 31, 2004, as an amended petition in the original case. In filing their second petition, Appellants were not asking the trial court to set aside its March 21 judgment and to allow them to amend the petition. Elrod v. Stewart, 163 S.W.3d 587 at 591 (Mo, 2005) After further research, the plaintiff believed he was required to make a timely notice of appeal from the judgment dismissing claims against the defendant Lathrop & Gage L.c. and that the motion to amend might not have tolled the opportunity to seek appellate review: This was not a jury case, neither was there a trial before a court without a jury. This cannot, therefore, be a situation where a motion for a 'new trial' has been made and overruled. In that event, the appeal could not be from the order overruling the motion, but only from the judgment. Woods v. Cantrell, 356 Mo. 194, 201 S.W.2d 311; Mills v. Berry, Mo.App., 395 S.W.2d 228. Stubblefield v. Seals, 485 S.W.2d 126 at 129 (Mo. App., 1972) 5

6 This court should dismiss the appeal and remand the matter as premature on the basis of clearly established controlling Western District Court precedent: The general rule is that final disposition of a case is premature where it appears that the plaintiff might amend its petition to effectively state a claim and leave to so amend has been requested. Dietrich v. Pulitzer Publishing Co., 422 S.W.2d 330, (Mo.1968) [Emphasis added] Western Cas. and Sur. Co. v. Kansas City Bank and Trust Co., 743 S.W.2d 578 (Mo. App.W.D., 1988). The remand to the trial court would give Hon. Judge Michael W. Manners the jurisdiction to reenter his order granting leave to amend the petition. D.E.J. v. G.H.B., 631 S.W.2d 113, (Mo.App.1982) (remand on appeal revests jurisdiction in the trial court). Respectfully submitted, S/Samuel K. Lipari Samuel K. Lipari Pro se Petitioner 3520 NE Akin Blvd. #918 Lee's Summit, MO saml@medicalsupplychain.com CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and accurate copy of the foregoing instrument was forwarded this 20th day of January 2009, by . 6

7 John K. Power, Esq. Husch Blackwell Sanders LLP, 1200 Main Street, Suite 2300 Kansas City, MO Jay E. Heidrick, Shughart Thomson & Kilroy, P.C. 32 Corporate Woods, Suite 1100, 9225 Indian Creek Parkway Overland Park, Kansas William G. Beck, Peter F. Daniel, J. Alison Auxter, Lathrop & Gage LC, 2345 Grand Boulevard, Suite 2800, Kansas City, MO S/Samuel K. Lipari Samuel K. Lipari Pro se Petitioner 7

8 IN THE STATE OF MISSOURI JACKSON COUNTY SIXTEENTH CIRCUIT COURT AT INDEPENDENCE, MISSOURI SAMUEL K. LIPARI ) (Assignee of Dissolved ) Medical Supply Chain, Inc.) ) Plaintiff ) ) vs. ) ) NOVATION, LLC ) Case No CV04217 NEOFORMA, INC. ) Div. 2 GHX, LLC ) ROBERT J. ZOLLARS ) VOLUNTEER HOSPITAL ASSOCIATION ) VHA MID-AMERICA, LLC ) CURT NONOMAQUE ) THOMAS F. SPINDLER ) Missouri Antitrust, ROBERT H. BEZANSON ) Fraud, GARY DUNCAN ) Tortious Interference, MAYNARD OLIVERIUS ) Prima Facie Tort SANDRA VAN TREASE ) CHARLES V. ROBB ) MICHEAL TERRY ) UNIVERSITY HEALTHSYSTEM CONSORTIUM ) ROBERT J. BAKER ) Jury Trial Demanded JERRY A. GRUNDHOFER ) RICHARD K. DAVIS ) ANDREW CECERE ) THE PIPER JAFFRAY COMPANIES ) ANDREW S. DUFF ) COX HEALTH CARE SERVICES OF THE OZARKS, INC. ) SAINT LUKE'S HEALTH SYSTEM, INC. ) STORMONT-VAIL HEALTHCARE, INC. ) SHUGHART THOMSON & KILROY, P.C. ) HUSCH BLACKWELL SANDERS LLP ) LATHROP & GAGE L.C. ) Defendants. ) RULE NOTICE OF APPEAL Comes now, the plaintiff Samuel K. Lipari appearing pro se and respectfully gives notice of his appeal of this court s decision of August 8, 2008 dismissing with prejudice most, but not all of the parties and claims in this action. The plaintiff also attaches the Order dated August 11, 2008 by the Tenth Circuit US Court of Appeals overruling the dismissal of the plaintiff s appeal in the concurrent Federal action for this matter in controversy. 1 Exhibit 1 Lipari vs. Novation 675

9 Statement of Facts 1. The court s order granting dismissals to the moving parties did not dispose of all claims against all parties. 2. The court granted all motions dismissing the plaintiff s claims against the moving parties with prejudice. 3. The plaintiff had provided official court records and a factual affidavit in opposition to the individual defendants objecting to the exercise of long arm jurisdiction, therefore no party was successful in their challenge to this court s in personam jurisdiction and the court consequently made no dismissals without prejudice. 4. The court granted the defendants motions to dismiss on a new legal theory regarding the application of claim and issue preclusion from non final judgments in federal court inconsistent with controlling State of Missouri and Federal precedent. 5. The court granted the defendants motions to dismiss on a new legal theory expanding Noerr- Pennington doctrine from E.R.R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 136, 81 S.Ct. 523, 5 L.Ed.2d 464 (1961) to immunize unlawful acts to influence government for the purpose of monopolization, an issue not previously addressed by Missouri courts. Suggestion of Law The trial court s designation of parties dismissed with prejudice fulfills the finality of judgment regarding those named parties under Rule (b): RULE JUDGMENT (a) Included Matters. "Judgment" as used in these rules includes a decree and any order from which an appeal lies. A judgment is rendered when entered. A judgment is entered when a writing signed by the judge and denominated "judgment" is filed. The judgment may be a separate document or included on the docket sheet of the case. (b) Judgment Upon Multiple Claims or Involving Multiple Parties. When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may enter a judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay. In the absence of such determination, any order or other form of decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties. 2 Lipari vs. Novation 676

10 (Adopted May 22, 1987, effective Jan. 1, Amended Feb. 22, 1994, effective Jan. 1, 1995.) The plaintiff respectfully believes this appeal will advance justice in the State of Missouri by meritoriously raising the two issues, the expansion of claim and issue preclusion and the expansion of the Noerr-Pennington doctrine raised by Hon. Judge Michael W. Manners in the significant state interest of the State of Missouri over this momentous hospital supply monopolization litigation. Respectively submitted, S/Samuel K. Lipari Samuel K. Lipari Pro se Attachment Exb 1. Aug. 11, 2008 Order of Tenth Circuit declining to dismiss Plaintiff s Appeal CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and accurate copy of the foregoing instrument was forwarded this 13th day of August, 2008, by first class mail postage prepaid to: John K. Power, Esq. Husch Blackwell Sanders LLP, 1200 Main Street, Suite 2300 Kansas City, MO Jay E. Heidrick, Shughart Thomson & Kilroy, P.C. 32 Corporate Woods, Suite Indian Creek Parkway Overland Park, Kansas William G. Beck, Peter F. Daniel, J. Alison Auxter, Lathrop & Gage LC, 2345 Grand Boulevard, Suite 2800, Kansas City, MO S/Samuel K. Lipari Samuel K. Lipari 297 NE Bayview Lee's Summit, MO saml@medicalsupplychain.com Pro se 3 Lipari vs. Novation 677

11 Exhibit 2 Lipari vs. Novation 678

12 Exhibit 3 Lipari vs. Novation 679

13 Exhibit 4

14 Summary Court Home Case Search Calendar Opinions Orders/Judgments Billing History XML TXT Logout Help If you view the Full Docket you will be charged for 4 Pages $0.32 General Docket Tenth Circuit Court of Appeals Court of Appeals Docket #: Nature of Suit: 3410 Antitrust Medical Supply Chain v. Neoforma, et al Appeal From: United States District Court for the District of Kansas - Kansas City Docketed: 07/14/2008 Case Type Information: 1) civil 2) private 3) - Originating Court Information: District: : 2:05-CV CM-GLR Trial Judge: Carlos Murguia, -, U.S. District Judge Date Filed: 07/14/2005 Date NOA Filed: Date Rec'd COA: 07/10/ /10/2008 Exhibit 5 1 of 3 1/20/09 12:47 PM

15 Summary 08/25/2008 [ ] Order filed by Clerk of the Court (dec) Denying Appellant's "Motion to Remand the Appeal for Ruling on Open 28 USC 144 Affdivat" as moot. Served on 08/25/ /02/2008 This entry has been removed from the docket - the document was a duplicate of the 8/25/08. 09/19/2008 [ ] Appellant's brief filed by Samuel K. Lipari. Original and 7 copies. Served on 09/19/2008 by . Oral argument requested? y. (Appendix 25 volumes is received. Original and 1 copy. Appendix pages: Appellees' brief due 10/23/2008 for U.S. Bancorp, Jerry A. Grundhoffer, Andrew Cesere, Piper Jaffray Companies, Andrew S. Duff, Neoforma, Inc., Robert J. Zollars, Shugart Thomson & Kilroy, P.C., U.S. Bank National Association, Volunteer Hospital Association, Curt Nonomaque, University Healthsystem Consortium, Robert J. Baker and Novation LLC. 09/19/2008 [ ] Appellant's Appendix, (25 volumes) received from Samuel K. Lipari but not filed. Original and 1 copy. Served on 09/19/2008. Manner of Service: US mail. 09/19/2008 [ ] Appellant's motion filed by Samuel K. Lipari to supplement the record on appeal. Served on 09/19/2008. Manner of Service: US Mail. 09/23/2008 [ ] Order filed by Clerk of the Court referring Appellant's motion to supplement the record on appeal [ ] to the panel on the merits. Served on 09/23/ /23/2008 [ ] Two boxes of exhibits (documents relating to motion to supplement record) received from Samuel K. Lipari but not filed, pending ruling on the motion to supplement the record. (Hard copy only.) 10/17/2008 [ ] Notice of change of address filed by Samuel K. Lipari. 10/27/2008 [ ] Appellee brief filed by Mr. Robert J. Baker, Jr., Andrew Cesere, Andrew S. Duff, Jerry A. Grundhoffer, Neoforma, Inc., Curt Nonomaque, Novation LLC, Piper Jaffray Companies, Shugart Thomson & Kilroy, P.C., U.S. Bancorp, U.S. Bank National Association, University Healthsystem Consortium, Volunteer Hospital Association, Watkins Boulware, PC and Robert J. Zollars. Original and 7 copies. Served on: 10/22/2008. Manner of service: US mail. Oral argument requested? n. Appellant's reply brief due 11/10/2008 by Samuel K. Lipari. 11/07/2008 [ ] Appellant's reply brief filed by Samuel K. Lipari. Original and 7 copies. Served on 11/10/2008. Manner of Service: US mail. PACER Service Center Transaction Receipt 01/20/ :47:08 PACER Login: la1630 Client Code: Description: Case Summary Search Criteria: of 3 1/20/09 12:47 PM

16 Summary Billable Pages: 1 Cost: of 3 1/20/09 12:47 PM

17 Exhibit 6