1n 1c:jt
`'uprtmt Court of the 1Lntttb *tate-
`
`IN iu ERIc DRAKE
`Petitioner/Relator
`
`On Petition for Writ of Mandamus to the United States
`Court of Appeals for the Fifth Circuit
`
`PETITION FOR WRIT OF MANDAMUS
`
`Eric Drake
`Pro-Se
`10455 North Central Expressway
`Suite 109
`Dallas, Texas 75231
`214-477-9288
`
`

`

`QUESTIONS PRESENTED
`
`This dispute concerns the dismissal of a defendant with prejudice,
`Nordstrom Inc, which was a proper defendant in the district court
`proceeding. Relator filed a motion for partial nonsuit, nonsuiting all
`defendants except Nordstrom Inc because the Relator wanted to confirm
`whether Nordstrom Inc was not a proper defendant in the proceeding.
`Nordstrom's attorneys were untruthful to the Relator and the district
`court by advising the Relator and the district court that Nordstrom Inc was
`not a proper defendant in the district court proceeding, but evidence proved
`otherwise. The district court dismissed Nordstrom Inc with prejudice, but all
`other defendants without prejudice. Relator filed proof that Nordstrom Inc
`was a viable defendant into the district court's record and filed a timely Rule
`60, but the district court refused to reverse its dismissal with prejudice,
`believing Nordstrom's attorneys that Nordstrom Inc was not a proper
`defendant.
`Relator filed an appeal in the Fifth Circuit Appeals requesting for the
`court to review and reverse the with prejudice order of the district court. See
`App. Ex. D. Relator filed his brief. Nordstrom could not answer the
`Relator's brief without admitting that the Relator was correct, the evidence
`that supports the fact that Nordstrom Inc was, and still is a proper defendant
`was filed into the district court's record and made part of the appellate
`record. The clerks notified the Relator by standard U.S. mail during the
`holidays (New Years) of the court's order, which gave the Relator only 3-
`days to draft this Writ of Mandamus, and compose the Appendix. The order
`is annexed to Relator's Appendix, See App. Ex. A. The Respondents
`admonished Nordstrom's lawyers for their deficient and untimely pleadings,
`but the December 28, 2017 order also noticed the Relator that the
`Respondents deemed the Relator appeal as frivolous. The Relator sharply
`disagrees with the legal assessment that his appeal is frivolous.
`Not having any other options or applicable remedies, and since the
`appeal is still pending, the Relator respectfully submits his Writ of
`Mandamus to this Honorable Court for its review and decisions. It is the
`Relator's opinion that no impartial judge would consider the Relator's
`appeal to be frivolous, as argued herein.
`
`1
`
`

`

`The Relator's questions and or issues presented are:
`
`Whether Respondents erred and abused their discretion by
`determining that the Relator's appeal is frivolous that is supported a
`competent brief and with compelling and objective evidence that the Real
`Party in Interest cannot refute. Nordstrom's own Securities and Exchange
`Report proves that Nordstrom Inc was and still is a proper defendant in the
`Relator's personal injury case, therefore, an appeal asking the Fifth Circuit
`to review the district courts order is not frivolous.
`
`Whether federal appellate court justices in this nation should be
`allowed to declare a case that has merit to be meritless or frivolous without a
`written opinion.
`
`Whether the U.S. Supreme Court should review the federal
`appeals practice to encourage faith in the judicial process, proper due
`process, and by requiring all federal appeals court justices to write an
`opinion, to ensure equal protection for all litigators, especially in cases when
`an appellate court has deemed a case as frivolous that contains evidence that
`proves that the court is in error, as in the case before the Court.
`
`Whether the Respondents conduct and demeanor towards a
`protect class of person, and or any litigator where objective evidence is
`ignored to sanction a nonlawyer or pro se litigant would demand recusals of
`those judges or justices.
`
`11
`
`

`

`IDENTITY OF PARTIES AND COUNSEL
`
`Relator:
`
`Movant is pro-se:
`
`Respondents:
`
`Real Party in Interest:
`
`Represented by:
`
`Eric Drake
`Movant in the underlying suit
`Eric Drake
`Pro-Se
`10455 N. Central Expressway
`Suite 109
`Dallas, Texas 75231
`(214) 477-9288
`
`Judges Leslie Southwick, Stephen
`Higginson, and James Dennis
`Fifth Circuit Court of Appeals
`600 South Maestri Place
`New Orleans, LA 70130-3408
`
`NORDSTROM DEPARTMENT
`STORES, INCORPORATED;
`BLAKE NORDSTROM; PETER
`NORDSTROM; ERICK
`NORDSTROM; JAMES
`NORDSTROM; ENRIQUE
`HERNANDEZ, JR., Nordstrom's
`Chief Executive Officer;
`NORDSTROM, INCORPORATED
`Tate L. Hemingson
`Counsel for Nordstrom Inc et a!
`Strasburger & Price, LLP
`901 Main Street
`Suite 6000
`Dallas, Texas 75202
`
`111
`
`

`

`TABLE OF CONTENTS
`
`Questions Presented
`. i
`Identity of Parties and Counsel.................................................................. iii
`Tableof Content......................................................................................... iv
`IndexofAuthorities .................................................................................... v
`Abbreviations and Record References .................................................... xiii
`Jurisdiction................................................................................................. 1
`Relief Sought ........................................................................ 3
`PETITION FOR WRIT OF MANDAMUS
`STATEMENT OF FACTS ..............................................................5
`REALTOR'S CONDUCT IN THE DISTRICT COURT...................8
`RELATOR'S CONDUCT IN THE FIFTH CIRCUIT CORUT
`WAS NOT SANCTIONABLE ..........................................9
`RELATOR'S APPEAL COULD NOT BE FRIVOLOUS ............10
`REASONS WHY THE WRIT SHOULD ISSUE ..............................13
`RELATOR INDISPUTABLE RIGHT TO WRIT .......................14
`REASONS WHY THE COURT SHOULD GRANT WRIT ...........15
`A.
`There Is A "Reasonable Probability" That The
`Court Will Grant Relator's Writ of Mandamus
`And A "Fair Prospect" That The Court Will
`Agree That Nordstrom's Securities and Exchange
`Report Verifies That Relator's Appeal Has Merit ...............16
`
`lv
`
`

`

`1. Unless Court Take Action, Irreparable Harm Will Occur ...........16
`
`REASONABLE PROBABILITY COURT WILL GRANT WRIT. 17
`
`MANDAMUS IS APPROPRIATE ........................................20
`
`RELATOR'S APPEAL DO NOT QUALIFY AS FRIVOLOUS ...... 22
`
`CONCLUSION ..................................................................30
`
`INDEX OF APPENDICES
`
`Appendix A
`
`12/28/2017 Order from Fifth Circuit
`
`Appendix B
`
`2/8/2017 Order from District Court/Southern District Texas
`
`Appendix C
`
`District Court Denial of Relator's Motion to Reconsider
`
`Appendix D
`
`Copy of Relator's Original Brief in Fifth Circuit
`
`Appendix E
`
`Copy of Real Party in Interest Motion (didn't file brief)
`
`Appendix F
`
`Copy Excerpts of Nordstrom's Securities Exchange Report
`
`V
`
`

`

`INDEX OF AUTHORITIES
`
`Cases
`
`Page
`
`Abbs v. Principi,
`237 F.3d 1342, 1345 (Fed. Cir. 2001) .....................10
`
`Alfred v. Con. Corp. of Am.,
`437 Fed. Appx. 281; 2011 U.S. App. LEXIS 11658 ..........23
`
`Analysis Group, Inc. v. Cent. Fla. Jnvs., Inc.,
`(1st Cir. Mass. Dec. 9, 2010), 629 F3 18 .................26
`
`Balintulo v. Daimler AG,
`727 F.3d 174, 187 (2d Cir. 2013) .........................11
`
`Boag v. MacDougall.
`454 U.S. 364; 102 S. Ct. 700; 70 L. Ed. 2d 551; 1982 U.S.
`Lexis 56; 50 U.S.L.W. 3539.............................27
`
`Bryant v. Civiletti,
`214 U.S. App. D.C. 109, 110-111, 663 F.2d286, 287-288 .....25
`
`Cheney v. United States Dist. Court,
`542 U.S. 367, 380, 124 S. Ct. 2576, 159 L. Ed. 2d 459
`(2004)..............................................16
`
`vi
`
`

`

`Cronin v. Town of Amesbury,
`81 F.3d 257, 261 (1st Cir. 1996)
`
`. 9
`
`Columbia Communs. Corp. v. EchoStar Satellite Corp.,
`(4th Cir. Md. Jan. 25, 2001), 2 Fed Appx 360 ..............26
`
`Denton v. Hernandez,
`U.S. Supreme Court, 504 U.S. 25; 112 S. Ct. 1728; 118 L. Ed
`.2d 340; 1992 U.S. LEXIS 2689; 60 U.S.L.W. 4346 ..........24
`
`In re Asbestos Sch. Litig.,
`46F.3dat1295 ......................................18
`
`In re Pearson,
`990 F.2d 653, 656 (1st Cir. 1993) .....................12, 17
`
`In re Perry,
`859 F.2d 1043, 1047 (1st Cir. 1988) ...................11, 18
`
`In re Recticel Foam Corp..
`859 F.2d 1000, 1005 (lstCir. 1988) ...................11,12
`
`In re Sony BMG Music Entm't,
`564 F.3d 1,4 (1st Cir. 2009 .............................19
`
`vii
`
`

`

`InreU.S.,
`426 F.3d 1, 5 (1st Cir. 2005)
`
`. 11
`
`Hyde v. Baker.
`No. 92-15863, 24 F.3d 1162; 1994 U.S. App. LEXIS 18631. . . . 24
`
`Lallemand v. Univ. of R.I.,
`9 F.3d 214, 21748 (1st Cir. 1993) .........................9
`
`Mareno v. Rowe,
`(2d Cir. N.Y. Aug. 6, 1990), 910 F2d 1043 .................25
`
`McMahon v. Shearson/American Express. Inc..
`(2d Cir. N.Y. Feb. 14, 1990), 896 F2d 17 ..................25
`
`Nat'l Nutritional Foods Ass'n v. Whelan.
`492 F. Supp. 374, 378-79 (S.D.N.Y. 1980) ................18
`
`Nordberg, Inc. v. Teismith, Inc..
`(Fed. Cir. Apr. 24, 1996), 82 F3 394 ....................26
`
`Patton v. Jefferson Parish Sheriffs Office,
`1996 U.S. App. Lexis 44084............................24
`
`Powell v. McCormack,
`395 U.S. 486 (1969) ...................................1
`
`viii
`
`

`

`Rogers v. Bruntrager,
`841 F.2d 853, 855 (CA8 1988) .......................... 25
`
`Rutherford v. Exxon Co., U.S.A,
`(5th Cir. Tex. Sept. 28, 1988), 855 F2d 1141 ...............25
`
`Simon DeBartolo Group, L.P. v. Richard E. Jacobs Group. Inc.,
`(2d Cir. N.Y. July 28, 1999), 186 F3d 157 .................25
`
`Schieffelin & Co. v. Valley Liciuors, Inc.,
`(7th Cir. Iii. June 26, 1987), 823 F2d 1064 ..................26
`
`Toscano v. Chandris, S.A.,
`934 F.2d 383, 387 (1st Cir. 1991) .........................9
`
`Tweedy v. Boggs,
`1993 U.S. App. LEXIS 40937 ...........................23
`
`Union Carbide Corp. v. U.S. Cutting Sew., Inc.,
`782 F.2d 710, 712 (7th Cir. 1986) .........................11
`
`United States v. Aiaegbu,
`No. 97-10092, Fifth Circuit, 1998 U.S. App. Lexis 39249......19
`
`lx
`
`

`

`United States v. Horn,
`29 F.3d 754, 769-70 (1st Cir. 1994) .......................19
`
`Yazoo County Industrial Dev. Corp. v. Suthoff,
`Supreme Court of the United States, 454 U.S. 1157; 102 S.
`Ct. 1032; 71 L. Ed. 2d316; 1982 U.S. Lexis 505............. 25
`
`CONSTITUTIONAL PROVISIONS
`U.S. Const. amend. VIII ...................................XIV
`
`STATUTES
`
`All Writs Act, 28 U.S.C. § 1651 .............................1, 3
`42USC1981 ............................................15
`False Claims Act (FCA) .......................................................28
`28U.S.C.1915(d) ...........................................................23
`28 U.S.C. § 1915(d) .....................................................Passim
`
`RULES
`Fed. R. App. P. 41 ..................................................................................1
`
`x
`
`

`

`Im
`
`3fn Z11jt
`'uprcmt Court of tjc thtittb 'tatt
`
`IN iU ERIc DRAKE
`Petitioner/Relator
`
`On Petition for Writ of Mandamus to the United States
`Court of Appeals for the Fifth Circuit
`
`PETITION FOR WRIT OF MANDAMUS
`
`Eric Drake
`Pro-Se
`10455 North Central Expressway
`Suite 109
`Dallas, Texas 75231
`214-477-9288
`
`

`

`OPINIONS BELOW
`
`The rulings under review are the December 28, 2017 Order with intent to
`sanction the Relator for the filing of an alleged frivolous appeal in the Fifth Circuit
`Court of Appeals in Orleans Parish, Louisiana, in case number 17-20317. And the
`District Courts Order Dismissing Nordstrom Inc with prejudice on May 1, 2017, in
`the Southern District of Texas. The Orders are reproduced at Pet. App. A and B.
`The Fifth Circuit Court of Appeals' have not published a final order to the
`December 28, 2017 order in controversy, and to the best of Relator's
`understanding, the district court's order is unpublished.
`
`JURISDICTION
`
`This Court's jurisdiction rests on 28 U.S.C. § 1651. This case also presents
`an actual case and controversy involving an important constitutional and public
`interest question. See Powell v. McCormack, 395 U.S. 486 (1969) ("It has long
`been held that a suit "arises under" the Constitution if a petitioner's claim "will be
`sustained if the Constitution. . . [is] given one construction and will be defeated if
`[it is] given another.").
`
`CONSTITUTIONAL AND STATUTORY PROVISIONS AND RULES
`
`Federal Rule of Appellate Procedure 41 governs issuance of an appellate
`court mandate and provides, in pertinent part:
`(b) When Issued. The court's mandate must issue 7 days after the time to
`file a petition for rehearing expires, or 7 days after entry of an order
`denying a timely petition for panel rehearing, petition for rehearing en
`banc, or motion for stay of mandate, whichever is later. The court may
`shorten or extend the time.
`(d) Staying the Mandate.
`
`1
`
`

`

`On Petition for Rehearing or Motion. The timely filing of a petition for
`panel rehearing, petition for rehearing en banc, or motion for stay of mandate,
`stays the mandate until disposition of the petition or motion, unless the court
`orders otherwise.
`Pending Petition for Certiorari.
`A party may move to stay the mandate pending the filing of a
`petition for a writ of certiorari (or in this case writ of mandamus) in the
`Supreme Court. The motion must be served on all parties and must show
`that the writ would present a substantial question and that there is good
`cause for a stay.
`The stay must not exceed 90 days, unless the period is extended for
`good cause or unless the party who obtained the stay files a petition for the
`writ and so notifies the circuit clerk in writing within the period of the stay.
`In that case, the stay continues until the Supreme Court's final disposition.
`The court may require a bond or other security as a condition to
`granting or continuing a stay of the mandate.
`The court of appeals must issue the mandate immediately when a copy
`of a Supreme Court order denying the petition for writ of certiorari is filed.
`
`Fourteenth Amendment, the Due Process Clause of the Fourteenth
`Amendment which infer procedural due process and substantive due process.
`Procedural due process is the guarantee of a fair legal process when the
`government tries to interfere with a person's protected interests in life, liberty, or
`property, and substantive due process is the guarantee that the fundamental rights
`of citizens will not be encroached on by government.
`In Poe v. Ullman (1961), dissenting judge John Marshall Harlan II adopted
`a broad view of the "liberty" protected by the Fourteenth Amendment Due Process
`clause:
`
`2
`
`

`

`'[T]he full scope of the liberty guaranteed by the Due Process Clause cannot be
`found in or limited by the precise terms of the specific guarantees elsewhere
`provided in the Constitution. This 'liberty' is not a series of isolated points pricked
`out in terms of the taking of property; the freedom of speech, press, and religion;
`the right to keep and bear arms; the freedom from unreasonable searches and
`seizures; and so on. It is a rational continuum which, broadly speaking, includes a
`freedom from all substantial arbitrary impositions and purposeless restraints,
`and which also recognizes, what a reasonable and sensitive judgment must, that
`certain interests require particularly careful scrutiny of the state needs asserted to
`justify their abridgment.'
`
`Equal Protection Clause, Persons "within its jurisdiction" are entitled to
`equal protection from a state. Largely because the Privileges and Immunities
`Clause of Article IV has from the beginning guaranteed the privileges and
`immunities of citizens in the several states, the Supreme Court has rarely
`construed the phrase "within its jurisdiction" in relation to natural persons. In Yick
`Wo v. Hopkins (1886), the Supreme Court has clarified that the meaning of
`"person" and "within its jurisdiction" in the Equal Protection Clause would not
`be limited to discrimination against African Americans, but would extend to
`other races, colors, and nationalities such as (in this case) legal aliens in the
`United States who are Chinese citizens.
`
`RELIEF SOUGHT
`
`Pursuant to 28 USC § 1651 Eric Drake, respectfully files a Writ of
`Mandamus directing the Honorable Judges Leslie Southwick, Stephen Higginson,
`and James Dennis to vacate its December 28, 2017 order, and issue a detailed-
`opinion how and in what manner the Relator's appeal is frivolous. That Judges
`Leslie Southwick, Stephen Higginson, and James Dennis be made to show how
`the evidence (Nordstrom's Securities and Exchange Report) that proves that
`Nordstrom Inc was and still is a proper and viable defendant in a lawsuit where the
`Relator was injured in a Nordstrom Dept. Store does not prove that Nordstrom Inc
`
`3
`
`

`

`is a proper defendant in Drake's lawsuit against Nordstrom. Further, that Judges
`Leslie Southwick, Stephen Higginson, and James Dennis explain in detail why the
`court is sanctioning the Relator when he filed a timely and competent brief, but
`Nordstrom failed by the Respondent's own admissions by filing deficient and
`untimely pleadings. Lastly, the Relator ask the Court to order an investigation into
`Nordstrom's attorneys making misleading and false statements of fact to the
`Relator who is pro Se, (Nordstrom attorneys told the Relator and the district court
`that Nordstrom Inc was not a proper defendant), which is not true. But
`Nordstrom's attorney's convinced the district court that Nordstrom Inc was not a
`proper defendant, and the reason for the with prejudice order by the district court.
`
`RULE 20.1 STATEMENT
`
`This case presents the exceptional circumstance in which the district court
`ignored objective evidence to dismiss Nordstrom Inc as a defendant to assist
`Nordstrom's legal counsel. The Respondents has also ignored the same objective
`and compelling evidence to sanction the Relator. Unfortunately, Relator's pleas
`for justice have been dismissed by the district court and also by the Fifth Circuit
`Court, even though Relator evidence proves his case beyond a reasonable doubt.
`Relator has been left with no other option but to file this petition for a Writ of
`Mandamus. The Respondents will undoubtedly, and wrongfully sanction the
`Relator without just cause and to compensate the Real Party in Interest
`(Nordstrom) even though the Respondents admits that their pleadings are deficient
`and untimely. Because the Respondents has chosen not to provide a written
`opinion, this action alone will bar the Relator from bringing this matter to this
`Court after their final order, because this Court will not accept in all probability a
`writ of certiorari without a written opinion, thus Relator's only option is to file a
`Writ of Mandamus while the appeal is pending, in order to seek justice.
`
`11
`
`

`

`INTRODUCTION
`Eric Drake shall be referred to hereon as Petitioner, Relator, or Drake. This
`case presents the kind of extraordinary circumstances in which this Court
`exercises its discretionary authority to issue a writ of mandamus. The writ of
`mandamus should issue because the Fifth Circuit's refusal to acknowledge beyond
`a reasonable doubt evidence, which proves that the Relator's case has merit,
`Respondents abruptly and wrongfully determined that the Relator's case is
`supposedly frivolous. Since the Fifth Circuit order is contrary to common legal
`sense, the none issuant of an opinion contravenes a clearly applicable rule of
`procedure and effectively thwarts this Court's decision to decline review of a
`petition for writ of certiorari. Thus, before the Respondents file their final order,
`the Relator's only option is to: 1). File a motion to stay in the district court, and
`Fifth Circuit, which the Relator has done so; 2). File a motion for a Writ of
`Mandamus. However, without the district court and circuit court's denials, the
`Relator could not file in this Court a Stay of the proceeding in the Fifth Circuit.
`
`FACTS NECESSARY TO UNDERSTAND THE ISSUES PRESENTED
`
`I.
`
`RELATOR'S INJURY AT NORDSTROM DEPT. STORE
`
`On March 16, 2016, the Relator was injured by an employee of Nordstrom
`during a nose waxing procedure. Relator never having the procedure asked
`Nordstrom's employees whether the waxing was painful. Several of the
`Nordstrom's employees assured the Relator that the procedure was easy and
`painless. (This can be proven beyond a reasonable doubt). The waxing of the nose
`requires that wax is placed in the nostril with what appears to be a pop-stick. The
`wax on the stick is pull out of the nostril quickly in a downward motion, Relator
`wasn't advised of this procedure in advance. The Relator's medical experts
`medical states the Relator suffered an injury to his neck by Nordstrom's waxing.
`5
`
`

`

`Additionally, Relator's medical experts report states that the waxing
`procedure was the cause of Relator's injuries, which confirmed causation. After
`reporting the accident to Blake Nordstrom, the company hired investigators to
`harass the Relator, and shut down the Spa where the accident occurred to cover up
`and hide potential employees who were witnesses. Relator tried to work with
`Nordstrom to settle the issue, and to obtain the names of the persons involved, but
`Nordstrom refused to provide any names to the Relator. After not being able to
`settle the matter, the Relator filed suit in the Southern District of Texas.
`Unfortunately, the Relator suffered a rupture of his L3/L4 disc that required
`surgery and other medical treatment. Relator filed a motion for partial nonsuit on
`January 11, 2017. The district court's record and the appeals record shows
`compelling evidence that Nordstrom's attorneys were untruthful to the Relator and
`to the district court concerning Nordstrom Inc. The compelling evidence is a tape
`recording made by the Relator with a Nordstrom lawyer who advised the Relator
`that Nordstrom Inc was not a proper defendant in the district court's case. After
`further investigation into the mater, the Relator discovered Nordstrom Securities
`and Exchange Report. This report refutes the allegation that Nordstrom Inc was
`not a proper defendant. However, by then the district court was convinced that
`Nordstrom Inc was not a valid or proper defendant in the district court proceeding
`because this is what the lawyers who represent Nordstrom advocated.
`Of course, the district court is going to believe an officer of the court over a
`pro se litigant, however, when the Relator filed the complete Securities and
`Exchange Report into the district court's record for review as proof that
`Nordstrom Inc is a proper defendant the district court should had reversed its
`pervious ruling on May 1, 2017, but the court refused to do so. See App. Ex. F.
`Having no other recourse, the Relator filed an appeal in the Fifth Circuit
`Court of Appeals in New Orleans, Louisiana. The Relator filed his brief on
`September 14, 2017. See App. Ex. D. Mysteriously, the district court well beyond
`
`

`

`its legal ability to do so, filed a denial of the Relator's IFP on October 5, 2017. But
`by then the district court had lost its jurisdiction to deny the IFP. In addition,
`suddenly the Relator's IFP had missing pages which is impossible because the
`Relator check such a document closely. The Fifth Circuit suspended briefing
`[which gave the Real Party in Interest] plenty of time to file their reply. It is the
`Relator's legal opinion that the district judge was attempting to force the Relator's
`into filing another IFP. Case law reveals that judges normally will grant the IFP,
`but then declare the appeal as being frivolous. It is the Relator's opinion that the
`district judge and Nordstrom's attorneys, possibly with the help of those in the
`Fifth Circuit had already hand picked a judge waiting to act once the Relator filed
`his new IFP. Rather than falling into this ambush, the Relator asks members of his
`church and friends for the filing fees because he is disabled and on a fixed income.
`The filing fees were paid in October of 2017. But the Fifth Circuit was
`evasive in putting the case back on the docket, giving the Real Party in Interest
`even more time. After the Relator filed several complaints, the appeal was put
`back on. the record but the Real Party in Interest did not file a timely brief showing
`any case law or arguments that the Nordstrom Inc was not a proper defendant to
`Drake's person injury case. Nordstrom's attorneys cannot disprove that the
`Nordstrom Inc is not a proper defendant in a case against Nordstrom Department
`Stores. Judges Southwick, Higginson, and Dennis on December 28, 2017 issued
`an order citing that the Real Party in Interest filed deficient and untimely
`pleadings. But the Respondents also cited that the appeal was frivolous in light of
`overwhelming evidence that proves the appeal has merit. The Respondent in a
`short half page order requests the Relator to explain why he should not be ordered
`to pay the Real Party in Interest double cost and damages. Of course, this is absurd
`in a case where the Realtor's appeal is supported with compelling, beyond a
`reasonable doubt evidence. Thus, the Relator files this Mandamus because the
`
`7
`
`

`

`appeal is still pending in the Fifth Circuit. Moreover, there would be no means for
`the Realtor to file in this Court without an opinion from the Fifth Circuit Court.
`
`II. REALTOR'S CONDUCT IN THE DISTRICT COURT.
`
`The Realtor filed suit in the Southern District of Texas against the Real
`Party in Interest for personal injuries and other damages. However, the Relator had
`several medical emergencies that prevented him from continuing the litigation.
`Three of the most experienced neurosurgeons in the United States determined that
`Relator had to undergo surgery to recover from the pain and numbness that he was
`experiencing.
`Relator filed a motion for partial nonsuit because Nordstrom's legal counsel
`alleged that Nordstrom Inc was not a proper defendant. Relator actually tape
`recorded the conversation because the Relator is not an officer of the court, thus
`courts generally will not take the word over a pro se litigant if a lawyer argues
`something different. However, after speaking with a few attorneys regarding
`whether or not Nordstrom Inc was a viable defendant, they referred Relator to
`Nordstrom's Securities and Exchange Report, which confirmed that Nordstrom's
`attorneys was untruthful to the Relator and the district court. But the district court
`wasn't interested in the fact that Nordstrom's lawyers were deceitful to the court.
`In fact, the Relator filed a complaint with the Texas Bar Association, and the State
`Bar quickly dismissed the complaint in light of the evidence and the conduct of
`Real Party in Interest attorneys. This is typical of the State Bar Association in
`Texas unless another attorney or judge files the complaint it isn't given much
`attention. Relator attached a copy of the tape recording where the attorney is
`clearly giving the Relator false and misleading information about Nordstrom Inc.
`The district court dismissed Nordstrom Inc with prejudice, this would make
`it impossible to file suit against Nordstrom again if the proper defendant has been
`
`1.1
`
`

`

`dismissed with prejudice. The Relator filed a Rule 60 motion to reconsider
`however the district court denied the motion to reconsider on May 1, 2017. App.
`Ex C, and the Relator filed a notice of appeal to the Fifth Circuit on May 3, 2017.
`
`III. RELATOR'S CONDUCT IN THE FIFTH CIRCUIT COURT OF
`APPEALS WAS NOT SANCTIONABLE.
`
`The Relator's brief was timely filed with citations and references to the
`clerk's record. The Realtor referred to the objective evidence, (Nordstrom's
`Securities and Exchange Report), which clearly shows that the district court was in
`error by dismissing Nordstrom Inc with prejudice. See App. Ex. D.
`In order for the Respondent to order sanctions against a party, the party
`could have failed to follow through with an order by the court, or failed to file
`responses timely, which none of these circumstances would be applicable to the
`Relator's conduct in the Fifth Court of Appeals.
`Sanctionable conduct might also include failing to explain how the trial
`court erred or to present cogent or clear arguments for reversal. The Relator was
`precise in his argument of how the district court failed to recognize compelling
`evidence, which the Respondents apparently likewise failed to see. Relator cited
`relevant and applicable authority, and his arguments were relevant and legally
`illogical. However, regarding sanctionable activity, it is the Real Party in Interest
`who failed to argue their case in the Fifth Circuit properly, filed untimely
`pleadings, and misrepresented facts to the district court, and created delays by
`filing deficient pleadings before filing a sub-standard poorly written pleadings.
`The Respondents failed to show even the slightest indication how the
`Relator's appeal is frivolous. The district court also called the Relator's appeal
`frivolous, but neither did the district court provide any proof or points as to how
`the Realtor's case is allegedly frivolous. There must be more than empty
`allegations to prove that pleading are frivolous, there must be facts and evidence.
`
`

`

`IV. RELATOR'S APPEAL PENDING IN THE FIFTH CIRCUIT COURT
`COULD NOT POSSIBLY BE CONSIDERED FRIVOLOUS.
`
`The Relator's appeal is not frivolous by any legal standards, and could not
`be considered as frivolous by an impartial tribunal.
`Since the Respondent failed to provide a written opinion of at least a page or
`two of how the Relator's appeal is allegedly frivolous, or cite any deficiency in the
`Relator's pleadings or the brief, a reasonable ordinary prudent person would have
`to conclude that the Respondent's ruling is not objective, impartial, or legally
`sound—and that the December 28, 2017 order is frivolous because there is no
`basis for the order regarding the Relator. See App. Ex. A.
`It appears that the Respondents are attempting to savage the accusations of
`the district court judge who said in his February 8, 2017 order of dismissal,
`"Nordstrom Inc "would be in any way, shape, or form responsible for the Plaintiff
`(') s injuries" or "should be considered as a party" to the suit." See App. Ex. B.
`Of course, the evidence that the Relator filed into the district court's record proves
`that the district court judge was completely incorrect. See App. Ex. F. Relator
`annexed to Appendix a CD of the entire Nordstrom report. It's voluminous.
`Apparently, the Respondents surmised that it would be much easier to
`continue a pattern of abuse by claiming that the Relator's appeal is frivolous
`without lifting a hand in writing one paragraph as to how the appeal is frivolous.
`Respondent's treatment of the Relator is on account of his race and he is pro Se.
`It is interesting that Judge Leslie H. Southwick was assigned to the
`Relator's appeal, being that there was opposition to his nomination at the Fifth
`Circuit because of his racially intolerant and homophobic ways. As reported, the
`district court judge and his family has ties to the Klan, and Mississippi Judge
`Leslie Southwick appears to be hand picked for the Relator's appeal in the Fifth
`Circuit. In the Richmond case, Judge Southwick opinion was to uphold of the
`10
`
`

`

`decision of the Mississippi Employee Appeals Board to reinstate a white state
`employee (Richmond) who was fired for an incident of referring to a black co-
`worker as a "good ole nigger" outside of the co-worker's presence.
`Pursuant to the Fed. R. App. P. 38. An appeal is frivolous if the arguments
`in support of it are wholly insubstantial and the outcome is obvious from the start.
`See Cronin v. Town of Amesbury, 81 F.3d 257, 261 (1st Cir. 1996) (per curiam).
`Put another way, an appeal is frivolous when the appellant's legal position is
`doomed to failure—and an objectively reasonable litigant should have realized as
`much from the outset. Toscano v. Chandris, S.A., 934 F.2d 383, 387 (1st Cir.
`1991). Being that the Relator's appeal was not doomed to failure, but supported by
`objective evidence that Nordstrom's attorneys could not refute and it supports the
`Relator's argument in his appeal pending in the Fifth Circuit. The evidence is so
`compelling that not even the Real Party in Interest can controvert it.
`This is the reason why Nordstrom's attorneys could not file a brief that
`controvert the Relator's brief, because their brief would have to admit that the
`Re