TTAB
`
`Wancy Katfifeen Stoufiizr
`
`1619 SOUTH YORK STREET, MECHANICSBURG, PA 17055
`(717) 790-5535 (717) 790-5535 FAX
`
`FACSIMILE: I PAGE
`CONFIRMATION COPY BY U.S.MAIL
`
`August 21, 2006
`
`Linda Skoro, Interlocutory Attorr1ey
`United States Patent and Trademark Office
`
`Trademark Trial and Appeal Board
`P.0. Box 1451
`
`Alexandria, VA 22313-1451
`
`RE: CANCELLATION N0. 92030300 RULING RECEIVED AUGUST 21, 2006
`
`Ms. Skoro:
`
`7 '4 ‘M51 4 57
`
`I was shocked by the mail I received today. Under no circumstances did I receive
`any order demanding a response by me, from the Appeal Board that has not been
`complied with, the last issues raised and notified to me was a “Motion to Substitute
`Assignee/Cancellation Proceeding Nos. 900303000 and 92030487, which I responded to
`in great detail, in a timely manner.
`
`There is still on-going litigation in the underlying cases, (See Attached provided
`under separate cover), and in no manner would I ever voluntarily relinquish any rights to
`my trademarks.
`
`Please let me know what my options are at this point, keeping in mind that I have
`had two prior rulings concerning these same trademarks, one from the Trademark Office
`and another fiom a State Court, determining my viable ownership of these rights.
`
`Your order has no date on it, nor have I received any of the papers that would
`have been surely provided by opposing counsel in advance of these actions. Nor have I
`ever received a ruling concerning the Respondent’s prior motion, from anyone.
`
` Cc: Response/Janet Kobrin, Esq.fWarner Bros.
`
`

`
`Wcmcy Kat/ifeen Stouflér
`
`1619 SOUTH YORK STREE, MECHANICSBURG, PA 17055
`
`(717) 790-5536 (717) 790-5535 FAX
`
`August 21, 2006
`
`Janet A. Kobrin, Esq.
`Wamer Brothers
`
`4000 Warner Boulevard
`
`156 North, Room: 5078
`Burbank, California 91522
`
`RE: CANCELLATION NO. 92030300
`
`Ms. Kobrin:
`
`Attached is a copy of A letter forwarded to the Trademark Appeal Board. If you
`have any questions feel free to call me at the number listed above.
`
`
`
`

`
`TABEL OF CONTENTS
`
`TABEL OF CONTENTS ..................................................................................... ..i
`
`TABEL OF AUTHORITIES ............. .. . .............................................................. ..i, ii
`
`STATUTES .................................................................................................... ..iii
`
`IURISDICTIONAL STATEMENT ........................................................................ ..1
`
`PRELIMINARY STATEMENT ............................................................................ ..2
`
`STATEMENT OF THE ISSUES PRESENTED FOR REVIEW ....................................... ..3
`
`STATEMENT OF PROCEDURAL BACKGROUND ................................................... ..5
`
`ARGUMENT.................................................................................................... ..5
`
`VERIFICATION ............................................................................................. . .29
`
`CERTIFICATE OF SERVICE.............................................................................. ..30
`
`CERTIFICATE OF COMPLIANCE...................................................................... . .31
`
`TABLE OF AUTHORITIES
`
`United States v Beggerly, 524 U.S. 38, 46-47 (1998) .................................................... ..5
`
`Ahitow v. Glass, 526 U.S. 1113 (1999) ...................................................................... ..6
`
`Colon v,Coughlin, 58 F. 3d 865, 373 (2d Cir.
`
`Twelve John Does v. District of Columbia, 841 F.2d 1133, 1138 (D.C. Cir. 1988)...................7
`
`First Nat’l. Bank of Lousiville V Lustig (1996, AC5 La) 96 F 3d 1554)..................... ..7, 13, 2]
`
`United States V. Cusino, 694 F.2d 185, 187 (9th Cir. 1982) .........................................10, 11
`
`United States v. Reid, 533 F.2d 1255, 1264 11. 34 (D.C. Cir.
`
`United States v. Alston, 609 F.2d 531, 538 (D.C. Cir. 1979), cert. denied, 445 U.S. 918 (l980)..ll
`
`United States v. Beecroft, 608 F.2d 753, 757 (9th Cir.l979),cert. denied, 461 U.S. 932 (l983)...l1
`
`Sanor V. Ark. Namml Gas Corp., 32! U-S. 620, 628-29 (I944)..................................... . . I4
`
`

`
`Loral Fairchild Corp. v. Matsushita Elec. Indus. Co., 266 F.3d 1358, 1363 (Fed. Cir. 2001).... ..l5
`
`White v. American Airlines, Inc., 915 F.2d 1414, 1425 (10th Cir. 1990) ........................... ..15
`
`A.A. I-Ioehling v. Universal Studios, Inc., 618 F. 2d 972, 979-80 (2d Cir. 1980) .................. ..16
`
`United States v. Regent Office Supply Co., 421 F.2d 1174, 1180-81 (2d Cir. 1970) .......... ..16,19
`
`Chicago Title & Trust Co. v Fox Theatres Corp. (1960, SD NY)
`182FSupp 18,3 FR Serv 2d 98................................................... ..17
`
`J.K. Rowling and Time Warner Company, LP. v. Fidelity Management Corporation and
`Sidney Zilber, No. 99Civ.l2436 (S.D.N.Y. filed December 28, 1999)........................... ..17-18
`Stokots S.A. v Morrison, 147 F. 3d 759, 761 (Sm Cir. 1998)....................................... ..7, 18
`
`International Star Class Yacht Racing Assoc. v. Tommy Hilfiger U.S.A., Inc.,
`146 F 3d 66, 70 (2d Cir. 1998)................18
`
`Bouglmer v Sec’y of Health, Educ. & Welfare, 572 F. @d 976, 977 (3d Cir. 1978).................18
`
`I-LK. Porter Co. v Goodyear Tire & Rubber Co. (1976, CA6 Ohio)
`536 F 2d 1115, 191 USPQ 481, 21 FR Serv 2d 1429........................l8
`
`Harman v. United States, 116 F. 350, 352 (6th Cir.), cert. denied, 187 U.S. 641 (1902)............19
`
`Van Skiver v. United States, 952 F. 2d 1241, 1243-44 (l0"' Cir. 1992)............................. ..20
`
`Holland v Virginia Lee Co- (1999, WD Va) 188 FRD 24] ............................................ .20
`
`Kupfcnnan 1' Consolidated Research & Mfg. Corp. (1972, CA2 NY)
`459F2d 1072, l6FRServ2d 160, l9ALRFed 747 .................... .21
`
`Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508-509 (1947) ...............................................21
`
`Minneapolis, St Paul & Sault Ste. Marie Ry. Co. v Moquin, 283 U.S. 520, 521-22 (1931)..........22
`
`Lodge Music Hall, inc. v. Waco Wianglcr Club, Inc., 831 F.2d 77, 81 (5th Cir. 1987).......... ...24
`
`Citizens Loan & Sav. Co., 621 F.2d 911, 913 (8th Cir. 1980)......................................... ..24
`
`Counts v. Kissack Water and Oil Service, Inc., 986 F.2d 1322 (10th Cir. 1993).....................25
`
`Gregory V. United Sizi‘te‘:;.’United States Bankruptcy Court,
`942 F.2d 1498, 1500-01 (10th Cir. 1991)............................ ..25
`
`RTC v Scott, Unpublishied, 1996 (99 Circuit) .......................................................... ..26
`
`

`
`STATUTES
`
`Copyright Act of 1976, 17 U.S.C. . ....................................................................... ..l
`
`28, U.S.C. Rule 28 (a)(2) .................................................................................. .. 2
`
`18 U.S.C. 1341 .............................................................................................. ..62
`
`Federal Practice & Procedure § 2726, at 446 (3d ed. 1998) .......................................... -.24
`
`APPENDIX — Under separate cover.
`
`

`
`NO: O5-6976-cv
`
`IN THE UNITED STATES COURT OF APPEALS
`
`FOR THE SECOND CIRCUIT
`
`TIME WARNER ENTERTAINMENT CO. L.P, J.K. ROWLING
`
`AND SCHOLASTIC INC.
`
`Plaintiffs/Appellee’s
`
`V
`
`NANCY STOUFFER
`
`Defendant/Appellant
`
`BRIEF IN SUPPORT OF REQUEST FOR APPEAL AND REVIEW OF APPELLANTS’ MOTION
`FOR RELIEF UNDER I-‘.R.C.P. 60 (b)(6), (map) FROM SUMMARY JUDGMENT ORDER, AND
`REQUEST FOR SANCTIONS, AND RELIEF FROM THE UNITED STATES DISTRICT
`COURT, SOUTHERN DISTRICT OF NEW YORK RULING DENYING MOTION
`
`JURISDICTIONAL STATEMENT
`
`The Plaintiff’s/Appellee’s, Time Warner Entertainment Co. L.P., J .K.
`
`Rowling and Scholastic Inc. originally brought these actions against the
`
`Defendant/Appellant, Nancy Kathleen Stouffer, alleging among other issues that
`
`they had not infiinged upon the Defendant/Appellants’ trademarks and copyrights.
`
`Subject matter jurisdiction in the United States District Court for the Southern
`
`District of New York was based upon 28 U.S.C.
`
`The Defendantfikppellant filed counterclaims in response the actions initiated
`
`by the PiaintitI‘s;'Appellee’s alleging tratienlark iofringernerlt under the Lanham
`
`

`
`Act, those counterclaims amended following the Courts recommendation that there
`
`was sufficient indication that copyright infi-ingement
`
`should also be included
`
`alleging violations of the Copyright Act of 1976, 17 U.S.C.
`
`Summary Judgment was granted to the Plaintiffs/Appellee’s, Appeal by the
`
`United States District Court, Southern District of New York, and affirmed by the
`
`United States Court of Appeals for the Second Circuit, a Motion for En Banc
`
`review was timely filed and denied on October 24, 2004,
`
`followed by the
`
`Delenclant:’Appellants’ filing of a Motion for Relief on September 16, 2005 within
`
`one year of the final order, in compliance with F.R.C.l’. 60 (b)(6), t_6)(b) Relief
`
`from judgment or Order, and ll, il(C) Sanctions, denied by the District Court on
`
`October 3, 2005, and a Notice of Appeal
`
`‘filed by the DefenclantiAppellant on
`
`October 31, 2005 requesting the United States Court of Appeals for the Second
`
`Circuit
`
`review the matters presented under Title 42 §l9S3 Civil Action for
`
`Deprivation of Rights, and Local Rule 6.3 Motion for Reconsideration or
`
`Reargument, and/or F.R.C.P. Rule 59(_b), 28 U.S.C., Rule 28 (a)(_2) to set aside a
`
`judgment
`
`for fraud upon the court, and F.R.C.P- 60 (b)(6),
`
`(6){b) with all
`
`consideration for special considerations, respectfully submitting this “Brief in
`
`Support of Request for Appeal and Review of Appellants’ Motion For Relief Under
`
`l~'.R.C.P. 60 (b)(6_‘;,
`
`(6}{_b_)
`
`from Summary Judgrnent Order, and Request
`
`for
`
`Sanetions, and Relief from the United States District Court, Southern District of
`
`

`
`New York Ruling Denying Motion” for the reason set forth in the following
`
`paragraphs, and in consideration of new and preexisting evidence of a pattern of
`
`misconduct of one or more matters involving conspiracy to defi-aud, perjury and
`
`fiaudulent misconduct by Oflicer’s of the Court and/or their client(s).
`
`PRELIIVIINARY STATEMENT
`
`It is not this Defendant/Appellants’ intent to criticize the Court for any prior
`
`posture it may have taken in this case, but rather to inform this Court that they, just
`
`as the Court below, were intentionally misled by an effort to prevent them from ever
`
`being armed with all of the critical information, compiete documentation, andior
`
`testimony needed to fairiy, and impartiaily reach any conciusion(s) in this
`
`With this appeal, I implore this Court to take the time to view this case with clarity
`
`that
`
`is Found only where there is no predisposition.
`
`The Court’s and the
`
`De'fendantI'Appeliant were egregiousiy denied reievant and excuipatory materiai by
`
`the Piaintit-i"sr'Appeliee’s and their counsei, who without question did,
`
`\viiifuii_v
`
`misrepresent, hide, faisify, andfor distort evidence they presented, submitted andior
`
`otherwise represented to the Court and/or the DefendantfAppellant_. intending to
`
`skew the facts. deny the Defendantiflppeiiant her constitutional rights, and prevent
`
`justice from ever being administered with irnpartiaiity. or equity. abusing the Federal
`
`Court system to destroy their opponents, rather than to resolve an
`
`over
`
`

`
`trademark law or any other legal matter and, “When the process of justice is
`
`distorted, we can have no confidence in thatjustice ”, (Alan M. Dershowitz).
`
`STATEMENT OF THE ISSUES PRESENTED FOR REVIEW
`
`I
`
`Did the District Court err or abuse its discretion when it denied the
`
`Defendant/Appellants’ “Motion for Relief Under F.R.C.P. 60(b)(6),(6)(b), (intrinsic
`
`or extrinsic), of Summary Judgment Order and Sanctions” because the Court felt it
`
`did not meet the one year time bar?
`
`[I
`
`Did the District Court err or abuse its discretion when it denied the
`
`Defendant/Appellants’ “Motion for Relief Under F.R.C.P. 60(b)(6),(6)(_b), {intrinsic
`
`or extrinsic), of Surnznaxy Judgment Order and Sanctions” when new evidence was
`
`presented that clearly proved prior assertions ofa conspiracy to deii'aud, £i*:1ud.. and
`
`perjury by 0fficer’s of the Court‘?
`
`[I] Did the Court err or abuse its discretion when it failed to recognize the
`
`fundarnentai
`
`importance of the Defendant/Appellants‘ motion which cieariy
`
`evidenced a conspiracy to defraud,
`
`fraud,
`
`(intrinsic or extrinsic), when that
`
`conspiracy was the catalyst for a compiete denial ofthe Def'endantlAppellants’ right
`
`to due process and resulted in a virtualiy cornpiete denial of her Constitutional
`
`rights‘?
`
`IV Did the District Court err or abuse its discretion when it denied the
`
`DefendantlAppeliants’ “Motion for Relief Under F .R.C.P. 60(b)(6),(6)(b), (intrinsic
`
`

`
`or extrinsic), when it presented new evidence that clearly showed a conspiracy to
`
`defraud, fraud, and peijuty by Officer’s of the Court had unquestionably taken
`
`place, Officers, that the Court had determined were somehow more credible than
`
`this Defendant/Appellant in the underlying proceedings?
`
`STATEMENT OF PROCEDURAL BACKGROUND
`
`The “Statement of Procedural Background” is very necessary to understand
`
`the entire timetable of events and actions, and is perhaps the easiest way to have a
`
`full understanding of how this case ended-up where it is today. Because the
`
`procedural background is too lengthy to include within the body of this appeai
`
`please refer to A-25 through A-87.
`
`It clearly exhibits a pattern of conspiracy to
`
`defraud. fraud and perjury by the Plaintifi“s:'Appeiiee”s and their counsel. and
`
`recognizing this pattern,
`
`is
`
`fundamentally important
`
`to understanding the
`
`significance of the new evidence addressed herein. and in the Motion presented to
`
`the United States District Court, Southern District of New York.
`
`ARGUMENT
`
`! Did the District Court err or abuse its discretion when it denied the
`
`_‘:-{e},€‘é_‘s{E3}.
`Defendant1Appeilants’ “Motion for Relief Utter F.R.(,'.P.
`{isrizirzsie er ex§:'.*':zs£:*',
`of Snrnrnery Jngent Urrtier and Sanctions”
`because the Court E’:-it it did not meet the one year time her?
`
`The Defendaniffippeiiant iiied the Motion with the District Court weii within
`
`one year of the iast ruling of the Appeiiate Court, even though there were
`
`“extraordinary and speciai cir-curnstances" which were intended to prevent her from
`
`

`
`ever locating the information that would enable her to prove with certainty that a
`
`conspiracy to defraud, fraud and perjury had occurred as a result of actions by the
`
`Plaintiff’ s/AppeI1ee’s, and their counsel.
`
`The Defendant/Appellant was never given an opportlmity to Brief the Court with
`
`respect to a time—barring of the Motion she filed, nor was the Defendant/Appellant
`
`permitted to respond to the Plaintiff's/Appellee’s reply to Defendant/Appellants’
`
`Motion, nor was any hearing ever held to assure a plenary review before the District
`
`Court denied the Motion, See, United States v Beggerly, 524 U.S. 38, 46-47 1 1998 1,
`
`"Independent actions must,
`
`Rule 60(b) is to be interpreted as a coherent whole,
`
`be reversed for those cases of injustices which, in certain instances, are deemed
`
`sufliciently grass to demand departure fi-‘om rigid adherence to the doctrine of res
`
`judicata. ”
`
`The DefendantlAppellant did comply with the one-year limitation for filing, in
`
`addition to the special circumstances presented, both “intrinsic and extrinsic”,
`
`having filed the Motion before the one-year anniversary of the Appellate Courts’
`
`fine} mandate in this case issued on October 24. 2005, the Dei'endant.’Appeliants’
`
`Motion filed on September 16, 2005, See. Ahitow V.
`
`526 U.S. ‘: 113 1999‘-
`
`
`
`the Court conciuded: “mwhen ajederal prisoner on direct a_.o_peai qfhi.s' conviction
`
`becomes final when the appeliate court
`
`issues
`
`its mandate affirming his
`
`conviction, ” following the exhaustion ofavailable appellate actions, in this case the
`
`

`
`clock/calendar for such tolling actually it was argued did not stop until
`
`the
`
`expiration of the ninety day period of time aloud following appellate procedures in
`
`which to file a Writ of Certiorari.
`
`The District Courts failure to conduct a plenary review of the new evidence and
`
`extraordinary circumstances did not exercise its discretion, Twelve John Does v.
`
`District of Columbi
`
`841 F.2d 1133 1138
`
`.C. Cir. 1988
`
`"...for the proposition
`
`that a denial ofRule 60(b) reliefshould be reversed ifit is based on an error oflaw.
`
`This is consistent with the abuse of discretion standard. ” See, Stokors S.A. v
`
`Morrison, 147 F. 3d 759, 761 (s"‘ Cir. 1993}, “A district court necessarily abuses
`
`its discretion ifit bases its decision on an erroneous view ofcontrolling law. "
`
`ll
`
`Did the District Court err or abuse its discretion when it denied the
`In;
`5.‘:-.§e-.::5::s*’fi.,e._.':ei§:ants’ “Motion for Relief Under F-'.R.C.P. 60(b){_6),(6)(b)._
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`conspiracy to defraud. fraud. and E3" {}fl'icer’s :3! the -Eleert?
`
`.
`
`The i)efendanix'Appeilani presented unquestionable and independent new
`
`evidence that
`
`the Plaintiff’s!Appeilee’s and their counsei did conspire and
`
`perpetrate fraud upon the Courts, offenses amounting to an “...unconscionabt'e pic)’:
`
`or scheme which is designed to itnpropez-:'y influence the court in its decision
`
`See.
`
`First Nafl- Bani: sf Lousiviiie v Lusiig 1' i996. AC5 La} 96 F 3d 1554}. iilustrating
`
`the Courts inherent ability to invoke its power under Ruie 62'} to set aside 3
`
`for fraud upon the Court under any circumstances.
`
`if)
`
`

`
`The Defendant/Appellants’ Motion was not time-barred by one-year because
`
`Officer’s of the Court were involved and/or participants in the fiaudulent
`
`misconduct, andlor because of the gravity of the new evidence, and special
`
`circumstances presented, See, Colon v, Coughlin,
`
`58 F. 3d 865, 873 (2d Cir.
`
`1995
`
`and 42 U.S.C.
`
`1983 and 18 U.S.C.
`
`241
`
`1001 a 1
`
`2
`
`3
`
`1512
`
`C l
`
`2
`
`3
`
`4
`
`1
`
`2
`
`1
`
`2
`
`i
`
`1621
`
`1
`
`2
`
`§1349,§l341,§l643 ta), jl_J[, [C111], [21, 1e), and §l622, the Plaintifi’s/Appellee’s
`
`and their counsei had direct participation in the soliciting of false declarations, and
`
`the submission of fiauduient representations and documents to the Court.
`
`The timetable of egregious misconduct outlined in A—25
`
`through A-87
`
`incorporated herein, should have been substantial enough for the District Court to
`
`consider the Dei’endant:'Appeliants' Motion in the interest of justice, if not for the
`
`evident pattern of blatant and egregious misconduct.
`
`The new evidence presented to the Court was prirna fascia, and clearly shows
`
`that there was an intentional effort involving a conspiracy to hide ftmdamentaily
`
`key evidence, to prevent the Court and the Def'endantr'Appeilant from receiving
`
`extraordinarily material documents and records, ail of which had both direct and
`
`indirect impact on nearly every decision made, or not made in this case, See, A-I33,
`
`transcript:
`
`Ii
`
`

`
`Southern District Court Transcript — March 19, 2002 : The Court
`
`addressing the Defendant/Appellants’ counsel reference Plaintiffs/Appellee’s and
`
`their counsel: Judge Swartz addressing DefendantIAppe|lants’ new counsel
`
`Thomas McNamara: “...Figt., let’s go back to the guestion about the original
`
`manuscri t for the book H
`
`Potter and the Phil
`
`her’s Stone or an
`
`ro
`
`for that book. Counsel have iy, over
`
`the course of this litigation, long
`
`before you arrived on the scene, the Plaintiff’ s informed the Court that they had
`
`been unabie to locate either the orignai manuscrigt for Hgy Potter and the
`
`Phiiosoghefs Stone or any Qrofigl for that book that was sent to Etentiai
`
`publishers.
`
`The Court addressed this issue at various conferences, including a conference
`
`hehi on Februag 25*‘ of this year, in which the Court directed that plaintiffs make
`
`reasonabie efforts to grotiuce the origins‘: rnanuserigt and greet, if ting’ had
`
`them.
`
`I am informed by Mr. Rosenthal in his letter dated March 18 that last week he
`
`informed you by teighone that these documents could not be found. . .”
`
`On or about March I3, 2002, after the Piaintift‘sfAppeilee’s were stemiy
`
`ordered by the Court to tum—over documents and records they had assured the Court
`
`on numerous occasions had been misplaced, and before, during and after their
`
`testimony above, the Plaintiff'slAppellee‘s with the apparent knowledge of their
`
`12
`
`

`
`counsel made arrangements to have the documents and records in guestion
`
`delivered to “The National Libgy of Scotlan ”, and by May 29, 2002, pieces of
`
`J.K. Rowling’s handwritten manuscript she and her counsel had hidden throughout
`
`discovery within the obscure walls of the “National Library of Scotland” went on
`
`display, (See, A-I I I), and the library described them in a local press release in the
`
`following words: “It doesn’t look like much — just a scrufli bundle at 5% and
`
`hand-written sheets 0 A4
`
`.
`
`J.K. Rowlin ’s ori
`
`‘no! rnanus
`
`' t or
`
`Hg Potter and the Philosogher is Stone will almost certainly be a k_e)g attraction
`
`at the National Libragg of Scotland is new show, “This Book Belongs to Me.
`
`(See,
`
`A-ill, “Wednesday, May 29, 2002"), and See, Cusino 694 F.2d at 187
`
`“Fraudulent intent is shown ifa representation is made with reckless indzfierence to
`
`its truth or_faz'sii3.'.", and United States 1.’. Rel
`
`
`
`533 "F.2d i255 l264 n. 34 [).C. Cir.
`
`
`
`ml "[f]roudulent
`
`intent may be inferred from the modus operandi of the
`
`scheme."
`
`On or about July I6, 2005, the Defendant/Appellant confirmed the validity of
`
`new evidence discovered in a very obscure place, new evidence that
`
`the
`
`Plaintifi’s/Appellee’s did in fact conspire to defiaud the Court, and deny the
`
`Defendant/Appellant any ability to receive due process, or equity,
`
`this became a
`
`matter of certainty when this additional example of fiaud was unearthed by a local
`
`press release found in an archive that wouldrft normally be seen from “The
`
`l3
`
`

`
`National Library of Scotland”;
`
`an
`
`institution
`
`never disclosed
`
`by
`
`the
`
`Plaintiffs/Appellee’s or their counsel, nor known by the Defendant/Appellant until
`
`this incident revealed its existence, the information as described in the body of this
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`Appeal and in A-25 through A-87 makes it very clear, and very convincing that
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`these Plaintifi’slAppellee's and their counsel conspired, perpetrated a fraud upon
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`the Court and committed perjury.
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`Since the District Court never gave the Rule 60 motion submitted by the
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`Defendant/Appellant the consideration it should have, it didn’t give any weight to
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`not only the “exceptional circumstances ” presented, it failed to recognize the depth
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`of, or the importance of Mr. Rosenthal’s involvement in this conspiracy, and the
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`probable “mail and Wire fraud”, 18 U.S.C. 1341, and See, United States V. Alston,
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`609 F.2d 531, 538 (DC. Cir. 1979!, cert. denig, 445 U.S. 918 11980), "The
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`requisite intent under thefederal mail and wirefraud statutes may be infierredfiom
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`the totality of the circumstances and need not be proven by direct evidence. ", and
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`United States v. Cusino, 694 F.2d 185, I87 (9th Cir. 1982: jciting United States V.
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`608 F.2d 753 757 9th Cir. i979“
`46l U.S. 932 1983
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`(5 P17’
`1
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`us. intent can be inferredfrom statements and conduct makes it a Federal crime
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`or ofirense for anyone to use the United States mails in carrying out a scheme to
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`defi'aud_ ” (See also, Judge Swartz transcript 21-133),
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`14
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`

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`“I am informed by Mr. Rosenthal in his letter dated March 18 that last week he
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`informed you by telephone that these documents could not be found. . .”.
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`There is an abundant amount of evidence that a gttern of fiaudulent misconduct
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`by the Plaintiffs/Ap;§llee’s and their counsel existed, and that on numerous
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`occasions they had intentionally defied Court orders and conspired to hide
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`fimdamentally relevant documents and records, exceedingly crucial to the case,
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`expressly to prevent both the Court, and the Defendant/Appellant from having the
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`ability to compare or to examine those documents and their authenticity, and/or
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`validity in comparison to the representations these Officers made before the Court,
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`a scheme expressly designed to prevent the Defendant/Appellant fi'om receiving
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`any due process by skewing the Courts judgment;
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`including the elements and
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`issues as outlined in A-25 through A—133 incorporated herein, and including but
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`not limited to the following specific dates: February 22, 2002, Court ordered Ms.
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`Rowling to produce these documents and records for the second time, Febniary 23,
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`2002, Court ordered Ms. Rowling to appear for a deposition, but accommodated her
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`by forcing the Defendant/Appellants’ counsel to conduct it in Scotland, and again
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`asserted Ms. Rowling should produce these documents and records, March l8,
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`2002,
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`the Court
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`is again confronted with Ms. Rowling's failure to produce
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`documents and records, and an unwillingness to produce any documents and
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`records that had not been tampered with, and once again ordered Ms. Rowling to
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`15
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`

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`produce them, March 19, 2002, the Court again, has to address Ms. Rowling and
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`her counsels failure to produce the documents and records, March 29, 2002, by this
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`time the Plaintiff’s/Appellee’s, unbeknownst
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`to the Defendant/Appellant, have
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`already hidden the documents and records in the ‘‘National Library of Scotland”,
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`when the Court again insists that they use every reasonable effort to produce them
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`before Ms. Rowling’s deposition, April 15, 2002, Defendant/Appellants’ counsel
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`appears in Scotland to conduct the ordered deposition, that evening, Mr. Rosenthal
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`contacts Defendant/Appellants’ counsel and informs him that although he had
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`assured him that the documents would be delivered to him in Scotland, he would be
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`unable to do that because they were rnisplagg and if that wasn't egregious enough,
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`J.K. Rowling failed to appear the following morning, April 17, 2002 for the
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`deposition,
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`and when Defendant/Appellants’
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`counsel
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`again addresses Ms.
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`Rowling’s and her counsel’s failure to produce documents and records, and her
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`failure to appear for her deposition after extraordinary accommodations were made
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`'""r~—.m_,
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`on her behalf by the Court, the Court chooses to accommodate her once again and
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`forces Defendant/Appellants’ counsel to return to Scotland to give her another
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`chance to appear, and again orders document and records to be produced by Ms.
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`Rowling and her counsel, and the Courtfizils to administer any sanctions, April 18,
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`2002, the Court again makes the order to produce documents and records very clear,
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`ordering J.K. Rowling
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`to produce handwritten notes, manuscript
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`and
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`

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`correspondence to and from her management and Bloomsbury, to be delivered
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`before the next scheduled deposition, May 5, 2002, Plaintiffs/Appellee’s counsel,
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`Mr. Rosenthal informs DefendantlAppellants’ counsel that they are unable to locate
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`the documents and records they were ordered to produce, May 7, 2002, J.K.
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`Rowling finally appears for her deposition in Scotland, and denies having any
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`knowledge as to the location of the mandated documents and records, and again on
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`October 3, 2005, with denial of all claims by the Plaintiffs/Appellee’s and their
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`counsel, an additional incident of perjury occurs, an “...unconscionable plan or
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`scheme which is designed to improperly influence the court in its decision”, See,
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`First Nat’l. Bank of Lousiville v Lusti
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`1996 ACS La
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`96 F 3d 1554
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`“...suflicient for the Court to invoke its inherent ability to set aside a judgment
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`under Rule 60. “
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`The Plaintiffs/Appellee’s and their counsel’s conspiracy to perpetrate a fiaud
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`upon the Court under any circumstance should have been suflicient for the Court to
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`set aside the judgment, but most importantly, in this case the Defendant/Appellant
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`had again clearly proven that the acts of the Plaintiff's/Appe1lee’s and their counsel
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`are extraordinarily egregious, the fraudulent misconduct and circumstances were
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`clearly beyond any standard required for seeking corrective actions by the Courts
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`with a Rule 60 motion, and again, the Court abused its discretion by not even
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`considering it.
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`17
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`

`
`There was no evidence in this case that was anymore key or relevant than the
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`evidence the Plaintiffs/Appelle’s and their counsel went to such extremes to hide
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`and prevent the Court and the Defendant/Appellant from ever seeing, or having the
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`ability to examine it, nor any ability to examine any witncsse(s) that may have
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`arisen from an examination in relationship to its content, “...summary judgment is
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`not appropriate where the opposing party ofiers specificfacts that call into question
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`the credibility of the mova-nt’s witnesses ”, See, Sartor v. Ark. Natural Gas Corp.,
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`321 U.S. 620, 628-29119441.
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`How could this Court, or any other Court, or any jury ever reach any conclusion
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`as to the authenticity of any claim ever made by the Plaintifi’s/Appellee’s or their
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`counsel or any witness testimony they proflered as it relates to any subject matter
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`including, but not limited to the fundamental authenticity, ownership, or even the
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`right to claim ownership when that authenticity remains unchecked, based wholly
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`on representations that stem from in the least significant perjured testimony? How
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`could any conclusion(s) be justly formulated when that evidence was never
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`subjected to the same microscopic examination and scrutiny the Court insisted the
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`Defendant/Appellants’ nearly 10,000 documents and records be subjected to by the
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`Plaintiffs/Appellee’s and their counsel, especially and in light of the fact that it was
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`that testimony that was used to assert fi'aud allegations and call
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`into question
`
`18
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`

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`alleged document irregularities and claims made against the Defendant/Appellant?
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`The answer could only be more likely than not, it couldn ’t.
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`It is certainly more likely than not that the Plaintiff’ s/Appellee’s had something
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`to hide, or there would have been no reason for them to take such extreme measures
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`to conceal the documents and records, and of that, there is little question remaining,
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`See, Loral Fairchild Corp. v. Matsushita Elec. Indus. Co., 266 F.3d 1358, 1363
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`Fed. Cir. 2001 ' see also Fed. R. Civ. P. 56 adviso
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`committee’s note 1963
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`Amendment 1, “Where an issue as to a material fact cannot be resolved without
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`observation of the demeanor of witnesses in order to evaluate their credibility,
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`summaryjudgment is not appropriate. ”
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`Since these fimdamental questions couldn’t have, or were prevented fiom being
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`answered, then error is not a question, but absolute, "facially obvious", See, WE
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`v. American Airlines, Inc., 915 F.2d 1414, 1425 1 10th Cir. 1990 1,
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`“A district court
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`would necessarily abuse its discretion it based its ruling on an erroneous view of
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`the law or on a clearly erroneous assessment of the evidence."
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`Because primary evidence in the case never saw the light of day, the Court could
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`never have had the ability to determine the depth of the conspiracy to defraud by the
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`Plaintiff’ s/Appellee’s and their counsel, especially when there was substantial
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`evidence that it certainly could be a bottomless pit of falsities, (See,i.e., A-67
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`through A-74), and the District Court, nor this Court who did reach conclusions
`
`19
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`

`
`with prior decisions in this case by reading between the lines of a tale spun out of
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`fraudulent misrepresentations made by the Plaintiffs/Appelle’s and their counsel,
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`led to a grave injustice, and is totally contradictory to this Courts prior dispositions,
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`See, A.A. Hoehlin V. Universal Studios Inc. 618 F. 2d 972 979-80 2d Cir.
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`1980}, “in distinguishing between themes, facts, and scene a faire on the one hand,
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`and copyrightable expression on the other, courts may loose sight of the forest for
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`the trees. By factoring out similarities based on non—copyrightable elements, a
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`court
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`runs the risk of overlooking wholesale usurpation of prior author ’s
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`expression ”, and there can be no question in this case that the Defendant/Appellant
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`is the chicken, (the prior author), who came first, (See, A-55).
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`III Did the Court err or abuse its discretion when it failed to recognize the
`fundamental importance of the Defendant/Appellants’ motion which clearly
`evidenced a conspiracy to defraud, fraud, (intrinsic or extrinsic), when that
`conspiracy was the catalyst for a complete denial of the DefendantIAppellants’
`right
`to due process and resulted in a virtually complete denial of her
`Constitutional rights?
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`The DefendanUAppellant
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`is intimately aware of the ramifications of th