Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov
`ESTTA627242
`ESTTA Tracking number:
`09/15/2014
`
`Filing date:
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`92048777
`Defendant
`Michael Calmese and Laura Ann Fisher
`MICHAEL CALMESE
`3046 N 32ND ST , UNIT 321
`PHOENIX, AZ 85018-6842
`UNITED STATES
`proveit@excite.com, usaproveit@yahoo.com
`Response to Board Order/Inquiry
`Michael Calmese
`usaproveit@yahoo.com
`s/Michael Calmese/s
`09/15/2014
`2014 uspto Response due 30 days final.pdf(9125 bytes )
`Respondent Calmese's 9th Cir. Opening Brief Case No 14-35569.pdf(1783972
`bytes )
`
`Proceeding
`Party
`
`Correspondence
`Address
`
`Submission
`Filer's Name
`Filer's e-mail
`Signature
`Date
`Attachments
`
`

`

`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE
`
`TRADEMARK TRIAL AND APPEAL BOARD
`
`Adidas America, Inc., a Delaware Corporation, ) Cancellation No.: 92048777
`Petitioner,
` ) Registration No.: 2,202,454
`against- ) Registration Date: 11/10/98
`
`Michael D. Calmese, a Resident of Arizona ) Mark: PROVE IT!
`
` )
`Respondent.
`________________________________________ )
`
`PLEASE TAKE NOTICE, pursuant to the Board’s Order dated September 12, 2014, that the
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`civil action which occasioned the suspension of this proceeding is still pending and has not come
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`to final determination due to the nearly 10 counts of fraud on the court Respondent has filed into
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`evidence in his August 15, 2014, Opening Brief now before the Ninth Circuit Court of Appeals.
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`See case No. 14-35569. Also see U.S. Supreme Court Ruling in Dickinson v. Zurko, 527 U.S.
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`150, 119 S.Ct. 1816, 144 L.Ed.2d 143 (1999), and Aoude v. Mobil Oil Corp., 892 F.2d 1115, 15
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`Fed. R. Serv. 3d 482 (1st Cir. 1989) (“Because corrupt intent knows no stylistic boundaries,
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`fraud on the court can take many forms.”). For the Board’s convenience, a copy of Respondent’s
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`8/15/2014, Opening Brief is being filed with this response to the Board’s September 12, 2014
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`Order.
`
`On a final and very important note, it has been discovered that the Board has failed to recognize
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`that Laura Ann Fisher (“Ms. Fisher”), IS NOT a party to this dubious cancellation proceeding
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`because of this Board’s September 10, 2013, ruling that specifically stated:
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`“The Board has carefully considered the parties arguments and has reviewed the
`assignment records filed on May 3, 2013 and finds it appropriate to remove Ms. Fisher as
`a party to this proceeding. The caption of this proceeding has, accordingly, been
`updated.” See (Dkt 48).
`
`1
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`

`

`Therefore, with all due respect, and in view of the above statement made by the Board on
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`September 10, 2013, the Board should respectfully change the caption in (Dkt 49), immediately
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`and re-issue the September 12, 2014, Order with the correct caption of this proceeding,
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`accordingly. The caption it the September 12, 2014, Order clearly violates Ms. Fisher’s rights.
`
`RESPECTFULLY SUBMITTED this 15th, day of September 2014.
`
`s/Michael Calmese/s
`
`cc: Jonathan Radmacher Attorney for Anthony McNamer aka. Anthony Davis. (email only)
`
`CERTIFICATE OF SERVICE
`
`I HEREBY CERTIFY that the foregoing RESPONSE was served upon FRIEDLAND AND
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`VINING P.A and PERKINS COIE by delivering a true and correct copy of the same via U.S.
`
`Mail on September 15, 2014, as follows:
`
`FRIEDLAND AND VINING P.A. David K. Friedland, 1500 San Remo Ave., Ste. 200,
`
`Coral Gables, FL 33146
`
`And
`
`PERKINS COIE LLP Stephen M. Feldman, 1120 N.W. Couch Street, Tenth Floor
`
`Portland, OR 97209-4128
`
`2
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`

`

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`Case: 14-35569 08/14/2014 ID: 9207321 DktEntry: 2 Page: 2 of 46
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`Case: 14-35569 08/14/2014 ID: 9207321 DktEntry: 2 Page: 3 of 46
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`Case: 14-35569 08/14/2014 ID: 9207321 DktEntry: 2 Page: 4 of 46
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`Case: 14-35569 08/14/2014 ID: 9207321 DktEntry: 2 Page: 5 of 46
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`9th cir. case xo. l # -3YS'Gq
`8. Do you have any other cases pending in this court?
`lf so, give the name and docket number of each case.
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`Page 5
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`9. Have you filed any previous cases which have been decided by this court?
`lf so, give the name and docket number of each case.
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`10. For prisoners, did you exhaust all administrative remedies for each claim
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`CERTIFICATE OF SERVICE
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`M.c-kexa QA- ? v. Case Name:
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`9th cir. casexo.: tl-isE 1%
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`C- . Qe Q e,c
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`IMPORTANT: You must send a copy of ALL documents filed with the Court and
`any attachments to counsel for ALL parties in this case. You must attach a copy of
`the certificate of service to each of the copies and the original you file with the
`Court. Please fill in the title of the document you are filing. Please list the names
`and addresses of the parties who were sent a copy of your document and the dates
`on which they were served. Be sure to sign the statement below.
`
`. 0
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`(title of docume t you are filing)
`and any attachments was served, either in person or by mail, on the persons listed
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`Case: 14-35569 08/14/2014 ID: 9207321 DktEntry: 2 Page: 7 of 46
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`Michael D. Calmese 3046 N 32nd Street Apt . 321
`Phoenix, Az 85018
`Appearing Attorney Pro Se
`
`UNITED STATES COURT OF APPEALS
`FOR THE NINTH CIRCUIT
`
`MICHAEL D. CALMESE
`Plaintiff - Appellant
`
`No. 14-35569
`D.C. No. 3:13-cv-01042-HU
`) U.S. District Court for Oregon,
`Po rtI a n d
`ANTHONY E. MCNACER, Attorney,
`APPELLANT'S INFORMAL BRIEF
`OSB # 00138; OREGON STATE BAR )
`PROFESSIONAL LIABLITY FUND
`
`)
`
`1) Jurisdiction
`a. Timeliness of Appeal:
`(i) Date of entry of judgment or order of district court:
`
`5/6/14 ORDER GRANTING APPELLEE'S MOTION TO DISMISS.
`
`(ii) Date of service of any motion made after judgment (other than for fees and
`costs):
`
`5/20/14 APPELLANT'S MOTION FOR RECONSIDERATION
`
`6/9/14 APPELLANT'S MOTION FOR DEFAULT JUDGMENT
`
`Date of entry of motion deciding order:
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`6/9/14 ORDER ON MOTION FOR RECONSIDERATION
`
`1
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`

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`6/27/14 ORDER ON MOTION FOR DEFAULTJUDGMENT
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`(iv) Date notice of appeal or petition filed:
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`7/7/14 NOTICE OF APPEAL FILED BY APPELLANT
`2) What are the FAWS of your case:
`
`The District Court has ignored nearly 10 counts of fraud on the court pleaded for the first time
`on April 11, 2014 Objections (Dkt 27), and multiple counts of obstruction of justice violating U.S.
`Supreme Court Iaw and Appellant's Constitutional Rights to due process and equal protedion
`
`under the law. With alI due respect, the following is a Iist of the FAGS on record surrounding
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`llant Michael D. Calmese's (Mr. Calmese) caseT:Appe
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`a. On May 24, 2007, Appellant's then attorney wrote adidas a Ietter and declared
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`Appellant's position was promulgated because of the PTO's previous rulings. . See
`letter (Doc. 1-1, Pg.lD#: 64-77) and finally in (Dkt 10-1, Page.lD#385-393). Also see a
`partial copy of the May 24, 2007 letter attached hereto as Exhibit B.
`
`b. On April 27, 2009, Appellant's new attorney Appellee Anthony E. McNamer aka.
`Anthony Davis wrote Mr. Calmese and intentionally and maliciously mis-informed Mr.
`Calmese by definitively stating in the 4/27/09 that, ''it does not matter what the PTO
`did''. This was a bold face LIE as later discovered by Mr. Calmese in the face of the U.S.
`Supreme Court's ruling in Dickinson v. Zurko. See McNamer's Iie on record before the
`
`l The District ouC rt did not even have the legal decency to inform Mr. Calmese either way about his multipie
`
`
`requests to file a second amended malpradice complaint that went unchallenged each and every time. The Court
`never said NO or YES they simply ignored two request in writing and one orally at the Oct. 21, 2013 hearing.
`
`

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`
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`2District Court in (Dkt 1-1, Pg.lD#:84), (Dkt 6, Pg.lD#: 275) and in (Dkt 10-2, Pg.lD#: 414).
`Also see a copy of the April 27, 2009 email attached hereto as Exhibit A.
`
`c. Then on June 2O, 2013, Appellant Michael D. Calmese (''Mr. Calmese?'), finally filed a
`Complaint in the Oregon District Court for Legal Malpractice and for Negligent
`
`Concealment Preventing Discovery. AII stemming from the adidas America Inc. v.
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`Michael D. Calmese case and the previous appeal Case No. 11-35053.
`
`d. On July 12, 2013, Calmese filed a Motion For Leave to file an Amended Malpractice
`Complaint, at the request of Apnellee's attorney Johnathan Radmacher, and even
`included a copy of the actual ''Amended Legal Malpractice Complaint For Negligent
`
`zz 3Concealment Preventing Discovery .
`
`e. Also on July 12, 2013, the Clerk of the Court interfered with the docketing of the
`documents received by the clerk's office on 7/12/13 by re-arranging the order of
`Appellant's documents. Failing to file documents presented to reflect the documents on
`the docket is a failure to perform the ministerial duties.The duty of the clerk is to make
`his record correctly represent the proceedings in the case (Wetmore v. Slrr/ck, 27 S. Ct.
`434, 205 U.S. 141).
`On July 15, 2013, Anthony McNamer's attorney Johnathan Radmacher again contacted
`
`Mr. Calmese and stated, ''Your amended complaint does not fix the problems.'' And
`proceeded to illegally tricked Calmese into changing the 7/12/13 Motion For Leave to an
`Amended Breach Of Agreement Complaint even though Calmese's 6/20/13 Complaint
`
`f the record this time.
`2
`This email cannot be stricken rom
`3 ER 193-285 is completely out of order but the District Court somehow still granted it.
`
`

`

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`and the July 12, 2013 First Amended Complaint NEVER used the word breach or breach
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`of agreement.
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`g. On July 23, 2014, U.S. Magistrate Judge Hubel Granted Calmese's Motion For Leave to
`file the Amended Malpractice Complaint, NOT the Breach of Agreement Complaint Mr.
`
`McNamer's attorney Johnathan Radmacher illegally tricked Calmese into filing.
`
`h. On or about August 5, 2014, Appellant filed an Amended Breach of Agreement
`Complaint, at the illegal advise of Appellee's attornev Johnathan Radmacher, even
`
`though Appellant had already filed a copy of his ''First Amended Malpractice Complaint''
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`4 his Appeals Court shouldin the July 12, 2013 Motion that was eventually Granted. T
`note, with all due respect, Mr. Calmese made his first request to file a third amended
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`malpractice complaint in the 8/5/13 pleading.
`On August 20, 2013, Pursuant to FRCP 12(b)(6), Appellee filed a Motion to Dismiss based
`on Appellee's opinion that Appellant's lawsuit was brought outside of the statute of
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`Iimitations.
`
`On August 21, 2013, Mr. McNamer's attorney Johnathan Radmacher confirmed the
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`District Court and Mr. McNamer have consistently and systematically violated Mr.
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`Calmese's Constitutional Rights to due process and equal protection under the Iaw by
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`repeatedly ignoring the PTO's previous rulings by stating,
`
`''Please advise as to when any court hearing a case you have been involved in
`has ruled that the PTO's ''ruling'' would Iead to you prevailing? I do not dispute
`
`th4 In aIl fairness, the 9 Circuit should allow Appellant to re-file the July 12, 2013 copy of his a second amended
`
`
`malpractice complaint because it was granted and because of Appellee's illegal advances to trick Appellant into file
`something other than what the District Court approved and granted.
`
`

`

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`that you believe it, but without a court saying it, it's meaninglessa'' See (Dkt 16-
`1, Pg.ID#: 516).
`The oppressive tactics and mockery of justice on display by Mr. McNamer aka. Anthony
`Davis and his attorney Johnathan Radmacher must be addressed.
`
`k. On August 28, 2013, Mr. Calmese made his second request to file a third amended
`complaint in the Memorandum filed in Opposition to McNamer's Motion to Dismiss.
`Mr. Calmese did not once claim or plead fraud on the court on 8/28/13 or any time prior
`to this date. Clearly, Mr, Calmese made a second written request to file a third
`
`amended malpractice complaint in (Dkt 16, Pg.lD#: 464), pursuant to Rule 15.
`1. On October 21, 2013, the Parties had a Motion to Dismiss hearing where the PTO's
`previous rulings and binding authority was discussed with U.S. Magistrate Judge Dennis
`Hubel. Judge Hubel specifically asked if the PTO's previous ruling were binding as any
`prudent officer of the Court would have and should have done. Mr. Calmese also made
`his third request to file a third amended complaint orally at the 10/21/13 hearing that
`again went unnoticed, unchallenged and illegally ignored violating Mr. Calmese's
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`Constitutional Rights to due process and equal protection under the law among other
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`violations of the FRCP and the Iaw.
`
`m. See the October 24, 2013 email from Appellee's attorney Mr. Radmacher in (Dkt.
`38-2, Pg.lD#: 904), that clearlv states, ''How interessing it is that when asked a nuestion
`by Judae Hubel, vou had no answer, but now you have a small treaties on the subiect.
`Also see (Doc. 27, Pg.lD#: 608) confirmin: Judge Hubel's 10/21/13c0mments at the
`
`hearina.
`
`5
`
`

`

`Case: 14-35569 08/14/2014 ID: 9207321 DktEntry: 2 Page: 12 of 46
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`n. On October 24, 2013, Mr. McNamer emailed Mr. Calmese and confirmed the
`conversation the Parties had at the 10/21/13 hearing. See this email on record in (Dkt
`38-2, Px.lD#: 904), that clearly states, ''How interesting it is that when asked a question
`bv Judae Hubel, vou had no answer, but now vou have a small treaties on the subiect.
`
`On March 24, 2014, nearly 150 days after the October 21, 2013 hearing, U,S. District
`Judge Hubel issued his Findings and Recommendation (''F&R) (Dkt 24), that violated Mr.
`Calmese's Rights by stating, ''Whatever the merits might be of Calmese's allegations, his
`commencement of this case is barred by the statute of limitations and this case sbould
`be dismissed. The 3/24/14 F&R does not mention one word about the discussion
`surrounding the PTO's binding authority from the October 21, 2013 hearing or Mr.
`Calmese's three request to file a third amended complaint.Key note, U.S. Magistrate
`Dennis Hubel clearly stated in his F&R that after Mr. Calmese filed his Second Amended
`
`Complaint on 8/5/13, ''the factual allegations underlying Calmese's claim against
`McNamer remain unchanged.'' Therefore, key evidence missing from Mr. Calmese's
`8/5/13 First Amended Complaint can be found and reviewed in Mr. Calmese's 6/20/13
`initial Complaint. It's fair game.
`p. On April 11, 2014, Calmese filed 20 objections surrounding ''fraud on the court'' for the
`
`S In fact the 3/24/14 F&R confirmed that the 9th circuit reliedfirst time ever in (Dkt 27). ,
`
`the so-called fraud on the court ruling from the adidas case even though Mr. Calmese
`
`had NEVER presented a fraud on the court claim in the adidas case. The District Court is
`bound by the March 24, 2014 F&R and clearly the 3/24/14 F&R cannot set the
`
`S f the alleged fraud Appellant's forensic expert witness testimony was attempting to prove fraud wasAside rom
`NEVER a part of Mr. Calmese's argument prior to 4/11/14..
`6
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`

`

`Case: 14-35569 08/14/2014 ID: 9207321 DktEntry: 2 Page: 13 of 46
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`precedent that allows multiple counts of fraud on the court to go unnoticed violating
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`Mr. Calmese's Constitutional Rights and jt cannot allow an email from an attorney to
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`override an ORDER from a U.S. Magistrate Judge and adopted by a U.S. District Court
`Judge. Again see Calmese Objections (Dkt 27, Pg.ID#: 575.) Again, see Mr. McNamer's
`April 27, 2009 email proving he committed fraud on the court.
`
`q. On April 18, 2014, Calmese filed a Notice of Correction to clarify his fraud on the court
`claim in objection No. 18. This correction demonstrated that the District Court actually
`ruled twice on the PTO?s previous rulings in (Dkt 229) and (Doc. 249). See (Dkt 229)
`where the District Court explains Mr. Calmese has no binding authority; also see (Dkt
`249), wbere the District Court clearly deceived Mr. Calmese by illegally changing the
`District Court record to cover-up the Court's knowledge of the PTO's previous rulings.
`
`See the critical parts of (Dkt 229 and 249) in (Dkt 30, Pg.lD#: 639, 652).
`r. On April 18, 2014, Mr. Calmese also filed the Hazel-Atlas case into evidence establishing
`
`Appellee's statute of Iimitations argument was now moot and irrelevant. U.S. District
`Court Judge Hernandez ignored the Iaw that clearly established Appellee's Motion To
`Dismiss could not withstand the finding in Hazel-Atlas, 322 U.S. at 244. Hazel-Atlas
`clearly and definitively states there is no statute of Iimitations for bringing a fraud upon
`
`the Court claim. Appellee's Motion to Dismiss could have been denied based on Hazel-
`
`Atlas alone.
`On May 6, 2014, in Order (Dkt 31), U.S. District Court Judge Marco Hernandez adopted
`the 3/24/14 F&R admittedly without conducting a de novo review on aII of Appellant's
`objections. Judge Hernandez admittedly violated Mr. Calmese's Rights by stating he
`
`7
`
`

`

`Case: 14-35569 08/14/2014 ID: 9207321 DktEntry: 2 Page: 14 of 46
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`only reviewed pertinent portions of Mr. Calmese's objections de novo and not aIl of Mr.
`Calmese's objections in (Dkt 27, 28 and 30).
`Furthermore, on June 9, 2014 the District Court ruled that, ''plaintiffs (Calmese)
`contention that rulings against him in this and related Iitigation (No. 08-CV-91-ST) were
`the result of fraud on the court is unfounded and without merit. 5ee Adidas America Inc.
`v. Calmese, 489 F. App'x 177 (9th Cir. 2012) (rejecting Calmese's claims of fraud upon
`the court and regarding his counsels performance as unpersuasive). Ordered by Judge
`Marco A. Hernandez. (mr).'' Clearly, U.S. District Judge Hernandez committed a plain
`error by even mentioning the so-called fraud on the court ruling from the adidas matter
`
`because Mr. Calmese never claimed fraud on the court in the adidas case. Moreover,
`
`there was NO fraud on the court evidence provided in the adidas case because adidas
`? i lings being part of the record and because the 9thargued against the PTO s prev ous ru
`
`
`Circuit Court in the first appeal struck Mr. McNamer's 4/27/09 email from the record
`that ultimately would have proven fraud on the court by Appellee Mr. McNamer. The
`
`
`j toth District Court and the 9 Circuit Court of Appeal have, to date, been unab e
`adjudicate this matter properly as a direct result of the fraud on the court admittedlv
`committed bv Mr. McNamer and other officers of the court including adidas.
`
`subsequently, On July 7, 2014, Mr. Calmese provided the District Court with a copy of
`
`l 15 2011 Response by adidas (Dkt. 21-1), where EVEN adidas argued, and the 9tbthe Ju y ,
`Circuit Court mistakenly agreed, that the District Court correctly did not consider the
`
`subject PTO rulings, given that those rulings were not made a part of the summary
`
`8
`
`

`

`Case: 14-35569 08/14/2014 ID: 9207321 DktEntry: 2 Page: 15 of 46
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`h 9th circuit Court of Appeals from Mr.
`'
`judgment record. See adidas argument to t e
`Calmese's first appeal Case No. 11-35053 in (Doc. 47-1, Pg.ID#: 1017).
`Also see 9th circuit order unfairly striking Mr. McNamer's 4/27/09 email from the
`record in (Dkt 47-1, Pg.ID#: 1020), which unfairly crippled Mr. Calmese's argument in
`his first appeal. The 4/27/09 cannot be stuck down this time.
`w. On July 7, 2014, Mr. Calmese also provided the District Court with a copy of Judge
`Brown's Order (Dkt 250) entered into evidence in (Dkt. 47-1, Pg.lD#:1036-1043),
`because it demonstrates Jude Brown made several errors in her rulings.
`
`X. Also see Mr. Calmese's so-called Response (#216) entered into evidence in (Doc. 47-1,
`Pg.ID#: 1045-1050), because a simple review of this document will reveal that Mr.
`Calmese's (#216) was misconstrued by Judge Brown because afler a reasonable mind
`reads (#216J, it will be conclusive that Mr. Calmese's Response was a response to
`adidas' response to the 8/10/10 Order and it could not possibly have been a response to
`the August 10, 2010 Order (#213).
`
`3) What did you asked the originating court to do?
`Mr. Calmese specifically asked the District Court to verify and address nearlv 10
`counts of fraud on the court and the multiple count of obstruction of justice, so
`many they haven't aII been counted yet. See Hazel-Atlas.
`
`Moreover, Mr. Calmese asked the originating court to urgently and finally verify
`th
`the April 27, 2007 email that was stricken from the 9 Circuit Court of Appeals
`
`record in Case No. 11-35053, a case tbat also included adidas' argument that the
`
`originating court in the adidas case correctly did not consider the PTO's previous
`
`9
`
`

`

`Case: 14-35569 08/14/2014 ID: 9207321 DktEntry: 2 Page: 16 of 46
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`rulings s due to the fact that the PTO's previous rulings were not a part of the
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`District Court record in the adidas v. Calmese Case.
`
`Further, Mr. Calmese asked the originating court to NOT allow Anna J. Brown to
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`deceive Mr. Calmese by willfully and maliciously misinforming Mr. Calmese
`about her knowledge of the PTO's previous rulings on October 1, 2010 in (#249),
`when we know for a fact Judge Brown did, in fact, have knowledge of the PTO's
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`previous ruling on August 30, 2010 in (#229).
`On August 28, 2013, Mr. Calmese respectfully asked the District Court for
`permission again to, ''to file an amended complaint pursuant to Rule 15, because
`it was McNamer's attorney who requested and advised Calmese to amend his
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`complaint in the first place. Again, see Chaney v. Fields Chevrolet, 264 Or 21,
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`503 P2d 1239 (1972)./'
`On October 21, 2013, at the Motion to Dismiss hearing Mr. Calmese, again,
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`specifically asked the District Court for permission to file a second amended
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`complaint after several written request went ignored and in response to Judge
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`Hubel's question concerning the PTO's pervious ruling at the hearing, Calmese
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`further asked the Court to construe his pleadings as to do substantial justice,
`referring to the PTO?s previous rulings. See 10/21/13 transcript from the hearing
`and Mr. Calmese's statement read at the 10/21 hearing in (Dkt 27,Pg.ID#:615).
`On April 11, 2014, in Mr, Calmese's Objections (Doc. 27), Mr, Calmese asked the
`originating court to verify alI of the facts in his pleadings and the District Court
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`admittedly failed to do so by only reviewing pertinent portions of Mr. Calmese's
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`objections de novo. April 11, 2014, is also the first time Mr. Calmese has ever
`claimed ''fraud on the court'' in either of Mr. Calmese cases with adidas or Mr.
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`McNamer who was adidas' former employee under a different name.
`On April 18, 2014, in Mr. Calmese's objection NOTICE respectfully and
`specifically asked the District Court to review de novo Judge Browns two Orders
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`and NOT allowing U.S. District Court Judge Brown to run from this truth by ruling
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`twice differently the PTO?s previous rulings in two separate orders. See (Doc. 28,
`Pg.ID#:617).
`g. On April 29, 2014, Mr. Calmese respectfully again specifically asked the District
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`Court for a de novo review of Judge Brown's Orders in (#229 and #249), the May
`24, 2007 Ietter and the U.S. Supreme Court's ruling in Dickinson v. Zurko. See
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`(Doc. 27, 28, 30).
`h. On May 2O, 2014, Mr. Calmese filed a Motion For Reconsideration with a
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`declaration and memorandum and asked the District Court, among other things,
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`to reconsider the May 6, 2014 Order (Doc. 31) and Judgment (Doc. 32), because
`Mr. McNamer in fact committed fraud on the court and ultimately because U.S.
`Supreme Court Iaw is the supreme Iaw of the Iand and the District Courts cannot
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`be allowed to deviate from it. See (Doc. Nos. 34, 35, 38). Also see Appellant's
`Affidavit supporting his argument for obstruction of justice in (Doc. 36).
`On May 28, 2014 the District Court issued manufactured excuse for why
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`Appellant's pleadings were missing for nearly 10 days and after Appellant
`complained on 5/22/14 in the Affidavit (Dkt 36).
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`On June 9, 2014, Mr. Calmese respectfully asked the District Court to find that
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`the Clerk of the Court was in violation of obstruction of justice. See (Dkt 42).
`Finally, on June 16, 2014, Mr. Calmese respectfully asked the District Court, in
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`(Dkt 44), to simply consider all of the ''agreeable evidence'', specifically the April
`27, 2009 email from Appellee which would ultimately conclude this matter in
`Appellant's favor because of the obvious fraud on the court. Perhaps this was
`th why the 9 Circuit Court struc k the April 27 2009 from its record at adidas'
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`,
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`request in Mr. calmese's firs appeal Case N0.11-35053.
`On July 7, 2014, Mr. Calmese would have asked the for another count of
`obstruction of justice be brought against the Oregon District Court Clerk of the
`Court for maliciously mutilating M r. Calmese's pleadings in (Dkt 6), making this
`pleading almost unreadable even though U.5. Magistrate Judge Dennis Hubel
`somehow found a way to grant Calmese the relief he was seeking in (Dkt 6). In
`any event, Appellee's attorney Johnathan Radmacher email Calmese on July 7,
`2014 and charged Mr. Calmese with contempt of court which prevented Mr.
`Calmese from wanting to file anymore pleadings in the face of Appellee's 7/7/14
`threat.
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`4) State the claim or claims you raised at the originating court.
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`On May 24, 2007, attorney for Calmese, Richard Gaxiola, declared that Calmese's position was
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`promulgated based on the PTO's previous rulings attached to the May 24, 2007 Ietter. Again,
`see letter (Doc. 1-1, Pg.ID#: 64-77) and finally in (Dkt 10-1, Page.lD#385-393). THIS claim has
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`never been reviewed by any Judge because it has been unfairly overlooked each and every time
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`a de novo review is conducted.Moreover, on April 27, 2009, while Appellee was keeping his
`former employment by adidas and name change a secret, Anthony McNamer lied to Calmese in
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`writing by willfully and wrongfully stating, '' it doesn't matter what the PTO did''. Again see this
`Iie in (Dkt 1-1, Pg.ID#:84), (Dkt 6, Pg.ID#: 275) and in (Dkt 10-2, Pg.ID#: 414). Moreover, adidas
`and the District Court then suppressed Mr. Calmese's forensic expert witness testimony by
`unreasonably requiring Mr. Calmese's forensic expert witness, the only expert witness of
`record, to jump on a plane and fIy to adidas chosen laboratory to conduct the forensic analysis
`in the face of opposition from the expert witness. Obviously, this did not happen because the
`District Court conspired and agreed with adidas to conceal the video evidence by establishing
`the unreasonable terms in (#213) from the adidas case, thus keeping the video evidence away
`from Mr. Calmese and his expert witness.Calmese feels he should legally still have access and
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`the opportunity to this video evidence that will in the end prove adidas did, in fact, commit
`fraud.6 As the ONLY fraud mentioned in the adidas case surrounded Mr. Calmese's forensic
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`expert witness testimony again because Mr. Calmese NEVER made a fraud on the court claim in
`the adidas case as the District Court in both cases falsely ruled Calmese had made such a claim
`in the adidas case. Furthermore, Mr. Calmese made multiple request to file a second amended
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`complaint and this Iegal request must not fall on deaf ears violating Mr. Calmese's right to
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`amend his complaint and fix this problem adidas and adidas' former employee Anthony
`thMcNamer have inflicted on the Oregon District Court and the 9 Circuit Court of Appeals for a
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`second time. ln the end, if the originating court would not have admittedly violated my rights
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`6Second Amended Complaint is necessary and was requested numerous times pursuant to Rule 15.
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`Case: 14-35569 08/14/2014 ID: 9207321 DktEntry: 2 Page: 20 of 46
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`with its so-called review of, ''pertinent portions of the record de novo'' in (Dkt 24), and if the
`originating court would have let Mr. Calmese file a second amended complaint then it is quite
`possible we would not be here today. On April 11, 2014 Mr. Calmese's filed bis Objections in
`(Dkt 27) and supplemented them in (Dkt Nos. 28, 30), as these objections clearly proved fraud
`and offered fraud on the court evidence for the first time ever and it was ignored and
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`overlooked. If it weren't for Appellee's clear and convincing April 27, 2009 email proving
`Anthony McNamer committed fraud on the court none of this would have happened. The
`originating court simply ignored alI of the relevant evidence in Mr, Calmese's initial Complaint
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`(Dkt 1), First Amended Complaint (Doc. 10) and in Mr. Calmese's Objections (Dkt 27, 28, and
`30). With aII due respect, also see aIl of the cases and statutes cited in Mr. Calmese's appeal
`because most if not aII of them were presented to the originating court which should have
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`ultimately Ied to a favorable ruling in Appellant's favor.
`
`s) What issues are you raising on appeal? What do you think the originating
`court did wrong?
`The originating court did NOT conduct a de novo review on ALL portions of Mr. Calmese's
`Objections on record with the District Court in (Dkt 27, 28 and 30). Therefore based on the
`issues below, Mr. Calmese's respectfully request a de novo review on aII of the evidence.
`The standard of review was critical to the outcome of Appellant's case in the adidas matter and
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`this McNamer Iawsuit. See Dicklbson v. Zurko, 527 U.S. 150, 152-61 (1999)(''The upshot in
`terms of judicial review is some practical difference in outcomes depending upon which
`standard is used.''),' see also Southwest Voter Registration Educpro v. Shelley, 344 F. 3d 914,
`tb 917 (9 Cir. 2003) (en bancllper curiam) (noting stan ar'' d d of review is important to our
`
`
`'' ' // v SEC 248 F.3d 907 914 (9th cir 2001) (noting deferentialresolution of this case ), Kru . .
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`,
`.
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`Case: 14-35569 08/14/2014 ID: 9207321 DktEntry: 2 Page: 21 of 46
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`standard of review ''constrains us, even if we migbt decide otherwise were it Ieft to our
`Borg. 982 F.2d 335 338 (9th cir 1992) (''The relevant?' independent judgment ); Payne z , .
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`
`
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`standards of review are critical to the outcome of this case.''); (&(T)he outcome of the instant
`case turns on the standard of