IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI CENTRAL DIVISION MARTIN LINDSTEDT, ) Plaintiff, ) ) v. ) No. 96-4262-CV-C-9 ) MISSOURI LIBERTARIAN ) PARTY, SECRETARY OF STATE ) REBECCA M. COOK and the ) STATE OF MISSOURI, et. al., ) Defendants. ) MOTION TO RECONSIDER ORDER OF APRIL 18, 1997 Comes now the Plaintiff, Martin Lindstedt, to ask this Court to vacate, change, or set aside portions of its ORDER of April 18, 1997 concerning joining additional defendants to the current lawsuit. Under Federal Rule of Civil Procedure 59 and 60, this Court has the authority to amend its Orders or to grant relief from its Orders upon reconsideration. Plaintiff Made 'Good Faith' Effort to Timely File Motions 1. Plaintiff served by mail additional joindered parties on March 14, 1997, which by the Feb. 28, 1997 Scheduling Order of this Court was the last day to file a motion to join additional parties. See Fed. R. Civ. Proc. 5 (b). As far as the newly joined defendant parties were concerned, they were properly and timely served. Plaintiff e-mailed a text copy of this service to those defendants who had known e-mail addresses. Defendants have not filed any response against Plaintiff in this matter. Plaintiff also obeyed F.R.Civ.P. Rule 6 provisions. 2. Rule 5 (d) Filing; Certificate of Service states that "All papers after the complaint required to be served upon a party, together with a certificate of service, shall be filed with the court within a reasonable time after service, . . ." (emphasis added by Plaintiff.) Plaintiff did not wait a "reasonable time," whatever that means, but mailed to this Court his motion at the very same time he served all the Defendants. Probably the very same mailbag was used to take all of Plaintiff's mailings of March 14, 1997 from the Granby, Missouri post office to the Springfield, Missouri main post office. 3. Plaintiff looks at Rule 5(e) -- Filing with the Court Defined. This rule says "The filing of papers with the Court as required by these rules shall be made by filing them with the clerk of the court, except that the judge may permit the papers to be filed with the judge, . . . . The clerk shall not refuse to accept for filing any paper presented for that purpose solely because it is not presented in proper form as required by these rules or practices." Plaintiff filed his March 14, 1997 motion with the Clerk of the Court in Jefferson City, and received back an extra copy (in a stamped, self-addressed envelope) file-stamped March 18, 1997. Plaintiff had no notion that his filing was untimely and thus prepared no excuse for his behavior. 4. There is a problem with any notion that just because the clerk of the courts does not receive a motion before a deadline that the motion is thus invalidated. The Rules make no mention of any such requirement. Plus there are delays due to the nature of the postal system itself. Plaintiff didn't receive a copy of this Court's order, signed by Judge Bartlett on April 18 in Kansas City, Missouri until six days later, on April 24, 1997. This Court's Order was mailed to Plaintiff from Jefferson City, Missouri. This leaves Plaintiff only 4 days to file a Rule 59 motion. There are also procedural delays in the court system itself which mitigate against any such interpretation. On Dec. 11, 1996, this Court ordered Plaintiff to re-file his complaint, after verification. Plaintiff verified, then mailed it to the Clerk in Jefferson City on Dec. 17, 1996. Plaintiff had the complaint returned by the clerk asking him why it should be filed if it was already present. Plaintiff had to re-send the verified complaint, along with an explanatory letter on Jan. 10, 1997. (Copy enclosed). Then the clerk accepted the resent complaint and filed it on January 14, 1997. This delay is really quite excellent service when Plaintiff compares it to papers sent to the Kansas City courthouse. In other cases, Plaintiff has had to resubmit papers ordered by another judge three to four times. Therefore, Plaintiff would argue against any interpretation that in order for papers to be considered "filed" that they must successfully run the gauntlet of postal service and court procedure. Also, Plaintiff lives quite a distance from Kansas City (160+ miles), Jefferson City (275+ miles) or Springfield (60+). It would cost quite a bit in gas money and travel on Plaintiff's limited means to physically place in clerk's hands his motions. Plaintiff doesn't own a car. Filing by postal service is cheaper and more convenient for Plaintiff. Nor do the Federal Rules of Civil Procedure mandate such extreme care by Plaintiff -- the opposite in fact. There Should Be No "Deadline" For Joining Additional Parties. 1. The Scheduling Order was derived as a result of negotiation between the Plaintiff and Defendants. Since Defendants have neglected to make a complaint as to when Plaintiff filed his motion joining them, then perhaps it is unwise for this Court to unilaterally protect their interests for them. 2. Plaintiff made known in October, 1996 to this Court and the State of Missouri Defendants that the Missouri Libertarian Party (MoLP) Defendants have been conspiring to violate Plaintiff's civil and political rights. Plaintiff initially wanted joining of additional defendants and amendment of pleadings to be past April of 1997, when Plaintiff figured that the crunch would come. But Plaintiff went along with Attorney Long's suggestion that joinder be in March. Plaintiff saw what was coming, so Plaintiff filed his joinder on March 14, 1997 so as to round up as many of the MoLP conspirators and gangsters as was possible within the deadline. Since the events of April 20, 1997, wherein MoLP members had Plaintiff arrested, then supposedly "kicked out" of the Missouri Libertarian Party (in defiance of MoLP constitution and bylaws, Revised Statutes of Missouri and state court case law) it will be necessary to join some additional defendants as these miscreants are identified and they commit new crimes against Plaintiff. 3. Federal Rule of Civil Procedure Rule 17 says "Every action shall be prosecuted in the name of the real party in the interest." Every single one of the defendants joined is a party in the interest. Corporate defendant Missouri Libertarian Party has no hands, will or capability in and of itself to harm Plaintiff or violate his rights. It is the "Libertarian" party members who have harmed Plaintiff. Therefore these defendants Plaintiff attempted to join and the new ones Plaintiff must join who are real parties in this matter. "No action shall be dismissed on the ground that it was not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection for ratification of commencement of the action by, or joinder or substitution of, the real party in interest; and such ratification, joinder, or substitution shall have the same effect as if the action had been commenced in the name of the real party in interest." Rule 17(a). Since individual and corporate defendants are real parties of interest they should be joined as well as the original defendants in Plaintiff's complaint back on July 22, 1996. To do this, this Court should reconsider its Order of April 18, 1997. 4. F.R.Civ.P. Rule 18: "A party asserting a claim to relief as an original claim, counter-claim, cross-claim, or third- party claim, may join, either as independent or as alternate claims, as many claims, legal, equitable, or maritime, as the party has against an opposing party." This Court may well worry that if Plaintiff is suing "approximately 38 defendants" that things might degenerate into a circus, F.R.Civ.P. 18's allowance of such notwithstanding. But Plaintiff would remind this Court that there is considerable overlap among the joindered MoLP Defendants. Also, any civil convictions against the corporate defendant MoLP would apply in the same manner against joindered individual Defendants. Plaintiff cannot foresee any more State of Missouri Defendants being joined to this action. 5. F.R.Civ.P 19(a) title says that "Persons to be Joined in Feasible." Additional Defendants of March 14, 1997 do need to be joined because it is feasible. (1) Complete relief of Plaintiff's complaint cannot be accorded with present allowable MoLP defendants. (2)(i) As a practical matter, Plaintiff cannot do his duties as a public elected officer representing his MoLP districts absent an ability to protect those interests of himself and his electors if forestalled by an ability to gain due process of law in this matter. 6. F.R.Civ.P. 21 states: "Misjoinder of parties is not ground for dismissal of an action. Parties may be dropped or added by order of the court on motion of any party or of its own initiative at any stage of the action and on such terms as are just. Any claim against a party may be severed and proceeded with separately." (Emphasis Plaintiff's) Therefore the Scheduling Order is more of a guideline rather than something written in stone acting contrary to the interests of justice. Rather than write up a whole new set of motions, Plaintiff would prefer to wrap up most of this matter by asking this Court to reconsider its Order of April 18, 1997. Plaintiff understands that if this Court chooses to sever and proceed with the individual MoLP defendants separately, that it can do so, but Plaintiff wishes for this matter to proceed without the need for separate trial of several defendants. 7. Due to this Court's Order of April 18, 1997 and this, Plaintiff's Motion to Reconsider, the Scheduling Order's demand that Amendment of Pleadings on or by April 30, 1997 will have to be delayed since the question of joinder of which particular defendants is now up in the air and must be sorted out. Therefore, Plaintiff requests a continuance of the deadline for amendment of pleadings past April 30, 1997. 8. This Court and Plaintiff are the interested parties in this Motion to Reconsider of Plaintiff's. However, Plaintiff will send a copy of this motion to the lawyers for the present defendants anyway. Wherefore, based upon a matter of law and of fact, Plaintiff asks this Court to reconsider, set-aside, vacate, or modify its present Order of April 18, 1997 and allow Plaintiff to joinder the MoLP defendants of March 14, 1997; plus whatever other relief is necessary and just. Respectfully submitted, -s- __________________________ Martin Lindstedt, Plaintiff Certificate of Service One copy of the foregoing was mailed April 28, 1997 to: Attorney Mark E. Long, c/o The Missouri Attorney General's Office, as counsel for Defendants Secretary of State Rebecca M. Cook and State of Missouri, Box 899, Jefferson City, Missouri 65102. One copy of the foregoing was mailed April 28, 1997 to: Lawyer Mitchell J. Moore for the Defendant Missouri Libertarian Party, 1210 West Broadway, Columbia, Missouri 65203
Commentary: Judge Bartlett's Order of April 18, 1997 violated several Federal Rules of Civil Procedure. Independent of his Order, even if upheld, I can proceed to joinder and sue as many AnarchyFascists as defendants as I please.
Federal Rule of Civil Procedure 60 gives me up to a year. But I had to file it under Rule 59 within 10 days in order to stop the clock. Now if he rules for me by overruling his decision rather than wait for me to get around it by refiling in total or in part against the AnarchyFascists, then fine. If not, then when he refuses to overrule his decision, it will go up to the 8th Circuit, which will rule against him because the F.R.Civ.P. is against him, and so is the case law. Either way, now the clock has been stopped by my timely filing the above motion.
No judge likes being made to eat his own shit decisions. I did the same thing against Judge Whipple and that particular snake has been sulking ever since. However, rather than have the judges on the 8th Circuit rub his nose in his own mess, most judges prefer to reconsider their more foolish and hasty decisions.
However most judges hate getting caught out. It is human nature, especially when you are a demi-god on the federal bench. You would hate being caught out by a non-lawyer to boot. However, I hope Judge Bartlett is made out of sterner stuff, and will not hold the above motion against me. After all, I had to forestall his Order of April 18, 1997.
One thing to note: The NSDAMoLP-PP is firmly on the hook. And, when the Order of April 18, 1997 is reconsidered, the AnarchyFascist Defendants will be caught as well. After all, they neglected to make an argument against joinder. LawyerMore was too stupid and arrogant to file one in a timely matter.
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