UNITED STATES CIRCUIT COURT OF APPEALS FOR THE EIGHTH CIRCUIT

______________________________________________________________________

Docket No. 08−03115 (8th Cir.) Appeal from

W.D. of Missouri Case No. 07-0849-CV-W-FJG W.D. of Missouri Case No. 06-0573-CV-W-FJG

Jackson County Missouri 16th Circuit Court, Case No. 0616−cv−07421 ______________________________________________________________________

SAMUEL K. LIPARI

(Individually and as Assignee of Dissolved Medical Supply Chain, Inc.)

Appellant

GENERAL ELECTRIC COMPANY, GENERAL ELECTRIC

CAPITAL BUSINESS ASSET FUNDING CORPORATION, GE TRANSPORTATION SYSTEMS GLOBAL SIGNALING, LLC,

JEFFREY R. IMMELT, SEYFARTH SHAW LLP, STUART FOSTER, HEARTLAND FINANCIAL GROUP, INC., CHRISTOPHER M.

MCDANIEL, BRADLEY J. SCHLOZMAN

Appellees ______________________________________________________________________

Appeal from the United States District Court

for the Western District of Missouri Hon. Judge Fernando J. Gaitan, Jr. presiding

______________________________________________________________________

OPENING BRIEF OF THE APPELLANT ______________________________________________________________________

Brief Prepared by Samuel K. Lipari

3520 NE Akin Blvd., #918 Lee's Summit, MO 64064 816-365-1306 saml@medicalsupplychain.com Pro se

Oral argument requested.

i

CORPORATE DISCLOSURE STATEMENT UNDER F.R.A.P. 26

The appellant is not a corporation but instead is a sole proprietor of a hospital

supply business and the assignee of all rights of the dissolved Missouri corporation

Medical Supply Chain, Inc. which had no parent companies, subsidiaries, or

affiliates that issued shares to the public.

TABLE OF CONTENTS

Table Of Authorities ii Corporate Disclosure Statement Under F.R.A.P. 26 i Oral Argument Statement Under F.R.A.P. 34(A)(1) 1 Prior Or Related Appeals 1 Certificate Of Appellate Jurisdiction 6 Statement Of The Issues 7

Statement Of The Case 7 Statement Of Facts 10 I. Whether The Trial Court Erred By Failing In Dismissing Lipari’s RICO Claims for Lack of Injury to a Recognizable Business Property Interest 19 II. Whether The Trial Court Erred By Denying Amendment 35 III. Whether The Trial Court Erred By Failing to Recuse Itself Over Directorship In Party in Interest And Concurrent Defendant St. Luke’s Health System 39 Prayer For Relief 47 Certificate Of Compliance 49 Certification Of Digital Submissions 49

ii

Addendum 51 Attachment 1, Memorandum And Order Of Dismissal 52 Attachment 2, Order Denying Reconsideration 62 Attachment 3, Amended Notice Of Appeal 69 Certificate Of Service 71

TABLE OF AUTHORITIES Cases

Table of Cases A/S Ludwig Mowinckles Rederi v. Tidewater Construction Corp., 559 F.2d 928, (2d Cir.1977) 23 Alexander Grant and Co. v. Tiffany Industries, Inc., 770 F.2d 717 (C.A.8 (Mo.), 1985) 29 American Fed. Teachers v. Oregon Taxpayers, 189 P.3d 9 (Or., 2008) 33 Armstrong v. Alabama Power Co., 667 F.2d 1385(11th Cir.1982) 23 Beck v. Prupis, 529 U.S. 494, 120 S.Ct. 1608, 146 L.Ed.2d 561 (2000) 20 Becker v. Univ. of Neb. at Omaha, 191 F.3d 904 (8th Cir.1999) 35 Bennett v. Berg, 685 F.2d 1053 (8th Cir.1982) 18 Bennett v. Berg, 685 F.2d 1053 (8th Cir.1982) 37 Bennett v. Berg, 685 F.2d 1053 (C.A.8 (Mo.), 1981) 29 Bennett v. Berg, 685 F.2d 1053 (C.A.8 (Mo.), 1981) 30 Bennett v. Berg, 685 F.2d 1053 (C.A.8 (Mo.), 1981) 34

iii

Bennett v. Berg, 685 F.2d 1053 at 1058 (C.A.8 (Mo.), 1981) 39 Bennett v. Berg, 710 F.2d 1361 (C.A.8 (Mo.), 1983) 29 Berg v. First State Ins. Co., 915 F.2d 460 (9th Cir.1990) 24 Bowman v. Western Auto Supply Co., 773 F.Supp. 174 (W.D. Mo., 1991) 29 Bowman v. Western Auto Supply Co., 773 F.Supp. 174 (W.D. Mo., 1991) 34 Bowman v. Western Auto Supply Co., 985 F.2d 383 (8th Cir.) 31 Bridge v. Phoenix Bond & Indemnity Co., No. 07-210 (U.S. 6/9/2008) 33 Bridge v. Phoenix Bond & Indemnity Co., No. 07-210 (U.S. 6/9/2008) 34 Bridge v. Phoenix Bond & Indemnity Co., No. 07-210 (U.S. 6/9/2008) 39 Bridge v. Phoenix Bond & Indemnity Company, __ U.S. __, 128 S. Ct. 2131, 170 L. Ed. 1012 (2008) 32 Brokaw v Mercer County, Brokaw et al (7th Cir., 2000) 45 Chaz Concrete Company, LLC v. Codell, No. 07-5870 (6th Cir. 10/21/2008) 33 De Lauder v. Balto. Co., 95 Md. 1, 6, 50 Atl. 427 26 Deck v. Engineered Laminates, 349 F.3d 1253 (10th Cir., 2003) 22 Della Penna v. Toyota Motor Sales, U.S.A., Inc., 11 Cal.4th 376, 45 Cal.Rptr.2d 436, 902 P.2d 740 (1995) 25 Diaz v. Gates, 420 F.3d 897 (Fed. 9th Cir., 2005) 24 Diaz v. Gates, 420 F.3d 897 (Fed. 9th Cir., 2005) 25 Doe v. Cassel, 403 F.3d 986 (8th Cir., 2005) 35 Doe v. Roe, 958 F.2d 763 (7th Cir. 1992) 20 Gagan v. American Cablevision, Inc., 77 F.3d 951 (7th Cir.1996) 20 Glass v. Pfeffer, 849 F.2d 1261 (C.A.10 (Kan.), 1988) 45

iv

Handeen v. Lemaire, 112 F.3d 1339 (C.A.8 (Minn.), 1997) 31 Heller v. Lutz, 254 Mo. 704, 164 S.W. 123 (Mo., 1913) 26 Hishon v. King & Spalding, 467 U. S. 69 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984) 20 Holmes v. Securities Investor Protection Corp., 503 U.S. 258, 112 S.Ct. 1311, 117 L.Ed.2d 532 (1992) 31 Kansas Public Employees Retirement System, In re, 85 F.3d 1353 (C.A.8 (Mo.), 1996) 44 Kulinski v. Medtronic Bio-Medicus, Inc., 112 F.3d 368 (8th Cir. 1997) 19 Lally v. Crawford County Trust & Sav. Bank, 863 F.2d 612 (8th Cir.1988) 32 Ledford v. Sullivan, 105 F.3d 354 (7th Cir.1997) 21 Lerner v. Fleet Bank, 318 F.3d 113 (2d Cir. 2003) 20 Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 108 S.Ct. 2194, 100 L.Ed.2d 855 (1988) 41 Lincoln House, Inc. v. Dupre, 903 F.2d 845 (1st Cir.1990) 23 Lincoln House, Inc. v. Dupre, 903 F.2d 845 (1st Cir.1990) 22 Little Rock School District v. Armstrong, No. 02-3867EA (8th Cir., 2004) 40 Logan v. Zimmerman Brush Co., 455 U.S. 422, 102 S.Ct. 1148, 71 L.Ed.2d 265 (1982) 22 Malley-Duff & Assocs., Inc. v. Crown Life Ins. Co., 792 F.2d 341, 354 (3d Cir.1986) 22 Martinez v. Winner, 771 F.2d 424 (C.A.10 (Colo.), 1985) 14 Martinez v. Winner, 771 F.2d 424 (C.A.10 (Colo.), 1985) 42 Martinez v. Winner, 778 F.2d 553 (10th Cir.1985) 42 McPherson v. U.S. Physicians Mut., 99 S.W.3d 462 (Mo. App., 2003) 41 Moran v. Clarke , 296 F.3d 638 (8th Cir. 2002) 39

v

Moran v. Clarke, 2002 C08 802 (USCA8, 2002) 43

Moran v. Clarke, 2002 C08 802 at 57-58 (USCA8, 2002) 47 Moses.Com Sec. v. Comprehensive Software, 406 F.3d 1052 (Fed. 8th Cir., 2005) 35 Motorola Credit Corp. v. Uzan, 322 F.3d 130 (2d Cir.2003) 22 Motorola Credit Corp. v. Uzan, 322 F.3d 130 (2d Cir.2003) 34 Nagle v. Merrill Lynch, Pierce, Fenner & Smith, 790 F.Supp. 203 at 210 (S.D. Iowa, 1992) 18 National Organization for Women, Inc. v. Scheidler, 510 U. S. 249 (1994) 19 National Organization for Women, Inc. v. Scheidler, 510 U. S. 249 (1994) 34 Natl. Telegraph News Co. v. W. U. Telegraph Co., 119 Fed. 294, 56 C. C. A. 198, 60 L. R. A. 805 26 Reeves v. Hanlon, 33 Cal.4th 1140, 17 Cal.Rptr.3d 289, 95 P.3d 513, 517 (2004) 25 Regions Bank v. J.R. Oil Co., LLC, 387 F.3d 721 (8th Cir., 2004) 29 Rhoades v. Avon Prods., Inc., 504 F.3d 1151 (9th Cir. 2007) 45 Riddle v. Dean Machinery Co., 564 S.W.2d 238 (Mo.App.1978) 26 Schaller Tel. Co. v. Golden Sky Sys., 298 F.3d 736 (8th Cir.2002) 35 Scheidler v. National Org. for Women, Inc., 537 U.S. 393, 123 S.Ct. 1057, 154 L.Ed.2d 991 (2003) 28 Scheidler v. National Organization for Women, Inc., 537 U.S. 393 (2003) 20 Scheidler v. National Organization for Women, Inc., 537 U.S. 393 (2003) 21 Scott v. U.S., 559 A.2d 745 (DC, 1989) 44 Sedima, S. P. R. L. v. Imrex Co., 473 U. S. 479, 481 (1985) 34

vi

Shaw v. Greathouse, 296 S.W.2d 151 at 153 (Mo. App., 1956) 26 Simmons Hardware Co. v. Waibel, 1 S. D. 488, 47 N. W. 814, 11 L. R. A. 267, 36 Am. St. Rep. 755 26 Slingerland v. Inter. Contr. Co., 43 App. Div. 215, 230, 60 N. Y. Supp. 12, affirmed 169 N. Y. 60, 61 N. E. 995, 56 L. R. A. 494 26 St. Louis Fire Fighters Ass'n v. City of St. Louis, 96 F.3d 323, 330 (8th Cir.1996) 35 Terra Nova Insurance Co. Ltd. v. Distefano, 663 F.Supp. 809 (D.R.I.1987) 23 Terra Nova Insurance Co. Ltd. v. Distefano, 663 F.Supp. 809 (D.R.I.1987) 24 Terre Du Lac Ass'n, Inc. v. Terre Du Lac, Inc., 772 F.2d 467 (C.A.8 (Mo.), 1985) 31 Tri-State Financial, LLC v. Lovald, No. 07-2430 (8th Cir., 2008) 43

Tyus v. Martinez, 475 U.S. 1138, 106 S.Ct. 1787, 90 L.Ed.2d 333 (1986) 42 U.S. v. Antico, 275 F.3d 245 (3rd Cir., 2001) 27 U.S. v. Antico, 275 F.3d 245 at 256 (3rd Cir., 2001) 17 U.S. v. Antico, 275 F.3d 245 at 261 (3rd Cir., 2001) 27 U.S. v. Gotti, 459 F.3d 296 (2nd Cir., 2006) 28 U.S. v. Gotti, 459 F.3d 296 (2nd Cir., 2006) 27 U.S. v. Kelley, 461 F.3d 817 (6th Cir., 2006) 17 U.S. v. Tucker, 82 F.3d 1423 (C.A.8 (Ark.), 1996) 41 U.S. v. Whitman, 209 F.3d 619 (6th Cir., 2000) 14 United Mine Workers v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 1138, 16 L.Ed.2d 218 (1966) 6 United States v. Diaz, 189 F.3d 1239 (10th Cir. 1999) 42

vii

United States v. Gallo, 763 F.2d 1504 (6th Cir. 1985) 44 United States v. Martinez, 667 F.2d 886 (10th Cir.1981) 42 United States v. Martinez, 667 F.2d 886 (10th Cir.1981) 14 United States v. Nardello, 393 U.S. 286, 89 S.Ct. 534, 21 L.Ed.2d 487 (1969) 21 United States v. Rybicki, 354 F.3d 124 (2d Cir.2003) 27 United States v. Sawyer, 85 F.3d 713, (1st Cir. 1996) 27 United States v. Woodward, 149 F.3d 46 (1st Cir. 1998) 27 Volume Services, Inc. v. C.F. Murphy & Associates, Inc., 656 S.W.2d 785 (Mo. App.W.D., 1983) 26 Walker v. Daly, 80 Wis. 222, 49 N. W. 812 26 Western Auto Supply Co. v. Gamble-Skogmo, Inc., 348 F.2d 736(C.A.8 (Minn.), 1965) 25 Statutes 18 USC § 1961 et seq pg. 9 18 U.S.C. Secs. 1961-1968 (RICO) pg. 7 18 USC § 1961 (1)(B) pg. 21, 32, 34 18 § 1962(c) pg. 21 1341 pg. 21 1343 pg. 21 1503 pg. 21 1951 pg. 21 18 USC § 1964 pg. 21

viii

18 U.S.C. Sec. 1964(a) pg. 7 Treatises Restatement (Second) of Torts § 766A 25 Restatement (Second) of Torts § 766B 25

1

ORAL ARGUMENT STATEMENT UNDER F.R.A.P. 34(a)(1)

The appellant believes oral argument will greatly aid the court because of

the volumous record despite the absence of discovery or evidence being accepted

for trial.

PRIOR OR RELATED APPEALS AND LITIGATION

Medical Supply Chain, Inc. v. US Bancorp, NA, et al, case no. 02-2539-CM

(“Medical Supply I”) Case 2:05-cv-02299-CM-GLR, Hon. Judge Carlos Murguia,

( All federal claims dismissed, state claims expressly dismissed without prejudice.

No discovery or evidentiary hearings. Medical Supply’s counsel admonished for

failing to research facts or law, including asserting an express private right of

action under the USA PATRIOT Act exists.)

Medical Supply Chain, Inc. v. US Bancorp, NA, et al, 112 Fed. Appx. 730

(10th Cir. 2004) Hon. Judge John C. Porfilio; Hon. Judge Michael W. McConnell;

Hon. Judge William J. Holloway (Medical Supply’s counsel sanctioned by Clerk

of the Court Patrick J. Fisher, Jr. for double attorney’s fees and costs $23, 956.00

for asserting the existence of an express private right of action under the USA

PATRIOT Act and asserting co-conspirators identified in the complaint need not

be named defendants.)

Medical Supply Chain, Inc. v. General Electric Company, et al., KS Dist.

case no. 03-2324-CM (“Medical Supply II”) Hon. Judge Carlos Murguia, (All

federal claims dismissed, state claims expressly dismissed without prejudice. No

2

discovery or evidentiary hearings. Medical Supply’s counsel admonished for

failing to research facts or law including asserting that co-conspirators identified

in the complaint need not be named defendants.)

Medical Supply Chain, Inc. v. General Electric Company, et al. 144 Fed.

Appx. 708 (10th Cir. 2005) Hon. Judge Carlos F. Lucero; Hon. Judge John C.

Porfilio; Hon. Judge Bobby R. Baldock (Trial court overturned for ruling against

sanctions based on merits of state contract claims.)

Medical Supply Chain, Inc. v. Neoforma et al., KS Dist. Court Case No.:

05-2299. Hon. Judge Carlos Murguia, ( All federal claims dismissed, state claims

expressly dismissed without prejudice. No discovery or evidentiary hearings.)

In re Landrith, 124 P.3d 467, 485-86 (Kan. 2005) ( Medical Supply’s

counsel disbarred for taking the African American civil rights plaintiff’s claims in

Bolden v. City of Topeka, Kan., 441 F.3d 1129 (10th Cir., 2006) to federal court

and for representation James Bolden’s witness American Indian David Price.)

In the Matter of Bret D. Landrith, Kansas District Court reciprocal

disbarment action continued at request of the respondent until Bolden v. City of

Topeka, Kan., 441 F.3d 1129 (10th Cir., 2006) and Medical Supply Chain, Inc. v.

Neoforma et al KS Dist. Court Case No.: 05-2299 were decided. The Kansas

District court reciprocally disbarred Bret D. Landrith after the trial court of Hon.

Judge Carlos Murguia ordered dismissal and sanctions in Medical Supply Chain,

Inc. v. Neoforma et al, KS Dist. Court Case No.: 05-2299 without waiting for the

Tenth Circuit decision in Bolden v. City of Topeka, Kan., 441 F.3d 1129.

3

Medical Supply Chain, Inc. v. Neoforma et al., Case No. 06-3331 (10th Cir.

2007) Hon. Judge Harris L. Hartz; Hon. Judge Wade Brorby; Hon. Judge Timothy

M. Tymkovich, dismissed for untimely notice of appeal.

Medical Supply Chain, Inc. v. Neoforma et al., Case No. 08-3187 (10th Cir.

2008) an appeal from Medical Supply Chain, Inc. v. Neoforma et al., KS Dist.

Court Case No. 05-2299 over denial of a Rule 60b Motion based on change of law

and prospective impact of related litigation currently before the appellate court.

Samuel Lipari v. General Electric Company, et al., 16th Cir Mo. Case no.

0616-CV07421. Hon. Judge Michael W. Manners ( Defendant’s Motion for

Dismissal overruled, then removed to W.D. of Missouri by defendants.)

In Re Samuel K. Lipari, Case No. 06-3546 ( Petition for Writ of Mandamus

to require remanding of Samuel Lipari v. General Electric Company, et al.

Denied), (8th Cir. 2006).

Samuel Lipari v. General Electric Company, et al. W.D. MO. Case no. 06-

0573-CV-W-FJG Remanded for lack of federal jurisdiction.

Samuel Lipari v. US Bancorp, NA, et al, 16th Cir Mo. Case no. 0616-

CV32307. Hon. Judge Michael W. Manners (Defendants removed to W.D. of

Missouri asserting diversity.)

Ex Rel Samuel Lipari, v. Hon. Michael Manners WD of Missouri Court of

Appeals Case no. 68703, ( Petition for Writ of Mandamus to require discovery be

granted in Samuel Lipari v. General Electric et al, 16th Cir Mo. Case no. 0616-

CV32307. Denied.)

4

Ex Rel Samuel Lipari, v. Hon. Michael Manners, Mo. Sup. Ct. Case no.

SC88756, ( Petition for Writ of Mandamus to require discovery be granted in

Samuel Lipari v. US Bancorp, NA, et al, 16th Cir Mo. Case no. 0616-CV32307.

Denied.)

Scott Eckersley v Matthew Roy Blunt et al, 16th Cir. Case no. 0816-

CV00118, Hon. Judge Michael W. Manners ( Defamation and, wrongful attorney

disbarment and wrongful termination case by state attorney author of memo

requiring Missouri to retain emails including email related to defendants’ Insure

Missouri scheme to replace Medicaid. )

Ex rel Matthew R Blunt,et al, v. Hon. Michael Manners, Mo. Sup. Ct. Case

no. SC88756 ( Petition for Writ of Mandamus to require order dividing action to

be withdrawn. Granted.)

Samuel Lipari v. US Bancorp, NA, et al, United States District Court,

Western District of Missouri Case No. 06-1012-CV-W-FJG. Hon. Judge Fernando

J. Gaitan, Jr. (Plaintiff’s petition for remand due to lack of diversity

when the same claims were filed under supplementary jurisdiction in Medical

Supply Chain, Inc. v. Neoforma et al, W.Dist. of MO Case No. 05-0210- CV-W-

ODS which are now Medical Supply Chain, Inc. v. Neoforma et al, KS Dist.

Court Case No.: 05-2299. Hon. Judge Carlos Murguia overruled by Hon. Judge

Fernando J. Gaitan, Jr. )

Rochester v. C.R. Bard, Inc., Tyco International Inc., Tyco Healthcare

Group LP, Novation LLC, VHA Inc., Premier and Premier Purchasing. United

5

States District Court, Eastern District of Texas Civil Action No. 304 CV 060, ( A

lawsuit brought by hospital supply manufacturer Rochester. C.R. Bard settled for

$49 million dollars. Premier has been dismissed from the antitrust claim in an

agreement to pay Rochester $8.8 million dollars. )

United States v. General Electric Company, No. CV-96-121-M-CCL (D.

Mont. Filed Aug. 1, 1996) Settlement to alleviate some of the competitive

concerns by eliminating agreements that prevented numerous hospitals around the

country from competing with GE.

United States v. General Electric Company, and InnoServ Technologies,

Inc., Dist of Columbia Case No. 1:98cv01744 RCL. (Filed: July 14, 1998)

Consent decree requiring divestiture of the PREVU diagnostic package to improve

compete in the markets for servicing individual pieces of imaging equipment and

providing multi-vendor service.

USA et al Cynthia Fitzgerald v. Novation LLC et al, N. Dist. of TX Case

No. 03-01589, Hon. Judge David C Godbey. Unsealed with the evidence

supporting the plaintiff-appellant’s antitrust allegations against Novation LLC in

Medical Supply Chain, Inc. v. Neoforma et al., KS Dist. Court Case No.: 05-2299.

USA ex rel. Michael W Lynch v. Seyfarth Shaw, et al W.D. MO Court Case

No. 06-00316, Hon. Judge Scott O. Wright, Unsealed with the evidence

supporting the plaintiff-appellant’s current complaint’s allegations of, tortuous

interference with the General Electric real estate contract, extrajudicial

6

racketeering conduct and extrinsic fraud to keep the plaintiff-appellant out of the

market for hospital supplies.

Samuel Lipari v. US Bancorp, NA, et al. 8th Circuit Court of Appeals, 08-

03087. ( An appeal over the denial of remand and transfer of Samuel Lipari v. US

Bancorp, NA, et al. W.D. of Mo. Case no. 06-cv-01012 Hon. Judge Fernando J.

Gaitan, Jr. to Kansas District Court where it continued as Lipari v. US Bancorp,

NA, et al. KS. Dist. Court. No. 07-cv- 02146 Hon. Judge Carlos Murguia after the

Kansas District Court partially dismissed the plaintiff’s claims.)

Samuel Lipari v. US Bancorp, NA, et al. 8th Circuit Court of Appeals, 08-

03087. Dismissed as premature.

CERTIFICATE OF APPELLATE JURISDICTION

The plaintiff-appellant appeals from the court’s 07/30/2008 (Doc. 59)

Order after the plaintiff-appellant filed a Rule 59 motion on 08/04/2008 (Doc. 61)

to Alter or Amend Judgment, then the plaintiff-appellant filed a 09/12/2008 (Doc.

70) Notice of Appeal. On 10/31/2008 in Document 76 the court made an order

denying plaintiff-appelant's motion to alter or amend the judgment. On 11/03/2008

77 the plaintiff-appellant filed an amended notice of appeal.

This court has federal question jurisdiction over racketeering violations of

the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. Secs. 1961-

1968 (RICO). Jurisdiction is expressly provided by Congress under 18 U.S.C. Sec.

1964(a), which provides in part that "[t]he district courts of the United States shall

7

have jurisdiction to prevent and restrain violations of section 1962 [listing

prohibited racketeering activities] of this chapter by issuing appropriate orders."

This court has pendent claim jurisdiction over the plaintiff-appellant’s

nonfederal claims. United Mine Workers v. Gibbs, 383 U.S. 715, 725, 86 S.Ct.

1130, 1138, 16 L.Ed.2d 218 (1966).

STATEMENT OF THE ISSUES

I. Whether The Trial Court Erred By Failing In Dismissing Lipari’s RICO Claims for Lack of Injury to a Recognizable Business Property Interest.

II. Whether The Trial Court Erred By Denying Amendment III. Whether The Trial Court Erred By Failing to Recuse Itself Over

Directorship In Party in Interest And Concurrent Defendant St. Luke’s Health System

STATEMENT OF THE CASE

The plaintiff-appellant brought federal antitrust and state contract law based

claims in Kansas District Court against the General Electric defendants for

participating with identified but uncharged co-conspirators to keep the plaintiff-

appellant an electronic medical supply distributor from competing in the market

for hospital supplies with an advanced cost saving procurement technology and

web based supply marketplace. The case was styled Medical Supply Chain, Inc. v.

General Electric Company, et al., KS Dist. case no. 03-2324-CM.

The federal antitrust claims were dismissed with prejudice and the state

claims expressly dismissed without prejudice by the Kansas District court. The

8

plaintiff-appellant has not yet brought additional federal antitrust claims for the

defendants’ continued anticompetitive conduct, however the state contract claims

were filed in Missouri as Lipari v. General Electric, et al 16th Cir. Court State of

Missouri Case No. 0616-CV07421 and withstood dismissal in the 16th Circuit

Missouri court.

The General Electric defendants then responded by having the claims

removed to federal court on 07/14/2006 where they were styled Lipari v. General

Electric, et al W.D. of Missouri Case No. 06-00573 and assigned to Hon. Judge

Fernando J. Gaitan, Jr. The plaintiff filed a timely motion to remand the claims

based on the facial untimeliness of the removal. The district court however

continued to conduct proceedings without addressing the motion to remand so

the plaintiff-appellant filed In Re Samuel K. Lipari, Case No. 06-3546 (Supp.

Apdx. Vol. Three pg. 403 ) a Petition for Writ of Mandamus to require remanding

the Western District action to state court.

The petition was denied but the plaintiff-appellant discovered Hon. Judge

Fernando J. Gaitan, Jr. was a director of a defendant hospital supply cartel

member. The plaintiff-appellant filed a motion for a new trial on the mandamus

with evidence of the directorship and a § 455 recusal motion in Western District

court. The new trial was denied by this court on 11/20/2006. However Hon.

Judge Fernando J. Gaitan, Jr. granted the remand of W.D. of Missouri Case No.

06-00573 on 11/29/2006 but in the same order determined the plaintiff-

appellant’s § 455 recusal motion was moot.

9

The remanded action was reopened under the same styling Lipari v.

General Electric, et al. 16th Cir. Court State of Missouri Case No. 0616-

CV07421. When the plaintiff-appellant continued to experience extrajudicial

conduct by the defendants and non-defendant Kansas State officials to prevent

entry into the national hospital supply market and to prevent the plaintiff-appellant

from enforcing or otherwise obtaining the benefits of his bargains and contracts to

enter into the hospital supply market or even to enforce the 16th Circuit Missouri

court pretrial order, the plaintiff-appellant petitioned the state court to add 18 USC

§ 1961 et seq. (“RICO”) claims. The General Electric defendants motioned to have

the RICO claims dismissed on standing and for failure to state a claim but the state

court overruled the motion to dismiss the RICO claims. The General Electric

defendants then caused the action to be removed for a second time to the Western

District of Missouri Court where it was given a new case number and styled Lipari

v. General Electric, et al W.D. of Missouri Case No. 07-0869 and reassigned to

Hon. Judge Fernando J. Gaitan, Jr. who was then Chief Judge of the Western

District of Missouri. The defendants then filed a motion to dismiss the RICO

claims which was upheld by Hon. Judge Fernando J. Gaitan, Jr.

The plaintiff-appellant filed a timely Rule 59(e) Motion solely on the basis

of clear error regarding the legal pleading standard for asserting injury to business

property under RICO and the failure of the trial judge to rule on the § 455 recusal

motion. The trial judge ruled denying the Rule 59(e) Motion and stated findings

inconsistent or without knowledge of the earlier removal, the case the § 455

recusal motion was filed in or the business property injuries pled in the complaint

10

as procedural history and as averments in support of the RICO extortion, mail and

wire fraud alleged.

The plaintiff-appellant filed an amended notice of appeal to include the

Rule 59(e) order.

STATEMENT OF FACTS

1. Hon. Judge Feranado J. Gaitan, Jr. is or was during the subject time period of

the plaintiff’s complaint a Director of St. Luke’s Health System, Inc. See Motion

to Recuse exb. 2 Supp. Apdx. Vol. Three Pg. 1053, also Pltf Mtn to Alter or

Amend Judgment Doc. 61 filed. 08/04/2008 that contained the recusal exhibits, 1,

1-1 and 1-2.

2. This case was in this court previously and styled Lipari v. General Electric et

al, Case No. 06-0573- CV-W-FJG. See Appearance Dockets Supp. Apdx. Vol.

One pgs. 24-28, also Vol. One pg. 17 (removed to federal court on 7-17-06.

3. The Clerk of the Western District of Missouri did not note the transfer of the

record of Lipari v. General Electric, et al 16th Cir. Court State of Missouri Case

No. 0616-CV07421 which contained the record of the removal and remand of

Lipari v. General Electric et al, Case No. 06-0573- CV-W-FJG. See Supp. Apdx.

Vol. One Pg. 1-13 (docket of 07-0869) and Vol. One Pg. 1-13, 17-18 (docket of

0616-CV07421).

4. The plaintiff’s current complaint prior to amendment at ¶¶ 78-80 (Supp. Apdx.

Vol. Two pg. 193 )identified Neoforma, Inc. a direct competitor of the plaintiff’s

and at ¶¶ 34-43 (Supp. Apdx. Vol. Two pgs. 185-187 ) owned by VHA and

11

Novation LLC and therefore St. Luke’s Health System, Inc. according to the

published statement of St. Luke’s Health System, Inc. See Motion to Recuse exb.

1 Supp. Apdx. Vol. Three Pg. 1051, also Pltf Mtn to Alter or Amend Judgment

Doc. 61 filed. 08/04/2008 that contained the recusal as exhibits 1, 1-1 and 1-2.

5. The plaintiff’s complaint alleges that the defendants’ overarching scheme is to

defraud Medicare and Medicaid through Novation LLC the entity owned by Hon.

Judge Feranado J. Gaitan’s St. Luke’s Health System, Inc. (Supp. Apdx. Vol.

Three Pg. 1051, also Pltf Mtn to Alter or Amend Judgment Doc. 61 filed.

08/04/2008 that contained the recusal as exhibits 1, 1-1):

“109. The Western District of Missouri US Attorney office under Todd P. Graves had been active in prosecuting Medicare fraud. Medical Supply Chain, Inc.'s civil antitrust suit against Texas based Novation LLC, Volunteer Hospital Association (VHA), University Health System Consortium (UHC) and Neoforma, Inc. alleges the companies formed a cartel and were involved in a scheme to monopolize hospital supplies with General Electric and Jeffrey R. Immelt’s former corporation GE Medical and Jeffrey R. Immelt’s GHX, LLC to defraud Medicare through payments to administrators and kickbacks. The scheme resulted in almost all of Kansas City, Missouri St. Luke hospital's one hundred million dollar supply budget being purchased through Novation LLC. St. Luke's merged with University of Kansas School of Medicine after Irene Cumming, CEO of the University of Kansas Hospital was given a job by University Health System Consortium (UHC) on March 19, 2007.”

Plaintiff’s complaint at pg. 19 ¶ 109 Supp. Apdx. Vol. One Pg. 199

6. The plaintiff sought recusal of Hon. Judge Feranado J. Gaitan in the Motion For

Recusal Under 28 U.S.C. § 455(a) and (b)(4). See Motion to Recuse exb. 1 Supp.

Apdx. Vol. Three Pg. 1051, also Pltf Mtn to Alter or Amend Judgment Doc. 61

filed. 08/04/2008 that contained the recusal as exhibits 1, 1-1 and 1-2.

12

7. The Hon. Judge Feranado J. Gaitan did not rule on the Motion For Recusal

Under 28 U.S.C. § 455(a) and (b)(4). Supp. Apdx. Vol. One pg. 28 Doc. 29 Order

Recusal was moot dated 11/29/06.

8. When the action was again removed to federal court the Hon. Judge Feranado J.

Gaitan was now Chief Judge of the District of Western Missouri and had the

action again assigned to him despite his being on the board of directors of a

defendant. See Supp. Apdx. Vol. One pg. 1 Docket of 07-0869

9. The complaint describes in depth with detail the repeated fraudulent and

extortionate conduct of Husch Blackwell Sanders LLP, Shughart Thomson &

Kilroy PC, and Lathrop & Gage LC. Law firms regularly practicing before the

Western District of Missouri in facts readily discernable from the official

record of the action and related cases.

10. The misconduct of these firms resulted in extrinsic fraud injuring the plaintiff

and the firms’ own clients along with the honor of the Western District Court by

resulting in the non law based outcomes in Medical Supply Chain, Inc. v.

Novation LLC, et al., Case No. 05-0210-CV-W-ODS and Lipari v. US Bank

NA and US Bancorp Case No. 06-1012-CV-W-FJG a 16th Circuit of Missouri

case 0616-CV32307 fraudulently removed on diversity by Shughart, Thomson &

Kilroy, P.C. even though it was the concurrent state case of a federal action

already in Kansas District Court and on appeal with federal jurisdiction

exclusively before the US Court of Appeals for the Tenth Circuit.

13

11. The trial court had unrefuted evidence of the extrinsic fraud by Husch

Blackwell Sanders LLP used to procure an interim order of dismissal and

sanctions against the plaintiff in Medical Supply Chain, Inc. v. Novation LLC, et

al., Case No. 05-0210-CV-W-ODS after it was transferred to Kansas District

Court as Medical Supply Chain, Inc. v. Neoforma, et al., case number 05-2299:

“33. The defendants use the dismissal of Medical Supply Chain, Inc. v. Neoforma, et al., case no. 05- 2299 that was obtained through the extrinsic fraud filing of Novation, LLC, VHA Inc., University Healthsystem Consortium Robert Baker And Curt Nonomaque’s Motion To Set Oral Hearing On Motion To Dismiss , (Doc 76-1) filed on 02/21/2006 in Medical Supply Chain, Inc. v. Neoforma, et al by John K. Power, # 70448 of Jeffrey Immelt and the GE defendants’ law firm Husch Blackwell Sanders LLP. 34. The defendants’ dismissals repeatedly cited to Medical Supply Chain, Inc. v. Neoforma, et al., case no. 05- 2299 as authority advocating the ruling should control the present action in another district and another circuit. 35. The GE Defendants obtained the ruling in Medical Supply Chain, Inc. v. Neoforma, et al., case no. 05-2299 where their cartel co-conspirators Novation LLC and Neoforma, Inc were at risk by filing a fraudulent pleading by John K. Power of Husch Blackwell Sanders LLP [Exb. 12 of Pltf’s Consolidated Answer to Defendants Dismissals Doc. 42 dated 04/14/2008 ] Motion for Hearing while knowing the Kansas District Court had been persuaded through ex parte communication to not even read the petitioner’s filing in response. 36. The fraud is readily discernable on its face the petitioner’s complaint stated all the requisite elements for each federal count. See [Exb. 13 of Pltf’s Consolidated Answer to Defendants Dismissals Doc. 42 dated 04/14/2008 ] Plaintiff’s Response to Motion for Oral hearing. 37. The elements for the antitrust and RICO claims are referenced by element and paragraph number in the complaint in the plaintiff’s appeal brief statement of facts at pgs. 19-32. See [Exb. 14 of Pltf’s Consolidated Answer to Defendants Dismissals Doc. 42 dated 04/14/2008 ] Lipari Neoforma Appeal Brief Statement of Facts. See also [Doc. 42] Plaintiff’s Response to Consolidate Motions to Dismiss at pg. 7 [Emphasis added] Above from Pltf Answer to Consolidated Motions to Dismiss Doc. 42

filed 04/14/2008 pg. 7.

14

12. Chief Judge of the Western District of Missouri, the Hon. Judge Feranado J.

Gaitan, Jr. was informed he is officially responsible for attorney discipline over

law firms and the US Attorney’s office and the enforcement of attorney ethics

before his court:

“The plaintiff unlike the defendants’ counsel was mindful of the special responsibilities of a Chief Judge. One of which is to protect his district against the felonious law firm misconduct documented at length in the plaintiff’s complaint and largely uncontrovertibly demonstrated in the record of this matter and that of the related action Medical Supply Chain, Inc. v. Novation, et al, W.D. MO case no. 05-0210. However 28 U.S.C. § 137 vests the district courts with broad discretion in the assignment of cases to particular judges and makes the Chief Judge responsible for assignments. United States v. Diaz, 189 F.3d 1239, 1243-45 (10th Cir. 1999). Hon. Judge Feranado J. Gaitan acted consistent with the duties of a Chief Judge in the wake of shocking misconduct in the District like that described in United States v. Martinez, 667 F.2d 886, 887-88 (10th Cir.1981) where USDOJ attorneys met ex parte with a district judge and witnesses to unlawfully influence the outcome of a proceeding. In what is for practical purposes an Eighth Circuit decision by a panel of this circuit’s judges hearing a Tenth Circuit case, the court determined that “A judge is not only entitled but also has a duty to take all lawful measures reasonably necessary to prevent the occurrence of a crime in his courtroom.” Martinez v. Winner, 771 F.2d 424 at 435 (C.A.10 (Colo.), 1985)2. The duty to ensure fundamental fairness gives Hon. Judge Feranado J. Gaitan the responsibility for enforcing attorney discipline:

“Above all else, the mission of a federal judge is to "administer justice without respect to persons, and... faithfully and impartially discharge and perform all the duties incumbent upon [him]... under the Constitution and laws of the United States." 28 U.S.C. § 453 (judicial oath of office).”

U.S. v. Whitman, 209 F.3d 619 at 625 (6th Cir., 2000).”

Pltf’s Rply Suggestion Doc. 64 filed 08/04/2008 at pgs. 5-6.

15

13. As Chief Judge of the Western District of Missouri, the Hon. Judge Feranado

J. Gaitan, Jr. was also informed of his likely direct role in the extrinsic fraud of the

defendants to deny the plaintiff-appellant counsel and the continuing effects of the

extrinsic fraud on other cases before his court:

“The reciprocal disbarment is a W. D. of Missouri mystery. The similarly situated Dustin Sherwood a victim of Husch Blackwell Sanders LLP, Shughart Thomson & Kilroy PC, and Lathrop & Gage LC along with Shughart Thomson & Kilroy PC’s concerted RICO extortion under color of official right and fraud was never permitted to inspect the disciplinary records (exb. 5) and interviewed former Chief Judge Hon. Dean Whipple with the affiant Sydney J. Perceful, the witness to the $39,000,000.00 bribery fund described in the WD of MO case United States ex rel Michael W. Lynch v Seyfarth Shaw et al. Case no. 06- 0316-CV-W- SOW. Hon. Judge Dean Whipple stated he was not aware of any WD of MO reciprocal disbarment of Bret D. Landrith and commented that it is unusual he does not recall it since there are so few.”

Pltf’s Rply Suggestion Doc. 64 filed 08/04/2008 fn 1 at pg. 5

14. The complaint describes in detail Husch Blackwell Sanders LLP extrinsic

fraud that defeated the public policy of the US Congress being vindicated in the

Western District of Missouri case Huffman v. ADP, Fidelity et al, Case No. 05-

CV-01205 and similar extrinsic fraud by the US Attorney for the Western

District of Missouri in United States ex rel Michael W. Lynch v Seyfarth Shaw et

al. Case no. 06-0316-CV- W- SOW over conduct in former Chief Bankruptcy

Judge of the Northern District of Illinois’ court obstructing justice before Hon.

Judge Eugene R. Wedoff. See Supp. Apdx. Vol. One pg. 226-227 and 204-210

respectively.

16

15. The current complaint describes the conduct of what is now Husch Blackwell

Sanders, LLP in concert with Seyfarth Shaw and the USDOJ committing RICO

predicate acts to prevent the plaintiff from obtaining redress for the General

Electric defendants’ breach of contract depriving the plaintiff of the CONCRETE

and tangible office building at 1600 N.E. Coronado in Blue Springs, Missouri. See

Pltf’s Rply Suggestion Doc. 64 filed 08/04/2008 at exb 7, Photograph of 1600

N.E. Coronado office building.

16. The plaintiff witnessed the law firms Husch Blackwell Sanders LLP, Shughart

Thomson & Kilroy PC, and Lathrop & Gage LC along with Shughart Thomson &

Kilroy PC’s successor in interest Polsinelli Shalton Flanigan Suelthaus PC

continuing to obstruct justice through extrinsic fraud in concert with the

Western District US Attorney John Wood in the Western District of Missouri

Bankruptcy case of In re Dustin R. Sherwood and Jennifer J. Sherwood, Case No.

BK 07-50584-jwv before Hon. Judge Jerry W. Venters after attending a hearing on

July 16, 2008. Pltf’s Rply Suggestion Doc. 64 filed 08/04/2008 at exb 8, July 16

Sherwood Hearing Transcript.

17. As Chief Judge of the Western District of Missouri, the Hon. Judge Feranado

J. Gaitan, Jr. was also informed that the plaintiff who had helped the Sherwoods

find an attorney experienced the growing use by the Kansas city area law firms

Husch Blackwell Sanders LLP, Shughart Thomson & Kilroy PC, and Lathrop &

Gage LC along with Shughart Thomson & Kilroy PC’s successor in interest

Polsinelli Shalton Flanigan Suelthaus PC of extortion through color of official

17

right via threats of economic harm described in U.S. v. Kelley, 461 F.3d 817 at 826

(6th Cir., 2006) and through the coercive nature of official office described in U.S.

v. Antico, 275 F.3d 245 at 256 (3rd Cir., 2001) to deprive parties of counsel for the

purpose of obtaining judgments through extrinsic fraud in Western District of

Missouri Court cases. See Pltf’s Rply Suggestion Doc. 64 filed 08/04/2008 at pg. 9

and Exb 10.

18. The Hon. Judge Feranado J. Gaitan, Jr.’s order dismissing the plaintiff-

appellant’s claims did not address the sufficiency of the pled elements of the

proposed amendment filed as an attachment to a Motion for Leave to Amend Doc.

49 dated 05/01/2008 (Supp. Apdx. Vol. One pgs. 250-255) that includes three

additional RICO co-conspirators, the accounting firm of KPMG; Sprint Inc. and

AT&T and their predicate acts in furtherance of the existing conspiracy as part of

an unlawful enterprise with the defendant Bradley J. Schlozman. See Doc. 49

dated 05/01/2008 exb 2 and Supp. Apdx. Vol. One pgs. 258-341.

19. The proposed amendment includes mail and wire fraud claims against KPMG

for specific fraudulent misrepresentations about the liabilities of General Electric

(NYSE symbol GE) stock that were made contrary to the accounting firm’s

official duty as Certified Public Accountants and for the purpose of continuing the

Novation LLC scheme to monopolize the hospital supply market and defraud

Medicare and Medicaid. See Doc. 49 dated 05/01/2008 exb 2 and Supp. Apdx.

Vol. One pgs. 258-341.

18

20. The proposed amendment including the RICO co-conspirators, Sprint Inc. and

AT&T describes injuries that are from the services contracted and paid for by the

plaintiff that were not the services expressly or impliedly provided

telecommunications customers, creating an Eighth Circuit recognized tangible

interest and standing for claims against the RICO conspiracy under Bennett v.

Berg, 685 F.2d 1053 (8th Cir.1982). See Doc. 49 dated 05/01/2008 exb 2 and

Supp. Apdx. Vol. One pgs. 258-341.

21. The Hon. Judge Feranado J. Gaitan, Jr. was given notice that if the plaintiff-

appellant’s mail or wire fraud allegations against the existing defendants or

proposed amended complaint defendants were insufficiently pled the court was

required to permit the plaintiff to amend the complaint before dismissal:

“If the court finds the petition’s fraud averments deficient, the proper course is to permit amendment to cure the deficiencies: “...even if the allegations are deficient, the court would allow plaintiff the opportunity to amend rather than dismiss Count VII for failure to plead fraud with particularity. See, e.g., Bennett, 685 F.2d at 1062.” Nagle v. Merrill Lynch, Pierce, Fenner & Smith, 790 F.Supp. 203 at 210 (S.D. Iowa, 1992).”

Pltf Answer to Consolidated Motions to Dismiss Doc. 42 filed 04/14/2008

at pg. 34.

22. The plaintiff-appellant’s answers to the consolidated defendants’ Motions to

Dismiss and the Motion to Dismiss of Bradley J. Schlozman detail the page and

paragraph numbers where the plaintiff’s complaint alleged injury to business

property recognizable under RICO. See Pltf Answer to Consolidated Motions to

Dismiss Doc. 42 filed 04/14/2008 at pgs. 2-13, 24-25, the reasons why under

19

controlling law the business property injury alleged is recognized for RICO

standing 29-35.

23. The Hon. Judge Feranado J. Gaitan, Jr. like USA John Wood was given notice

of the ongoing criminal conduct to obstruct justice in the plaintiff-appellant’s

commercial litigation to vindicate the laws of Congress for the purpose of

preventing the plaintiff from entering the market for hospital supplies and the loss

of lives and economic injury to the nation as a result, including the repeated use of

“straw man fraud” arguments overtly used to corruptly dismiss the plaintiff’s

claims despite their clear facial sufficiency under the controlling law of our nation.

See Pltf’s Rply Suggestion Doc. 58 filed 07/22/2008 at pgs. 3-5.

24. The Hon. Judge Feranado J. Gaitan, Jr.’s memorandum and order adopted the

interim orders described in Pltf’s Rply Suggestion Doc. 58 filed 07/22/2008 at pg

3-5 as factual findings to support Hon. Judge Feranado J. Gaitan, Jr.’s dismissal of

the plaintiff’s complaint and proposed amended complaint. See Memorandum and

Order Doc. 59 at pgs. 3-4.

ISSUE I: WHETHER THE TRIAL COURT ERRED

BY FAILING IN DISMISSING LIPARI’S RICO CLAIMS FOR LACK OF INJURY TO A RECOGNIZABLE BUSINESS PROPERTY INTEREST.

In reviewing a district court's grant of a motion for dismissal, this court uses

a de novo standard of review. See Kulinski v. Medtronic Bio-Medicus, Inc., 112

F.3d 368, 371 (8th Cir. 1997). In National Organization for Women, Inc. v.

Scheidler, 510 U. S. 249, 252 (1994), the Supreme Court held “Since their

20

complaint was dismissed at the pleading stage, the complaint must be sustained if

relief could be granted under any set of facts that could be proved consistent with

the allegations. Hishon v. King & Spalding, 467 U. S. 69, 73. Nothing more than

the complaint's extortion and injury allegations are needed to confer standing at

this stage.” Scheidler, 510 U. S. at pgs. 255-256.

The phrase "injured in business or property" has been interpreted as a

standing requirement — rather than an element of the cause of action — which

must be satisfied in order to prevail on a RICO claim. See Gagan v. American

Cablevision, Inc., 77 F.3d 951, 958-59 (7th Cir.1996). The causation component

of § 1964(c) — whether an alleged RICO injury was caused "by reason of" a

violation of the statute — has also been considered a component of standing. See,

e.g., Beck v. Prupis, 529 U.S. 494, 120 S.Ct. 1608, 146 L.Ed.2d 561 (2000);

Lerner v. Fleet Bank, 318 F.3d 113, 123 (2d Cir. 2003).

The plaintiff-appellant Lipari’s complaint avers business property interests

that were injured by the defendants’ predicate acts specifically enumerated under

18 USC § 1961 (1)(B) including claims under 18 § 1962(c) for section 1341 Mail

and section 1343 Wire Fraud; section 1951 Hobbs Act extortion; and section 1503

Obstruction of Justice.

Missouri state law determines business property interests recognizable

under 18 USC § 1964. Doe v. Roe, 958 F.2d 763, 768 (7th Cir. 1992) ("While

federal law governs most issues under RICO, whether a particular interest amounts

to property is quintessentially a question of state law."). See Ledford v. Sullivan,

21

105 F.3d 354, 357 (7th Cir.1997) (stating that "[p]roperty interests `are not created

by the constitution'... [r]ather, they are created and their dimensions are defined by

existing rules or understandings that stem from an independent source such as

state law....").

In Scheidler v. National Organization for Women, Inc., 537 U.S. 393

(2003) the Supreme Court stated that 18 § 1962(c) Fraud including the Mail Fraud

based theft of honest services averred in the plaintiff-appellant’s case can be mere

“information” and that 18 § 1962(c) Hobbs Act extortion can be mere intangible

control over business assets:

“…the outer boundaries of extortion liability under the Hobbs Act, so that liability might be based on obtaining something as intangible as another's right to exercise exclusive control over the use of a party's business assets. Our decisions in United States v. Green, 350 U. S. 415, 420 (1956) (explaining that "extortion ... in no way depends upon having a direct benefit conferred on the person who obtains the property"), and Carpenter v. United States, 484 U. S. 19, 27 (1987) (finding that confidential business information constitutes "property" for purposes of the federal mail fraud statute).

Scheidler v. National Organization for Women, Inc., 537 U.S. 393 at 402

(2003). The court reversed the lower court’s finding of liability for the RICO

predicate counts of Hobbs Act extortion stating:

“ Petitioners may have deprived or sought to deprive respondents of their alleged property right of exclusive control of their business assets, but they did not acquire any such property. They neither pursued nor received "something of value from" respondents that they could exercise, transfer, or sell. United States v. Nardello, 393 U. S. 286, 290.”

Scheidler, id. 537 U.S. 393 at 395 (2003).

22

Some of the interference with the plaintiff-appellant’s litigation occurred in

the Tenth Circuit where the claims against the current defendants originated in an

antitrust action against General Electric for conspiring with Novation LLC, GHX

LLC and Neoforma, Inc. to monopolize hospital supplies in the relevant market of

the United States. RICO case law borrows a lot from interpretations of the

Sherman Act on which 18 U.S.C. § 1961 et seq. was based. Not surprisingly the

Tenth Circuit has recognized both fraud to restrain competition and restricting

competition through interference in contractual relations as recognizable RICO

business injuries:

“In particular, Plaintiff had a property interest in a cause of action allegedly prejudiced by the fraud; and restrictions on his competing with Defendants (which allegedly were imposed by a fraudulently induced agreement) would constitute an injury to his business.”

Deck v. Engineered Laminates, 349 F.3d 1253 at 1255 (10th Cir., 2003).

See also “This allegation adequately states a RICO claim of injury to Plaintiff's

property — his contractual right to receive payments from id. at 1259-1260.

The Supreme Court has also held that "a cause of action is a species of

property” Logan v. Zimmerman Brush Co., 455 U.S. 422, 428, 102 S.Ct. 1148, 71

L.Ed.2d 265 (1982). "[a] cause of action, of course, is a form of `property,' and

when it arises out of the termination of a business, we think it is not unfair to

characterize conduct tending to impair it as `business injury.'" Malley-Duff &

Assocs., Inc. v. Crown Life Ins. Co., 792 F.2d 341, 354 (3d Cir.1986).

23

The trial court was in error for dismissing with prejudice Lipari’s complaint

as “speculative” because some of the claims were related to conduct around

ongoing antitrust litigation.

The plaintiff appellant's alleged injury was more than the prejudice to his

ability to collect damages for breach of contract described in Motorola Credit

Corp. v. Uzan, 322 F.3d 130, 135-37 (2d Cir.2003) if it were only the financial

loss of breach of contract damages and the damages were not yet “"clear and

definite" (id. at 136) then the court could not dismiss them with prejudice (id. at

138-139) and Lincoln House, Inc. v. Dupre, 903 F.2d 845, 847 (1st Cir.1990).

In Lincoln the state breach of contract claim was not part of the district

court action and the court determined the RICO claims were premature:

“ If Lincoln were to lose the breach of contract action in New Hampshire state court, Lincoln would have no RICO claim against the Dupres. In these circumstances, Lincoln's RICO claim is not now ripe for judicial resolution. Terra Nova Insurance Co. Ltd. v. Distefano, 663 F.Supp. 809 (D.R.I.1987) (where insurer's RICO action against insured was contingent on the outcome of state court suit brought by insured against insurer, RICO claim was not ripe). Armstrong v. Alabama Power Co., 667 F.2d 1385, 1388 (11th Cir.1982) (suit for indemnification and contribution should be dismissed as unripe where determination of liability on the underlying claim had yet to be made); A/S Ludwig Mowinckles Rederi v. Tidewater Construction Corp., 559 F.2d 928, 933 (2d Cir.1977) (same).”

Lincoln House, Inc. v. Dupre, 903 F.2d 845 at 847 (1st Cir.1990).

Terra Nova and Armstrong v. Alabama Power were premature because the

state claims were in separate state court proceedings and A/S Ludwig a US District

court case on review was found to be speculative or unripe because two related

24

state court wrongful death proceedings had not concluded. See Terra Nova Ins.

Co., Ltd. v. DiStefano, 663 F.Supp. at 811.

The trial court was in error over the concept of “concrete” property loss.

Besides the mistakes resulting from the defendants habit of intentionally

misrepresenting facts related to the plaintiff-appellant’s complaint describing his

sale of the lease remainder to General Electric for $350,000.00 and the ownership

and resulting right to possession and accompanying entry onto the premises of the

Coronado office building which is a $10.5 million “concrete” pre-cast office

building. All of which are recognizable RICO business property interests under

Missouri state law, Eighth Circuit precedent and the US Supreme Court. The trial

court is in error over the concept of “concrete” injury or business loss as it is

applied in determining RICO standing.

The Ninth Circuit had recognized the “concrete” or tangible business injury

requirement in Berg v. First State Ins. Co., 915 F.2d 460, 464 (9th Cir.1990).

However the court clarified this position did not limit recognizable business

injuries to physical objects. In Diaz v. Gates, 420 F.3d 897 at 900 (Fed. 9th Cir.,

2005) the court recognized “California law protects the legal entitlement to both

current and prospective contractual relations.” This includes recognizing the

property injury alleged by the plaintiff-appellant tortuous interference with

business relations under Missouri state law:

“Diaz, on the other hand, has alleged both the property interest and the financial loss. The harms he alleges amount to intentional interference with contract and interference with prospective business relations, both of

25

which are established torts under California law. See Della Penna v. Toyota Motor Sales, U.S.A., Inc., 11 Cal.4th 376, 45 Cal.Rptr.2d 436, 902 P.2d 740, 750-51 (1995) (discussing torts of "interference with an existing business contract" and "interference with commercial relations"); see also Restatement (Second) of Torts § 766A & cmt. e (intentional interference with another's performance of his own contract); id. § 766B & cmts. c-d (intentional interference with prospective contractual relations); Reeves v. Hanlon, 33 Cal.4th 1140, 17 Cal.Rptr.3d 289, 95 P.3d 513, 517 (2004) (interference with performance of contract is intentional if defendant knew "that the interference was certain or substantially certain to occur as a result of his or her action").”

Diaz v. Gates, 420 F.3d 897 at 900 (Fed. 9th Cir., 2005).

The Eighth Circuit recognizes Lipari’s business property in his chose in

action for recovering in court on his contract with the GE defendants over 1600

NE Coronado: “…given a surviving chose in action for protection of property

rights and a valid merger agreement, Western Delaware could acquire a capacity

along with Beneficial to sue Gamble-Skogmo by virtue of an effective

assignment.” Western Auto Supply Co. v. Gamble-Skogmo, Inc., 348 F.2d 736 at

741 (C.A.8 (Minn.), 1965)

The GE defendants have repeatedly misrepresented to federal courts the

petitioner’s purchase of 1600 NE Coronado and sale of the remainder of the 5.4

million dollar lease to GE Transportation as a failed lease agreement. However

even under this fraudulent misrepresentation the petitioner still lost a property

right under Missouri State law:

“We hold therefore, that plaintiff's Counts I and II state a cause of action for negligent interference with a tenant's right to use and enjoy a leasehold within the limitations we expressed in Counts I and II of the Chubb Group opinion. Should plaintiff be able to prove its cause of action, it would be entitled to its prospective profits, limited by the general rule that such profits

26

are recoverable only when proved to be reasonably certain had it not been for defendant's tortious conduct, and when ascertainable and measurable with reasonable certainty. Riddle v. Dean Machinery Co., 564 S.W.2d 238, 257 (Mo.App.1978).”

Volume Services, Inc. v. C.F. Murphy & Associates, Inc., 656 S.W.2d 785

at 792 (Mo. App.W.D., 1983). See also Shaw v. Greathouse, 296 S.W.2d 151 at

153 (Mo. App., 1956).

The deprivation of the petitioner’s business expectancy in legal

representation by Kansas and Missouri private attorneys (protected even when not

a contract under Missouri tortuous interference law) is property extorted from the

petitioner:

Illustrations of intangible or invisible rights in property are to be found in copyrights, trade marks or names, good will, the right to the publication of news, market reports, and the products of one's brain independent of copyright. Natl. Telegraph News Co. v. W. U. Telegraph Co., 119 Fed. 294, 56 C. C. A. 198, 60 L. R. A. 805; Simmons Hardware Co. v. Waibel, 1 S. D. 488, 47 N. W. 814, 11 L. R. A. 267, 36 Am. St. Rep. 755; De Lauder v. Balto. Co., 95 Md. 1, 6, 50 Atl. 427. These, after all, are but incorporeal rights of property and could well be classed as such. There may be, and there doubtless are, others, because the ever expanding horizon of human effort, mental and physical, is continually creating new relations out of which, from necessity, arise new rights. Analysis will disclose that all of these possess the essential characteristics of rights incorporeal, in that they issue out of something corporate, either real or personal, and are inheritable and are not tangible or visible. 2 Black. Comm. 20; Cyclopedic L. Dict.; Walker v. Daly, 80 Wis. 222, 227, 49 N. W. 812; Slingerland v. Inter. Contr. Co., 43 App. Div. 215, 230, 60 N. Y. Supp. 12, affirmed 169 N. Y. 60, 61 N. E. 995, 56 L. R. A. 494.”

Heller v. Lutz, 254 Mo. 704, 164 S.W. 123 at 124-125 (Mo., 1913).

A federal property right is also properly a recognized business injury to the

petitioner. The honest services of the Federal and Kansas State Officials as

27

described in the complaint ( exclusive of the defendant Schlozman who is

described acting in his private capacity as a conspirator and member of the

association in fact RICO enterprise ) were being taken from the petitioner by the

defendants:

“The specific type of wire fraud at issue here— "honest services wire fraud"—arises under 18 U.S.C. § 1346, which this Circuit has interpreted to "clearly prohibit[ ] a scheme or artifice to use the mails or wires to enable an officer or employee of a private entity (or a person in a relationship that gives rise to a duty of loyalty comparable to that owed by employees to employers) purporting to act for and in the interests of his or her employer (or of the person to whom the duty of loyalty is owed) secretly to act in his or her or the defendant's own interests instead, accompanied by a material misrepresentation made or omission of information disclosed to the employer." United States v. Rybicki, 354 F.3d 124, 126-27 (2d Cir.2003) (en banc); see also id. at 147 (stating that a conviction requires a showing of "(1) a scheme or artifice to defraud; (2) for the purpose of depriving another of the intangible right of honest services . . . ; (3) where the misrepresentations (or omissions) made by the defendants are material in that they have the natural tendency to influence or are capable of influencing the employer to change its behavior; and (4) use of the mails or wires in furtherance of the scheme"); 18 U.S.C. § 1346.”

U.S. v. Gotti, 459 F.3d 296 at 330-331 (2nd Cir., 2006). See also U.S. v.

Antico, 275 F.3d 245 (3rd Cir., 2001):

“Courts have interpreted the term " `scheme or artifice to defraud' [to] include a scheme or artifice to deprive another of the intangible right of honest services," United States v. Woodward, 149 F.3d 46 (1st Cir. 1998) (citing United States v. Sawyer, 85 F.3d 713, 723-24 (1st Cir. 1996)), giving rise to the "intangible rights doctrine." This doctrine reaches public and private fraud at the state and local levels, including prosecutions of public officials or employees who have failed to provide honest services to the citizenry they serve.”

U.S. v. Antico, 275 F.3d 245 at 261 (3rd Cir., 2001).

28

The trial court erroneously granted the dismissal upholding the defendants’

misuse of Scheidler v. National Org. for Women, Inc., 537 U.S. 393, 123 S.Ct.

1057, 154 L.Ed.2d 991 (2003) ("Scheidler II") as requiring 18 § 1962(c) Hobbs

Act extortion property to be tangible when no such finding was made by the US

Supreme Court:

“On appeal, the defendants-appellants—Peter Gotti, Richard G. Gotti, Anthony ("Sonny") Ciccone, and Richard Bondi—argue that Scheidler II invalidates all of the Hobbs Act counts in this case that were premised on the extortion of intangible property rights. We hold, however, that Scheidler II did not invalidate the challenged extortion counts at issue in this case, because Scheidler II—far from holding that a Hobbs Act extortion could not be premised on the extortion of intangible property rights—simply clarified that for Hobbs Act liability to attach, there must be a showing that the defendant did not merely seek to deprive the victim of the property right in question, but also sought to obtain that right for himself.”

U.S. v. Gotti, 459 F.3d 296 (2nd Cir., 2006).

Lipari’s complaint clearly states the defendants have retained 1600 N.E.

Coronado, the money from the sale of the 5.4 million dollar lease to GE

Transportation (the $350,000.00 expectancy the petitioner sought to cover US

Bank’s breach with, and the profits from selling hospital supplies. The petition

also describes intangible rights that the defendants still maintain adverse

possession or control over. In Gotti, a key piece of intangible property was the

union’s lucrative pharmaceutical services contract. U.S. v. Gotti, 459 F.3d 304.

The trial court has erroneously imposed an impermissible heightened

pleading standard “...our error was in requiring that Grant allege more than the

Supreme Court has now said a plaintiff must allege in order to state a civil RICO

29

claim...”Alexander Grant and Co. v. Tiffany Industries, Inc., 770 F.2d 717 at 718

(C.A.8 (Mo.), 1985). The trial court was required to follow Eighth Circuit

precedent or guidance on standing pleading requirements even in the face of

doubts. See Bowman v. Western Auto Supply Co., 773 F.Supp. 174 at 177 (W.D.

Mo., 1991). The plaintiff’s complaint however met the pleading stage showing of

RICO standing required under Eighth Circuit controlling precedent:

“Taking the facts in a light most favorable to Regions Bank, we must assume that Steven Jones, perhaps with the assistance of his accountant, Edward Bonner, committed fraud in the procurement of the $400,000 loan from Regions Bank. Regions Bank's own failure to adequately research the status of prior liens against J.R. Oil's assets, coupled with this presumed fraud, clearly caused injury to Regions Bank, both factually and proximately. Further, the $400,000 that Regions Bank actually gave to J.R. Oil under the loan cannot be viewed as an "intangible property interest." [Emphasis added]

Regions Bank v. J.R. Oil Co., LLC, 387 F.3d 721 at 729 (8th Cir., 2004) The loss of value from the contract to purchase the building at 1600

Coronado and the loss of the $350,00.00 averred in the plaintiff’s complaint meets

the property standing requirement maintained by the Eighth Circuit. However the

trial court’s memorandum and order overturns this circuit’s stare decisis

precedent in Bennett v. Berg, 685 F.2d 1053 (C.A.8 (Mo.), 1981) upheld by the en

banc court in Bennett v. Berg, 710 F.2d 1361 (C.A.8 (Mo.), 1983) regarding the

loss of value in the occupancy of the office building as another benefit of the

bargain made with General Electric and GE Transportation clearly pled

by the plaintiff in the complaint:

“Appellants' complaints alleged several forms of monetary loss. Appellants'

30

entrance endowment payments are alleged to be worth 10% of what appellants bargained for, due to appellees' alleged conversion to their own use of funds which were deposited in trust for "life care." Monthly service charges are also alleged to be higher than expected due to appellees' unlawful conduct. Appellees respond that the complaints do not allege a RICO injury for two reasons. First, the complaints are said to assert no breach of contract. Thus they allegedly do not state any injury whatsoever. Alternatively, any injury stated in the complaints allegedly is not an "injury to property" recognizable under the RICO Act. RICO is said to require competitive injury. We are not convinced. Even if breach of contract is not directly and clearly stated in the complaints, this is irrelevant. Appellants' basic contention is that the value of their occupancy agreements was misrepresented ab initio, and that appellees' conduct has further lessened the value of their contracts. The essence of this alleged injury is not so much that contractual terms have been breached, but that the value of the contracts is different than appellants were led to expect through extracontractual statements and promises. The allegation sounds as one of injury flowing from fraud rather than breach of contract. Appellants claim essentially to have been deprived of the benefit of their bargain. Appellees' second argument is somewhat more troublesome. They contend that even if appellants have alleged an injury, they have not alleged an "injury to property" within the meaning of Section 1964(c).” [Emphasis added]

Bennett v. Berg, 685 F.2d 1053 at 1058 (C.A.8 (Mo.), 1981) in which the

Eighth Circuit expressly discredits the failure of an “injury to property” argument

under identical circumstances where Hon. Judge Feranado J. Gaitan has adopted

the same as a basis for his order dismissing the plaintiff’s claims.

This circuit’s controlling precedent Handeen v. Lemaire, 112 F.3d 1339 at

1354 (C.A.8 (Minn.), 1997) recognizes standing as pled by the plaintiff’s

complaint over the loss of value from a professional services contract for legal

representation resulting from the bad faith litigation of RICO defendants:

31

“Handeen poses many diverse theories to expose how he was injured by the RICO enterprise. As an example, he cites the attorneys' fees he incurred in objecting to the Lemaires' supposedly fraudulent claims. We think that this asserted liability, if proven at trial, qualifies as an injury to business or property that was proximately caused by a predicate act of racketeering. Holmes v. Securities Investor Protection Corp., 503 U.S. 258, 268, 112 S.Ct. 1311, 1317-18, 117 L.Ed.2d 532 (1992)(deciding that RICO violation must be proximate cause of injury to business or property); Bowman v. Western Auto Supply Co., 985 F.2d 383, 385-86 (8th Cir.) (explaining that a § 1962(c) plaintiff must allege injury traceable to a predicate act of racketeering), cert. denied, 508 U.S. 957, 113 S.Ct. 2459, 124 L.Ed.2d 674 (1993). Because this ground for recovery is, in itself, sufficient to convey standing, we need not consider the soundness of the other alternatives advanced by Handeen.”

Handeen v. Lemaire, 112 F.3d 1339 at 1354 (C.A.8 (Minn.), 1997).

This circuit’s controlling precedent in Terre Du Lac Ass'n, Inc. v. Terre Du Lac,

Inc., 772 F.2d 467 (C.A.8 (Mo.), 1985) recognizes the plaintiff’s standing from

injury by conduct similar to the defendants’ alleged conduct as part of a cartel to

artificially inflate hospital supply costs defrauding Medicare for member hospitals

the cartel’s exclusionary contracts kept from doing business with the

plaintiff:

“...defendants' acts of mail fraud injured the Association by causing the cost of maintaining the roads in the Terre Du Lac Subdivision, which roads the Association is legally obligated to maintain, to increase. The cost allegedly increased because: 1) the defendants invested the money which they obtained from the mail fraud (i.e., proceeds from the sale of lots in the subdivision) in their own operations rather than using the money to improve (i.e., pave with asphalt) the subdivision roads, and 2) the mail fraud scheme caused more lots to be sold, resulting in more roads and greater usage of the roads which are required to be maintained.”

Terre Du Lac Ass'n, Inc. v. Terre Du Lac, Inc., 772 F.2d 467 at 472 (C.A.8

(Mo.), 1985). The memorandum and order of Hon. Judge Feranado J. Gaitan

violates controlling Eighth Circuit and US Supreme Court precedent on standing

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for RICO claims on the plaintiff’s charges of 18 USC § 1961 (1)(B) predicate acts

of Hobbs Act Extortion and Mail or Wire Fraud.

The petition clearly pleads fraud predicate act elements in claims against

the defendants Jeffery Immelt, Bradley Schlozman and Sayfarth Shaw LLC. The

averred facts are related to the particular defendant and informs each defendant of

the specific act allegedly committed by the defendant justifying his inclusion in a

particular count. As such the petitioner has adequately pled the circumstances of

fraud: "Circumstances" include such matters as "the time, place and contents of

false representations, as well as the identity of the person making the

misrepresentation and what was obtained or given up thereby." Lally v. Crawford

County Trust & Sav. Bank, 863 F.2d 612, 613 (8th Cir.1988) (per curiam).

The petition avers Jeffrey Immelt had a duty under securities law to

disclose the liability of Lipari’s claims. Under federal securities laws reliance is

presumed if the omissions were material and the defendant had a duty to disclose,

Pollack v. Laidlaw Holdings, Inc., 90 Civ. 5788(DLC), 1995 WL 261518 at *11

(S.D.N.Y. May 3, 1995).

The trial court was in its Memorandum and Order on the Lipari’s Rule 59e

Motion was error in determining that the recent US Supreme Court

“the Supreme Court issued a unanimous decision in Bridge v. Phoenix Bond & Indemnity Company, __ U.S. __, 128 S. Ct. 2131, 170 L. Ed. 1012 (2008). In Bridge, the Supreme Court held that "a plaintiff asserting a RICO claim predicated on mail fraud need not show, either as an element of its claim or as a prerequisite to establishing proximate causation, that it relied on the defendant's alleged misrepresentations." Id. at __, 128 S. Ct. at 2145. In so holding, the Supreme Court noted that a first-party reliance requirement

33

finds no support in RICO's text. Id. at __, 128 S. Ct. 2139. Nor was the Supreme Court persuaded that common law rules and policy require it to impose a first-party reliance requirement for civil RICO claims predicated on mail fraud. See id. at __, 128 S. Ct. at 2139-45.

Based on the Supreme Court's ruling in Bridge, the precedent of this Court relied on by the district court in granting summary judgment in the defendants' favor has been overruled and is no longer viable. Accordingly, we REVERSE the district court's grant of summary judgment in the defendants' favor and REMAND the case for further proceedings consistent with Bridge.

Chaz Concrete Company, LLC v. Codell, No. 07-5870 (6th Cir.

10/21/2008)

The trial court was in error over whether the US Supreme Court’s ruling in

Bridge v. Phoenix Bond & Indemnity Co., No. 07-210 (U.S. 6/9/2008) prevents the

trial court from dismissing Lipari’s 18 USC § 1961 (1)(B) enumerated Mail and

Wire Fraud and Hobbs Act extortion claims. The predicate acts of fraud charged in

the complaint and proposed amended complaint concerning the defendant Jeffrey

Immelt and the proposed additional defendant KPMG signing General Electric’s

SEC quarterly reports that excluded the litigation liability to prevent General

Electric’s board of directors from discovering the RICO enterprise’s infiltration of

GE for the purposes of the hospital supply monopolization scheme to overcharge

Medicare by keeping the plaintiff-appellant out of the hospital supply market.

American Fed. Teachers v. Oregon Taxpayers, 189 P.3d 9, 345 Or. 1 at fn

11 (Or., 2008) states that Bridge v. Phoenix Bond makes these fraudulent

misrepresentations to third parties sufficient to sustain RICO claims. Instead the

court looked to the Restatement (Second) of Torts § 870 see 553 U.S. at ___, 128

34

S.Ct. 2131. The Supreme Court in Bridge itself reemphasized with approval its

own earlier holding in the RICO Hobbs Act extortion case National Organization

for Women, Inc. v. Scheidler, 510 U. S. 249, 252 (1994) and rejected the practice

of courts adding requirements for pleading that are not in the text of the statute.

The finding of the unanimous Supreme Court in Bridge v. Phoenix Bond &

Indemnity Co., No. 07-210 (U.S. 6/9/2008) reasserting Sedima, S. P. R. L. v. Imrex

Co., 473 U. S. 479, 481 (1985) “It is not for the judiciary to eliminate the private

action in situations where Congress has provided it.’ Id., at 499-500 further

upholds this court’s determination in Bennett v. Berg, 685 F.2d 1053 at 1058

(C.A.8 (Mo.), 1981) that a heightened pleading standard could not be imposed to

cause a failure of an “injury to property” averment. Hon. Judge Feranado J.

Gaitan, Jr. was bound by the stare decisis of Sedima and Bennett v. Berg. See

Bowman v. Western Auto Supply Co., 773 F.Supp. 174 at 177 (W.D. Mo., 1991).

The trial court was in error to dismiss the plaintiff-appellant’s RICO claims over a

failure to plead injury to tangible business interests and to the extent Hon. Judge

Feranado J. Gaitan, Jr. based his decision on the speculative nature of some of the

plaintiff-appellant’s litigation interests the trial court was in error to dismiss the

RICO claims with prejudice because they were unripe under Motorola Credit

Corp. v. Uzan, 322 F.3d 130, 135-37 (2d Cir.2003) supra.

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ISSUE II: WHETHER THE TRIAL COURT ERRED

BY DENYING AMENDMENT

This court “review[s] the district court's denial of leave to amend a

complaint for abuse of discretion.” Doe v. Cassel, 403 F.3d 986 at pg. 990 (8th

Cir., 2005) quoting Becker v. Univ. of Neb. at Omaha, 191 F.3d 904, 908 (8th

Cir.1999). The court reviews de novo a district court's grant of a motion to dismiss

for failure to state a claim. Schaller Tel. Co. v. Golden Sky Sys., 298 F.3d 736, 740

(8th Cir.2002).

Unlike the plaintiff in Moses.Com Sec. v. Comprehensive Software, 406

F.3d 1052 (Fed. 8th Cir., 2005), the plaintiff-appellant has had no discovery and

no opportunity to amend his complaint after a court determination of defects. The

state court in Lipari v. General Electric, et al 16th Cir. Court State of Missouri

Case No. 0616-CV07421 had upheld all of his state law contract claims and his

proposed amendment to include RICO claims from dismissals by the defendants.

The dismissal by the defendants were consolidated into a single ruling by the trial

court. See doc. 59 on 07/30/2008, included as exhibit 1 in the addendum to this

brief. The plaintiff-appellant did not have the opportunity to cure cited defects

described in St. Louis Fire Fighters Ass'n v. City of St. Louis, 96 F.3d 323, 330

(8th Cir.1996). However the plaintiff had been forced to seek amendment to the

current complaint during the dismissal briefing phase because of the defendant

conspirators’ continuing interference in preventing the plaintiff-appellant from

entering the market for hospital supplies and the defendant conspirators’

36

continuing extrajudicial conduct to obstruct justice and to prevent the plaintiff-

appellant from obtaining enforcement of his business property rights.

The plaintiff-appellant sought to stop these injuries with a warning demand

letter to the defendants’ co-conspirators Sprint, AT&T and KPMG but without

response was forced to seek leave to file a proposed amended complaint. See

Motion for Leave to Amend Doc. 49 dated 05/01/2008 (Supp. Apdx. Vol. One

pgs. 250-341).

The possible effect of intervening grants of retroactive telecom immunity

for Sprint and AT&T under FISAAA Section 802 (50 U.S.C. § 1885a) had not

been raised or argued by the defendants or cited by the court. However the

proposed amended complaint (Doc. 49 dated 05/01/2008 exb 2 and Supp. Apdx.

Vol. One pgs. 258-341.) avers that Sprint and AT&T are co-conspirators in the

RICO conspiracy and members of the defendant RICO enterprise (Doc. 49 exb. 2

at 68-71 and Supp. Apdx. Vol. One pgs. 330-333) and Sprint and AT&T’s conduct

even if given valid civil immunity (the immunizing act is being challenged see In

Re National Security Agency Telecommunications Records Litigation, N. Dist. Of

California MDL Docket No 06-1791 VRW) as to the telecoms themselves is still

clearly charged to the existing non-telecom defendants who have not asserted

immunity. The defendant KPMG has no known immunity.

But by chance the proposed amended complaint ( Doc. 49 dated 05/01/2008

exb 2 and Supp. Apdx. Vol. One pgs. 258-341) includes RICO recognizable

business property interests that are the same nature and fact pattern recognized in

37

this circuit’s controlling precedents. The trial court was informed in the Statement

of Facts of the plaintiff-appellant’s Rule 59(e) Motion Doc. 61 at ¶¶ 19 and 20 on

pg. 6 that the court’s order dismissing the plaintiff’s claims (Addendum exhibit 1)

did not address the proposed amendment to include RICO co-conspirators,

including Sprint Inc. and AT&T and their predicate acts in furtherance of the

conspiracy as part of an unlawful enterprise with the defendant Bradley J.

Schlozman. The trial court was also given notice that the proposed amendment

including the RICO co-conspirators, Sprint Inc. and AT&T describes business

injuries that are from the services contracted and paid for by the plaintiff’s that

were not the services expressly or impliedly provided telecommunications

customers, creating an Eighth Circuit recognized tangible interest and standing for

claims against the RICO conspiracy under Bennett v. Berg, 685 F.2d 1053 (8th

Cir.1982).

The proposed amended complaint at pages 69-69 (Doc. 49 dated

05/01/2008 exb 2 at pgs. 67-68 included as Supp. Apdx. Vol. One pgs. 330-331)

avers that KPMG LLP is part of the existing defendants’ RICO conspiracy and

RICO enterprise.

The proposed amended complaint also alleges that KPMG LLP did two

predicate acts of Wire Fraud and Mail Fraud injuring the plaintiff-appellant with

Jeffrey Immelt’s fraudulent misrepresentations alleged and charged in the existing

complaint (The Form: 10-K corporate disclosure in Form: 10-K corporate

disclosure is an electronic form distributed through email and electronically

38

transmitted from KPMG to the SEC for distribution between computers on

database search queries, the annual report in ¶ 473 is mailed to stock holders) :

“i. 18 U.S.C. § 1961 Predicate Act of Fraud 471. The defendant GE and Jeffrey Immelt required the participation of KPMG LLP to commit their predicate acts and for the defendants RICO enterprise to achieve its ongoing goals.

KPMG LLP 472. The defendant KPMG LLP committed fraud by omission on March 3, 2006 in failing to disclose GE’s liability to the plaintiff for the breach of its real estate contracts with the plaintiff in a Form: 10-K corporate disclosure with the filing date: 3/3/2006 signed by KPMG LLP as required by the Sarbanes-Oxley Act of 2002, Pub. L. No. 107-204, 116 Stat. 745 to conceal Jeffrey R. Immelt and GE’s anticompetitive misconduct in the market for hospital supplies and prevent General Electric’s board of directors from discovering and honoring its obligation to the plaintiff. 473. The defendant KPMG LLP became aware of GE and Jeffrey R. Immelt’s liability from the fraud to conceal from GE’s investors and their Board of Director’s GE”s staggering liability to the plaintiff and in a more desperate effort to prevent the defendant’s RICO conspiracy from being discovered and to prevent the defendant’s RICO enterprise engaged in the artificial inflation of hospital supplies to defraud Medicare and Medicaid from being interrupted, KPMG LLP again committed fraud by omission on February 20, 2008 in failing to disclose GE’s liability to the plaintiff in SEC filings and the company’s annual report published and distributed to investors. 474. KPMG LLP concealed this liability despite becoming aware through the plaintiff’s press release that GE had avoided prosecution for the obstruction of the government’s investigation into Novation LLC by underwriting Novation LLC, VHA and UHC’s taking the plaintiff’s competitor Neoforma, Inc. private and merging it with the last remaining hospital supply marketplace GHX LLC controlled by Jeffery Immelt and General Electric through the involvement of US Attorney General Alberto Gonzales to prevent the Ft. Worth Office of the US Attorney for the Northern District of Texas from obtaining Neoforma’s corporate books containing evidence of Novation LLC’s laundering of hospital proceeds from the Medicare and Medicaid fraud scheme, first through the issuance by the USDOJ of the McNulty Memo then by taking Neoforma private. 475. The press release had informed KPMG LLP that the plaintiff would continue to seek damages in a private civil action against GE

39

and that US Attorney General Alberto Gonzales’ deal did not include the plaintiff’s claims.”

Doc. 49 dated 05/01/2008 exb 2 at pgs. 77-78 included as Supp. Apdx. Vol.

One pgs.339-340.

The trial court was in error for dismissing the plaintiff’s federal claims

because the proposed amended complaint placed the RICO allegations squarely

within the Mail Fraud and Wire Fraud pleading standard determined by the

unanimous Supreme Court in Bridge v. Phoenix Bond & Indemnity Co., No. 07-

210 (U.S. 6/9/2008) and the paid out money for contracts to provide the plaintiff-

appellant business services that were being interfered with by the existing

defendant RICO conspiracy are recognizable business property injuries conferring

standing on the plaintiff-appellant to prosecute the defendants for racketeering

under the controlling precedent of this circuit in Bennett v. Berg, 685 F.2d 1053 at

1058 (C.A.8 (Mo.), 1981).

ISSUE III: WHETHER THE TRIAL COURT ERRED BY FAILING

TO RECUSE ITSELF OVER DIRECTORSHIP IN PARTY IN INTEREST AND CONCURRENT DEFENDANT ST. LUKE’S HEALTH SYSTEM

This court reviews for abuse of discretion the denial of a motion to recuse.

Moran v. Clarke , 296 F.3d 638, 648 (8th Cir. 2002) (en banc).

The trial judge in error failed to recuse himself for his non-waivable

fiduciary interest under 28 U.S.C. § 455(b)(5)(i) as a director of a defendant

hospital supply cartel member. The case on appeal is the same matter or

controversy where a § 455 Motion for Recusal was unanswered. See Motion to

40

Recuse exb. 1 Supp. Apdx. Vol. Three Pg. 1051, also Pltf Mtn to Alter or Amend

Judgment Doc. 61 filed. 08/04/2008 that contained the recusal as exhibits 1, 1-1

and 1-2.

In Little Rock School District v. Armstrong, No. 02-3867EA (8th Cir., 2004)

the Eighth Circuit was required to determine if a “mandamus proceeding in 1987

involved the same ‘matter in controversy’ as the present questions before us for

purposes of 28 U.S.C. § 455(b)(2)” Id at 4-6. This Circuit’s analysis would find

that because the state law claims are consistent and unchanged (and as yet never

ruled on), the present action is the same “matter in controversy” as Lipari v.

General Electric et al 06-0573-CV-W-FJG where Hon. Judge Feranado J. Gaitan

did not rule on the plaintiff’s timely motion for recusal See Motion to Recuse exb.

1 Supp. Apdx. Vol. Three Pg. 1051, also Pltf Mtn to Alter or Amend Judgment

Doc. 61 filed. 08/04/2008 that contained the recusal as exhibits 1, 1-1 and 1-2.

This circuit would also find the present case is the same “matter in controversy” as

MSCI v General Electric et al. KS Dist. Court # 03-2324-CM brought by the

plaintiff’s attorney that appears to have been reciprocally disbarred without a

hearing by Hon. Judge Feranado J. Gaitan despite grounds and a request for a

hearing. See Pltf Mtn to Alter or Amend Judgment Doc. 61 filed. 08/04/2008 exb.

8 Transcript of Sherwood Bankruptcy pg. 5,6,48-49; Supp. Apdx. Vol.

Two,(Mandamus exhibit 14 )In the Matter of the Disciplinary Proceedings of Bret

Landrith, W.D. of MO court pgs. 553-580

Impermissible bias can be inferred by”... the trial court's avoidance of ruling

41

on the motions to recuse...” McPherson v. U.S. Physicians Mut., 99 S.W.3d 462 at

pg. 490 (Mo. App., 2003). When the case was removed from Independence for the

second time, Hon. Judge Feranado J. Gaitan in his new role as Chief Judge

responsible for assignments again presided over the plaintiff’s “matter in

controversy” now styled 07-0849-CV-W-FJG despite being given notice of his 28

U.S.C. § 455(b)(5)(i) prohibited directorship of a party with a very substantial and

material interest in the outcome. The circumstances of Hon. Judge Feranado J.

Gaitan Jr.’s fiduciary interest is equivalent to the judge in Liljeberg v. Health

Services Acquisition Corp., 486 U.S. 847, 859-60, 108 S.Ct. 2194, 100 L.Ed.2d

855 (1988):

“Judge Collins found for Liljeberg and, over a strong dissent, the Court of Appeals affirmed. Approximately 10 months later, respondent learned that Judge Collins had been a member of the Board of Trustees of Loyola University while Liljeberg was negotiating with Loyola to purchase a parcel of land on which to construct a hospital. The success and benefit to Loyola of these negotiations turned, in large part, on Liljeberg prevailing in the litigation before Judge Collins.”

Liljeberg v. Health Services Acquisition Corp, 486 U.S. 847 at 850.

The Chief Judge is responsible for knowing that in this Circuit under 28

U.S.C. § 455(b)(5), recusal is mandatory. See U.S. v. Tucker, 82 F.3d 1423 (C.A.8

(Ark.), 1996). The plaintiff-appellant was mindful of the special responsibilities of

a Chief Judge. One of which is to protect his district against the felonious law firm

misconduct documented at length in the plaintiff-appellant’s complaint and largely

uncontrovertibly demonstrated in the record of this matter and that of the related

action Medical Supply Chain, Inc. v. Novation, et al, W.D. MO case no. 05-0210.

42

The plaintiff-appellant was aware however that 28 U.S.C. § 137 vests the

district courts with broad discretion in the assignment of cases to particular judges

and makes the Chief Judge responsible for assignments. United States v. Diaz, 189

F.3d 1239, 1243-45 (10th Cir. 1999).

Hon. Judge Feranado J. Gaitan, Jr. acted consistent with the duties of a Chief

Judge in the wake of shocking misconduct in the District like that described in

United States v. Martinez, 667 F.2d 886, 887-88 (10th Cir.1981) where USDOJ

attorneys met ex parte with a district judge and witnesses to unlawfully influence

the outcome of a proceeding. In what is for practical purposes an Eighth Circuit

decision by a panel of this circuit’s judges hearing a Tenth Circuit case, the court

determined that “A judge is not only entitled but also has a duty to take all lawful

measures reasonably necessary to prevent the occurrence of a crime in his

courtroom.” Martinez v. Winner, 771 F.2d 424 at 435 (C.A.10 (Colo.), 1985)1. The

duty to ensure fundamental fairness gives Hon. Judge Feranado J. Gaitan the

responsibility for enforcing attorney discipline:

“Above all else, the mission of a federal judge is to "administer justice without respect to persons, and... faithfully and impartially discharge and perform all the duties incumbent upon [him]... under the Constitution and laws of the United States." 28 U.S.C. § 453 (judicial oath of office).”

U.S. v. Whitman, 209 F.3d 619 at 625 (6th Cir., 2000).

Hon. Judge Feranado J. Gaitan simultaneously ordered alternative dispute

1 Vacated and remanded on other grounds in Tyus v. Martinez, 475 U.S. 1138, 106 S.Ct. 1787, 90 L.Ed.2d 333 (1986) and reversed in part by Martinez v. Winner, 778 F.2d 553 (10th Cir.1985)

43

resolution before another judge of the district. The defendants had unsuccessfully

sought to have the RICO amendments dismissed for failure to state a claim and

lack of standing in the state court action Lipari v. General Electric, et al 16th Cir.

Court State of Missouri Case No. 0616-CV07421 prior to seeking their second

removal. The plaintiff updated his claims including subsequent RICO prohibited

conduct for the federal court. Having clearly met the Eighth Circuit controlling

standards on a twice tested complaint, the plaintiff could have no reasonable

expectation except that Hon. Judge Gaitan would disclose his interests and remedy

the misconduct in the district court.

The inquiry over whether recusal is warranted is whether a reasonable

person, knowing all the relevant facts, would discern potential impropriety

certainly warrants consideration of a judge's course or pattern of rulings, and also

of the judge's course of conduct. See Moran v. Clarke, 2002 C08 802 at 57-58

(USCA8, 2002). Hon. Judge Feranado J. Gaitan has still not disclosed information

related to his 28 U.S.C. § 455(b)(5)(i) directorship in St. Luke’s or his

participation in the reciprocal disbarment of the plaintiff’s counsel or whether

Hon. Judge Feranado J. Gaitan has made criminal and disciplinary referrals

against the present defendants’ counsel, disclosures he is permitted under section

455(e) and expected to make by the Eighth Circuit. Id. at 57-58.

The plaintiff made his § 455(b) motion as soon as he became aware of Hon.

Judge Feranado J. Gaitan directorship in St. Luke’s meeting the timeliness

requirement of Tri-State Financial, LLC v. Lovald, No. 07-2430 (8th Cir., 2008).

44

The plaintiff only discovered the information related to the Hon. Judge Feranado J.

Gaitan after learning of the information Hon. Judge Eugene Wedoff of the

Northern District of Illinois shared with senior justice department officials over

the ways and forms of interests sitting judges participating in a “pay to play”

scheme could have in cases before their court.

The timeliness rule of Kansas Public Employees Retirement System, In re, 85

F.3d 1353 at 1359 (C.A.8 (Mo.), 1996) isn’t implicated until after the court’s

disclosure: “455(a) objections can be waived after a court gives full disclosure of

the grounds for disqualification. 28 U.S.C. § 455(e).” Kansas Public Employees

Retirement System, In re, 85 F.3d 1353 at 1359. Hon. Judge Eugene Wedoff has

not yet disclosed his interests in this matter or controversy to the parties. Under

Liljeberg, § 455 relief is timely “...even though the judgment had become final.”

Scott v. U.S., 559 A.2d 745 at 751-752 (DC, 1989).

The plaintiff also has the burden of showing he was actually prejudiced by

the second assignment of his action to Hon. Judge Feranado J. Gaitan under

United States v. Gallo, 763 F.2d 1504, 1532 (6th Cir. 1985), a showing he could

not make until the Memorandum and Order was issued controverting the

controlling and clearly established precedents of the Eighth Circuit and Supreme

Court, and barring the plaintiff’s right to amend under F.R. Civ. P. Rule 15(a), "a

party may amend its pleading once as a matter of course . . . before being served

with a responsive pleading." A motion to dismiss is not a responsive pleading

within the meaning of Rule 15(a). See, e.g., Rhoades v. Avon Prods., Inc., 504

45

F.3d 1151, 1158 n.5 (9th Cir. 2007).

Hon. Judge Feranado J. Gaitan’s memorandum and order (addendum exhibit

1) also cites mere interim orders in other jurisdictions that the court was barred

from taking into consideration, demonstrating the judge’s lack of independence

and impartiality. As a counterpoint, the judge’s memorandum avoids describing

the procedural history of this matter or controversy including the fraudulent

removal to federal court by the General Electric defendants’ counsel and the

plaintiff’s need to file a mandamus and a rehearing on the mandamus to get the

matter or controversy returned to state court. This demonstrates for the first time

Hon. Judge Feranado J. Gaitan’s impermissible bias providing the moment when

the plaintiff was actually biased under Gallo, 763 F.2d at 1532 and the moment

when § 455(b)’s requirement of “actual bias or prejudice is proved by compelling

evidence” Brokaw v Mercer County, Brokaw et al (7th Cir., 2000).

A further concern over the lack of the trial court’s impartiality and influence

by extrajudicial sources is raised by the timing of the dismissal. The temporal

relationship of the trial court’s order of dismissal (addendum exhibit 1) with the

defendants’ conduct procuring interim dismissals in the District of Kansas antitrust

and racketeering action against the defendants’ hospital supply cartel and a partial

dismissal of some of the hospital supply cartel members in the 16th Circuit of

Missouri State Court exceeds that rejected in Glass v. Pfeffer, 849 F.2d 1261 at

1268 (C.A.10 (Kan.), 1988) and gives rise to the appearance of a lack of

independence or extra judicial bias and prejudice by this court. The plaintiff-

46

appellant gave notice of this temporal relationship giving the appearance of

extrajudicial influence in Plaintiff’s Reply To GE’s Opposition to Motion to Alter

or Amend Judgment Doc. 64 at pg. 8 filed 08/11/2008 and Plaintiff’s Reply To

GE’s Opposition to Motion to Alter or Amend Judgment Doc. 67 at pg. 2 filed

08/25/2008.

On July 8, 2008 the Kansas District Court in Lipari v. US Bancorp et al. KS

Dist. Case No. 2:07-cv-02146-CM made a show cause order initiating a scheme to

fraudulently procure dismissal of the plaintiff’s claims on the false accusation by

US Bank NA and US Bancorp that the plaintiff failed to produce documents and

answers requested by the defendants that led instead to the partial dismissal on

September 4, 2008 of the plaintiff’s contract, tortuous interference and fiduciary

duty claims against the US Bancorp defendants.

The temporal relationship of rulings adverse to the plaintiff and involving

adoption of extrajudicial interim orders and communications includes the

dismissal of racketeering claims against the hospital supply cartel members

involved in extrinsic fraud to interfere in the plaintiff’s ongoing antitrust litigation

appear to include the July 30, 2008 order of dismissal in the present action Lipari

v. General Electric Company, et al W. D. of MO Case no 07-0849 by Hon. Judge

Fernando J. Gaitan, Jr. ( a case Hon. Judge Gaitan had assigned to himself even

though an open § 455 Motion for recusal based on his directorship of a defendant

was on the record in the previous removal of the same action W. D. of MO Case

no. 06-0573) The July 7, 2008 order of the Kansas District Court in the same case

47

or controversy dismissing the plaintiff’s motion to reopen his federal antitrust and

racketeering claims in KS Dist. Court case no. 05-2299-CM appears related by the

same temporal and contrary to controlling precedent facts. And also, the partial

dismissal of Lipari v. Novation LLC, et al 16th Cir. Missouri State Court Case No.

0816-04217 on August 8, 2008 by Hon. Judge Michael W. Manners that Hon.

Judge Michael W. Manners had in error requested on July 3, 2008 Lipari v.

Novation LLC, et al 16th Cir. Missouri State Court Case No. 0816-04217.

The precedent of the Eighth Circuit is that the plaintiff-appellant’s appeal

will trigger the remand of the present action for the trial judge to rule on any

outstanding motion for recusal. “Accordingly, rather than remand to a different

judge, we remand this question to the district court with the suggestion that it

revisit and more thoroughly consider and respond to Moran's recusal request.”

Moran v. Clarke, 2002 C08 802 at 57-58 (USCA8, 2002).

PRAYER FOR RELIEF The plaintiff-appellant Samuel K. Lipari respectfully requests that the

dismissal of his federal claims be overruled, that leave be granted to amend his

complaint to include the additional co-conspirator defendants Sprint, AT&T and

KPMG LLC and that the trial judge be recused from further proceedings or in the

alternative the appeal be remanded for his answer to the plaintiff-appellant’s §455

motion.

Furthermore as the text of the plaintiff-appellants’ complaint gives witness

to, the struggle to vindicate the antitrust laws of this nation so clearly established

48

in the automotive industry and everywhere else citizens do business in America

that even with our Nation’s economy collapsing and the belief in private enterprise

so highly valued by our founding fathers being slaughtered by the unchecked

monopolization and extortion in healthcare that pushes America ever farther down

in the Wealth of Nations, the plaintiff has faced such treachery and treason and

witnessed the needless sacrifice of heroic officers of the court and industry experts

whenever they dared put on paper the Novation conspiracy’s conduct that he is

forced to issue the Epitaph of Simonides:

GO TELL THE KANSAS CITY METROPOLITAN BAR ASSOCIATION,

HONORABLE JUSTICES, THAT HERE, BY CONGRESS’ LAW, YOUR

NATION LIES.

S/ Samuel K. Lipari Samuel K. Lipari 3520 NE Akin, Blvd. #918 Lee's Summit, MO 64064 816-365-1306 saml@medicalsupplychain.com Pro se

CERTIFICATE OF COMPLIANCE

Section 1. Word count

As required by Fed. R. App. P. 32(a)(7)(C), I certify that this brief is proportionally

49

spaced from the beginning of Brief of the Appellant at the statement of issues to the

conclusion of the Prayer for Relief and contains 11,920 words.

Complete one of the following:

_X_ I relied on my word processor to obtain the count and it is :MS Office 2004 for

Mac.

__ I counted five characters per word, counting all characters including citations and

numerals.

I certify that the information on this form is true and correct to the best of my

knowledge and belief formed after a reasonable inquiry.

/s/ Samuel K. Lipari Samuel K. Lipari Appellant pro se

CERTIFICATION OF DIGITAL SUBMISSIONS

I hereby certify the following: Compliance with digital appellate requirements that copies were provided on a compact disc supplied along with written materials to the court and opposing counsel and by electronic mail to the opposing counsel. Compliance with with digital appellate requirements that (1) all required privacy redactions (below) have been made and, with the exception of those redactions, every document submitted in Digital Form or scanned PDF format is an exact copy of the written document filed with the Clerk, (2) the digital submissions have been scanned for viruses with the most recent version of a commercial virus scanning program Kaspersky Anti-Virus 6.0 and, according to the program, are free of viruses.

/s/ Samuel K. Lipari Samuel K. Lipari

50

Appellant pro se

ADDENDUM

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF MISSOURI

WESTERN DIVISION

SAMUEL K. LIPARI, ))

Plaintiff, ))

v. ) No. 07-0849-CV-W-FJG)

GENERAL ELECTRIC COMPANY, et al., ))

Defendants. )

ORDER

Currently pending before the Court are several motions to dismiss filed by the

various defendants, GE, Seyfarth Shaw LLP, Jeffrey R. Immelt, Heartland Financial

Group, Christopher McDaniel, Stewart Foster and Bradley Schlozman. Plaintiff has also

filed a Motion to Amend his Complaint to add two new defendants.

I. BACKGROUND

On November 9, 2007, defendants removed the present case to this Court.

Plaintiff initially filed this suit in Jackson County, Missouri alleging a single state law

claim for breach of contract related to an alleged purchase agreement for a building

located at 1600 N.E. Coronado Drive, Blue Springs, Missouri. Plaintiff’s petition was not

removable when it was originally filed, because it did not assert a federal question and

there was no diversity. On October 10, 2007, plaintiff filed a “Motion for Leave to

Amend Under RSMO 55.33.” Plaintiff in his motion sought leave to add new parties and

new claims, including claims under the Racketeer Influenced and Corrupt Organizations

Act (“RICO”), 18 U.S.C. § 1962, et seq. and the Hobbs Act, 18 U.S.C. § 1951. The

state court granted plaintiff’s Motion to Amend on October 31, 2007. On December 7,

Addendum Exhibit 1

1The dissolved corporation of which Mr. Lipari was the chief executive officer.

2

2007, plaintiff filed his Amended Complaint in this Court. Plaintiff in his 403 paragraph,

sixty-eight page Complaint alleges that he, through his now dissolved corporation,

“made a contract with the defendants to sell GE Transportation’s remaining ten year

lease at a deep discount benefitting GE in exchange for GE’s funding of the plaintiff’s

purchase of the building though GE’s business lending subsidiary, GE Capital.” (¶ 45).

Plaintiff alleges that the GE entities knew that plaintiff’s company, Medical Supply Chain

(“MSC”), intended to use the transaction to capitalize its entry into the hospital supply

market and that it was unable to obtain capital through conventional means. (¶ 27).

Plaintiff alleges that the GE defendants partially performed the terms of the contract, but

then subsequently breached the contract. Plaintiff alleges that “GE caused the breach

of the contracts when GE Medical and the electronic hospital supply marketplace GHX

LLC created by GE interfered to prevent Medical Supply from getting capitalization

through the contract to enter the hospital supply marketplace.” (¶ 29). Plaintiff alleged

that “GHX, GE and GE Medical are openly part of an unlawful hospital supply cartel with

Novation LLC that had previously prevented Medical Supply from capitalizing its entry

into the hospital supply market.” Id.

This is not the first time that plaintiff has brought claims of this sort against these

defendants. In November 2002, Medical Supply Chain1 filed suit against US Bancorp

and others in federal court in Kansas. Medical Supply Chain, Inc. v. US Bancorp, NA,

et al., No. 02-2539-CM. In that case, MSC asserted various state law claims, antitrust

claims under the Sherman and Clayton Acts and violations of the Hobbs Act. MSC

3

alleged that US Bancorp and the other defendants refused to provide financing to MSC

in order to prevent MSC from entering into the healthcare supply market, and

perpetuating their monopoly over this market. On June 16, 2003, the Court dismissed

MSC’s Complaint in US Bancorp I, stating that some of MSC’s allegations were

“completely divorced from rational thought.” See Medical Supply Chain, Inc. v. US

Bancorp, NA, et al., No. 02-2539-CM, 2003 WL 21479192 at *8. MSC appealed the

dismissal to the Tenth Circuit, who affirmed the case and remanded it to the District

Court with directions to impose sanctions against plaintiff and plaintiff’s counsel for

prosecution of a frivolous appeal. See Medical Supply Chain v. US Bancorp NA, et al.,

2004 WL 2504653 (10th Cir. Nov. 8, 2004).

On June 18, 2003, MSC filed a lawsuit against the GE defendants in federal

court in Kansas. Medical Supply Chain, Inc. v. General Electric Company, et al., No.

03-2324-CM (“GE I Lawsuit”). In that suit MSC claimed that the GE defendants

prevented MSC’s entry into the health care supplier/distribution market by refusing to

sublease a building or provide financing to MSC. He also alleged that the GE

defendants violated federal antitrust laws pursuant to the Sherman Act and the

Robinson-Patman Act. He also asserted state common law claims against the

defendants. On January 29, 2004, the court dismissed all of MSC’s antitrust claims with

prejudice. Medical Supply Chain, Inc. v. General Electric Company, et al., 2004 WL

956100 (D.Kan. Jan. 29, 2004).

On March 9, 2005, MSC filed suit in the Western District of Missouri against

Neoforma, Inc., Novation, LLC, US Bancorp, and various other corporate entities and

individuals. Medical Supply Chain, Inc. v. Neoforma, Inc., et al., No. 05-2010-CV-W-

4

ODS. The case was transferred to the District of Kansas. Plaintiff alleged that the

defendants conspired to restrain trade in the hospital supply market. He asserted

claims under the Sherman Act, Clayton Act, the Declaratory Judgment Act, RICO, the

Hobbs Act and the USA Patriot Act, in addition to numerous common law claims. On

March 7, 2006, the district court dismissed all of MSC’s federal claims with prejudice

and declined to retain jurisdiction over the state law claims. Medical Supply Chain, Inc.

v. Neoforma, Inc. et al., 419 F.Supp.2d 1316, 1335-1336 (D.Kan. 2006). The Court

imposed sanctions against plaintiff’s counsel, Bret Landrith as well as MSC’s CEO, Mr.

Lipari.

On November 28, 2006, plaintiff filed another lawsuit against US Bancorp NA

and U.S. Bank NA in the Circuit Court of Jackson County, Missouri, alleging the same

state law claims that were dismissed without prejudice in U.S.Bancorp I. The lawsuit

was removed to this Court and subsequently transferred to the U.S. District Court for

the District of Kansas where it is currently pending.

II. STANDARD

The Supreme Court recently issued a new standard to apply when considering

motions to dismiss. In Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1974, 167

L.Ed.2d 929 (2007), the Supreme Court rejected the “no set of facts” language from

Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). The Court stated:

While a complaint attacked by a Rule 12(b)(6) motion to dismiss does notneed detailed factual allegations, . . . a plaintiff’s obligation to provide thegrounds of his entitlement to relief requires more than labels andconclusions, and a formulaic recitation of the elements of a cause ofaction will not do . . . . Factual allegations must be enough to raise a rightto relief above the speculative level . . .on the assumption that all theallegations in the complaint are true (even if doubtful in fact) . . . .

5

Id. at 1964-65 (internal citations and quotations omitted). The Court went on to note

that, “of course, a well-pleaded complaint may proceed even if it strikes a savvy judge

that actual proof of those facts is improbable, and that a recovery is very remote and

unlikely.” Id. at 1965 (internal citations and quotations omitted). The Court

emphasized that “we do not require heightened fact pleading of specifics, but only

enough facts to state a claim to relief that is plausible on its face. Because the plaintiffs

here have not nudged their claims across the line from conceivable to plausible, the

complaint must be dismissed.” Id. at 1974.

III. DISCUSSION

A. RICO Claims

Title 18 U.S.C. § 1964 states: “[a]ny person injured in his business or property by

reason of a violation of section 1962 of this chapter may sue therefor in any appropriate

United States district court and shall recover threefold the damages he sustains and the

cost of the suit . . . except that no person may rely upon any conduct that would have

been actionable as fraud in the purchase or sale of securities to establish a violation of

section 1962.” Title 18 U.S.C. § 1964(c). Defendants move to dismiss plaintiffs’ RICO

claims on many grounds, but the ground which the Court will address first and which is

dispositive, is standing.

In a federal RICO action, ‘the plaintiff only has standing, if, and canonly recover to the extent that, he has been injured in his business orproperty by the conduct constituting the violation.’ Sedima v. Imrex, Co.,Inc., 473 U.S. 479, 496, 105 S.Ct. 3275, 87 L.Ed.2d 346 (1985). ‘Thus,the two requirements for RICO standing are (1) an injury to ‘business orproperty’ (2) caused ‘by reason of’ a RICO violation.’ Hamm v. Rhone-Poulenc Rorer Pharmaceuticals, Inc., 187 F.3d 941, 951 (8th Cir.1999).

6

Geraci v. Women’s Alliance, Inc., 436 F.Supp.2d 1022, 1038 (D.N.D. 2006).

The Court in Birdnecklace v. Steele, No. 07-5008-AWB, 2008 WL 1766720, *5

(D.S.D. Apr. 11, 2008), noted that “[t]he United States Supreme Court has further

clarified that this provision contains a ‘directness’ requirement, restricting possible

plaintiffs only to those whose injuries were proximately caused by defendant’s

racketeering conduct.” Courts have also limited plaintiffs to recovering losses which are

concrete and which are capable of measurement. “[A] showing of injury requires proof

of concrete financial loss, and not mere injury to a valuable intangible property interest.”

Steele v. Hosp. Corp. Of America, 36 F.3d 69, 70 (9th Cir. 1994)(internal citations and

quotations omitted); “Injury to mere expectancy interests or to an ‘intangible property

interest’ is not sufficient to confer RICO standing.” Price v. Pinnacle Brands, Inc., 138

F.3d 602, 607 (5th Cir. 1998). “Defendants are correct in asserting that a RICO plaintiff

may not recover for speculative losses or where the amount of damages is unprovable.”

Trustees Of Plumbers and Pipefitters Nat’l Pension Fund v. Tansworld Mech.,Inc., 886

F.Supp. 1134, 1146 (S.D.N.Y.1995). “If the damages cannot be ascertained, then there

is no lawful way to compensate the plaintiff. Thus, the courts regularly have held that a

plaintiff who alleges injuries that are ‘indefinite and unprovable’ does not have standing

under, and cannot recover damages pursuant to, RICO.” World Wresting Entertainment,

Inc. v. Jakks Pacific, Inc., 530 F.Supp.2d 486, 521 (S.D.N.Y. 2007).

In his Complaint, petitioner states only that he was repeatedly injured by the

defendants’ predicate acts, he would not have been injured but for their violations of §

1962, he was injured as a proximate cause of their violations of § 1962 and he was

injured in his business and property from their violations. He states that he is entitled to

7

four hundred and fifty million dollars, which after trebling under 18 U.S.C. § 1964 would

amount to one billion, three hundred and fifty million dollars. (Complaint ¶¶ 392-396).

In his Suggestions in Opposition, plaintiff states that he has been injured by the loss of

money from the sale of the lease to GE and GE Transportation, the loss of the sale of

hospital supplies each day that the defendants kept him from doing business, and

injury to his business reputation. However, plaintiff does not attempt to quantify or

measure these damages in any way. He also offers no evidence or support for his

claim that his RICO damages total $450 million dollars. In World Wresting

Entertainment, 530 F.Supp.2d 486, the licensor of videogames and toys brought an

action against licensees and licensing agents, alleging that as a result of defendants

racketeering acts, it was deprived of the intangible right of honest services of the agents

and received lower royalty rates from its licenses. Plaintiff in that case alleged that it

was denied the business opportunity of between 50 - 60% more in royalties from a non-

corrupt licensing arrangement. The Court in that case found that plaintiff had no ability

to project what would have come out of the bidding processes for the various licenses.

Additionally, the Court found that plaintiff had no way of assessing the profits any

winning licensee could have produced for plaintiff, as that was dependent on the vendor

manufacturing and marketing the videogames and toys on a scale equal to or better

than the bids that Plaintiff accepted. The Court in that case concluded that there was

no plausible set of facts which would show that the plaintiff has suffered a “quantifiable

and cognizable injury under RICO.” Id. at 524. Similarly, in the instant case, the Court

finds that the plaintiff’s allegations regarding his injuries are even less specific,

particularly since plaintiff had not even begun operating his business at the time he

9

RICO action and there is no private right of action for a violation of the statute.

Accordingly, any claims that plaintiff may have raised under this statute are hereby

DISMISSED.

C. State Law Claims

As the Court has now dismissed all of plaintiff’s federal claims, the Court declines

to retain jurisdiction over plaintiff’s state law claims. Accordingly, the Court hereby

DISMISSES plaintiff’s state law claims.

IV. CONCLUSION

Accordingly, for the reasons stated above, the Court hereby GRANTS GE’s

Motion to Dismiss (Doc. # 11), Seyfarth Shaw’s Motion to Dismiss (Doc. # 16); Jeffrey

Immelt’s Motion to Dismiss (Doc. # 19); Heartland Financial Group, Inc., Christopher

McDaniel and Stuart Foster’s Motion to Dismiss (Doc. # 32) and Bradley Schlozman’s

Motion to Dismiss (Doc. # 56).

The Court GRANTS the Moving Defendants’ Motion for Leave to File Reply Brief

in Excess of Local Rule Page Limitation (Doc. # 45); GRANTS Jeffrey Immelt’s Motion

to Join the Moving Defendants’ Motion for Leave to File Reply Brief in Excess of Local

Rule Page Limitation (Doc. # 46).

The Court DENIES as MOOT Heartland Financial Group, Inc. and Christopher

McDaniel’s Motion for Extension of Time to File Answer to Amended Complaint (Doc. #

27); DENIES plaintiff’s Motion for Service by U.S. Marshal (Doc. # 30); DENIES

plaintiff’s Motion to Amend his Complaint (Doc. # 49); DENIES as MOOT defendants’

Motion to Stay Briefing (Doc. # 51) and DENIES AS MOOT defendant Schlozman’s

10

Motion for Extension of Time to File Answer (Doc. # 55).

Date: 7/30/08 S/ FERNANDO J. GAITAN, JR. Kansas City, Missouri Fernando J. Gaitan, Jr.

Chief United States District Judge

IN THE UNITED STATES DISTRICT COURTWESTERN DISTRICT OF MISSOURI

WESTERN DIVISION

SAMUEL K. LIPARI, ))

Plaintiff, ))

v. ) No. 07-0849-CV-W-FJG)

GENERAL ELECTRIC COMPANY, et al., ))

Defendants. )

ORDER

Currently pending before the Court are the following motions: 1) plaintiff’s Motion

to Alter or Amend the Judgment (Doc. # 61); 2) plaintiff’s Motion for Order Disqualifying

Attorney General Michael Mukasey and the Department of Justice (Doc. # 68);

3) plaintiff’s Motion to Withdraw Any and All Ex Parte Orders (Doc. # 69) and

4) plaintiff’s Motion for a Hearing on the Motion to Disqualify (Doc. # 74).

I. Motion to Alter or Amend the Judgment

Plaintiff moves pursuant to Fed.R.Civ.P. 59(e) for the Court to reconsider the

Order entered on July 30, 2008, granting defendants’ Motions to Dismiss.

A motion to alter or amend judgment pursuant to Fed.R.Civ.P. 59(e)serves the limited purpose of correcting manifest errors of law or fact orpresenting newly discovered evidence. . . . It is not appropriate to use aRule 59(e) motion to repeat arguments or to raise new arguments thatcould have been made before judgment. . . . District courts have broaddiscretion when deciding whether or not to grant a motion to amendjudgment.

In re General Motors Corp. Anti-Lock Brake Products Liability Litigation, 174 F.R.D. 444,

446 (E.D.Mo. 1997), aff'd sub nom. Briehl v. General Motors Corp., 172 F.3d 623 (8th

Cir. 1999)(citations and internal quotations omitted). See also, Peters v. General

Addendum Exhibit 2

2

Service Bureau, Inc., 277 F.3d 1051,1057 (8th Cir. 2002)(“Arguments and evidence

which could have been presented earlier in the proceedings cannot be presented in a

Rule 59(e) motion.”). Plaintiff believes that this Court erred by: 1) ignoring the recent

Supreme Court decision in Bridge v. Phoenix Bond & Indem. Co., 128 S.Ct. 2131, 170

L.Ed.2d 1012 (2008) and applying a heightened pleading standard; 2) finding the

plaintiff’s injuries indefinite or speculative; and by 3) failing to recuse from this case.

Plaintiff states that he has not raised any new evidence to support his Rule 59(e) motion

and that his motion is “based solely on the basis of clear error or manifest error and

injustice.” (Plaintiff’s Reply Suggestions to General Electric’s Suggestions in

Opposition, p.1). The Court will examine each of the points raised by plaintiff below.

A. Bridge v. Phoenix Bond & Indemnity Co.

Plaintiff argues that this Court ignored a recent Supreme Court decision in Bridge

v. Phoenix Bond & Indemnity Co., 128 S.Ct. 2131, 170 L.Ed.2d 1012 (2008), and held

plaintiff to a heightened standard of pleading. However, the Supreme Court’s decision

in Bridge dealt not with standing, but rather with a reliance element in a mail fraud case.

The Supreme Court found that:

a plaintiff asserting a RICO claim predicated on mail fraud need not show,either as an element of its claim or as a prerequisite to establishingproximate causation, that it relied on the defendant’s allegedmisrepresentations.

Id. at 2145. Plaintiff’s complaint was dismissed because he could not show that

he suffered a definite and provable injury. Thus, the Court does not find that the Bridge

decision affects the Court’s previous determination.

3

B. Indefinite and/or Speculative Injuries

Plaintiff argues that the Court’s ruling erroneously discredits the accrual rule

where multiple injuries occur over an extended period of time. Plaintiff also argues that

the Court has adopted an excessively narrow view of causation and injury contradicting

the law of this Circuit. Plaintiff then proceeds into a seven page discussion of various

cases and an explanation as to why they are relevant to his case. However, plaintiff is

simply repeating arguments that he could and did raise in his earlier pleadings. The

purpose of Rule 59(e) is not to give parties an opportunity to rehash or reargue their

cases.

C. Recusal

Plaintiff also asserts that the Court is biased because of an alleged connection to

the Board of Directors of St. Luke’s Health System, Inc. during the period of time

described in plaintiff’s Complaint. Plaintiff alleges that St. Luke’s was the racketeering

conspiracy’s planned recipient of the laundered funds from the Novation LLC member

hospitals and the replacement entity for Neoforma, Inc. It should be noted however, the

plaintiff has not actually filed a Motion for Recusal nor did plaintiff raise this issue until

after the Court ruled against plaintiff. Plaintiff argues that “[t]he Circuit’s analysis would

find that because the state law claims are consistent and unchanged (and as yet never

ruled on), the present action is the same ‘matter in controversy’ as Lipari v. General

Electric et al., 06-0573-CV-W-FJG where the Hon. Judge Fernando J. Gaitan did not

rule on the plaintiff’s timely motion for recusal and the same ‘matter in controversy’ as

MSCI v. General Electric et al., KS Dist. Court # 03-2324-CM brought by the plaintiff’s

4

attorney that appears to have been reciprocally disbarred without a hearing by Hon.

Judge Fernando J. Gaitan despite grounds and a request for a hearing.”

The Court is unsure why plaintiff believes that this case is the same ‘matter in

controversy.’ The case filed in 2006 by plaintiff was a separate action which was

remanded to the state court almost two years ago. The Court in that case denied as

moot plaintiff’s motion for recusal. The instant action was initially filed in federal court

by the plaintiff on November 9, 2007, against some of the same defendants, but also

against other defendants who were not named in the ‘06 action. Despite having

previously filed the Motion to Recuse in the ‘06 action, plaintiff has not to date filed a

Motion to Recuse in the present action. Even if plaintiff had actually filed a Motion to

Recuse, the Court finds no basis for granting the motion. In Tri-State Financial, LLC v.

Lovald, 525 F.3d 649, 653 (8th Cir. 2008), the Court stated:

Motions for recusal under 28 U.S.C. § 455 “will not be consideredunless timely made.” Fletcher v. Conoco Pipe Line Co., 323 F.3d 661, 664(8th Cir.2003) (citation omitted). The timeliness doctrine under § 455“requires a party to raise a claim at the earliest possible moment afterobtaining knowledge of facts demonstrating the basis for such a claim.” Id.(internal quotation marks and citation omitted). A party is required to bringits recusal motion promptly to avoid the risk that the party might hold itsapplication as an option in the event the trial court rules against it. See Inre Apex Oil Co., 981 F.2d 302, 304-05 (8th Cir.1992).

Additionally, even if the motion had been timely made, there is no basis for the motion.

In Scenic Holding LLC v. New Board of Trustees of Tabernacle Missionary Baptist

Church, Inc., 506 F.3d 656 (8th Cir. 2007), the Court stated:

Under 28 U.S.C. § 455(a), a judge “shall disqualify himself in anyproceeding in which his impartiality might reasonably be questioned.”Because § 455(a) sets forth an objective standard, whether a judge

5

actually is biased or actually knows of a ground requiring recusal isirrelevant. Moran v. [Clarke], 296 F.3d at 648 [(8th Cir. 2002)]. Rather, theissue is “whether the judge's impartiality might reasonably be questionedby the average person on the street who knows all the relevant facts of acase.” Id. (quotation omitted). “Because a judge is presumed to beimpartial, a party seeking recusal bears the substantial burden of provingotherwise.” United States v. Martinez, 446 F.3d 878, 883 (8th Cir. 2006).

Id. at 662. In the instant case, an average person would not reasonably question the

Court’s impartiality, especially since the Court has not served on the Board of Directors

for St. Luke’s in several years. Therefore, the Court finds that there is no basis on

which to recuse.

Accordingly, for the reasons stated above, the Court hereby DENIES plaintiff’s

Motion to Alter or Amend the Judgment (Doc. # 61).

II. Motion to Disqualify

Plaintiff requests that the Court disqualify Attorney General Michael Mukasey and

the United States Department of Justice including the Western District of Missouri Office

of U.S. Attorney John Wood from representing Bradley Schlozman. Plaintiff argues that

the U.S. Department of Justice has targeted Bradley Schlozman in an investigation by a

federal grand jury. Plaintiff also asserts that Schlozman and John Wood were installed

in the U.S. Attorney’s office to obstruct justice in the criminal case against Cox-Health of

Springfield, Missouri and its executives. Plaintiff also states that John Wood was a

former law partner of Brad Schlozman. Plaintiff argues that Attorney General Michael

Mukasey and John Wood have an unwaivable conflict of interest in the representation of

Brad Schlozman because they were engaged in criminal activity related to the charges

for which their client is on trial.

6

As the Court has now dismissed plaintiff’s Complaint and has denied plaintiff’s

Motion to Alter or Amend the Judgment, the Court hereby DENIES AS MOOT plaintiff’s

Motion to Disqualify (Doc. # 68).

III. Motion to Withdraw Any and All Ex Parte Orders

Plaintiff argues that the Order dismissing his Complaint did not reflect the record

of the litigation or the issues raised between the parties. He also asserts that the Order

did not address the Motion for Recusal that was filed on 11/8/06 in his other case or

address his motion to remand. Plaintiff states that the Order was overreaching because

it referred to the Kansas litigation, erroneously ignored his standing and ignored recent

Supreme Court precedent. Plaintiff theorizes that because the Order did not address

the issues raised between the parties, then the Order must of been ghost written by the

United States Department of Justice. The Court can assure plaintiff that the Order

dismissing his Complaint was not ghost-written nor were portions of the Order submitted

to the Court through improper ex parte contact. The Order was written after reviewing

all the parties’ pleadings and reading the relevant caselaw and was a product of this

Court’s own analysis of the issues. Accordingly, as there were no ex parte orders

submitted, the Court hereby DENIES plaintiff’s Motion to Withdraw Any and All Ex Parte

Orders (Doc. # 69).

IV. Motion for Hearing

Plaintiff requests that the Court grant a hearing on his outstanding motions

including his Rule 59(e) motion. In support of this motion, plaintiff refers to another pro

se party, who is not a party to this action and asserts that John Wood was

7

eavesdropping on conversations between a prisoner and a witness in a federal criminal

proceeding and federal bankruptcy proceedings. The Court in unsure how plaintiff

believes that this information is relevant to his case before this Court. Nevertheless, the

Court does not find that a hearing is necessary and finds no merit in plaintiff’s Motion to

Alter or Amend the Judgment.

V. Conclusion

Accordingly, for the reasons stated herein the Court hereby DENIES plaintiff’s

Motion to Alter or Amend the Judgment (Doc. # 61); DENIES AS MOOT plaintiff’s

Motion for Order Disqualifying Attorney General Michael Mukasey and the Department

of Justice (Doc. # 68); DENIES plaintiff’s Motion to Withdraw Any and All Ex Parte

Orders (Doc. # 69) and DENIES plaintiff’s Motion for a Hearing on the Motion to

Disqualify (Doc. # 74).

Date: 10/31/08 S/ FERNANDO J. GAITAN, JR. Kansas City, Missouri Fernando J. Gaitan, Jr.

Chief United States District Judge

1

IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF MISSOURI

WESTERN DIVISION

SAMUEL K. LIPARI, )

Plaintiff, )

)

v. ) Civil No. 07-0849-CV-W-FJG

) Formerly 06-0573-CV-W-FJG

GENERAL ELECTRIC COMPANY, et al., ) Formerly 16th

Cir. Case No.0616-

Defendants ) CV07421

NOTICE OF APPEAL

Comes now the plaintiff Samuel K. Lipari appearing pro se and respectfully files this notice of

appeal.

The plaintiff appeals this court’s 07-0849-CV-W-FJG order (doc. 59) dated 7/30/08 granting

defendants’ motions for dismissal and denying plaintiff’s Motion to Amend his Complaint (Doc. 49)

The plaintiff appeals this court’s denial as moot the plaintiff’s motion for recusal (doc. 24) Case

4:06-cv-00573-FJG in the order (doc. 29) filed 11/29/2006.

The appeal is timely having been filed within days of this court’s Judgment (doc. 60) entered

7/30/08 and is held in abeyance until the court rules on the plaintiff’s Rule 59(e) Motion (doc.61); the

plaintiff’s Motion to Disqualify Attorney General Michael Mukasey (doc. 68); and the plaintiff’s Motion to

Withdraw Any and All Ex Parte Orders (doc. 69):

“Pursuant to Federal Rule of Appellate Procedure 4(a)(4), when a notice of appeal is filed after

announcement or entry of judgment but before disposition of a post-judgment motion, the appeal is

held in abeyance pending the district court's disposition of the post-judgment motion. FED. R.

APP. P. 4(a)(4)(B)(I) (stating that under such circumstances, the prior filed notice of appeal does not

become effective until "the order disposing of the last such remaining motion is entered[]").” [

Emphasis added]

Stewart Park and Reserve Coalition Inc. v. Slater, 374 F.Supp.2d 243 at 252 (N.D. N.Y., 2005).

Respectfully submitted,

S/ Samuel K. Lipari

Samuel K. Lipari

CERTIFICATE OF SERVICE

I certify I have sent a copy via email to the undersigned and opposing counsel via email on 8/12/08.

John K. Power

Leonard L. Wagner

Michael S. Hargens

Husch Blackwell Sanders, LLP

Addendum Exhibit 3

2

1200 Main Street

Suite 2300

Kansas City, MO 64105

(816)283-4651

Fax: (816)421-0596

john.power@husch.com

lwagner@kcsouthern.com

michael.hargens@husch.com

via email

Attorneys for the GE Defendants

J. Nick Badgerow

Spencer Fane Britt & Browne, LLP

9401 Indian Creek Parkway

Suite 700

Overland Park, KS 66210

(913)327-5134

Fax: (913)345-0736

Email: nbadgerow@spencerfane.com

Attorney for Seyfarth Shaw LLP

USA John Wood

Jeffrey P. Ray

Office of the United States Attorney

400 E. 9th St.

Room 5510

Kansas City, MO 64106

(816) 426-3130

Fax: (816) 426-3165

Jeffrey.Ray@usdoj.gov

Attorney for Bradley J. Schlozman

S/ Samuel K. Lipari

____________________

Samuel K. Lipari

297 NE Bayview

Lee's Summit, MO 64064

816-365-1306

saml@medicalsupplychain.com

Pro se

CERTIFICATE OF SERVICE I certify I have sent two bound paper copies and a digital disc via UPS to each

group of appellee’s counsel at the addresses below and an digital copy email to

the undersigned and opposing counsel via email on 12/12/08.

John K. Power Leonard L. Wagner Michael S. Hargens Husch Blackwell Sanders, LLP 1200 Main Street Suite 2300 Kansas City, MO 64105 (816)283-4651 Fax: (816)421-0596 john.power@husch.com lwagner@kcsouthern.com michael.hargens@husch.com via email Attorneys for the GE Defendants J. Nick Badgerow Spencer Fane Britt & Browne, LLP 9401 Indian Creek Parkway Suite 700 Overland Park, KS 66210 (913)327-5134 Fax: (913)345-0736 Email: nbadgerow@spencerfane.com Attorney for Seyfarth Shaw LLP USA John Wood Jeffrey P. Ray Office of the United States Attorney 400 E. 9th St. Room 5510 Kansas City, MO 64106

(816) 426-3130 Fax: (816) 426-3165 Jeffrey.Ray@usdoj.gov Attorney for Bradley J. Schlozman

S/ Samuel K. Lipari ____________________ Samuel K. Lipari 3520 NE Akin Blvd. #918 Lee's Summit, MO 64064 816-365-1306 saml@medicalsupplychain.com Pro se