APPELLANT/PETITIONER'S OPENING BRIEF
1. STATEMENT OF THE CASE

The basis for jurisdiction in the Court of Appeals lies directly in its authority to review and decide matters, which have been previously adjudicated by the U.S District Court for the Tenth District of Colorado (28 U.S.C., Ch.85, §§. 1291 & 1294).

a. The final Order and Judgement of Dismissal of the District Court, dated February 1, 2000 was timely followed with the filing of the Notice of Appeal to the 10th Circuit on February 11, 2000 by the Appellant/Petitioner/Appellant, Leslie Mamer. Notice from the Clerk of the Appellate Court states that the appeal was then docketed February 15, 2000, and instructions for completion of the appellate process were therein contained. The Pro-Se Docketing Statement was then timely filed, with the Pro Se Entry of Appearance on February 22, 2000. Certificates of Mailing accompanied all copies of all documents to be served upon the Attorney(s) for the Appellee/Respondent. Counsel has made entry of Appearance for the Appellee/Respondent/Appellee, the Collie Club of America, Inc. to the appellate Court only.

b. This case involves the Appellee/Respondent corporation, the Collie Club of America, Inc. (CCA), a non-profit organization, incorporated under the laws of the State of New York and enjoying tax-exempt status as a 26 U.S.C.501(c)7 social club. There are over 2400 members worldwide, including the Appellant/Petitioner (Mamer). Suit was filed as a class action on behalf of Appellant/Petitioner and others similarly situated, seeking injunctive relief to prevent further violations of civil rights; to obtain relief under the civil RICO provisions; and to enjoin the corporation from further breaching a contractual and fiduciary responsibility to the member class. There have been no proceedings in the District Court, other than sua sponte replies in the form of orders sent by mail.

c. The original complaint was filed, with its fee of $150, in the U.S. District Court on January 10, 2000. The District Court is located in Denver, Colorado. The Appellant/Petitioner resides some 500 miles away in the extreme southwest corner of the state. All filings and documents to and from the Appellant/Petitioner and Court must be conducted by mail.

d. After the filing of the complaint, the court clerk issued the summons forms. Appellant/Petitioner received them on or about January 18, 2000. The forms were then completed and sent to

i. the Secretary of State for the State of New York, as the agent of process for the rules of incorporation therein, by certified mail; and
ii. To the President of the Collie Club of America, Inc., a resident of Virginia, via United Parcel Service overnight mail, tracking and delivery confirmed, and in accordance with the Fed. Rules of Civ. Proc. 4(e) 1 & 2.

f. The President, upon receipt of the summons, apparently discussed the complaint and summons with other Officers of the club and made contact with a law firm regarding an answer. However, even to this date, with the exception of an entry of appearance for this appeal, there remains no record of an entry of appearance by counsel for the Defense in the records of the District Court.

g. Informal telephone contact was made by Appellee/Respondents counsel Fred Winters with Appellant/Petitioner on or about January 24, 2000, asking to discuss settlement options. No conclusions were reached. Approximately one week later, about February 1, 2000 Appellant/Petitioner received another call from attorney Winters indicating that he had instructions by his purported clients to defend the case. On that same date, the Judge of the District Court entered her Order and Judgement of Dismissal, herein at issue.

h. The aforementioned order was received by mail by the Appellant/Petitioner on February 4, 2000. On that same date, according to the court records, the first reply from the Appellee/Respondents was received. There is no notice of receipt of summons in the record, nor had the time for a reply exhausted the 20 days since service was effected. Date of expiration for a timely reply is established by the Fed. Rules of Civ. Proc, Rule 12 A.1(a) as 20 days after receipt of service of summons. Those 20 days would have expired on February 14, 2000.

i. On February 7, 2000 Appellant/Petitioner contacted the District Court by phone requesting any information in the court file that would indicate that either a response had been made or that an appearance had been entered prior to the Order of Dismissal. The Clerk responded in the negative and further, she recognized the error of the District Court and immediately sent to me the forms for filing this appeal. The following day, February 8, 2000, the Appellant/Petitioner received a copy of the response by Appellee/Respondents, later mooted by the District Court.

j. Appellant/Petitioner filed a timely motion to reopen, per local rule (reconsider ), based upon most of the foregoing facts. The motion was denied by the District Court. It also stated that there was "nothing to reconsider". Request for leave to amend the original complaint was enclosed within the motion, which was also denied for the same reason, even though Appellant/Petitioner indicated the notice of the primary defect in the pleading (misstated citation).
 

2) STATEMENT OF FACTS RELEVANT TO THE ISSUES PRESENTED FOR REVIEW

  In adjudicating a matter which had never been responded to; where no entry of appearance had been made by counsel for the adverse parties; by ruling absent motion, notice, or opportunity to be heard, the court itself committed an egregious act of violating the constitutionally guaranteed rights of the Appellant/Petitioner. The court, in so acting without precedent, absent any local or federal rule of law or procedure, by entering and issuing this order as final, abused its discretion in writing an opinion which clearly and discriminatorily litigated this matter for the Appellee/Respondents, setting itself up as a biased forum of American justice. Further, in order to give the District Court an opportunity to review and reconsider what it had done through a timely filed motion by Appellant/Petitioner, the court went on to state that there was no adverse effect of the judgement it had rendered and that, contrary to its own local rules, there was no provision for "reopening", calling it rather a "reconsideration"; and that there was "nothing to reconsider". In the same motion a proper request to amend the original complaint was made, in order to correct a typographical defect upon which the court narrowly focused its entire view. However, that too was denied, with the court stating that the defect was uncorrectable.

Statement of Issues
a. First Issue: Dismissal of a properly filed and docketed civil action entirely devoid of any motion, any notice to parties, and any opportunity to be heard is illegal, improper, and an abuse of judicial discretion and power.
Argument and Authorities
This is not merely an error on the part of the District Court. This kind of preclusive adjudication is an offense to the judiciary of the United States of America, particularly as the District Court is vested with the review of matters that protect the rights of the citizens of this country. The United States Constitution, Article III, Sec. 2 establishes the original jurisdiction of all cases in law and equity to controversies between citizens of different states, among its other authorities. Further, Article III, Sec. 1 mandates good behavior and conduct of the justices of the Supreme and inferior courts. In this part of the basic and absolute governing law of the United States, the courts are entrusted with the fair and impartial administration of justice. When a court of law for the federal government breaches this trust so openly and rapaciously as this District Court has done, it must be held accountable by the only means available: the appellate courts.

In this case, the District Court, for reasons unknown, and apparently having decided the case before it had begun to emerge from its shell, took it upon itself to enter a final order and dismissal. In so doing, the District Court exceeded its authority and reach, and entirely breaching The Federal Rules of Civil Procedure (FRCP). Those Rules mandate specifically, and in order, that:

1. Rule 1 - "The Federal Rules of Civil Procedure govern the procedure in all District Courts of the United States and are to be construed and administered to secure the just, speedy, and inexpensive determination of every action. "

The District Court has seemingly interpreted the meaning of "speedy" to be a right of the court to confer its own timetable, contrary to the other rules of procedure. In this case, the District Court did not wait for an answer or entry of appearance by counsel or the Appellee/Respondents (if they had wanted to proceed in pro se). The court did not even wait for the time for an answer to the original complaint to expire (FRCP Rule 12 A(1)a); the requisite 20 days after receipt of summons. In fact, the District Court didn't even take the time to submit motion or notice. It simply read the complaint, made a decision from that pleading alone and jumped to erroneous and hasty conclusions upon the untried merits.

2. Rule 12 C - this rule governs a judgement on the pleadings, if this was in the mind of the court, but ONLY after the time for the pleadings has been closed. It must be made by a motion to the court by "any party". The District Court is not, under any circumstances a "party" to this suit. However, it failed to make any motion on its own initiative; it failed to cite any authority of rule or law for such preemptive action; and it failed to abide by the preceding codicil that states clearly that the opportunity to be heard is paramount to the proceedings before a case can be dismissed.

 "It is too late in the day and entirely contrary to the spirit of the Federal Rules of Civil Procedure for the decisions on the merits (of the case) to be avoided on the basis of such mere technicalities. 'The Federal Rules reject the approach that pleading is a game of skill in which one misstep by counsel may be decisive of the outcome and accept the principle that the purpose of pleading is to facilitate a proper decision on the merits'. Conley v. Gibson, 355 U.S. 41, 48. The Rules themselves provide that they are to be construed "to secure the just, speedy, and inexpensive determination of every action." Rule 1. *.*.*
Rule 15(a) declares that leave to amend "shall be freely given when justice so requires". This mandate is to be heeded. " *.*.* If the underlying facts or circumstances relied upon by a Plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to test his claims on the merits. In the absence of any apparent or declared reason - such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc. - the leave sought should, as the rules require, be "freely given". Of course, the grant or denial of an opportunity to amend is within the discretion of the District Court, but outright refusal to grant the leave without any justifying reason appearing for the denial is not an exercise of discretion; it is merely abuse of that discretion and inconsistent with the spirit of the Federal Rules."

b. Second Issue: The District Court abused its power by trying the case for the Appellee/Respondents and for itself, absent any right to do so under present law or procedure.
Argument and Authorities:
The District Court states in its Order of Judgement and Dismissal, dated February 1, 2000, with its own citations arguing the matter for the Appellee/Respondents, that the violation of rights alleged in the original complaint is exclusively connected to federal criminal statutes (see Order at p.2). The court takes note of specific allegations of corruption and corrupt acts, which if left properly tried as facts and upon their merit, would bring it in conformance with the test for civil RICO violations and remedy. Since RICO has civil recovery, and the statute and actions were averred generally in the complaint, there being no requirement under FCRP that they be specifically cited in the original complaint, the Appellant/Petitioner was well within her rights to seek redress for herself and on behalf of those similarly situated in this federal court.

The requirements of the original complaint are governed by the FRCP Rule 8(a). It must be "short and plain statements" indicating grounds and jurisdiction. Rule 8(e) requires the pleading to be "concise and direct". It also states that "no technical forms of pleadings or motions is required". Evidently the pleadings were concise and direct enough for the District Court to fully understand that this class action involved a corporation, which is a citizen by law of the state of New York. This affirms the diversity jurisdiction certified by the "civil cover sheet" (see Record). The complaint was also clear and direct enough for the District Court to understand that there had been alleged substantial acts of wrongdoing by the corporation which abridged certain rights and privileges of a very large class of persons.

However, by narrowing its vision to a vanishing point, the court does not and can not liberally construe the fact that 42 USC was cited properly, albeit generally. The citation of §1983 is a harmless error. It is 42 USC §1985(3) that specifically and correctly controls. The numbers had been transposed and could have been effectively and completely corrected by amendment of the complaint without changing any of the material facts of the case. The citations belong to the same portion of federal law as each other: 42 USC - The Public Health And Welfare, Chapter 21 - Civil Rights. The only difference is that §1983 requires that the state be the actor, whereas §1985(3) does not. All go to a conspiracy against civil rights. Furthermore, the right of an action to be brought when there has been neglect of prevention of a conspiracy against a persons civil rights is statutorily provided in the immediately following section, 42 USC §1986.

How then, given the clear description of the allegations, noted as comprehended by the Court in its dismissal, could the District Court interpret that 42 USC, with it's subsequent provisions (though sectionally misquoted by this pro se litigant) should not be liberally construed? If technically incorrect, it nevertheless is still entirely applicable, if viewed liberally and in connection with the allegations, and the whole title and chapter to which it points.

But the most difficult to comprehend part of this issue is not that the District Court could not or would not understand that the error was technical. No, the overwhelming fact is that the District Court litigated the matter, evidenced by its untoward opinion within its own order; and that it did so conspicuously on behalf of the Appellee/Respondents. No citation of law or rule can be offered here in explanation of such an inappropriate action. It does not exist. The order does not generate from any responsive pleading. The order does not generate from any motion. The order does not generate from any local rule. The order does not generate after notice is given and the opportunity to be heard provided. It simply appears. In so doing, it takes one side over another in a decision where the prevailing side (the Defense) does nothing. Indeed, if recovery were available from the immune District Court, this would rightly be a 42 USC §1983 civil action that the court has created for itself.

c. Third Issue - The Order of Judgement and Dismissal by the District Court is unconstitutional.
Argument and Authorities
The facts of the dismissal, as previously detailed and clearly spoken by the record, provide the foundation for this appeal. However, a statement of *why* the order of the District Court is unconstitutional seems appropriate. This order aborts justice at its most basic level.

The Constitution of the United States of America, formed upon the fundamental principles contained within the Declaration of Independence, maintains steadily that the citizens of this country enjoy and hold inalienable right to certain liberties and privileges of property and person. The First Amendment of the Constitution of the United States provides a right of the people to petition the government for redress of grievances. That may be done through any branch of the federal government. If a citizen of this country chooses to bring a grievance lawfully before the judiciary, it is the obligation of the courts to insure that all other aspects of protections within our governing documents are properly preserved. A capricious and wholly unmerited denial of a case, which contains grievances to be redressed by a federal court of law, flies in the face of the First Amendment guarantees.

Next, there is the Fifth Amendment to the Constitution of the United States. It guarantees against the deprivation of life, liberty or property without due process of law. At minimum, in filing her complaint, Appellant/Petitioner in payment of $150 in filing fees, plus all the costs of mailing and reproduction, has established a recognizable property interest in these proceedings. The District Court readily accepted all the money, paid by U.S. Postal Service Money Order, accepted the requisite complaint, and issued the summons.

Justice is only free to the truly indigent. Prior to that decision being made an applicant must apply to the court to proceed in forma pauperis. If there is an income, even a nominal one from a source such as Social Security (as in this case) the application may be denied. Furthermore, it is the preference of the courts that matters be litigated by an attorney. This court and every person in this country knows that attorneys do not work for free. Depositions cost money. Discovery costs money. There is always a payment of some sort to be made.

However, when a person pays for something, be it a membership in a non-profit organization or a filing fee, there is a requirement that something else be given in exchange by those receiving the money. In the case of a filing fee with the District Court, it does not stop with the initial filing. The fee is to cover all pleadings, motions, etc. required to bring a case to hearing and procedurally correct conclusion. If it were not then the court would require additional amounts for all things past the original complaint. When the District Court, without precedent, violated the rights of the Appellant/Petitioner to due process, it also removed from her the right to receive procedurally proper consideration in exchange for the property (money) submitted. This is the manner in which the District Court abridged the Fifth Amendment to the Constitution of the United States; in addition to an effective denial of due process. The property right conferred by payment to the District Court and, as in the complaint by payment of dues, was substantially abridged by the District Court, resulting in the improper, abrupt and unconstitutional termination of her case.

The Seventh Amendment to the Constitution of the United States follows up with all suits in common law, where the value in controversy exceeds twenty dollars, guarantees the right of trial by jury. The FRCP, Rule 15(a) permit amendment of the pleadings once as a matter of course at any time before a responsive pleading is served - or within 20 days after service is effected. No responsive pleading was either submitted to the District Court or served upon the Appellant/Petitioner prior to the entry of the order. Furthermore, the date in which the 20 days would have elapsed for reply was February 14, 2000. The District Court entered its order a full two weeks before the requisite time had expired (see Record). Appellant/Petitioner was not served with the reply of the Appellee/Respondents, generated after the order and rendered moot by a subsequent Minute Order of the District Court (see Record), until she received it by mail on February 8, 2000. Even at that time she was in the process of correcting the technical mistake in the 42 USC citation, which was to be submitted as the First Amended Complaint, and which contains a request for jury trial.

The amount of money in question in the entire matter pleaded exceeded $200,000, (see Appellant/Petitioners complaint at Sixth Cause of Action, 56 through 63); certainly well over the amount mandated by the Seventh Amendment. It was also an amount sufficient to sustain the claims of the class. But let us, for the sake of argument, assume that Appellant/Petitioner was bringing an action solely on her own behalf. The dues paid to this corporation every year of her 15-year membership have exceeded $20. Right now they are fixed at $35 annually. Aggregated out over the years of membership or not, this amount on its face supports the Seventh Amendment guarantee to a trial by jury; a trial which might have been had if the District Court had not so blatantly contravened the Constitution of this country.

Finally, the Fourteenth Amendment to the Constitution of the United States must also be considered breached by the District Courts actions. The pertinent portion resides in the affirmation that "nor shall any state deny to any person within its jurisdiction the equal protection of the law." How indeed can equal protection of the law for the Appellant/Petitioner in this matter be demonstrated by the District Court? There was no due process. There was no responsive pleading. There was no impropriety of filing or service of summons by Appellant/Petitioner. There were no motions. There was no notice and there was no hearing. The District Court, upon its own record, cannot possibly controvert these facts.

Furthermore, one other fact regarding the Fourteenth Amendment citation cannot be ignored. There is no civil remedy available in the State of Colorado, the residence of the Appellant/Petitioner, for an action against a non-profit corporation. Under Colorado Revised Statue 13-21-115.7 to 116 9 (inclusive), there exists immunity from civil liability for non-profit corporations. And a derivative action by shareholders or members under C.R.S. 23.1 seems to conflict with the statute abovementioned, indicating a civil action can be brought against a corporation (without distinguishing between non-profit and profit status). Therefore, an action such as this one at issue must be brought in federal court under these circumstances; rather than wasting extremely limited resources in a necessarily pro se effort.

Every right and privilege, guaranteed by the Constitution of the United States of America, in the adjudication of this case was seemingly considered by the District Court to be inconsequential and unimportant. The rights of the Appellant/Petitioner were certainly not as equally protected as the rights of the Appellee/Respondents. The court illustrated this in its opinion, which argues on behalf of the defense. Furthermore, by its actions, the District Court demonstrates its notion of equal protection of law: that a court of law may unfairly take a position of prejudice against a pro se claimant when it so chooses.

Case law is replete with the importance of the preservation of constitutionally guaranteed rights, particularly the right to notice and to be heard. In Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 170-172, 71 S.Ct. 624, 647, 95 L.Ed. 817 (Frankfurter concurring) the Supreme Court holds that

"Fairness can rarely be obtained by secret, one-sided determination of facts decisive of rights. * * * [And n]o better instrument has been devised for arriving at truth than to give a person in jeopardy of serious loss notice of the case against him and the opportunity to meet it."

"This is no new principal of constitutional law. The right to a prior hearing has long been recognized by this Court under the Fourteenth and Fifth Amendments. Although the Court has held that due process tolerates variances in the form of a hearing, 'appropriate to the nature of the case', (Mullane v. Central Hanover Tr. Co.), * * * and 'depending upon the importance of the interests involved and the nature of subsequent proceedings [if any]', Boddie v Connecticut, 401 U.S. 371, 378, 91 S.Ct. 780, 786, 28 L.Ed.2d 113, the Court has traditionally insisted that, whatever its form, opportunity for that hearing must be provided before the deprivation at issue takes effect."

"The right to a prior hearing ... attaches only to the deprivation of an interest encompassed within the Fourteenth Amendment's protection."

Moving forward in the Court approved form for Appellant/Petitioner's Opening Brief - form A-12, Appellant is asked to answer the following:
4. Do you think that the District Court applied the wrong law? If so, what law do you want applied?
 The District Court applied no law but its own by entering and issuing an Order of Judgement and Dismissal before any proceedings or activities beyond the filing of the original complaint and issuance of summons occurred. The law that should be properly applied to this whole appellate issue is the law of the United States of America: the Constitution; and the Federal Rules of Civil Procedure. If expansion upon the original complaint had been permitted, the primary applicable statutes reside in 42 USC, Ch.21, §1985(3), 1986, et.seq, 18 USC Ch. 96, §1964 et.seq, and 26 USC, Sub.F, Ch. 76, Sub. B.

5. Did the District Court incorrectly decide the facts? If so what facts?
"To decide", from the Merriam Webster Dictionary means this:
3 : to induce to come to a choice <her pleas decided him to help>
DECIDE implies previous consideration of a matter causing doubt, wavering, debate, or controversy <she decided to sell her house>.
 ***
And, from the much older 1913 Webster's Unabridged Dictionary:
. 2. To bring to a termination, as a question, controversy, struggle, by giving the victory to one side or party; to render judgment concerning; to determine; to settle.
 ***
In each definition there must be a controversy or contest. To have a contest there must be at least two sides participant. Therefore, to answer the question as to whether or not the District Court decided the facts, the answer must be that they did not. The other side of the controversy did not appear in any manner or form beyond that of the District Court itself. The District Court does not have the right or capacity to decide any issue before procedure is undertaken, until there is a showing of some kind.

"Procedure" indicates a forward motion which, in this case, required adherence to the Federal Rules of Civil Procedure under computation of time (the 20 days to answer after service of summons); the duty to require a motion precedent to any decision; the right of notice and the right of an opportunity to be heard. All of these things are requisite before a decision by the District Court can or should be made. And these are the facts that were incorrectly decided.

6. Did the District Court fail to consider important grounds for relief? If so, what grounds?
The District Court failed abysmally to consider that the grounds for relief were predicated upon federal law, particularly when a request for injunctive relief pervades. The flaw in the relief exists only in the transposed citation under 42 USC. The other grounds for relief were averred to generally by the complaint in the federal laws governing civil RICO, civil rights, and relief from the out-of-control actions of a corporations against its members. Those grounds and issues should have been properly tried according to procedure and law.

7. Do you feel that there are any other reasons why the District Court's judgment was wrong? If so, what?
There are no other reasons applicable to this appeal beyond those already stated.

8. What action do you want this court to take in your case?
This Honorable Court should, without hesitation, vacate the Order and Judgement of Dismissal of the District Court. This court should remand the case back to the District Court with the provision that the Appellant/Petitioner be allowed a reasonable time (not less than 14 days) to amend her original complaint as appropriate. This Court should explicitly require that the case be reassigned to another judge because there has been raised the question of an existence of bias and prejudice in favor of the Appellee/Respondents by the originally assigned judge. There is no way to guarantee that the conduct of the presiding judge will not recur in subsequent proceedings. Therefore, in the interests of fairness and justice, another judge must be selected by the established procedure under the local rules.

9. Do you think the court should hear oral argument in this case? If so, why?
Yes, this Court should hear oral argument in this case. It is the only opportunity to be heard which may be afforded. The District Court, in rendering final its judgement in the manner previously described, abridged that right. This leaves the appellate court with the responsibility to make that guaranteed constitutional right available.
Respectfully submitted, this _____15_______ day of March, 2000.
_____________________________________________
By Leslie Mamer, Petitioner/Appellant in Pro Se
13001 County Rd. P
PO Box 126
Cahone, CO 81320
Phone: (970) 562-4721
Fax: (970) 4726
E-Mail: heirlair@fone.net

CERTIFICATE OF SERVICE
The undersigned certifies that a copy of the foregoing APPEAL was served on March 14, 2000 by depositing the same in the United States mail, postage prepaid, addressed to:
Frederick Winters
Attorney for Defendants
LeBoeuf, Lamb, Greene & MacRae
633 17th St., Suite 2000
Denver, Colorado 80202

BY ______________________________
LESLIE MAMER, PLAINTIFF PRO SE
       13001 County Rd. P
PO Box 126
Cahone, Colorado 81320
PHONE: 970-562-4721
FAX: 970-562-4726
E-MAIL: heirlair@fone.net

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