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Thursday, January 8th, 2009 1:09 pm

岳东晓案惊爆黑幕

Petition to U.S. Supreme Court Chief Justice John G. Roberts, Jr., Justice John Paul Stevens, Justice Antonin Scalia, Justice Anthony M. Kennedy, Justice David H. Souter, Justice Clarence Thomas, Justice Ruth Bader Ginsberg, Justice Stephen G. Breyer, Justice Samuel A. Alito

http://www.american-justice.org/

Dr. Yue’s Application for Stay before the U.S. Supreme Court (Referred to the Court for January 2009 Conference)

Supporting Documents to the Application for Stay before the U.S. Supreme Court

Dr. Yue’s Reply Brief for the Yue v. Sun Appeal at the U.S. Ninth Circuit Court of Appeal

Appeal at the Ninth Circuit on Disqualification of Due to Conflict of Interest

II.SUN’S SHAM ARGUMENTS

In Defendants’ Answer Brief (“DAB”), Sun claims that Netbula assigned the copyrights to Yue “after the close of discovery” in Netbula-Sun. DAB 2. This is false. The “00-SDK” and “2K4” copyrights were assigned to Yue on September 26, 2007. ER.3:17-20. Netbula deposed Sun’s FRCP 30(b) (6) witness Michael Abramovitz on October 23, 2007. ER.31:27-28; See also, Exhibits to Appellees’ Supplemental Request for Judicial Notice, SRJN071. There had been very little discovery in Netbula-Sun. On January 10, 2008, the Netbula-Sun court ordered that the “[d]iscovery issues shall be discussed at next status conference hearing” set for January 22, 2008. See, Civil Minutes (Document 136), Exhibit E to Appellant’s Request for Judicial Notice (“RFJN”).

Falsus in uno, falsus in omnibus.

C. Default Judgment Should Be Entered Against StorageTek and Sun
On January 2, 2008, receiving no response to the FAC, Yue filed the motion for entry of default and default judgment against Sun and StorageTek.
Doc. No. 13 below. At the time, the case was presided over by the Honorable
Susan Illston. There was no order granting defendants enlargement of time,
and there was no order reassigning the case to Judge Jenkins. On January 4,
2008, Sun acknowledged that “[a] formal order relating the cases has yet to
be entered” and the case was presided over by Judge Illston. ER.24:27-28.
On January 9, 2008, after the parties completed the briefing on Yue’s
motion for default, Judge Jenkins entered an order relating Yue-Sun to
Netbula-Sun. The next day, the Executive Committee of the Northern
District of California reassigned the case to Judge Jenkins. ER.29. Even after
reassignment, no order granting Sun enlargement of time was ever entered.

Defendants claim that on December 14, 2007, at a hearing in
Netbula-Sun, Judge Jenkins granted them extension of time…

In any case, on December 14, 2007, Judge Jenkins was not the judge of
the Yue-Sun case, and he had no jurisdiction to grant any extension to the
defendants in Yue-Sun. "[T]he structure of the federal courts does not allow
one judge of a district court to rule directly on the legality of another district
judge’s judicial acts or to deny another district judge his or her lawful
jurisdiction." In Re McBryde, 117 F.3d 208, 225 (fn.11) (5th Cir. 1997)
(citing Dhalluin v. McKibben, 682 F. Supp. 1096 (D. Nev. 1988)). "No
express or implied power is granted a chief judge to affect administratively,
directly or indirectly, litigation assigned to and pending before another judge
of the court." United States v. Heath, 103 F. Supp. 1, 2 (D. Haw. 1952); see
also In re Brown, 346 F.2d 903, 910 (5th Cir. 1965) ("[O]rderly procedure,
of course, forbade Judge Cox to interfere with the handling of a case
assigned to Judge Mize.").

Yue filed judicial misconduct complaints against Jenkins at the Ninth Circuit. Jenkins received the first complaint in December 2007. Yue’s December 17, 2007 letter to the judge re-stated the basis of the complaint: Jenkins might have retaliated against Yue due a blog article Yue wrote.

The facts alleged in Yue’s allegation were fully capable of proof by discovery. In the complaint Yue filed against Jenkins, Yue gave the names of the magistrate judge and the attorneys who heard the story of Jenkins’s retaliatory intent. Jenkins’s denial in his ruling was not evidence. In evaluating the allegation of bias, "the judge must assume that the factual averments . . . are true, even if he knows them to be false." United States v. Balistrieri, 779 F.2d 1191, 1199 (7th Cir. 1985).

Jenkins would not even allow Yue to speak about his pro se case. “[N]o procedure firmly rooted in the practices of our people can be so ‘fundamentally unfair’ as to deny due process of law.” Pacific Mutual Life Insurance Co. v. Haslip, 499 U.S. 1 (1991)(concurring opinion by Justice Scalia). The bias was total.

When Yue tried to make an argument against the “cease and desist” order, Jenkins’s reaction was: “Mr. Yue, I am going to have you taken out if you don’t be quiet.” This is not a situation where judicial temperament occasionally turns into judicial temper. “Arrogance and bullying by individual judges expose the judicial branch to the citizens’ justifiable contempt.” McBryde v. COMM. TO REV. CIR. COUNCIL CONDUCT, 264 F.3d 52, 66 (D.C. Cir. 2001). When a federal judge threatens force instead of resorting to reasoning in a civil litigation involving due process concerns, he fails to maintain the appearance of justice and his judgment is inherently flawed.

Sun is a large corporation. In the district court, it spares no effort emphasizing that Yue is just one-man. That may have been a factor in the decision below. However, comparing to the interest of United States and its rule of law, Sun and its CEO are negligible and utterly insignificant. The Court must reverse the district court’s erroneous ruling poisoned by apparent personal animus to restore justice and fundamental fairness in federal district court.

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