Samuel Lipari vs General Electric BUSH RICO Judge Fernando J Gaitan
Jr
En
Banc Reconsideration
Breaking
News December 10, 2009
http://www.medicalsupplychain.com/pdf/En%20Banc%20Petition%200849-3115.pdf
IN THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
SAMUEL K. LIPARI, )
)
Appellant, )
)
v. ) Case No. 08-3115
)
GENERAL ELECTRIC COMPANY, et al., )
)
Appellees.
)
PETITION FOR EN BANC DISPOSITION
UNDER FRAP RULE 35A
Comes
now the appellant appearing pro se and petitions for en banc
review of the dismissal of his appeal for the
following reasons:
1. The appeals panel has in clear
error of law and fact in upholding
Hon. Judge Fernando J. Gaitan Jr.’s failure to recognize
tangible
injury pled in the appellant’s complaint
and proposed amended
complaint.
The
trial court of Hon. Judge Fernando J. Gaitan Jr. was
in error over
the concept of “concrete” property loss.
The plaintiff-appellant’s complaint
described 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.
2
All
of which are recognizable RICO business property interests under
Missouri
state law, Eighth Circuit precedent and the US Supreme Court. The
trial court of Hon. Judge Fernando J. Gaitan Jr. was in error over the concept
of
“concrete” injury or business loss as it is applied in determining RICO
standing.
The
Eighth Circuit recognizes the appellant’s business property in his
chose in action for recovering in court on
his contract with the GE
defendants over 1600 NE Coronado which has
survived repeated dismissal
motions: “...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
complaint described the plaintiff’s purchase of 1600 NE Coronado
and sale of the remainder of the 5.4
million dollar lease to GE
Transportation. Underr the
averments of the complaint, the appellant was
injured in his business through the loss of 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.
3
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
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).
2. The appeals panel has violated
the stare decisis
of the 8th Circuit in
Little Rock School District
v. Armstrong, No. 02-3867EA (8th Cir., 2004)
Under
Little Rock School District v.
Armstrong, No. 02-3867EA (8th
Cir., 2004), this court treats the motion
for Hon. Judge Fernando J. Gaitan
Jr.’s recusal as a director on the board of
directors of a defendant as a pre
judgment request in the same matter or
controversy.
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-WFJG
where Hon. Judge Feranado
J. Gaitan did not rule on the plaintiff’s
4
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.
Under
stare decisis, once a court has answered a question,
the same
question in other cases must elicit the same
response from the same court or
lower courts in that jurisdiction.
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 on
10th Day of December 2009.
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
5
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 Aiken #918
Lee's
Summit, MO 64064
816-365-1306
saml@medicalsupplychain.com
Pro se