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Hiawatha Hoeft-Ross Monica Hoeft-Ross PO Box 6946

(775)544-2721

IN PRO SE

UNITED STATES DISTRICT COURT DISTRICT OF NEVADA *****

Hiawatha Hoeft-Ross Et. Al.

vs.

Plaintiffs,

Werner and Christel Hoeft, Et Al.

Defendants.

/

CASE NO. CV-N-05–0121 LRH(VPC)

PLAINTIFFS REPLY TO DEFENDANTS OPPOSITION TO PLAINTIFFS’ MOTION FOR REVIEW BY THE DISTRICT COURT OF OBJECTION TO MAGISTRATES DECISION REGARDING 60(b) MOTION

COMES NOW PLAINTIFF HIAWATHA HOEFT-ROSS , MONICA HOEFT-ROSS,

MARTIN HOEFT-ROSS AND KIRSTEN HOEFT-ROSS and reply to DEFENDANTS

OPPOSITION TO PLAINTIFFS’ MOTION FOR REVIEW BY THE DISTRICT

COURT OF OBJECTION TO MAGISTRATES DECISION REGARDING 60(b)

MOTION. Fed.R.Civ.P. 72(b) does not apply to the action at bar, and as far as 28 USC Sec 636

(b)(1), Plaintiffs are already aware of this section as it was hashed through in previous papers.

Counsel brings nothing new and in truth and in opposition to the action at this table.

Defendants counsel, Michael Kealy, did not file a mandatory disclosure of witnesses and

exchange of documents until September 8 , 2006 well after the mandatory 30 day requirement.

Defendants purposely waited to file until well after the 30 day mandatory disclosure filing

requirements but continued to inform the Court that the Defendants were diligent, while the

Plaintiffs were not. There is no other reason, either rational or apparent, why Counsel would conceal

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the July 27 2006 mandatory disclosure list of the Plaintiffs.

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LR 16-1. SCHEDULING AND CASE MANAGEMENT; TIME AND ISSUANCE OF

SCHEDULING ORDER.

(a) In cases where a discovery plan is required, the court shall approve, disapprove or modify the

discovery plan and enter the scheduling order within thirty (30) days from the date the discovery plan

is submitted. (Emphasis added)

Plaintiffs’ experience in the act of discovery is that the represented party initiates the

discovery.

Plaintiffs waited patiently until the 27 of July 2006 and submitted their own discovery plan

and witness list to the defendants. During this time the Plaintiff Hiawatha Hoeft-Ross started feeling

effects of his on-going medical condition.

Michael Kealy, without regard to the time being of the essence in initial disclosures,

remained unavailable for two weeks during the Meet and Confer time frame After that period of

time, between existing engagements and Plaintiff Hiawatha Hoeft-Ross’ onset of deterioration of his

medical condition, which affected his ability to negotiate and understand the matters before him,

the Meet and Confer was set off indefinitely. Plaintiff blames this partially on opposing counsel,

for if opposing counsel conformed to the Local Rules 16-1. Hiawatha Hoeft-Ross would have been

medically fit to do the Meet and Confer.

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During the times of negotiation, to get a time that agrees with both parties and the wellness

of the Plaintiff Hiawatha Hoeft-Ross, the weeks became months, and on October 12 , 2006, Plaintiff

Hiawatha Hoeft-Ross was in a hit and run car accident. He was seen in the emergency room for his

immediate injuries and was referred to a specialist for review of his on-going medical condition.

This accident exacerbated Plaintiff Hiawatha Hoeft-Ross' existing injuries and/or created new ones.

On November 1st 2006 Plaintiff Hiawatha Hoeft-Ross saw his specialist and said specialist prepared

a letter for the court. Unfortunately when Plaintiff thought he had sent this document to the Court

and opposing counsel, but it subsequently was discovered in his "files"while preparing this motion.

In a write-up on November 13th 2006, by Dr. Berman, the surgical procedures that Plaintiff

Hiawatha Hoeft-Ross underwent were not effective at alleviating his pain or stabilizing his

condition. Plaintiff advised counsel on November 21st 2006 of this and asked to stipulate to an

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indefinite continuance, but did not receive an answer by November 27th 2006. Plaintiff then

received a letter from counsel stating that they would not stipulate to an indefinite continuance, but

would seek a summary judgement. Plaintiff wrote back to Mr. Kealy, Defendants' counsel and stated

that he regretted that a stipulation cannot be reached without court intervention. Plaintiff Monica

Hoeft-Ross wrote Mr. Kealy on January 3rd 2007, stating that Hiawatha Hoeft-Ross' condition had

not stabilized and was awaiting their summary judgement. Plaintiffs received a response from Mr.

Kealy on January 10th 2007, wherein he stated he was confused about Plaintiffs awaiting a summary

judgement from counsel and discussing a resolution. As stated before, Plaintiff Hiawatha

Hoeft-Ross was in no condition to discuss any such resolution as he was not mentally capable of

resolving legal matters.

Dr. John N. Chappel wrote a declaration in that Plaintiff Hiawatha Hoeft-Ross has not been

able to function well enough to attend court. Plaintiff Hiawatha Hoeft-Ross has had another

appointment with Reno Diagnostics for additional diagnostic medical examinations to be performed

due to his non-responsiveness to previous medical procedures

Plaintiff simply did not “show up” for the case management conference on January 18 ,

2007, But rather Plaintiff was too ill to attend and Plaintiff out of excusable neglect thought he

mailed that letter from John N. Chappel M.D. to the Honorable Valerie P. Cooke to explain his

medical situation. Plaintiffs had agreed that Plaintiff Hiawatha Hoeft-Ross would be the only party

speaking on their behalf in order to minimize confusion that might arise from multiple pleadings.

Plaintiffs did not voluntarily waive their right to conduct discovery and did not voluntarily refuse

to attend the meeting. But Plaintiffs were confused for two reasons: 1) Hiawatha Hoeft-Ross’ long-

standing illness and 2) the misrepresentation that opposing counsel will immediately seek a summary

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judgement which would render moot the January 18 2007 meeting. Judge Cooke exceeded her

discretion by sanctioning Plaintiffs so harshly for a first-time offense which they had made through

excusable neglect. Counsel Michael Kealy also contributed to this by not being candid towards this

tribunal.

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Rule 172 Candor Toward the Tribunal

[4] In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the

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lawyer which will enable the tribunal to make an informed decision, whether or not the facts are

adverse.

Mr. Kealy appeared at the Case Management Conference on January 18 , 2007. He provided

documentation and correspondence he had received from Plaintiffs. However he intentionally failed

to provide a complete history of the documentation and correspondence as shown in Plaintiffs’

exhibits. Mr. Kealy also failed to note for the court the fact that Plaintiffs had responded to the

mandatary disclosure requirements and the proposed Discovery Plan prior to any action being taken

on behalf of his client. This omission falsely led the Court to believe that Plaintiffs were non-

compliant with all discovery matters. Additionally the omission of the documentation and

correspondence carried on between Plaintiffs and defendants counsel could only lead the Court to

believe that Plaintiffs were refusing to comply with court orders and thus appeared to be

contemptuous of the Court. This may be the basis for the extreme sanctions imposed by the Court

on Plaintiffs. Clearly the AbA Model Code of Professional Responsibility cited above requires all

members of the ABA to be completely candid with the Court and to provide information to the Court

which may not always be in the best interest of their client(s).

Rule 173 Fairness to Opposing Party and Counsel

A lawyer shall not:

[1] Unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy or conceal

a document or other material having potential evidentiary value. A lawyer shall not counsel or

assist another person to do any such act; (emphasis added)

Mr. Kealy concealed from the Court all documentation and correspondence between the parties

which showed an ongoing effort by the Plaintiffs to keep Mr. Kealy apprized of the unfortunate

results from the accident suffered by the Plaintiff Hiawatha Hoeft-Ross. If Mr Kealy had notified the

Court of the information in his possession the Court would have been in a better position to act in

a manner consistent with the long established case law involving medical disabilities which

constitute excusable neglect. Mr. Kealy was fully aware that Plaintiff Hiawatha Hoeft-Ross was

under medical orders to not engage in any “legal conflict.”

[4] In pretrial procedure, make a frivolous discovery request or fail to make reasonably diligent effort

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to comply with a legally proper discovery request by an opposing party;

Mr. Kealy was dilatory in corresponding with plaintiffs and in several instances ignored discovery

requests outside of the purview of this Court as required by the FRCP: the movant (Plaintiffs) have

in good faith conferred or attempted to confer with other affected parties in an effort to resolve the

dispute without court action, or failing to file a motion to compel, whereas Mr. Kealy has been

totally unamenable to negotiation which would avoid consuming the time of the Court. As Plaintiff

states on December 4 , 2006, in response to Mr. Kealy’s letter of November 28 , 2006, “Since you

appear unwilling to stipulate to indefinite continuance or stabilization of Mr. Hoeft-Ross’ medical

conditions, we will prepare a motion before the court. We regret that we cannot stipulate to an

agreement without intervention of the court.”

Mr. Kealy placed additional stress on Plaintiff Hiawatha Hoeft-Ross by offering a settlement

contingent upon Plaintiff Hiawatha Hoeft-Ross obtaining a medical release or he faced with

defending a motion for summary judgement

Mr. Kealy also failed to do the Certification of Counsel pursuant FRCP 37(a)(2) and/or a

motion to compel and should be sanctioned for not following the rules of court, as there is a higher

standard placed on practicing attorneys than on pro-se’s. Plaintiffs wrote to Mr. Kealy that they had

tried to work with Mr. Kealy outside of this court but unfortunately weren’t able to do so due to the

(in)action of Mr. Kealy. Mr. Kealy was under the Model Code of Professional Responsibility to do

his best to work with Plaintiffs in keeping discovery outside of this Court. He did not. Instead, he

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immediately, on September 8 , 2007, without negotiations with plaintiffs, submitted his proposed

discovery plan, and did not file a certificate of making good faith attempts for Meet and Confers

without judicial help pursuant to FRCP 37(a)(2) . Mr. Kealy even failed to take a more drastic step

of filing a motion to compel. It is for these actions or lack thereof that Mr. Kealy should be

sanctioned for being not candid with this tribunal and unfair to opposing counsel (Plaintiffs).

Mr. Kealy should be sanctioned for making malicious attacks on the Plaintiffs trying to

prosecute their case. Although Mr. Kealy may have a higher standing in the community than the

likes of the Plaintiffs, that does not allow him to denigrate plaintiffs attempts at securing every bit

of information they may attain to prosecute their case. Mr. Kealy States that Mr. Hoeft-Ross

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“sought broad judicial notice of some ill-defined matters, claims or information submitted in other

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litigation filed in federal court in 2002.” Firstly, counsel over states the matter to make the issue

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seem more dramatic than it really was. Plaintiff Hoeft-Ross did not seek “broad judicial discretion”

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but merely sought judicial notice on a publicly filed document that provides medical diagnoses his

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condition very well and was submitted to the Honorable Valerie P. Cooke who has personal

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knowledge of this document so that she may refresh her memory regarding the major disorders Mr.

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Hoeft-Ross suffers from. Here again, Mr. Kealy resorts to besmirching Plaintiff Hoeft-Ross’

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evidence, stating that it was ill-defined. This document was generated by two prominent physicians

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over years of testing and evaluation to come to a very well received and thorough document. It is

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Mr. Kealy who is displaying his ignorance. The Magistrate Judge was beyond her discretion in

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denying sanctions towards Mr. Kealy who obviously broke the Model Code of Professional

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Responsibility in seeking out a “victory” for his clients. Mr. Kealy’s instant Motion is just as

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amorphous as he purports the request for judicial notice to be. The fact of the matter is that Counsel’s

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motion is devoid of any case law demonstrating the judicial definition or the acceptable parameters

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of the points and authorities he cites.

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LAW AND ARGUMENT A. THE MAGISTRATES ORDER IS NO CLEARLY ERRONEOUS OR CONTRARY TO LAW

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Counsel only here reiterates that the magistrate has broad discretion to conduct pre-trial

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matters and non dispositive matters inter alia. Then goes into discovery matters, but at no time does

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Counsel directly address the basic tenets set forth in Plaintiffs’ reconsideration of the 60(b) motion,

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Counsel merely reiterates the same old reasons as in his initial motion to deny Plaintiffs a 60(b)

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motion - that the Magistrate did not act in excess of her authority. Counsel addresses none of the

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theories advanced by the plaintiffs, instead counsel leaves us with a few remaining housecleaning

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items, that counsel should not be able to raise since he loses his rights to bring these actions forward

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since he did not raise them ab initio.

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Plaintiffs will address these issues to preserve their rights for this litigation. Counsel’s main

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concern seems to be why the remaining three Plaintiffs did not show for the case management

conference. First of all, besides the established medical issues, Plaintiff Hiawatha Hoeft-Ross did

not attend the meeting due to medical advice and under the mistaken understanding that it was only

he who was supposed to be attending the meeting, since the federal issues came first. The remaining

Plaintiffs have only State issues of which the Court took jurisdiction. Plaintiff Monica Hoeft-Ross

is under a Doctor’s supervision and is to avoid major stressors and receives medication to ameliorate

the effects of unavoidable stressors, as quoted in a previous motion, and is noticed under John N.

Chappel’s M.D. declaration of November 1 , 2006, which states that plaintiff Monica Hoeft-Ross

is under the care of the Nevada Mental Health Dept

minority, are still under the auspices of their parents, and are not allowed to enter into any legal

agreements or stipulations without their parents presence as long as they live in the household. Mr.

Kealy who is very artful, will be certain to ensure that the Plaintiffs lose all rights as he has done in

the past if. As set forth supra Plaintiff Hiawatha Hoeft-Ross has been designated as counsel and the

children will only attend Court when ordered to do so or their testimony is necessary in order to

avoid exacerbation of the familial situation.

Then Counsel goes on a rant that “Plaintiff Hiawatha Hoeft-Ross only offers incomplete,

The children, whether the age of majority or

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cryptic, unauthenticated, and vague material which purport to be physicians papers, and contain

conclusory statements about Hiawatha Ross.” Let it be known to counsel, that notes by physicians

are made under penalty of perjury or else they can lose their license:

NRS 630.3062 Failure to maintain proper medical records; altering medical records; making false

report; failure to file or obstructing required report; failure to allow inspection and copying of

medical records; failure to report other person in violation of chapter or regulations. The following

acts, among others, constitute grounds for initiating disciplinary action or denying licensure:

(emphasis added)

1. Failure to maintain timely, legible, accurate and complete medical records relating to the

diagnosis, treatment and care of a patient.

2. Altering medical records of a patient.

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3.

Making or filing a report which the licensee knows to be false, failing to file a record or

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report as required by law or willfully obstructing or inducing another to obstruct such filing.

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Failure to make the medical records of a patient available for inspection and copying as

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provided in NRS 629.061.

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5. Failure to comply with the requirements of NRS 630.3068.

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6. Failure to report any person the licensee knows, or has reason to know, is in violation of the

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provisions of this chapter or the regulations of the Board.

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(Added to NRS by 1985, 2223; A 1987, 199; 2001, 767; 2002 Special Session, 19; 2003, 3433)

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Let it be also known to counsel that a declaration carries the same weight as an affidavit :

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28 U.S.C. § 1746. Unsworn declarations under penalty of perjury:

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Wherever, under any law of the United States or under any rule, regulation, order, or requirement

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made pursuant to law, any matter is required or permitted to be supported, evidenced, established,

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or proved by the sworn declaration, verification, certificate, statement, oath, or affidavit, in writing

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of the person making the same (other than a deposition, or an oath of office, or an oath required to

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be taken before a specified official other than a notary public), such matter may, with like force and

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effect, be supported, evidenced, established, or proved by the unsworn declaration, certificate,

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verification, or statement, in writing of such person which is subscribed by him, as true under penalty

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of perjury, and dated, in substantially the following form:

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(1) If executed without the United States: “I declare (or certify, verify, or state) under penalty of

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perjury under the laws of the United States of America that the foregoing is true and correct.

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Executed on (date). (Signature)”.

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(2) If executed within the United States, its territories, possessions, or commonwealths: “I declare

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(or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed

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on (date). (Signature)”.

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All materials are not subjective because they are either 1) Doctor’s notes which must conform

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to the Medical Examiners Board of Authentication; 2) mail, which was sent via certification or ; 3)

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by third party proof, or 4) Mr. Kealy’s and/or his clients’ own writings.

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Counsel should look at his blatant non-compliance with the rules and have the Judge

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determine that Defendants are not entitled to any relief and that the Magistrates’s rulings are clearly

erroneous and contrary to law pursuant to Pioneer Investment Svcs Co.

B.

THE MOTION FOR REVIEW IS AN UNTIMELY ATTEMPT TO OBTAIN REVIEW

OF THE JANUARY 18, 2007 ORDER

This is a timely objection to the Magistrate’s ruling and therefore review is required U.S.W.

v. New Jersey Zinc Co., 828 F.2d 1001 (3

final order and/or judgement came from the Magistrate on April 10 , 2007 and the plaintiffs received

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Cir 1987); Moores Federal Practice 72.11[1][a]. The

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the judgement and/or order on April 11 , 2007.

Counsel states that the Plaintiffs were not entitled to engage in any more discovery due to

their non-compliance. This non-compliance, in addition to the Plaintiffs’ ailments were part and

parcel the responsibility of Michael Kealy who wrote in or about January that counsel apparently did

not believe Mr. Hoeft-Ross’ letters and stated he would be filing a summary judgement request with

the District Court immediately. Based on Mr. Kealy’s written statements, Mr. Hoeft-Ross believed

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the hearing scheduled for the 18 of January 2007 had been vacated since the Summary Judgement

would preempt that hearing. That is misleading and a falsehood and an attempt to get Plaintiffs

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sanctioned by and through deceit, by remaining silent on the issue of January 18 , 2007. “In an

action of deceit, it is true that silence as to a material fact is not necessarily , as a matter of law,

equivalent to a false representation. But Mere silence is quite different from concealment; aliud est

tacere, aliud tcelare: A suppression of truth of the truth may amount to a suggestion of false hood;

and if with intent with intent to deceive, either party to a contract of sale or conceals or suppresses

a material fact which he is good faith bound to disclose, this evidence of and equivalent to a false

representation, because the concealment or suppression is in effect a representation, is in effect a

representation that what is disclosed is the whole truth. The gist of the action is fraudulently

producing a false impression upon their mind of the other party; and if this result is accomplished,

it is unimportant whether the means of accompanying it are words or acts of the defendants , or his

concealment or suppression of material facts not equally within the knowledge or reach of the

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plaintiff.” Stewart v. Cattleman’s Ranche Company ,128 US 383; 9 S.Ct. 101; 32L.Ed. 439; 1888

US LEXIS 22224.

C. PLAINTIFFS CONFUSE THE MAGISTRATES ORDER WITH A DEFAULT

Counsel states that Plaintiffs devote several of their passages of their argument to suggest that

the magistrate entered some type of judgement by default. Then counsel goes on to say that these

arguments are misplaced because the magistrate did not enter any judgement by default or otherwise.

Plaintiffs would like to point to Blacks Law. That the magistrate issued an order on January 18 ,

2007, and an order according to Blacks Law may also be a judgement Traders & General Ins. Co.,

v. Baker Tex.Civ.App., 111 S.W. 2d 839, 840.

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D. THE MAGISTRATES DECISIONS NOT TO TAKE JUDICIAL NOTICE IS NOT CLEARLY ERRONEOUS

Judicial notice as per Black’s law: The act by which a court, in conducting a trial or framing

its decision, will, of its own motion or on request of a party, and without the production of evidence,

recognize the and truth of certain facts, having bearing on the controversy at bar, which, form their

nature are not properly the subject of testimony , or which are universally regarded as established

by common notoriety, e.g., the laws of the state, international law, historical events, the constitution

Such notices excuses party having burden

of establishing fact from necessity of producing formal proof. (Emphasis added) Hutchinson v. State

and the course of nature, main geographical features , etc

447 N.E.2d 850, 854. Fed.Evid.Rule 201

Will - Black’s Law : An auxiliary verb having the mandatory sense of “shall” or “must”. It is a word

of certainty while the word “may” is one of speculation and uncertainty.

Together with these two terms the Magistrate Judge has no choice BUT to take judicial notice

when requested by one of the parties.

According to Blacks Law, common law and statute, Plaintiff has the burden of proof showing

excusable neglect due to medical excuse and the Judge Magistrate must issue a judicial notice in

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order to prove the on-going medical conditions. This type of material is exactly what Fed.Evid.Rule

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201 is made to do. Plaintiffs again state that the Magistrate Judge has exceeded her jurisdiction.

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And as stated before, Doctor’s reports, whether they state on their face or not are under penalty of

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perjury or else the Doctors so subscribing shall be subjected to punishment.

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The material was not given over during discovery because it is a public document and

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available for counsel to discover and copy on its own accord.

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III.

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CONCLUSION

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Michael Kealy should be sanctioned according to LR 7-2 (d): The failure of a moving party

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to file points and authorities in support of the motion shall constitute a consent to the denial of the

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motion. The failure of an opposing party to file points and authorities in response to any motion

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shall constitute a consent to the granting of the motion; by having the court grant the Plaintiffs’

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motion for a 60(b). Since Counsel addresses none of the points or authorities in the Plaintiff’s motion

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for review and again, submits this puerile piece of paper that doesn’t warrant being before this

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Honorable Court. As such, Plaintiffs have made out a prima facie showing by and through their

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pleadings and papers that they have made a demonstration of excusable neglect due to good cause

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of a medical nature pursuant to the premier case of Pioneer Investment Svcs., and are as such,

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entitled to a 60(b) motion under the Motion for Review by the District Court of Objection to

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Magistrates Decision Regarding 60(b) Motion. The motion by Mr. Kealy is bare bones, and Mr.

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Kealy has attempted to take two bites of the apple. Any new issues raised should be stricken.

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Plaintiffs are before this court, sick and barely able to make this response in the time allotted.

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Defendants once again are forcing Plaintiffs to litigate against Doctor’s orders and counsel should

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also be sanctioned for the unnecessary litigation. For the above reasons and points and authorities

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stated herein and all the pleading, papers on file, with the exception of those filed before the First

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amended complaint Plaintiffs’ motion shall be granted.

DATED:

Hiawatha Hoeft-Ross

Monica Hoeft-Ross

1 Since an amended pleading supersedes the original, facts not incorporated into the amended pleading are considered

functus officio. See 6 CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE & PROCEDURE§ 1476 (2d

ed. 1990); Parry v. Mohawk Motors of Mich., Inc.,236 F.3d 299, 306-07 (6thCir.2000) (when a plaintiff files amended complaint,

new complaint supersedes all previous complaints and controls the case from that point forward)(citing In re Atlas Van Lines, Inc.,

209 F.3d 1064, 1067 (8thCir.2000); Duda v. Board of Educ. of Franklin Park Pub.Sch. Dist. No. 84, 133 F.3d 1054, 1057

(7thCir.1998).

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PROOF OF SERVICE BY MAIL

Pursuant to FRCP 5(b), I certify that, I on May 18 2007, I, Monica Hoeft-Ross deposited in the U.S.

Mail at Reno, Nevada, in a sealed envelope, a PLAINTIFFS REPLY TO DEFENDANTS

OPPOSITION TO PLAINTIFFS’ MOTION FOR REVIEW BY THE DISTRICT COURT OF

OBJECTION TO MAGISTRATES DECISION REGARDING 60(b) MOTION and

declarations of Hiawatha hoeft-Ross, Monica Hoeft-Ross Kirsten hoeft-Ross and Martin Hoeft-Ross

in support of REPLY attached hereto, a true and correct copy postage prepaid thereon, addressed

to:

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Michael Kealy 50 West Liberty Street Suite 750

Reno, NV 89501

Monica Hoeft-Ross

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