Beruflich Dokumente
Kultur Dokumente
Michael Krichevsky,
Third Party Plaintiff,
-against-
Alan J. Wohlberg, et al
Third Party Defendants.
NOTICE OF MOTION
COUNSELORS:
PLEASE TAKE NOTICE,that upon the annexed affidavit of Michael Krichevsky and
Matsumoto, USDJ pursuant to 28 USC §§144 and 455(a). The hearing will be held by
Assigned Judge of this Court at the Courthouse located at 255 Cadman Plaza East, at
Courtroom assigned later, on the day assigned later, 2018, at time assigned thereafter, and
for such other and further relief as to this Court seems just and proper.
TAKE FURTHER NOTICE that, pursuant to FRCP, all answering papers, if any, shall
be served at least seven (7)days before the return date of this motion.
Defendant.
Michael Krichevsky,
Third Party Plaintiff,
-against-
Alan J. Wohlberg, et al
Third Party Defendants.
3. I adopt by reference herein all the facts, procedural history and objections in my affidavit in
opposition to Wohlberg's motion to remand,(Docket #14)and in supplemental affidavit,
(Docket #15).
4. In 10, 11, and 24 - 26 offirst affidavit, I objected and challenged Wohlberg's conflict of
interest and other violations of NYRPC.
5. In his reply, he deliberately failed to deny existence of conflict of interest and deliberately
failed to recuse himselffrom representing alleged plaintiff and his co-defendant SEAGATE.
6. In t ^ 17 and 18,1 objected to Judge Matsumoto's order authorizing Wohlberg to file motion
for remand and advising him to seek attorney fees against me while she knew that conflict of
interest exists. As such, she acted ultra vires since she knew or should have known that Wohlberg
was not authorized to file anything in the court by operation of law governing lawyer's practice.
7. During July 26, 2018 phone conference, Karen M. Lager, Esq.(Lager) notified judge
Matsumoto that she and her law firm MARKS,O'NEILL, O'BRIEN,DOHERTY & KELLY,
PC.(FIRM)represent third party defendants David Wynn, Manny Papir, Richard Scarpaci, Pinny
Dembitzer, Barbara Garofalo, Solomon Zicherman, Merrie Starr-Caputo, Bernard Kaufman, Jack
Suben, Betty Baranoff, Jeanne Rice, Tamir Kovach, Ivette Cirino, Vincent Cirino, Irene
Sarafanov, Yuriy Krasner, Lance Bums, Heniy Grunbaum, Kurt Vikki, Jack Weidhom, Doe 1 -
knew or should have known that there is egregious conflict of interest in the representation of
these people.
8. Judge Matsumoto knew or should have known that both Lager and FIRM disqualified from
representing third party defendants due to common law conflict of interest and per RULE 1.10,
9. When 1 objected to Wohlberg's conflict of interest, 1 expected that Lager would notice her
own conflict and take corrective action by filing wavers of conflict of interest from all 20
10. When Lager told Judge Matsumoto that she represents several clients, 1 expected that "lights
and sirens will go off in judge's mind" and Judge Matsumoto would inquire about attorneys'
misconducts of failure to file wavers and take appropriate action as in Bulloch v. United
"court may investigate a question as to whether there was fraud in the procurement of
a judgment. Universal Oil Products Co. v. Root Refining Co., 328 U.S. 575,66 S.Ct.
1176,90 L.Ed. 1447. This is to be done in adversary proceedings as in the case before
us. See Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238,64 S.Ct. 997, 88
L.Ed. 1250;
1 1. In Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238, 246,64 S.Ct. 997, 88 L.Ed.
"[T]ampering with the administration ofjustice involves far more than an injury
to a single litigant. It is a wrong against the institutions set up to protect and
safeguard the public, institutions in which fraud cannot complacently be tolerated
consistently with the good order of society."
12. 1 suffered a stroke in 2010 and pursuant to Federal Law - Americans with disabilities act
(ADA)is disabled person. Pursuant to rules of civility. Judge Matsumoto should have given me
necessary time to prepare opposition. Instead, she rushed me into judgment by denying my
request for motion for more definite statement and not allocating me time to make Rule 11
13. These proceedings are far from professional, courteous and civilized.
14. Section 455(a) of28 U.S.C. provides as follows: Any justice,judge, or magistrate judge of
the United States shall disqualify himself in any proceeding in which his impartiality might
reasonably be questioned. In 1994, the U.S. Supreme Court held that:
15. Chief Justice Rehnquist in his statement in Microsoft Corp. v. United States, 530 U. S. 1301,
1302(2000) reaffirmed the standard for interpreting and applying this section:
"Section 455(a) contains the more general declaration that a Justice "shall
disqualify himself in any proceeding in which his impartiality might reasonably be
questioned." As this Court has stated, what matters under §455(a)"is not the
reality of bias or prejudice but its appearance." Liteky v. United States, 510
U.S. 540, 548(1994). This inquiry is an objective one, made from the perspective
of a reasonable observer who is informed of all the surrounding facts and
circumstances. See ibid.; In re Drexel Burnham Lambert, Inc., 861 F.2d 1307,
1309(CA2 1988)."[Emphasis added]
16. Section 144 provides that "[w]henever a party to any proceeding in a district court makes and
tiles a timely and sufficient affidavit that the judge before whom the matter is pending has a
personal bias or prejudice either against him or in favor of any adverse party, such judge shall
proceed no further therein, but another judge shall be assigned to hear such proceeding."
17. All attorneys involved and Judge Matsumoto in concert railroading my case by violating my
ARGUMENTS
18. Attorney licensed to practice law in Federal Court must be really bold and sure that s/he will
not be held in Contempt of Court or reported to Grievance Committee for the above-mentioned
19. All attorneys involved had to be sure that s/he will not be ordered to pay my legal fees for
such unauthorized appearance and frivolous motion practice as per 28 USC,§ 1927 of
JUDICIARY AND JUDICIAL PROCEDURE. Violation of FRCP rule 11(b) provides for
sanctions per Rule 11(c)(3). On Court's initiative. Judge Matsumoto could have ordered
penalties and damages per Rule 11(c)(4). Unfortunately, it did not happen.
20. This attorneys' "boldness" to violate NYRPC leads me believe that all attorneys involved in
cahoots with Judge Matsumoto and that they conspired to railroad my case. All attorneys
involved deliberately fail to rebut my objections in all affidavits as to not create fraudulent or
perjurious statement on the record for future litigation. Similarly, Judge Matsumoto deliberately
silent on the record so as not to produce any appealable record for me. This is whatjudge stated
about attorneys fraud in H.K. Poricr Co.. Inc. r. Goodyear Tire & Rubber Co., 536 F.2d 1115
(6th Cir. 1976):
"Since attorneys are officers of the court, their conduct, if dishonest, would
constitute fraud on the court. Kupferman v. Consolidated Research & Mfg. Corp.,
459 F.2d 1072, 1078(2d Cir. 1972); see Restatement,.judgments § 126 comment
c(Supp.l948)."
21. This is what judge eloquently stated about fraud on the court in regard to attorney or judge in
Bulloch V. United States, 721 F. 2d 713:
"Fraud upon the court" in the context of Rule 60(b)addresses "that species of
fraud which does or attempts to. defile the court itself, or is a fraud perpetrated by
officers of the court so that the judicial machinery cannot perform in the usual
manner its impartial task of adjudging cases presented for adjudication."
Transaero, Inc. v. La Fuerza Area Boliviana, 24 F. 3d 457
23. Judge Matsumoto has Disciplinary Responsibility and Duty to Report Ethical Misconduct
of attorneys' violations of New York Rules of Professional Conduct, but failed to do so and
engaged in cover-up ofthese violations by permitting Lager and Wohlberg to file unlawful
and unauthorized by clients declarations and Wohlberg's motion to remand on his behalf.
24. Lager and FIRM, per RULE 1.10 of NYRPC. have no authority for simultaneous
representation of all third party defendants due to conflict of interests, which would lead to
finger pointing of defendants against each other, please, see Mercado v. City ofNew York,
2010 WL 3910594(S.D.N.Y. Sept. 30. 2010). In this action. Magistrate Judge Pitman "'noted
that the individual defendants had submitted written waivers of the potential conflicts."
25. 1 believe that Judge Matsumoto's order would be void because the court lost subject matter
jurisdiction and lacked personal jurisdiction over all Defendants. If I win this lawsuit, anyone of
the 20 defendants will be able to void judgment or order of this court based on this jurisdictional
defect - claiming that they never authorized Wohlberg and/or Lager to file motion to remand or
anything for them and that there was conflict of interest which they did not know about and were
never told. Any defendant will apply Rule 60(b)to void any judgment or order.
26. 1 reasonably believe that Judge Masunioto is biased and prejudiced against me at least as Pro
Se litigant. Together with all attorneys involved, she is playing a game "us lawyers against me
Pro Se."
27. Judge Matsumoto violated ABA and NYSBA Code of Judicial Conduct:
CONCLISION
28. If deliberate failure to rebut my both affidavits does not constitute Fraud upon The Court and
violations of Code of Judicial Conduct are not evidence of bias and prejudice, then what is?
There is none.
29. 1 reasonably believes that fair due process by Judge Matsumoto is impossible.
30. Fraud upon the Court makes void orders and judgments of that court. The U.S. Supreme
Court has consistently held that a void order is void at all times, does not have to be reversed or
vacated by a judge, cannot be made valid by any judge. The order is void ab initio see Vallely v.
Northern Fire & Marine Ins. Co.. 254 U.S. 348, 41 S.Ct. 116(1920). Particularly when "a judge
himself is a party to the fraud," Cone v. Harris(Okl. 1924), 230 P. 721, 723. Windsor v.
31. A Judge who stands in the way ofjustice and the law is acting outside of all judicial
authority, lacks jurisdiction and thereby waives her rights to immunity from civil liability. The
14th Amendment guarantees the fundamental rights of People to Due Process and such rights
Constitution and the Law, I respectfully move the Court to Disqualify/Recuse herself.
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