Third-Party-Plaintiff's brief in opposition with AFFIDAVIT IN SUPPORT TO THIRDPARTY-DEFENDANT'S “RESPONSE TO FIRST NOTICE OF DEFAULT AND NONRESPONSE WITH AN OPPORTUNITY TO CURE; REQUEST FOR INJUNCTIVE
RELIEF; AND REQUEST FOR SANCTIONS”
COMES NOW, Declarant, edward-eloy:martinez, a/k/a MARTINEZ, competent to
testify and of age, an inhabitant upon the land, making a special visitation by absolute ministerial
right to the district court, by "restricted appearance" under Rule E(8), and reserves all rights
without prejudice per UCC 1-308 and UCC 1-207.
This court has actual knowledge:
(1). John F. McCarthy Junior, in esse, has filed a motion to dismiss THIRD-PARTYPLAINTIFF’S MOTIONS, with REQUEST FOR INJUNCTIVE RELIEF; AND REQUEST
FOR SANCTIONS;
(2) PLAINTIFFS AND THIRD-PARTY-DEFENDANTS are currently in default to
THIRD-PARTY-PLAINTIFF’S by their non-response to Third-Party Witness and NotaryPublic, an officer of the court;
(3). The court has a duty to rule on each and every proposition of the THIRD-PARTYPLAINTIFF’S MOTIONS,
(4). The court’s confirmation of the points of law proposed by MARTINEZ, together
with the factual averments in MARTINEZ’s pleadings leave only the judicial necessity for a
hearing for the prove up of the claims of MARTINEZ, and
(5). Counsel for the THIRD-PARTY-DEFENDANTS and PLAINTIFFS have failed or
refused to show why this court should not approve the propositions of MARTINEZ in
MARTINEZ’s THIRD-PARTY-PLAINTIFF’S MOTIONS and apparent motion for summary
judgment.
John F. McCarthy, Jr., in esse’s apparent motion for summary judgment and motion for
dismissal of THIRD-PARTY-PLAINTIFF’S MOTIONS with REQUEST FOR INJUNCTIVE
RELIEF; AND REQUEST FOR SANCTIONS is a substantive and procedural nullity.
John F. McCarthy, Jr., in esse’s motion is a nullity for the following reasons:
(1). The motion is not supported by a competent affidavit,
(2). The so-called motion of John F. McCarthy, Jr., in esse, is facially void as it
incorporates by reference materials purportedly qualifying as evidence which John F. McCarthy,
Jr. did not prepare, and statements were not signed by PLAINTIFFS. This court has
knowledge: materials, extrinsic or intrinsic, are only visible to the court if presented by and
through the witness who prepared the materials,
(3). Articles 1., 2., 3., 4., 5., and 6., are opinions of John F. McCarthy, Jr., in esse –
otherwise known as facts in dispute depriving this court of power for summarily ruling.,
(4). Articles 1., 2., 3., 4., 5., and 6., of John F. McCarthy, Jr.’s so-called motion are
legal opinions that:
(a). John F. McCarthy, Jr., in esse, has not been certified as qualified to give
such opinions, and
(b). even if John F. McCarthy, Jr., in esse, presented credentials qualifying
John F. McCarthy, Jr., in esse, as an expert, this court has knowledge: evaluation of
expert testimony is reserved for the trier of fact requiring a trial.
(5). There has not been evidentiary sufficiency provided and submitted to the
record by John F. McCarthy, Jr, in esse and George I. Vigil, in esse, to prove jurisdiction
of the court. Jurisdiction of the court has been challenged and there has been a nonresponse from the court, John F. McCarthy, Jr, in esse and George I. Vigil, in esse.
Memorandum of law regarding jurisdictional challenges:
The Federal Practice and Procedure § 3522 clearly establishes that once
jurisdiction has been challenged, it is presumed that the court lacks
jurisdiction unless or until the evidentiary sufficiency is provided and
submitted to the record. The presumption is that a court lacks jurisdiction
on a particular issue until it has been demonstrated that jurisdiction over
the subject matter exists. The facts showing the existence of jurisdiction
must be affirmatively in the record. If jurisdiction is challenged, the burden
is on the party claiming jurisdiction to demonstrate that the court has
jurisdiction over the subject matter. The limits upon jurisdiction must be
neither disregarded nor evaded. The requirement to submit admissible
evidence upon the record proving jurisdiction once jurisdiction is
challenged is mandatory. The Supreme Court of the United States as well
as lower courts have consistently reaffirmed the requirement that once
jurisdiction is challenged those who claim jurisdiction must submit the
evidence to prove the validity of the claim. See Twining v. New Jersey, 211
U.S. 78, 29 S.Ct. 14, 24 (1908), Old Wayne Mutual Life Association v.
McDonough, 204 U.S. 8, 27 S. Ct. 236 (1907), Scott v. McNeal, 154 U.S.
34, 14, S.Ct. 1108 (1894), Pennoyer v. Neff, 95 U.S. 714, 733 (1877),
Hagen v. Lavine, 415 U.S. 528, at 533, 39 L.ed. 577, 94 S.Ct/ 1372 (N.Y.
March 28, 1974), United States v. Roger, 23 F. 658 (W.D. Ark. (1885),
State of Maine v. Thiboutot, 448 U.S. 1, 100 S. Ct. 2502 (1980), McNutt v.
General Motors Acceptance Corp. of Indiana, Inc., 298 U.S. 178, 80 L.Ed.
1135, 56 S.Ct. 780 (9136), (jurisdiction may never be presumed), Special
Indemnity Fund v. Pruitt, 205 F.2d. 306, 201 Okl. 308, (jurisdiction must
be affirmatively shown), United States c. Chairito, 69 F. Supp. 317 (D.
Or. 1946) (jurisdiction cannot be presumed), Standard v. Olesen, 98 L.Ed.
1151, 74 S.Ct. 768 (1954), Garcia v .Dail, 586 S.W. 2d. 524, at 528, (Tex.
C.A. 1980) (lack of jurisdiction requires dismissal), Burks v. Laskar, 441
U.S. 471 (1979) and Title 5 U.S.C. §§ 556 & 558(b).
CONCLUSION
Even if MARTINEZ’s case is not confirmed via the THIRD-PARTY-PLAINTIFF’S
MOTIONS, the following issues are in dispute and preserved for trial:
1. Whether the court has jurisdiction to handle this case without evidentiary sufficiency;
2. Whether MARTINEZ had rights of tenancy on the property which is the res of this
controversy;
3. Whether John F. McCarthy, Jr., in esse, and George I. Vigil, in esse is each guilty of
stealing property from MARTINEZ;
4. Whether MARTINEZ has any duties whatsoever towards John F. McCarthy, Jr, in esse
and George I. Vigil, in esse, since George I. Vigil, in esse’s claim of ownership is bogus,
and
5. Whether John F. McCarthy, Jr., in esse and George I. Vigil, in esse, committed criminal
and civil trespass to collateral property of MARTINEZ?
John F. McCarthy, Jr.’s apparent RESPONSE TO FIRST NOTICE OF DEFAULT
AND NON-RESPONSE WITH AN OPPORTUNITY TO CURE; REQUEST FOR
INJUNCTIVE RELIEF; AND REQUEST FOR SANCTIONS must be denied as a matter of
law.