Venue is Not Grounds for Dismissal

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PLAINTIFF, JOANNA BURKES’ OBJECTION TO REPORT AND RECOMMENDATIONS BY MAGISTRATE JUDGE SCHULTZ

 “When judges sacrifice the rule of law to find rights they favor, I fear the people may one day find that their new rights, once proclaimed so boldly, have disappeared because there is no longer a rule of law to protect them.”[1]

THE SINGLE QUESTION RAISED BY THIS COURT IS PREDICATED UPON VENUE

This question should never have been raised by either Magistrate Judge. The right to attack venue is personal to the parties and waivable at will, a judge should not impose his choice of forum upon the parties by deciding on his own motion that there was a lack of proper venue, see; 28 U.S.C. § 1406(b).

See; “”Unlike the matter of jurisdiction venue was (and remains) a privilege personal to each defendant, which can be waived, and is waived by him unless timely objection is interposed.” 1 Moore, Federal Practice ¶ 0.146[6], at 1911 (2d ed. 1964).” Concession Consultants, Inc. v. Mirisch, 355 F.2d 369, 371 n.1 (2d Cir. 1966).

2023_JBurke_MN_Case__Motion_RRResponse_Sep12_2023Download

[1] Log Cabin Republicans v. U.S., 658 F.3d 1162, 1174 (9th Cir. 2011).

This legal proceeding has recently begun in the Minnesota federal court, characterized as a Civil Rights Act case. However, it has already witnessed two Magistrates who have, on their own initiative, proposed the dismissal of the Plaintiff’s complaint about the “JudgeGate Scandal”. This has occurred due to their inaccurate, misleading, and hasty interpretations of the Plaintiff’s complaint and subsequent pleadings, coupled with an incorrect application of the law.  

PREAMBLE

As stated above, venue should not have been raised as an issue and it is certainly incorrect to rely upon venue to suggest dismissal of Plaintiff’s civil proceedings. However, Plaintiff will address the question of venue in light of the insistence and persistence of this court regarding this matter.

Venue does not apply when, as here, order[s] are challenged as void. It is undisputed that the law allows a challenge to be heard by any person, at any time, and anywhere.

Plaintiff has provided many case citations in support. Alas, this court is adamant there’s an invisible caveat which changes the ‘anywhere’ to ‘anywhere… subject to’. Nowhere has any cited void case reached the subject to argument presented here, which would have one believe you can file a case challenging void order[s] anywhere, but it is subject to venue and specifically section 1391(b).

Most importantly, Magistrate Judge’s Foster and Schultz conclusory orders and report did not cite any cases which confirm otherwise. They both cited to none: zero.

The actions of the two magistrates only heightens Plaintiff’s concerns about discrimination[1] in these legal proceedings, and which forms a large part of the Plaintiff’s original complaint against the judicial machinery itself.

Indeed, setting aside the ‘anywhere’ argument for the purpose of addressing venue, the District of Minnesota and assigned US District Judge Wilhelmina M. Wright recently determined  in a similar set of circumstances that Plaintiffs’ from Texas can defeat a Motion to Transfer Venue to the Eastern District of Texas. See; LG2, LLC v. Am. Dairy Queen Corp., 22-cv-1044 (WMW/JFD) (D. Minn. Jan. 12, 2023).  

That said, the Plaintiff maintains this case can be heard anywhere, but for the purposes of addressing the courts concerns, she will discuss venue and other related matters in this objection to Magistrate Judge David T. Schultz’s (“MJ Schultz”) R&R.

JUDICIAL NOTICE

It should be formally noticed that Plaintiff has now been assigned two Magistrate Judges who are or were in conflict and issued biased orders or reports. The first, MJ Foster self-recused after Plaintiff presented her evidence, and the latest appointment, MJ Schultz’s appearance is even more shocking, considering his resume.

Magistrate Judge Dulce Foster

In the initial phase of this case, Magistrate Judge Dulce Foster (“MJ Foster”) was assigned to oversee proceedings. In response to her show cause order, the Plaintiff submitted a series of pleadings, including a motion to take judicial notice of specific public court records related to the case of United States v. Dornsbach, 0:22-cr-00048 (D. Minn. May 17, 2023) (“Dornsbach”).

It can reasonably be inferred that MJ Foster chose to self-recuse as a direct consequence of this  motion, combined with the Plaintiff’s percolating motion for an interlocutory appeal, and Plaintiff’s subsequent response to the show cause order. This development holds great relevance and significance in the context of these proceedings. It is important to recollect that, firstly, MJ Foster recused herself, and secondly, in the Dornsbach case, all active judges within this district court were similarly recused.

Furthermore, the remaining background of the Plaintiff’s case, including the rationale behind the Texas Plaintiff choosing to file in Minnesota, warrants detailed discussion. This involves the “ClerkGate Scandal” at the Court of Appeals for the Fifth Circuit in Louisiana and the subsequent civil proceeding in the Southern District of Texas, Houston Division.

To summarize, the fundamental point which will be elaborated upon later in this document is that at the time of filing, Plaintiff elected to file in Minnesota instead of Texas  – in the interests of justice. See; United States v. Collette, No. 22- CR-00141-DC, at *17 (W.D. Tex. Sep. 25, 2022); operative complaint, p.2, and; p.32-33,  p. 51-52, and Count 1.1, p. 64-65 re 5th Cir. motion to transfer venue to 8th Cir.

However, whether a fair tribunal can be achieved in Minnesota is now also under the spotlight, due to the documented inexcusable actions of this court, the judicial machinery itself and appointed Magistrate Judges’ so early in these proceedings.

Magistrate Judge David Schultz

It is with complete shock, Plaintiff has recently discovered that prior to his appointment to the bench,  David Schultz was a Partner at Maslon LLP for 11 years, a private law firm. Whilst working there, he represented defendant PHH Mortgage Corporation in a case which is part of the RFC Litigation, and which led Plaintiff to Minnesota. See; Residential Funding Co. v. Mortg. Network, Inc. (In re RFC Liquidating Trust Litig.) 14-cv-4701 (JRT) (D. Minn.).

It is undeniably evident that MJ Schultz’s profound conflict of interest casts a dark shadow over these proceedings. It is deeply disconcerting that both the Magistrate and this court believed this conflict could remain concealed, allowing for the calculated dismissal of this lawsuit. Regrettably for the judiciary, but fortunately for the Plaintiff, their lack of transparency and the subsequent discovery of judicial misconduct have shed light on this deplorable situation. This inexcusable behavior by a sitting Magistrate Judge not only breaches ethical standards but also stands as a reprehensible stain on the integrity of the court system.

“The U.S. District Court, District of Minnesota is composed of seven authorized district judges, six senior district judges, seven magistrate judges and one part-time magistrate judge, Clerk’s Office staff, and Probation and Pretrial Services Office staff.” – per this courts’ own website. Despite the many options, this court chose the one Magistrate Judge who represented defendant PHH Mortgage Corporation and not only that – this Magistrate Judge accepted the position – despite his past relationship with defendant PHH Mortgage Corporation.

In light of this, Plaintiff moves this court to refer this objection to the Chief Judge, as happened in MJ Foster’s Dornsbach proceedings. This is supported by Pegueros v. Pollard, No. CV-19-02258, at *1 n.1 (S.D. Cal. May 3, 2021) (“Because Magistrate Judge Michael Berg was defense counsel for Pegueros, all District Judges and Magistrate Judges in the Southern District of California were recused from this matter. (Doc. 13.) Pursuant to 28 U.S.C. § 292(b), the case was subsequently assigned to the Honorable Stephen M. McNamee, United States Senior District Judge for the District of Arizona, by Chief Judge of the Ninth Circuit Court of Appeals Sidney R. Thomas, to perform the duties of United States District Judge temporarily for the Southern District of California.”).

THE LAST IN FIRST OUT SYSTEM IN MN (“LIFO”)

On April 19, 2023 this civil complaint was docketed. US District Judge WM Wright presiding, and MJ Foster assigned for pretrial proceedings.

On July 14, 2023 “First MOTION ADVANCE APPROVAL OF PROCESS OF SERVICE COSTS AND EXTENSION OF TIME TO SERVE DEFENDANTS filed by Joanna Burke.”.

Three days later, on July 17, 2023 “ORDER TO SHOW CAUSE. Show Cause Response due by 8/16/2023. Signed by Magistrate Judge Dulce J. Foster”, and “Order:

In her 8 Motion for Advance Approval of Process of Service Costs and Extension of Time to Serve Defendant, Plaintiff seeks an order for prepayment of service costs, and also seeks a 90-day extension of the time to serve Defendants. The Court DENIES the Motion IN PART. Fed. R. Civ. P. 4(d)(2) provides for the imposition of expenses “later incurred in making service” when a defendant refuses to waive service, but it does not allow for prepayment of service costs as Plaintiff requests. Plaintiff’s request for prepayment of service costs is DENIED accordingly. Since the Defendants have refused to waive service, Plaintiff must serve the Complaint. She may have until July 31, 2023 to properly serve the Summonses and Complaint.”

            On July 21, 2023 Plaintiff’s “Amended MOTION to Certify Interlocutory Appeal” and corrected Brief was docketed on July 26.

            On August 15, 2023 “MOTION Take Judicial Notice filed by Joanna Burke. (Attachments:# 1 Exhibit(s) Lawyer Turned Judge as a Witness for Defendant in Minnesota Federal Court Criminal Proceeding, Exhibit(s) Legally Void Orders Can Be Challenged Anywhere)” (Refiled Aug. 19, 2023).

            On August 15, 2023, RESPONSE re 9 Order to Show Cause filed by Joanna Burke.(Burke, Joanna).

            Within 24 hours, on Aug. 16, 2023 “ORDER OF RECUSAL. Magistrate Judge Dulce J. Foster recused. Case reassigned to Magistrate Judge David T. Schultz for all further proceedings. NOTE: the new case number is 23-cv-1119 WMW/DTS. Please use this case number for all subsequent pleadings. Signed by Magistrate Judge Dulce J. Foster on 8/16/2023.”

            On August 30, 2023, a one page and a bit R&R is released “REPORT AND RECOMMENDATION re 1 Complaint, filed by Joanna Burke. Signed by Magistrate Judge David T. Schultz”. (“MJ Shultz”).

HON. STEPHEN WM. SMITH, FORMER MAGISTRATE JUDGE

It is necessary to highlight the Plaintiff has had prior experience with an “honest” Magistrate Judge during the approximately 6-year period in which John and Joanna Burke were involved in legal proceedings before the court on Rusk St. in Houston.

Those proceedings stemmed from the initial action brought by Deutsche Bank National Trust Company, a third-tier, unsecured creditor, who was unable to substantiate their claim to ownership of any interest in the Burke’s homestead following the collapse of Indymac Bank.[2] The Magistrate Judge in question at that time was the Honorable Stephen Wm. Smith. Throughout this extensive period, extending up to the present day, the Plaintiff(s) diligently studied the law. Consequently, Joanna Burke possesses a discerning awareness of procedural irregularities when they are manifestly evident, as is the situation currently before this court.

LEGAL STANDARD

“The court reviews de novo any portion of the R&R to which specific objections are made. See 28 U.S.C. § 636(b)(1)(c).

The court liberally construes a document filed by a pro se litigant. See Erickson v. Pardus, 551 U.S. 89, 94 (2007).

Liberal construction means that the court construes a pro se litigant’s filing “in a way that permits the [litigant]’s claim to be considered within the proper legal framework.”

Stone v. Harry, 364 F.3d 912, 915 (8th Cir. 2004) (applying liberal construction to a pro se complaint).

Pro se litigants are not held to the same stringent standards as formal pleadings drafted by lawyers. See Erickson, 551 U.S. at 94.” – Shortymacknifisent v. Beltz, Civil 22-766 (DSD/LIB), at *2 (D. Minn. June 28, 2023).

PLAINTIFF’S OBJECTIONS TO REPORT AND RECOMMENDATIONS (“R&R”)

First, let’s summarize MJ Shultz hurried and curt R&R.

Objection No. 1: Pending Motions

As itemized above, the motions submitted by Plaintiff have not been considered and are presently pending. The R&R was required to address all pending motions, see; Hines v. Roy, No. 16cv352 (DSD/SER), at *2 (D. Minn. Oct. 25, 2016) (“The Court will issue a separate case management order contemporaneously with this Report and Recommendation addressing the status of the pending motions and other case management issues.”), or; Wanjiku v. Dep’t of Homeland Sec., No. CIV-23-464-R, at *8-9 (W.D. Okla. July 24, 2023) (“This Report and Recommendation disposes of all issues referred to the undersigned Magistrate Judge in the captioned matter, and any pending motion should be deemed denied.”).

Without either addressing these arguments or providing any commentary in his R&R regarding the pending motions, it becomes apparent that MJ Schultz has deliberately omitted these crucial points, as corroborated by the Plaintiff’s response. MJ Schultz, being a seasoned Magistrate Judge, cannot be excused by mere oversight, especially considering the multitude of issues present in this new case.

Indeed, MJ Shultz had no such issues when he recently considered the pending motions in Jackson v. Schnell, 23-CV-0366 (PJS/DTS), at *1 (D. Minn. May 24, 2023) (“This matter is before the Court on plaintiff Tony Dejuan Jackson’s objection to the April 21, 2023 Report and Recommendation (“R&R”) of Magistrate Judge David T. Schultz. ECF No. 13. Judge Schultz recommends dismissing Jackson’s claims without prejudice, denying Jackson’s pending motions”).

Objection No. 2: No Supporting Case Law

            A review of the R&R shows one citation, as provided by Plaintiff. MJ Shultz suggests that the case be dismissed on the basis of 28 U.S.C. § 1391(b), but that assertion alone is insufficient without providing a proper analysis, including case law.

See; Dakota J.H. v. Kijakazi, 22-CV-247 (JWB/JFD), at *12 (D. Minn. Jan. 9, 2023) (“Just as in Vandenboom v. Barnhart, Plaintiff cites no case law and cites no specific facts that support his argument. 421 F.3d 745, 750 (8th Cir. 2005) (“We reject out of hand Vandenboom’s conclusory assertion that the ALJ failed to consider whether he met listings 12.02 or 12.05C because Vandenboom provides no analysis of the relevant law or facts regarding these listings.”). This Court similarly dismisses this conclusory assertion and recommends that Plaintiff’s motion for summary judgment be dismissed on this theory.”);

Toyota Motor Sales, U.S.A. v. Allen Interchange LLC, 22-cv-1681 (KMM/JFD), at *12 n.9 (D. Minn. Aug. 14, 2023) (“Toyota USA cites only one case involving a dilution claim, Toyota Motor Sales, U.S.A., Inc v. Profile Cocktail Lounge, Inc., No. 99 C 5377, 2001 WL 123787 (N.D. Ill. Feb. 13, 2001).  However, that case does not explore the issue of standing at all, and is therefore of little persuasive value on the question presented here.”).

Even reviewing a comparably short R&R comprising of a single paragraph, in Adams v. City of Brooklyn Ctr., 21-cv-1913 (NEB/DTS), at *1 (D. Minn. Mar. 6, 2023) (“Accordingly, this Court now recommends that this action be dismissed without prejudice under Rule 41(b) of the Federal Rules of Civil Procedure for failure to prosecute. See Henderson v. Renaissance Grand Hotel, 267 Fed. App’x 496, 497 (8th Cir. 2008) (per curiam) ”), MJ Shultz managed to squeeze into a single paragraph a case in support of his recommendation.

Unlike the instant proceedings, MJ Shultz arrives at his recommendation on a sole sentence “That response misses the issue.” – yet he fails to include any case law.  Questionably, the ‘response’ he refers to is not the response, it’s the disclaimer section of Plaintiff’s reply, clearly labeled “Reservation of Rights”.

However, MJ Schultz purposefully and willfully relies upon Plaintiff’s case citation whilst blanking all the facts presented in the response, in conjunction with the motion to take judicial notice pleadings.

Both were to be read in conjunction with each other as both are relevant to the courts needless concerns about venue.

Lamentably, the District of Minnesota has recently confirmed Plaintiff’s suspicions that blanking large parts of an argument in a pleading is standard practice when it does not aid the judiciary’s precarious position.

Take for example, the recent MDL 3M lawsuit In re Bair Hugger Forced Air Warming Devices Prods. Liab. Litig., MDL 15-2666 (JNE/DTS) (D. Minn. July 10, 2023), where Plaintiffs’ filed a motion to disqualify District Judge Ericksen and MJ Schultz  regarding ethics, recusals and, in this case, demanded mandatory disqualification of MJ Schultz.

 The response by Senior Judge Ericksen: “The magistrate judge’s characterization of the course of the litigation does not constitute grounds to disqualify.”.

At no point in her memorandum does she address the many pages of Plaintiff’s memorandum in support of disqualification of MJ Schultz where it discusses the 3M Shareholding by MJ Schultz and which includes the statement “Disqualification in this context is not optional; it is “automatic.”, supported by case law.  No, it is completely discounted.

Instead, Judge Ericksen makes a grandiose statement which defies the facts in these proceedings : “The Court reiterates Magistrate Judge Schultz’s statement that any plaintiff can expect to receive, and will receive, a fair trial against Defendants in the District of Minnesota.”

Objection No. 3: New Magistrate Judge Assigned, But No Hearing or Due Process Applied Before R&R Issued

When MJ Foster self-recused, the court was on notice that there were pending motions, including a response to the show cause order which specifically requested due process and the opportunity to be heard.  

Also, there was “PLAINTIFF, JOANNA BURKES’ BRIEF IN SUPPORT OF MOTION TO CERTIFY DISPOSITIVE INTERLOCUTORY APPEAL AND TO STAY PROCEEDINGS PENDING APPEAL”, which stated, in part, “Plaintiff  is “entitled to seek intervention from the trial or appellate court before the deprivation, i.e. his dismissal.”– Parker v. Parker, No. 4:07-CV-00074, at *7 (E.D. Mo. Mar. 13, 2008)(emphasis added).”

All of this was muted by MJ Schultz by his own actions on August 30, 2023 in issuing a premature R&R, and without addressing nor disposing of the pending motions. As detailed above, it is without doubt a premeditated act.

This is a clear violation of Plaintiff’s procedural and substantive due process rights. See Plaintiff’s response, in part; “Obstructions of justice, through denials of due process of and equal protection under the laws, in violations of the U.S. Code Titles 42 Sections 1985(2) & 1986, Article I sections 9 & 10, 5th & 14th Amendments, U.S. Constitution.”, and operative complaint, Count 1.3, p. 67-68.

Further, this court is acting sua sponte regarding perceived venue issues when no defendant has been given the opportunity to respond to service and contrary to due process. See; Lopez-Martinez v. Midwest Resale Specialist Inc., 23-cv-98 (JRT/TNL), at *3 (D. Minn. Jan. 31, 2023);

“Having considered Plaintiffs’ motion and supporting documents, the Court denies Plaintiffs’ motion without prejudice. At this time, the Court does not find good cause to appoint the United States Marshals Service to serve Defendant because Plaintiffs have failed to exhaust all potential service options. Under Rule 4(d)(1), “[a]n individual, corporation, or association that is subject to service . . . has a duty to avoid unnecessary expenses of serving the summons. The plaintiff may notify such a defendant that an action has been commenced and request that the defendant waive service of a summons.” Here, Plaintiffs concede that they did not send Defendant a Notice of Lawsuit and Request to Waive Service of a Summons. While Plaintiffs believe that “it is unlikely that [Defendant] would promptly execute a waiver of service” due to “Defendant’s current and past obstruction of process,” ECF No. 4 at 5, Plaintiffs have not yet attempted this option. Because Defendant may elect to waive service of the summons if given the option to do so, Plaintiffs’ motion is denied without prejudice. In the event that Defendant does not respond timely to a Notice of Lawsuit and Request to Waive Service of a Summons, Plaintiffs may bring another motion to appoint the United States Marshals Service to effect service.”.

Accordingly, the Plaintiff’s pending motion for interlocutory appeal should not be allowed to be mooted prematurely based on this “last in, first out” R&R, and which fails to address all the pleadings and arguments presented, including due process and the right to be heard before dismissal.

Objection No. 4: Venue

            As stated by Plaintiff in the Single Question section and the Preamble section of this objection and reply, this court incorrectly contends that venue is an issue. To respond, this requires a breakdown of the parties.

A Corporation Doing Business in the State of Minnesota Defeats Venue Issues

Where, as here, there’s a corporation as a defendant – PHH Mortgage Corporation, see; Polizzi v. Cowles Magazines, 345 U.S. 663, 666 n.2 (1953) (“A corporation may be sued in any judicial district in which it is incorporated or licensed to do business or is doing business, and such judicial district shall be regarded as the residence of such corporation for venue purposes.” (Emphasis supplied).”.

It is without doubt, PHH Mortgage Corporation is licensed to do business in the State of Minnesota, accepts service in Minnesota and judges accept venue by issuing Order[s] related to PHH Mortgage Corporation cases in Minnesota. See; “SUMMONS Returned Executed by United States of America. PHH Mortgage Corporation served on 6/10/2022” in United States v. Pashina (0:22-cv-01512) District Court, D. Minnesota; (“ORDER APPROVING THE UNITED STATES AND DEFENDANT PHH MORTGAGE CORPORATION STIPULATION TO JUDGMENT. Signed by Judge Nancy E. Brasel on 7/28/2022.”).

Indeed, if MJ Schultz had not intentionally blanked Plaintiff’s motion for interlocutory appeal, he would already know these facts, in relevant part;

There Is Substantial Ground For Difference Of Opinion

Magistrate Judge Foster should not be applying the law and rules indiscriminately to maliciously target an elderly pro se, non-prisoner litigant who dares to challenge the judiciary machinery itself (Magistrate Judge Foster’s colleagues) by submitting irrefutable evidence of fraud and deception by officers of the court in a civil complaint. If she cannot comply with her own judicial canons and ethics, she should volunteer not to participate any further in this proceeding.

If one reviews Plaintiff’s detailed operative complaint, the underlying litigation in Texas revolves around the predatory lending and financial fraud which resulted in the 2008 financial crisis. This court and circuit are intimately familiar with predatory loans by banks and non-banks, including the recent landmark case before this court, affirmed on appeal to the 8th Circuit, confirming the very abuses and predatory lending which lit the flame to her own civil litigation post great recession. See; ResCap Liquidating Tr. v. Primary Res.l Mortg. No. 13-cv-3451 (SRN/HB) (D. Minn. Aug. 14, 2020). Indeed, Defendant PHH Mortgage was pursued by the U.S. Attorney’s Office, District of Minnesota for ‘submitting defective loans’ and a $74M settlement would be reached per the Department of Justice’s website press release (Aug. 8, 2017).”

            Further, MJ Schultz has defended defendant PHH Mortgage Corporation himself in this court and his premeditated ignorance of these facts provides unassailable confirmation of his bias in these proceedings.

A Federal Employee Defeats Any Perceived Venue Issues

            Next, there’s Christina Gardner, a federal employee who is employed as a clerk at the Court of Appeals for the Fifth Circuit in Louisiana. Whilst venue and jurisdiction are separate, this separation is dissolved when considering “fairness” as cited in Fitzsimmons v. Barton, 589 F.2d 330, 333 (7th Cir. 1979);

 “It is clear, therefore, that the “fairness” standard imposed by Shaffer relates to the fairness of the exercise of power by a particular sovereign, not the fairness of imposing the burdens of litigating in a distant forum. Applying this standard of fairness, it is clear that this instance of personal service satisfies Due Process. Here the sovereign is the United States, and there can be no question but that the defendant, a resident citizen of the United States, has sufficient contacts with the United States to support the fairness of the exercise of jurisdiction over him by a United States court.”.

The Eighth Circuit agrees; In re Federal Fountain, Inc., 165 F.3d 600, 602 (8th Cir. 1999) (“As the Supreme Court observed in United States v. Union Pacific Railroad Co., 98 U.S. 569, 604 (1878), there is “nothing in the Constitution which forbids Congress to enact that . . . [a federal trial court] . . . shall . . . have the power to bring before it all the parties necessary to its decision.” See also Robertson v. Railroad Labor Board, 268 U.S. 619, 622 (1925) (Congress may provide that “the process of [any] district court shall run into every part of the United States”). We think, in sum, that the fairness that due process of law requires relates to “the fairness of the exercise of power by a particular sovereign, . . . and there can be no question . . . that the defendant . . . has sufficient contacts with the United States to support the fairness of the exercise of jurisdiction over him by a United States court.” Fitzsimmons v. Barton, 589 F.2d 330, 333 (7th Cir. 1979). Congress has in fact quite frequently exercised its authority to furnish federal district courts with the power to exert personal jurisdiction nationwide.”).

Remote Proceedings

As the court recognizes, Gardner along with all defendants would only be required to ‘appear’ for the intended jury trial. Until that time, this District allows for remote proceedings. In light of this, Plaintiff contends there is no inconvenience issue as to venue.

Severance is Not Required

            In the alternative, the complaint against Gardner could be severed. However, this has been considered above in Fitzsimmons and also in In re Federal Fountain, Inc., 165 F.3d 600 (8th Cir. 1999). As nationwide service is both allowed and assumed, severance is not warranted in this proceeding.

Venue Can Be Waived

“Unlike jurisdiction, venue can be waived.” – Keene v. International Union of Operating Engineers, Local 624, 569 F.2d 1375, 1378 (5th Cir. 1978). In his final paragraph in the Recommendation section, MJ Schultz cites to 28 U.S.C. § 1406(a) but blanks (b), which controls the facts in these proceedings. Namely, since the right to attack venue is personal to the parties and waivable at will, a  judge should not impose his choice of forum upon the parties by deciding on his own motion that there was a lack of proper venue. Concession Consultants, Inc. v. Mirisch, 355 F.2d 369, 371 (2d Cir. 1966).

Christina Gardner May Waive Venue

            As the motion for interlocutory appeal percolates on the LIFO doctrine, as applied by Magistrate Judge Schultz, it is therefore unknown whether Gardner would waive venue or not. As this court did not dispose of all motions, this question has never been reached, let alone answered.

Lawyers Representing the Corporation Waive Venue Issues

            Finally, there’s the lawyers Mark and Shelley Hopkins, and their law firm Hopkins Law, PLLC, which is an alter ego of the nationwide foreclosure mill known today as BDF Law Group, who represent PHH Mortgage Corporation, formerly known as Ocwen Loan Servicing, LLC. Prior to that, they appeared to represent Deutsche Bank National Trust Company.

 As the interlocutory appeal motion is pending, Plaintiff would ordinarily be unable to anticipate whether they would make an appearance on behalf of PHH, as they have since at least 2018. However, based on recent confidential communications, that likelihood is most probable, and which can be produced in camera if requested by the court.

By appearing before the court for the corporation pro hac vice, Hopkins would, in effect, waive any objection to venue.  And as already stated, remote proceedings will not interfere with their current work schedule.

US District Judge Wilhelmina Wright’s Opinion in LG2 Controls

            MJ Schultz states in his R&R, in relevant part; “Furthermore, based on a review of Burke’s complaint, the Southern District of Texas appears to be the appropriate venue for this lawsuit because “a substantial part of the events or omissions giving rise to the claim” occurred there. See 28 U.S.C. § 1391(b).

First, as cited in the preamble, this court has issued a detailed Order, rejecting similar arguments in LG2, LLC v. Am. Dairy Queen Corp., 22-cv-1044 (WMW/JFD) (D. Minn. Jan. 12, 2023). Applying this court’s analysis here achieves the same result;

US District Judge Wright’s assessment included; (a) Convenience of the Parties; (b) Convenience of the Witnesses; (c) Interests of Justice; (1) Judicial Economy; (2) Plaintiff’s Choice of Forum; (3) Comparative Costs to the Parties of Litigating in Each Forum; (4) Ability to enforce a Judgment; (5) Obstacles to a fair trial and a local court determining local laws; and finally, (6) Conflict of law.

In this case; (a) With the exception of the projected Jury Trial, all proceedings can be achieved remotely. This weighs in favor of Plaintiff; (b) There are no listed witnesses to consider at this time. Neutral; (c) Interests of Justice weigh in favor of Plaintiff as detailed in the Plaintiff’s operative complaint and pleadings. A fair tribunal cannot be achieved in Texas as you would be asking those who committed the crimes, the judicial machinery itself, to be judge and jury in their own proceedings; (1) Relying on LG2, this factor is Neutral. (2) PHH Mortgage Corporation are registered to do business in Minnesota. The Hopkins parties have always represented them and are remunerated for their time, which, with the exception of trial, would be remote proceedings and written submissions from the comfort of their own location. The federal government will no-doubt assign  local representation and/or pro hac vice counsel for Fifth Circuit clerk Christina Gardner, no matter the geographical location. As such, Plaintiff’s choice of forum favors Plaintiff; (3) See (2), it favors Plaintiff; (4) Relying upon LG2, this is Neutral; (5) The Plaintiff’s claims do not involve local laws, see operative complaint, thus this favors Plaintiff; (6) There are no conflicts of law that impact venue, only conflicts of interest which favors Plaintiff’s choice of venue – Minnesota.

Second, in an order adopting a Magistrate’s R&R, released two days before MJ Schultz’s R&R, in  Nicholson v. The Bank of N.Y. Mellon, 22 Civ. 3177 (PGG) (KHP) (S.D.N.Y. Aug. 28, 2023)(dismissed on other grounds), Plaintiff, a Texas homeowner filed suit against The Bank of N.Y. Mellon (“BONYM”) in New York despite a substantial part of the events or omissions giving rise to the claim” occurring in Texas. The Southern District Court of New York accepted the ‘out-of-state’ civil proceedings and correctly did not raise venue as an issue. It is admitted BONYM is headquartered in NY.

Objection No. 5: Transfer, not Dismissal is Appropriate

If this court still maintains venue is problematic, then in the alternative, this case should not be dismissed without prejudice, but transferred;

Holmes-Hamilton v. Fed. Bureau of Investigation, No. GJH-21-00702, at *9 (D. Md. Nov. 5, 2021) (““[w]hen venue would be proper in another district . . ., transfer is preferred over dismissal.””);

Watts v. Soloymi, Inc., 21 C 2101, at *2 (E.D. Ark. Sep. 9, 2021) (“Generally, courts prefer transferring a case to a jurisdiction where venue is proper as opposed to dismissing it.”);

Neely v. MRI Software, LLC, 1:23 CV 00311, at *12 (E.D. Mo. July 27, 2023) (“Doubts about whether to transfer or dismiss are usually resolved in favor of transfer because the interest of justice generally is better served by transfer.”).

And, relevant here; Rescap Liquidating Trust v. PHH Mortgage Corp., 518 B.R. 259, 269 (S.D.N.Y. 2014) (“For the foregoing reasons, the defendant’s motion to transfer this case to the District Court for District of Minnesota is granted.”); Residential Funding Co. v. Mortg. Network, Inc. (In re RFC Liquidating Trust Litig.), No. 14-cv-4701 (JRT), at *33 n.15 (D. Minn. June 11, 2015) (“According to Defendant PHH Mortgage, it has two contracts with RFC, one subject to Minnesota law and the other to New York law, and Decision One’s Motion relates only to the contract subject to Minnesota law [Doc. No. 265].”).

In this instance, transferring this civil action to Texas would defeat the interests of justice. As such, due process provides for transfer to the federal court in the District of New Jersey, where PHH Mortgage Corporation is headquartered; Tate v. Lepe, 23-CV-0708 (NEB/JFD), at *2 (D. Minn. Apr. 5, 2023) (“This Court will therefore recommend that this matter be transferred to the United States District Court for the District of Colorado pursuant to § 1406(a).”).

Objection No. 6: Failure to Recommend Amending the Complaint

In the alternative, and as due process requires, by allowing Plaintiff to amend her complaint, any continued court dispute – remarkably, a court who is currently acting on behalf of defendants – over venue could be overcome by removing any of the at-issue defendants from this complaint.

See; Harris v. Ramsey’s Cnty.’s Courts, 23-CV-0197 (JRT/JFD), at *2 (D. Minn. Mar. 12, 2023) (“On March 1, 2023, the Court received the Amended Complaint (see Docket), which is now this action’s operative complaint. Cf. Fed.R.Civ.P. 15(a)(1) (stating, as relevant here, that party can “amend its pleading once as a matter of course” in certain situations).”).

This rule provides for the amendment of complaints, answers, and other pleadings without seeking permission from the court or obtaining the opposing party’s consent in the following situations:

Time Limit: A party can amend its pleading once as a matter of course within 21 days after serving it or, if the pleading is one that requires a responsive pleading, within 21 days after service of a responsive pleading or a motion under Rule 12(b), (e), or (f).

Response Not Yet Required: If a responsive pleading or a motion under Rule 12(b), (e), or (f) is not required, a party can amend its pleading once as a matter of course within 21 days after service of the pleading.

Thus, amendment of the complaint applies here, and Plaintiff should have been allowed to amend her complaint, as required. 

JUDICIAL NOTICE OF “ANYWHERE” VOID CASE LAW

            The following cases are included in the Plaintiff’s Response to this Court’s Show Cause Order and judicial notice is requested here. The cases are listed for reference. See; Guinn v. Davis, No. 7:20cv753, at *5 (W.D. Va. July 15, 2021); Barnes v. American Fertilizer Co., 144 Va. 692, 705, 130 S.E. 902, 906 (1925); Lops v. Lops, 140 F.3d 927, 952 (11th Cir. 1998); Palmer v. Bunn, 218 Ga. 244, 245 (Ga. 1962), and; In re Backer, No. 98-50956, at *10 (Bankr. E.D. Ky. Aug. 30, 2011).  See, Exhibit “Legally Void Orders Can Be Challenged Anywhere”.

RESERVATION OF RIGHTS

            This civil action is directed “at the judicial machinery itself”. See Workman v. Bell, 484 F.3d 837, 840 n.1 (6th Cir. 2007):

“The elements of fraud on the court include conduct: 1) on the part of an officer of the court; 2) that is directed at the judicial machinery itself; 3) that is intentionally false, wilfully blind to the truth, or is in reckless disregard for the truth; 4) that is a positive averment or a concealment when one is under a duty to disclose; and 5) that deceives the court.”.

For now, let’s put aside Plaintiff’s original complaint, which is directed towards the judicial machinery itself as stated in the opening sentence, in part “to vacate void judgments on the basis of fraud”.  See; Doc 1, p. 1 (Apr. 19, 2023). In this court, orders and a report have been issued by the judicial machinery which violate the rule of law, appear to be retaliatory, and lack legal merit. These assertions are backed by irrefutable citations to controlling facts and authorities. It is important to note that Joanna Burke asserts her reservation of rights, including her civil and constitutional rights to due process, an impartial judge, and a fair hearing, as her property and liberty are at extreme risk. See; Parker v. Parker, No. 4:07-CV-00074, at *5-6 (E.D. Mo. Mar. 13, 2008).

OBJECTION TO ASSIGNMENT OF MAGISTRATE JUDGE

As stated herein, this case has now been referred to the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636 and District of Minnesota Local Rule 72.1. In light of the Magistrate Judge’s past and present performance from the bench, and as witnessed in these proceedings, the Plaintiff, Joanna Burke formally provides notice to this court that she objects to the [second] assignment, namely  Magistrate Judge David T. Schultz.

REFERRAL TO CHIEF JUDGE PATRICK J. SCHILTZ

            For the reasons provided, Plaintiff requests this objection and response be referred to the Chief Judge for reassignment to a United States District Judge beyond this District but within the perimeters of the 8th Circuit when applying 28 U.S.C. § 292; “(b) The chief judge of a circuit may, in the public interest, designate and assign temporarily any district judge of the circuit to hold a district court in any district within the circuit.”

CONCLUSION

In the relentless pursuit of justice, Plaintiff beseeches this court to bestow the utmost attention upon this reply, replete with objections, along with the additional remedies sought, all rooted in the stark reality of the case at hand. Numerous unresolved matters demand the full rigor of due process, and within these issues lie a multitude of viable solutions, thoroughly laid out within this objection.

 It is the firm belief of Plaintiff that this case should persist within the jurisdiction of Minnesota, under the guidance of a distinguished United States District Judge from outside this District, ensuring a just and impartial resolution untainted by the influence of a biased third-party Magistrate Judge.

The stakes are high, the principles at hand are essential, and the very fabric of justice hinges upon a decision that champions the integrity of the legal process. In order to prevent a grave miscarriage of justice, PLAINTIFF, JOANNA BURKES’ OBJECTION TO REPORT AND RECOMMENDATIONS BY MAGISTRATE JUDGE SCHULTZ should be GRANTED.

RESPECTFULLY submitted this 12th day of September, 2023.

                                                                                                            /s/ Joanna Burke

[1] Count 1.9, Discrimination, Operative Complaint, p.89-96.

[2]See; the $340m settlement which included the purported pool of securitized Indymac Bank mortgages which allegedly included the Burkes – and even assuming the loan was included – this loan was paid off by this settlement with intervenor IPERS (Iowa Public Employees’ Retirement System).

In re Indymac Mortgage–backed Sec. Litigation this Document Relates to All Actions., 793 F. Supp. 2d 637, 645 n.31 (S.D.N.Y. 2011) (“IPERS, which moved to intervene on August 19, 2010, purchased INDX 2007–AR15, INDX 2006–AR25, and Residential Asset Securitization Trust 2007–A8 Certificates on June 20, 2008, June 20, 2008, and October 16, 2007, respectively. DI 239 Ex. A.”).

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