Case: 09-3403 Document: 003110125122 Page: 1 Date Filed: 04/30/2010

No. 09 3403

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________________

LISA LIBERI, et al.,

Plaintiffs-Appellants,

vs.

ORLY TAITZ, et al.,

Defendant-Appellee.
__________________

District Court No. 09_cv_01898_ECR

Eastern District of Pennsylvania
__________________

Opposition to Motion to Dismiss w/o Costs & Request for Sanctions and
Costs by Appellees Orly Taitz and Defend Our Freedoms re: Appellant’s
Motion to Dismiss Appeal
__________________

DR. ORLY TAITZ, ESQ.

CSB #223433
Attorney Pro Se &
Attorney for Defend Our Freedoms Foundation
29839 S. Margarita Pkwy. Rancho Santa Margarita CA 92688
ph. 949-683-5411
fax 949-586-2082
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I. INTRODUCTION TO OPPOSITION

Appellees Dr. Taitz and Defend Our Freedoms Foundation (hereinafter

referred to as appellees) oppose the motion by Berg, Office of Berg, Liberi,

Ostella, Adams, and Go Excell Global (appellants) for a voluntary dismissal

without costs. Appellees affirmatively request sanctions and costs against

appellants for their flagrant abuse of the court process and systematic attempt to

use the appellate process to harass, vex, and smear apellees as well as improperly

manufacture evidence to be used in the case below.

The underlying case in this matter involves an incomprehensible and totally

frivolous and extortionate lawsuit for nearly a billion dollars in damages by a

politically motivated Pennsylvania attorney, his legal assistant and other

accomplices. The damages are supposedly based on a California statute which

does not in the least support the contentions made by appellants, Berg and Liberi.

Likewise the request for injunctive relief seems void on its face and was dismissed

out of hand by the District Court and is (and was always) moot by appellants own

admission.

Further appellants have filed numerous frivolous motions in this court

which appellees Taitz and Foundation have had to respond to including: lengthy

motions for judicial notice and numerous attempts to circumvent the Federal Rules

of Evidence through incompetent and irrelevant affidavits and attachments;

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motions to expedite, motions for sanctions, a transfer to California and a motion

for a restraining order among other unfounded and frivolous requests. This court

denied each and every frivolous motion made by appellants totaling at least eleven

distinct motions and requests on February 9, 2009. Contrary to appellants’ false

assertion, appellees did indeed respond to the appellants’ motions and requests

which were also filed in district court as bogus bad faith attachments to pleadings

and letters in the stayed proceedings below further compounding the appellees

time spent on defending against this malevolent legal jihad by appellants.

It is particularly galling that appellants claim delay by appellees in entering

an appearance is the cause of the dismissal request since any delay was self

inflicted by appellants’ inability to provide this court necessary transcripts –

transcripts that if provided would prove the lie being perpetrated and transcripts

that appellants now refuse to produce choosing to escape justice by trying to

voluntarily dismiss their own harassing and vexatious appeal. There was no reason

for appellees to enter an appearance until now when it has finally become plainly

evident that the entire interlocutory appeal was a bad faith tactical stunt by

appellees who never intended to provide the transcripts required to permit the

appeal to go forward.

Now comes the appellants seeking a voluntary dismissal which should be

denied unless costs and sanctions are had against appellants. Plaintiff Berg is an

attorney still in good standing with the Pennsylvania Bar but who has a record of

utilizing frivolous pleadings in federal court as a modus operendi. See In Re Berg,

Case: 09-3403 Document: 003110125122 Page: 4 Date Filed: 04/30/2010

2008 Bankr. LEXIS 322 (ED PA 2008); Holsworth v. Berg, 2005 U.S. Dist.

LEXIS 15393 (ED PA 2005). Appellants filed thousands of pages of pleadings

here and in district court and subjected the court below and the appellees to the

expense and effort of responding to each and every one of their baseless assertions

which were light on the law but heavy on hearsay and defamation of appellees’

reputations.

As usual this appellants’ motion is manufactured, deceitful, untrue, and

misleading. Appellees have entered an appearance and request costs and sanctions

against appellants for having been forced to undergo this ordeal.

II. APPELLANTS’ STATEMENT OF FACTS IS DISPUTED

Appellants even while trying to dismiss their own moot and frivolous

appeal continue to spew forth a torrent of distorted and disputed “facts” including:

unsubstantiated claims of ongoing damages predicated on nonexistent scenarios,

false statements attributed to the appellee Dr. Taitz, and nonexistent violations of

alleged and misstated court orders. These are not facts but unsupportable

allegations of some vast, vague and implausible conspiracy of the sort that on its

face will not survive the R. Civ. P. 8(a)(2) facial plausibility standard as

interpreted by Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009).

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III. VOLUNTARY DISMISSAL IS INAPPROPRIATE

Voluntary dismissal under FRAP Rule 42(b) is not appropriate where the

appellee has been put to trouble and expense because the appellant has not

followed the rules. See In The Matter of Penn Central Transportation Company,

630 F.2d 183,190 (3rd Cir. 1980) citing Blount v. State Bank and Trust Co., 425

F.2d 266 (4th Cir. 1970).

While appellants try to mask the true reason for the request to dismiss the

appeal, it is their inability or unwillingness to furnish a transcript as required by

the court and not anything done by appellees that has brought the request for

dismissal about. It is worth noting that Mr. Berg has exhibited a pattern and

practice of filing frivolous pleadings in the district court and then appealing when

he does not get his way. See the facts in Holsworth v. Berg, 322 Fed. Appx. 143

(3rd Cir. 2009). Despite being ordered to take additional courses in ethics, Mr.

Berg has not learned his lesson.

Appellants have made their bed and now must lay in it. Appellees should at

the very least be permitted to present a bill of costs and sanctions should be

considered by this court as no explanation has been provided by appellants as to

why transcripts were not provided.

SANCTIONS

The underlying reason for appeal is incompetent, frivolous and vexatious.

Appellants however have waited almost a year to make a request to voluntarily

dismiss. The so-called reason has nothing to do with any alleged actions by
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appellees but with appellants’ own failure to provide transcripts. In support of this

untimely request appellants have presented reasons that are patently irrelevant,

harassing, improbable, prejudicial and improper.

More of concern to appellees is the tone and content of the motion. No

reasonable attorney could put his signature on such pleading after examining the

so called evidence. But this is exactly what Berg has done in his position as

appellants’ attorney. Even a cursory reading of the motion indicates a disconnect

between reason, fact and reality. Appellants are attempting to deceive the court.

While FRCP Rule 11 is not directly applicable to the appellate court since it

has not been incorporated by reference or otherwise in appellate rules of court, its

requirements help to define conduct becoming to member of bar, and sanctions

may be imposed for conduct inconsistent with its standards. In re Kelly, 808 F.2d

549 (7th Cir. 1986). Berg by putting his signature on the frivolous and deceptive

motion to dismiss with its false factual allegations against appellee Dr. Taitz has

opened himself up to sanctions should this Court wish to impose them sua sponte.

Further FRAP Rule 38 is also available to this Court and Appellees have

gone to the trouble to respond to this motion. Appellants’ counsel is responsible

for the content of frivolous motions which waste judicial resources and are without

merit and therefore are potentially sanctionable under FRAP Rule 38. See Maier v.

Orr, 758 F.2d 1578, 1584 (Fed. Cir. 1985); Meeks v. Jewel Cos., 845 F.2d 1421

(7th Cir. 1988).

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CONCLUSION

The motion to dismiss without costs and/or sanctions is not in good order.

While this appeal should be dismissed, it should be dismissed because appellants

have failed to comply with rules and not for the cooked up reason that mysterious

damages are accruing to the tune of a billion dollars or so already claimed.

Therefore appellees request the appeal be dismissed with prejudice for

failure to follow the rules, that costs be awarded and that the court consider

sanctions against appellants.

DATED: April 29, 2010

___________________________
Orly Taitz, Appellee in Pro
Se and as Counsel for
Appellee Defend Our
Freedoms Foundation

ATTORNEY’S CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the:

APPELLEES’ OPPOSITION AND EXHIBIT ONE

was served by MAIL AND ELECTRONIC MAIL on April 29, 2010, on the following
parties:

Neil Sankey
The Sankey Firm, Inc. a/k/a The Sankey Firm
Case: 09-3403 Document: 003110125122 Page: 8 Date Filed: 04/30/2010

Sankey Investigations, Inc.

2470 Stearns Street #162
Simi Valley, CA 93063
Phone: (805) 520_3151and (818) 366_0919
Cell Phone: (818) 212_7615
FAX: (805) 520_5804 and (818) 366_1491
Email: nsankey@thesankeyfirm.com

Linda Sue Belcher

201 Paris
Castroville, Texas 78009
Home Phone: (830) 538_6395
Cell Phone: (830) 931_1781
Email: Newwomensparty@aol.com and
Email: starrbuzz@sbcglobal.net

Ed Hale
Caren Hale
Plains Radio
KPRN
Bar H Farms
1401 Bowie Street
Wellington, Texas 79095
Phone: (806) 447_0010 and (806) 447_0270
Email: plains.radio@yahoo.com and
Email: barhfarms@gmail.com and ed@barhfarms.net

Philip Berg, Esq.

Lisa Liberi c/o Law Office of Philip Berg
555 Andorra Glen Court, Suite 12
Lafayette Hill, PA 19444_2531
(610) 825_3134
FAX (610) 834_7659
E_Mail: philjberg@gmail.com

___________________________
Dr. Orly Taitz, Esq
April 29, 2010