IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

AMIR H. SANJARI, )

Plaintiff )

v. ) Cause No. 3 : 0 4- C V - 0 4 7 0 CAN

)

ALISON GRATZOL, )

Defendant )

)

and, in re: the support and welfare of the )

parties' minor children (AFS & MRS) )

Affidavit

in Support of Motion To Alter, Amend Judgment

I (affiant's name) Amir H. Sanjari, of 3299 Park Ridge Lane, NE, Grand Rapids, MI 49525, being duly sworn upon my oath, state the following:

I. Applicable Law

The Plaintiff filed his Notice of Removal upon the basis “of the violations of his, and his children's, constitutional, due process, and equal protection rights by the state court”.
Furthermore, the Plaintiff again expressly clarifies to the Court that he is not seeking “the granting or modification of a divorce, alimony, or custody decree.”
This Court has jurisdiction on this matter and has erroneously remanded (10.13.2004) the case to the state court. Below the applicable legal basis for removal (and retention) and / or alteration and amendment of the judgment are discussed.

1. This Court, in its remand order, stated “When a notice of removal is filed, a district court must promptly examine the notice to see if removal is proper. 28 U.S.C. § 1446(c)(4). If removal is not proper, the court shall summarily remand the case. Id.”
The chronological summary, outlined herein the Motion to Alter, Amend, indicate that not only the Court recognized the merits of this case that it did NOT “summarily” remand it (removed 07.19.2004, remanded 10.13.2004), but also those merits were recognized such that Status Reports and selection of District Judge / Magistrate were asked for, and an oral hearing was set (not withstanding the Magistrate – District Judge jurisdiction issue) to hear the case. The hearing was only vacated on the basis of jurisdictional issue between the District Magistrate and Judge, and not on the basis of the merits of the removal case. Indeed, a replacement oral hearing date by the Magistrate had been anticipated!
In its erroneous order to remand this case back to state court, and hence violating the due process and constitutional rights of the Plaintiff and those of his minor children, this Court refers to the issues of racial neutrality as pertains to 28 USC § 1443 (1) and the Rooker-Feldman Doctrine.
Furthermore, this Court, in “looking at the dissolution decree” [remand order, III Analysis, p4], seems to fall into the trap laid by the opposing counsel in misrepresenting the nature of the removal case. Not only the Plaintiff's removal was (is) not about the divorce, marital issues or custody, but it is about the “persistently corrupt process” in the state court and violations of the U.S. Constitution by the state court judges involved and the Defendant's attorney, Mr. Max Walker, as well as about obstruction of justice perpetrated by some or all of the above.
Below these legal issues are addressed, showing that not only this Court does have jurisdiction in this case, but it indeed would fail its duty (based upon its oath of office to uphold the Constitution of the United States) if it did not hear this case.

2. With regards to 28 USC § 1443 (1), the Plaintiff, a pro se, a man and a father who is not of U.S. origin nor national (nor are his children) did state in his removal notice that the “state court has deliberately perpetrated discrimination and prejudice against the Petitioner, and his children, in its conduct of the state case before it”. This racial, gender and parental discrimination and prejudice throughout the whole process of the state case was contributed to by the continuous and corrupt nature of the process in the state court with the participation of the opposing counsel, Mr. Max Walker, a disgraced (evidence available- also on the Plaintiff's website ) former Elkhart County Deputy Prosecutor.
Further evidence of, and witnesses to the “persistently corrupt process” and malfeasance in the state court maybe provided in the anticipated hearing either in this federal Court or the federal Court of Appeals. The removal notice also included two affidavit by two other separate persons testifying to the biased and prejudicial conduct of the state court.
Indeed, the removal notice included proof indicating that state court records in the possession of the Elkhart court Clerk were indeed tampered with (please Exhibits in the removal notice).

3. The Rooker-Feldman Doctrine, discredited for sometime now as an excuse and “cup-out” and abdication of their responsibility by some federal Courts to allow violations of the U.S. Constitution by the state courts, is not applicable here due to the following:
a) “The Rooker-Feldman Doctrine Does Not Apply to Cases Involving Parties Who Were Not Parties in the State Court Action.” (“Nevada's Response to Rooker-Feldman, Hon. Sharron E. Angle, et al. v. The Legislature of the State of Nevada, et al. , July 16, 2003, US District Court, District of Nevada.- copy enclosed, and all applicable cites therein).
In this removal case, grave and significant violations of the constitutional rights were perpetrated by the state court and the judges therein who were/are not parties to the state case.
“As a result, Rooker-Feldman simply does not apply to cases involving parties who were not involved in the state court proceedings.”
Therefore, the Rooker-Feldman Doctrine does not apply to this removal case.
b) “A second exemption to Rooker-Feldman abstention is also applicable” in this removal case. “Rooker-Feldman Does not Apply When the Federal Issues Were not Raised [and not heard] in the State Court Proceedings.”, “Nevada's Response to Rooker-Feldman (see a above). “As the Supreme Court noted in Rooker itself, the abstention is only applicable to bar claims that 'actually arose' in the state court action, for which there was a full hearing and where the judgment was responsive in the issues. 263 U.S. At 415; Robinson v. Aryoshi, 753 F.2d 1468, 1469 (9th Cir. 1985),”. In this removal case, there was no such full (indeed any) hearing on issues of the constitutional violations by the state courts.
Therefore, the Rooker-Feldman Doctrine does not apply to this removal case.
c) “ Pursuant to District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 482 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413, 415-16 (1923), Federal courts have no subject matter jurisdiction to review state court decisions. State Defendants allege Plaintiff is challenging a child support determination. This is an outright lie. They know it. State Defendants are in violation of Brogan v. United States, 118 S.Ct. 805 (1998) for making a false statement within the jurisdiction of this Court, in violation of 18 U.S.C. § 1001. Title 18 U.S.C. §1001 states:

"Whoever, in any matter within the jurisdiction of any department or agency of the United States knowingly and

willfully falsifies, conceals or covers up by any trick, scheme, or device a material fact, or makes any

false, fictitious or fraudulent statements or representations, or makes or uses any false writing or

document knowing the same to contain any false, fictitious, or fraudulent statement or entry, shall be fined under

this title or imprisoned not more than five years, or both." “

d) Federal Courts have an unflagging obligation to exercise the jurisdiction given to them pursuant to Article III, §2, cl. 1 of the Constitution for the United States. Colorado River Water Conservation District v. United States, 424 U.S. 800, 817, 96 S.Ct. 1236, 1246, 47 L.Ed.2d 483 (1976). The Supreme Court observed that "the presence of federal-law issues must always be a major consideration weighing against surrender of federal jurisdiction. When applicable substantive law is federal, abstention is disfavored. Village of Westfield v. Welch's, 170 F.3d 116, 124 (2nd Cir. 1999). Jurisdiction is not defeated even by possibility that allegations in complaint might fail to state a claim under Fed.R.Civ.P. Rule 12(b)(1). HBP Associates v. Marsh, 893 F.Supp. 271 (S.D.N.Y. 1995).

Abstention is the exception, not the rule, and is only justified in limited circumstances. Brooklyn Institute of Arts and Sciences v. City of New York, 64 F.Supp.2d 184 (E.D.N.Y. 1999); ESI, Inc. v. Coastal Corp., 61 F.Supp.2d 35 (S.D.N.Y. 1999).
e) As in
“... the State Defendants have acted in bad faith, and have harassed Plaintiff by depriving him of his passport without meaningful notice and meaningful opportunity to challenge. This would make abstention improper. Kenneally v. Lungren, 967 F.2d 329, certiorari denied 113 S.Ct. 979, 506 U.S. 1054, 122 L.Ed.2d 133 (9th Cir. Cal. 1992). “,
the state Defendant in this removal case has acted in bad faith and has harassed the Plaintiff by violating the latter's, and his children's, constitutional rights of due process and equal protection in the state courts through corrupting the processes in the state court.
f) “ Federal Courts Have Maintained Jurisdiction Over

Child Support Related Cases under Federal Law and

Constitutional Law (Commerce Clause, Constitution for United States, Art.I, §8, cl.3)

This District Court, in the matter of U.S. v. Nichols, 928 F.Supp. 302 (S.D.N.Y. 1996), Preska, J., held that abstention in that case was inappropriate and retained jurisdiction because it involved issues of commerce. In fact, the U.S. Attorney's Office for the Southern District of New York argued before this Court to retain jurisdiction in these types of matters because they involved issues of commerce. Notwithstanding the possible arguments relating to the discrimination of men, Plaintiff uses this case because of the matter of international commerce involved, his right to work which affects interstate commerce, and the involvement of various Federal laws--Title IV-D, 42 U.S.C. §§651-669, of the Social Security Act, 42 U.S.C. 2000 h-2 and 42 U.S.C. 2000d-7(a)(1), Administrative Procedures Act under Title 5, 22 C.F.R. 51.80 et seq., 22 C.F.R. 51.81 through 51.89, and 42 U.S.C. §§1983, 1985 et seq., which form the independent basis for federal jurisdiction.

The difference in the instant case is that Plaintiff is deprived of Federally protected fundamental rights by both the State and Federal defendants. First, the State Defendants failed to give Plaintiff meaningful notice of an adverse action against him. Secondly, the Federal Defendants provide no meaningful opportunity to defend or challenge the adverse action. What this all means is that Plaintiff is denied his fundamental rights to citizenship, right to work, right to travel, right to freely associate, assemble or speak and right to religious freedom. Plaintiff believes there are enough federally protected rights being violated that this Court must take jurisdiction. There is no question.

CONCLUSION

For all of the foregoing reasons, Plaintiff requests that this Court (a) Grant his application for Preliminary Injunction; (b) Grant Plaintiff's Cross-Motion in Opposition to the State and Federal Defendants' Motions to Dismiss Plaintiff's Complaint/ Motions for Summary Judgment; (c) Deny the State and Federal Defendants' Motions in their entirety for being frivolous and meritless; and (d) Grant Plaintiff such other and further relief as this Court deems just and fair. “

g) “ Domestic Relation Exception

In general, lawsuits affecting domestic relations, however substantially, are not within the exception unless the claim at issue is one to obtain, alter or end a divorce, alimony or child custody decree. Dunn v. Cometa, 238 F.3d 38, 41 (C.A.1 (Me.) 2001), where the counts for breach of fiduciary duty and for negligence and waste were not foreclosed by the domestic relations exception. Id. at 40-41. This narrow construction led the Court in Ankenbrandt v. Richards, 504 U.S. (La.) 689 (1992). to hold that the exception did not apply to tort claims there at issue despite their intimate connection to family affairs. Id., citing Ankenbrandt, 504 U.S. at 704. Both counts were central to the defendant's alleged misfeasance or wrongful nonfeasance in allowing Dunn's private insurance policy to lapse. Id. at 42.

Federal district court also has subject-matter jurisdiction over claims seeking relief from family-court orders which emanated under procedures that allegedly violated due process, equal protection, and other federal statutes such as §1983, the civil rights statute. Agg v. Flanagan, 855 F.2d 336, 339 (C.A.6 (Ohio) 1988). Where Agg had been brought under §1983 and alleged deprivation of federal constitutional rights and state procedures that were contrary to federal law and thus invalid under the supremacy clause, the domestic-relations exception doctrine, which concerned federal jurisdiction based on diversity, did not apply. Id. at 339. [J]urisdiction [ ] was therefore proper under 28 U.S.C. sec. 1331 or sec. 1343. Id., U.S. Const. Art. 6, cl. 2; Amends. 5, 14. See also Rubin v. Smith, 817 F.Supp. 987, 991 (D.N.H. 1993) (domestic-relations exception did not apply to a §1983 civil rights suit that raised constitutional questions and sought damages for the deprivation of plaintiffs constitutional interests without due process of law); Thomas v. New York City, 814 F.Supp. 1139, 1147 (E.D.N.Y.) (the issue of whether the state's procedure used to separate parent from child complie[d] with constitutional due-process requirements [was] squarely within [the] court's federal question jurisdiction ); Friedlander v. Friedlander, 149 F.3d 73, 740 (C.A.7 (Ill.) 1998) (where action merely arises from a domestic-relations dispute and does not seek any of the distinctive forms of relief typically associated with domestic-relations jurisdiction, the domestic-relations exception does not bar diversity jurisdiction), citing Lloyd v. Loeffler, 694 F.2d 489 (7th Cir.1982) (a suit for interference with custody); McIntyre v. McIntyre, 771 F.2d 1316 (9th Cir. 1985) (similar to Lloyd); DiRuggiero v. Rodgers, 743 F.2d 1009, 1018-20 (3d Cir.1984) (similar to Lloyd); Stone v. Wall, 135 F.3d 1438 (11th Cir. (Fla.) 1998)3 (similar to Lloyd);

"and better yet" [Dunn at 740] Raftery v. Scott, 756 F.2d 335, 337-38 (4th Cir. 1985),\FN1/ and Drewes v. Ilnicki, 863 F.2d 469 (6th Cir. (Ohio) 1988),\FN2/ both cases like Friedlander, one of intentional infliction of emotional distress.

Going one step further, the court in Catz v. Chalker, 142 F.3d 279 (C.A.6

(Ohio) 1998) (former husband's action, seeking a declaration that the state divorce decree was void as a violation of due process, was not a core domestic relations case to which the domestic-relations exception applied). Catz did not seek declaration of marital or parental status, but instead presented a constitutional claim in which it was incidental that the underlying action involved a divorce. Id. Fourteenth Amendment. The domestic-relations exception has no generally recognized application as a limitation on federal question jurisdiction; it applies only as a judicially implied limitation on diversity jurisdiction. U.S. v. Johnson, 114 F.3d 476 (C.A.4 (Va.) 1997).