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100.2 Plaintiff's Motion Strike - Memorandum of Law - Binder
100.2 Plaintiff's Motion Strike - Memorandum of Law - Binder
TABLE OF CONTENTS…………………………………………………………i
C. Argument………………………………………………………………………..4
A. Doc. 3 Motion and MOL a part of the Fraud Upon the Court……………...….12
B. Argument………………………………………………………………………15
IV. Conclusion……………………………………………………………………17
EXHIBITS………………………………………………..……………………….ii
APPENDIX……………………………………………………………………….iii
i
CITATIONS
US Supreme Court
First Circuit
Alvarado-Morales v. Digital Equipment Corp. (1st Cir.
1988) 7, 15
Accord Boreri v. Fiat S.p.A ., 763 F.2d 17, 23 (1st Cir.
1985); 17
ii
Davenport Recycling Assoc. v. C.I.R . , 220 F.3d 1255,
1262 (11th Cir. 2000) 16
Massey-Ferguson, Inc. v. Bent Equipment Co., 283 F.2d
12, 15 (5th Cir. 1960). 5
Mullin-Johnson Co. v. Penn Mut. Life Ins. Co ., 9 F.
Supp. 175 (N.D. Cal. 1934) 17
Palazzo v. Gulf Oil Corp ., 764 F.2d 1381, 1385 (11th
Cir. 1985). 5
Other States
Applebaum v. Rush University Medical Center, 231 Ill.
2d 429, 435 (2008). 8
Bennie v. Triangle Ranch Co., 73 Colo. 586, 216 Pac.
718 17
Bilodeau v. Antal, 123 N.H. 39, 45, 455 A.2d 1037
(1983). 10
Birbrower, Montalbano, Condon & Frank, P.C. v.
Superior Court, 949 P.2d 1 (Ca. 1998), 8
Cleveland Bar Assn. v. Moore, 87 Ohio St.3d 583, 584,
722 N.E.2d 514 (2000). 6
Cromer v. Wilson , 126 Nev. 106, 109, 225 P.3d 788,
790 (2010) 4
ii
In re Steven E. Ferrey , 774 A.2d 62 (R.I. 2001) 9, 11
Kaplan v. Berman , 75 N. Y. Supp. 1002. 8
Federal Laws
42 U.S.C. §1981 1
42 U.S.C. § 2000a 1
ii
N.H. RSA 311:2 3
ii
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Page 1 of 19
Jonathan M. Eck, Esq. (NH Bar #17684)
45 S. Main Street, P.O. Box 3550
Concord, NH 03302
(603) 223-9100
[email protected]
4. On June 4, 2020, though this e-mail, Attorney Eck indicates that Attorney Schwartz
is and was not authorized at the time of their filing the defendant’s Motion and MOL,
authorized to appear or practice before the District Court of New Hampshire. (Doc. 7,
JULIE E. SCHWARTZ, being duly sworn and deposed, stated to the Court:
of the filing of the Motion and MOL, allowed to appear or practice law before this
Court which is confirmed within Attorney Eck's e-mail and therefore any document
filed prior to the entry of an order granting pro hac vice admission should be stricken
10. The New Hampshire Rules of Professional Conduct for Law Firms and
Associations Rule 5.5(a), (See Appendix TAB B), states, in pertinent part;
Page 3 of 19
11. Twitter, in an appeal brief, states that ABA Model Rule 5.5(c)(2), (See Appendix
TAB C), allows a submittal to the court by simply noting [Schwartz] “motion for pro
hac vice to be admission to be filed”, according to Rule 5.5 cmt. (See Doc. 14, 14.1,
14.2) or reasonably expects to be so authorized”. What Twitter fails to mention are the
ABA Model Rules Comment(s) at [9] in reference to Rule (c)(2), states;
A complete reading of Rule 5.5(c)(2) requires the pro hac vice attorney to “obtain
that authority before appearing before the Court, [ROA, 9]. Rule 5.5(c)(2) required
Schwartz to obtain that authority prior to appearing before the Court, which she did
not prior to submitting Twitter’s MTD to the Court. Examples of such conduct
including meetings with the client, interviews of potential witnesses, and the review of
C. Argument
12. When a statute is clear and unambiguous, this court will "give effect to the plain and
ordinary meaning of the words." Cromer v. Wilson, 126 Nev. 106, 109, 225 P.3d 788, 790
(2010)
Page 4 of 19
13. “A corporation is not permitted to litigate in federal court unless it is represented
by a lawyer licensed to practice in that court”. Udoinyion v. The Guardian Security, 2011
WL 3911087, *3 (11th Cir. Sept. 7, 2011) (“A corporation is an artificial entity that
cannot appear pro se and must be represented by counsel.”). Palazzo v. Gulf Oil Corp.,
14. The defendant corporation, Twitter Inc., is not, and could not be, a member of the
bar of New Hampshire, whose members, under our rules, may be admitted to practice
in this court. It is obvious that defendant corporation could not plead and manage its
case personally, as provided in 28 USCA § 394, nor could it manage it through an agent
of its appointment who is not an attorney of the court. See Nightingale v. Oregon Cent. Ry.
15. Attorney Schwartz, a California attorney, was not in her own words, and Attorney
Eck's, at the time she submitted the defendant’s Motion and MOL, an active member
in good standing of the Supreme Court of New Hampshire which would have made
her eligible for admission to the bar of this Court. LR 83.1 (See Appendix TAB D).
16. Attorney Schwartz, a California attorney, was not in her own words, at the time she
application procedure for admission; 2) sought nor received this Courts approval to
appear pro hac vice; 3) paid any fees; 4) taken any oath under Local Rule “LR” 83.1(b);
5) motioned this court for a special admission under LR 83.1(d).; 6) submitted any
supporting affidavit or paid a fee as required by LR 83.2., or; 7) (See Appendix TABS
Page 5 of 19
D and E), motioned this Court for a limited appearance for preparing documents such
as her Motion and Memorandum and this Court has not granted any leave pursuant to
LR 83.7, Limited Representation by Counsel. Davis v. Marcotte, 193 Ohio App.3d 102,
2011-Ohio 1189, 951 N.E.2d 117, ¶8 (10th Dist.). Only after these two prerequisites
are fulfilled may the out-of-state attorney represent clients in court in New Hampshire.
17. Attorney Schwartz, an attorney admitted to practice in another state, but not
authorized to practice in New Hampshire, who counsels clients on New Hampshire law
and drafts legal documents for them and submits them to a New Hampshire Court
without requesting and being granted pro hac vice status before filing the Motion and
Memorandum with the Court engaged in the unauthorized and prohibited practice of
law in New Hampshire as prohibited by N.H. RSA 311:7, and for this Court to accept
and prohibited practice of law in violation of N.H. RSA 311:7. A lawyer admitted to
practice in another state, but not authorized to practice in New Hampshire, who
counsels clients on New Hampshire law and drafts legal documents for them and
Hampshire. See Cleveland Bar Assn. v. Moore, 87 Ohio St.3d 583, 584, 722 N.E.2d 514
(2000). The overwhelming facts in this case demonstrate that Attorney Swartz engaged
in unauthorized practice of law in New Hampshire and in violation of N.H. RSA 311:7,
ABA Rule 5.5(c)(2) and LR 83.1, prior to and when submitting the Motion and MOL.
Page 6 of 19
18. Plaintiff argues that Attorney Schwartz’s submittal of the Motion and MOL itself,
are scandalous as it is illegal to practice law in any Court in this State unless prior
procedures of admission have been followed and prior to any submittal to the Court
which is an unauthorized practice of law and illegal in the State of New Hampshire.
Plaintiff also argues that if this Court does not strike Attorney Swartz’s Motion and
MOL that it would most certainly "detract from the dignity of the court." See 2A
Farrell, 578 F. Supp. 1209 (D.N.J. 1984); US District Court for the District of New Jersey -
20. Fed.R.Civ.P. 12(f) "[U]pon the court's own initiative at any time, the court may
order stricken from any pleading any insufficient defense or any redundant, immaterial,
impertinent, or scandalous matter.". In Theriault v. Silber, 579 F.2d 302 (5th Cir.1978). A
12(f). See Abraham Alvarado-Morales v. Digital Equipment Corp. (1st Cir. 1988) Citations:
843 F.2d 613, quoting Boreri v. Fiat S.P.A., 763 F.2d 17, 23 (1st Cir.1985) Scandalous
matter that is unfit for our [court] files must be stricken. See Washington Post Co. v.
Chaloner 1746, 63 L. Ed. 987, 39 S. Ct. 448, 250 U.S. 290 (1919). While acknowledging
that this Court has considerable discretion under Fed.R.Civ.P. 12(f)., under the
circumstances of this case, this Court need not to use its discretion as it has already
been resolved through N.H. RSA 311:7 and the Rules of this Court.
Page 7 of 19
19. Motions to strike under Fed.R.Civ.P. 12(f) can be granted when it is beyond cavil
that the defendant could not prevail on them." Honeywell Consumer Prods., Inc. v. Windmere
Corp., 993 F. Supp. 22, 24 (D.Mass.1998) (Gorton, J.) (citations omitted). A plaintiff
may prevail on a Rule 12(f) motion where "it clearly appears that the plaintiff would
succeed despite any state of facts which could be proved in support of defense." FDIC
(D. Mass. 2005) Citations: 400 F. Supp. 2d 362. In this case, the illegality of Motion and
MOL were instituted in violation of law, and any judgement resulting from such
proceedings is void. Newburger v. Campbell, 9 Daly, (N. Y.) 102: Kaplan v. Berman, 75 N.
Y. Supp. 1002.
20. In re Unauthorized Practice of Law, 175 Ohio St. 149, 192 N.E.2d 54 (1963), paragraph
two of the syllabus states; “[T]he preparation and filing of a pleading in court is an act
of advocacy which must be undertaken by an attorney admitted to the bar and licensed
to practice law in this state.” Washington Cty. Dept. of Human Serv. v. Rutter, 100 Ohio
21. In Applebaum, 231 Ill. 2d at 435., the court concluded “that when a person who is
not licensed to practice law in Illinois attempts to represent a party in legal proceedings
the nullity rule may be applied. The nullity rule is based upon the fact that there are
risks to individual clients and to the integrity of the legal system inherent in
Ill. 2d 429, 435 (2008). Forty-six years later an Illinois court overruled the McLaughlin
Page 8 of 19
case, holding that such services rendered for another could not be rendered in a court
of record without a license to practice law. People v. Hubbard, 313 Ill. 346, 145 N. E. 93
(1924).
22. In Birbrower, Montalbano, Condon & Frank, P.C. v. Superior Court, 949 P.2d 1 (Ca. 1998),
the California Supreme Court ruled that a New York law firm could not recover over
and arbitration proceeding in California because the New York law firm had engaged
in the un-authorized practice of law in California. The court reasoned that the firm’s
activities in traveling to California to discuss the matter with the client, negotiating a
23. An Illinois Court has stated, “We begin by noting that this Court never before, in
any published opinion or order, has granted a pro hac vice request nunc pro tunc when
law[,]" a criminal offense prohibited by G.L.1956 § 11-27-5. In re Church, 111 R.I. 425,
427, 303 A.2d 758, 759 (1973). See also In re Olsen, 112 R.I. 673, 674, 314 A.2d 140, 141
(1974). It is for that very reason that a majority of this Court now issues this opinion
and reiterates what it spoke of in both In re Church and In re Olsen. In re Steven E. Ferrey,
774 A.2d 62 (R.I. 2001) and further reasoned, “Our reason for declining his nunc pro
427; In re Olsen, at 674. Thus, while Attorney Schwartz might be excused for not being
aware of our state laws, or rules governing a nonresident attorney's right to practice
before an "a Court in this State", this Court, on the other hand is presumed to know
what N.H. RSA 311:7 prohibits, and is duty bound to follow that law and not blindly
nonresident attorney's right to practice before this Court is simply answered within the
24. It is beyond dispute that the judiciary has the power to control its courtrooms. See
State v. LaFrance, 124 N.H. 171, 179, 471 A.2d 340 (1983). “The power of the judiciary
to control its own proceedings, the conduct of participants, the actions of officers of
the court and the environment of the court is a power absolutely necessary for a court
to function effectively and do its job of administering justice.” Id. at 179-80, 471 A.2d
340. The court found no error in the court's decision to prohibit Mr. Kamasinski from
sitting at counsel table, particularly in light of its prior ruling that he was engaged in the
unauthorized practice of law. The Court also held that the court could reasonably have
concluded that to permit Mr. Kamasinski to sit at counsel table could have given the
appearance of sanctioning the unauthorized practice of law. See Bilodeau v. Antal, 123
Page 10 of 19
25. It is abundantly clear that since 1995, N.H. RSA 311:7, New Hampshire has made
unlawful the practice of law in this state by any attorney who is not a member of the
New Hampshire bar and who has not been given prior pro hac vice permission to
practice in New Hampshire, regardless of whether that attorney appears before any
court. In re Steven E. Ferrey, 774 A.2d 62 (R.I. 2001). Attorney Schwartz’s acts of
preparing the Motion and MOL constitutes the unauthorized practice of law. In Koscove
v. Bolte, 30 P.3d 784 (Colo. Ct. App. 2001). Clearly, Attorney Swartz was not admitted
to practice law in New Hampshire when she filed the Motion to Dismiss. Therefore,
the Motion and MOL are void ab initio. The trial court has no discretion in ruling on
the motion to dismiss the complaint. See Marken Real Estate and Management Corp. v.
26. Attorney Schwartz’s submittal of her Motion and MOL in Support constitutes an
unauthorized practice of law in the State of New Hampshire under statute N.H. RSA
in court unless he has been admitted by the court and taken the oath prescribed in N.H.
RSA 311:6, Model Act Providing Remedies for the Unauthorized Practice of Law. The
Motion and MOL are illegal and prohibited and therefore non-conforming and should
be stricken by the Clerk or Court as authorized under LR 5.2 and LR 77.2. and under
Fed.R.Civ.P. 12(f).
Page 11 of 19
II. Participation of Fraud Upon the Court
A. Doc. 3 Motion and MOL a part of the Fraud Upon the Court
27. Starting on April 26, 2018, Magistrate Judge “Johnstone” was, on a continuous
basis, intentionally ignoring N.H. law and established official court pro hac vice rules,
and instead promulgated, implemented, managed and adopted her own non-public
that make pro hac vice laws and rule provisions unnecessary and for the specific reason
of, allowing partner attorneys from the law firm of Perkins Coie, LLP. “COIE”,
Attorney “Mrazik” and “Attorney Schwartz”, the privilege of practicing before the
Court, on behalf of Twitter, although they lacked the requirements of eligibility set forth
in LR 83.2, and in violation of N.H.RSA 311:7, [Appendix TAB A], all to the benefit of
the defendant, Twitter. See Attached Exhibit A, Case 1:21-cv-01047 Doc. 1 Filed
12/08/21, at ¶ ¶ 89-105.
28. Johnstone’s unwritten, illegal pro hac vice “unofficial policies”, allowed COIE and
the Court, even though these attorneys lacked any of the requirements of eligibility
demanded under LR 83.1 and LR 83.2, [Appendix TAB B], to practice before the Court
and in violation of N.H. RSA 311:7. See also, [Appendix TAB C, LR 83.7]. Johnstone,
under the color of law and within her administrative duties; implemented and executed
an illegal policy that was officially and informally adopted as custom by the District
Court. Beck v. City of Pittsburgh, 89 F.3d 966, 971 (3d Cir. 1996); was the final
Page 12 of 19
policymaking authority when it came to implementing or deciding pro hac vice policies.
See Pembaur v. City of Cincinnati, 475 U.S. 469, 481-83 (1986). See Appellant Brief, B.
No. 5 Appeal- No. 21-1317- Void Judgment/Fraud on Court. 10. UNOFFICIAL PRO
HAC VICE RULES AND POLICIES, Page 53-54. See also, Attached Exhibit A, Case
concludes that clear and convincing evidence establishes fraud on the court, it may
29. Plaintiff also alleges that the attorneys for Twitter, Attorney Eck and Attorney
Schwartz participated in a Conspiracy with the judges in this case to perpetuate this
30. The fraud upon the Court utilized here is not intricate. Start at the Docket of District
Court Case No. 1:17-cv-00749-JD. (See Attached Exhibit B). No Motion for Pro Hac
Vice was filed by Attorney Mrazik in this case, yet he submitted 7 pleadings to the Court
on behalf of and counsel of Twitter. [1] Next go to District Court Case No. 1:18-cv-
00203-PB, (See Attached C). Again, no Motion for Pro Hac Vice was filed by Attorney
Mrazik in this case, yet he submitted 30 pleadings to the Court on behalf of and counsel
of Twitter. [2] Next go to District Court Case No. 1:17-cv-00733-PB, (See Attached D).
Again, no Motion for Pro Hac Vice was filed by Attorney Mrazik in this case, yet he
submitted 29 pleadings to the Court on behalf of and counsel of Twitter. [3]. In each
of Attorney Mrazik's submittals to the Court, he stated to the effect, "(motion for pro
hac vice admission to be filed)" Then comes Plaintiff's case here, (formerly Docket Case
Page 13 of 19
#: 1:20-cv-00536-SM). Attorney Schwartz submits the Doc. 3 Motion and MOL at 3.1,
and states in effect the same statements made by Mrazik that "(motion for pro hac vice
admission to be filed)" [4], while she was not authorized under the rules and New
31. Justices, together, formulate rules of the District Court in their administrative
functions of the Court and not an Article I Magistrate judge such as Johnstone. The
fraud upon the court here tinkered with the machinery of the official rules in favor of
unofficial rules which concealed the favors given to Twitter and it's attorneys by Judge
Johnstone and the other justices assigned to those cases. The fraud may appear
harmless, but what it does is wreak havoc and create an unconstitutional tribunal for
any party going against Twitter. Worse than that is the actual bias pitted the justice's in
these cases AGAINST the respective Plaintiff's. Similar to the Plaintiff here, the parties
with the Dockets, (Attached Exhibits B, C, and D), and the motions/objections
contained within them, demonstrate that they had no clue unofficial rules of the court
were being utilized or that the machinery of the tribunal was tainted by bias of the
Court, a fact which was omitted by all the judges in their respective cases.
________________
[1] See Attached Exhibit A, PLAINTIFF'S EXHIBITS, [PE 003] [PE 004] [PE 005] [PE 016] [PE
017] [PE 021] [PE 022]
[2] Id. [PE 006-014] [PE 026-028] [PE 031-033] [PE 040-046] [PE 053-056] [PE 059-062]
[3] Id. [PE 001-002] [PE 015] [PE 018-020] [PE 023-025] [PE 029-030] [PE 034-039] [PE 047-052]
[PE 057-058] [PE 063-066]
[4] Id. [PE 067-068]
Page 14 of 19
B. Argument
32. “The Court possesses considerable discretion in ruling upon a motion to strike
scandalous matter. Alvarado Morales v. Digital Equipment Corp., 843 F.2d 613, 618 (1st
Cir.1988); Nault's Auto. Sales, Inc. v. American Honda Motor Co., Inc., Acura Auto. Div., 148
33. There is no question of the general doctrine that fraud vitiates the most solemn
contracts, documents, and even judgments. What the US Supreme Court stated in White
v. Union Producing Co., 1944, 140 F.2d 176, 178, is persuasive here: "Fraud vitiates
to define; there is no absolute rule as to what facts constituted fraud; and the law does
not provide one 'lest knavish ingenuity may avoid it.'" Much the same idea was
expressed in our decision of Abbott v. United States, 1956, 239 F.2d 310, 314, where,
quoting from one of our earlier cases and citing several others from various courts, we
said: "* * * the law does not define fraud; it needs no definition; it is as old as falsehood
34. Whether fraud has been committed ordinarily requires the determination of
questions of fact. 24 Am. Jur., Fraud and Deceit, § 291, p. 137; 37 C.J.S. Fraud § 123,
p. 448; and § 124, p. 451. "We do not, therefore, think that the court should have
stricken from the pleadings the allegations of fraud, but should have heard the evidence;
and if it should satisfy the standard required to establish a case of fraud, the trier of the
facts should have been permitted to pass upon the evidence". Massey-Ferguson, Inc. v. Bent
Page 15 of 19
Equipment Co., 283 F.2d 12, 15 (5th Cir. 1960).
35. Attorney Mrazik, submitted on behalf of Twitter 66 motions, objections, MOL and
other, with the misrepresentation that he would file for pro hac vice admissions, and
never did. Schwartz states, in essence, the same thing Attorney Mrazik did 66 times
prior, that she would file for pro hac vice admissions, but like Mrazik, had not prior to
submitting pleadings to the court. Attorney Schwartz purposely sought the same favors
from the Court which Attorney Mrazik had received 66 times prior and Doc. 3 Motion
and MOL are a continuance and should be stricken from the record, and most certainly
36. The fraud of Johnstone's policies utilized here, giving and receiving favors from the
Court, created a bias and unconstitutional tribunal (See Attached Exhibit E) that
favored Twitter which caused the Court to reach an impartial disposition of the case
before it. See Davenport Recycling Assoc. v. C.I.R. , 220 F.3d 1255, 1262 (11th Cir. 2000).
37. If the Court were to deny Plaintiff’s motion it would be clearly prejudice the Plaintiff
as any further Order, motion, reply or other defense to which would spawn from the
reliance on the Doc. 3 Motion and MOL, which was submitted illegally and void, would
clearly be prejudicial to the Plaintiff. See Russo v. Merck & Co., 138 F. supra, at 149
(D.R.I. 1956); 2A J. Moore & J. Lucas, Moore's Federal Practice ¶ 12.21, at 2429-31
(2d ed. 1981); Amoco Oil v. LOCAL 99, INTERN. BROTH. OF ELEC., ETC. 536 F.
Supp. 1203 (D.R.I. 1982). See also, (void judgments will be reversed). Mullin-Johnson Co.
Page 16 of 19
v. Penn Mut. Life Ins. Co., 9 F. Supp. 175 (N.D. Cal. 1934) citing Bennie v. Triangle Ranch
38. It is well settled that motions to strike can be granted with a showing of prejudice
to the moving party.” Wilmington Tr., Nat'l Ass'n v. Howe, Docket No. 2:21-cv-00278-
NT, 2022 WL 1522247, at *4 (D. Me. May 13, 2022); accord Boreri v. Fiat S.p.A., 763 F.2d
17, 23 (1st Cir. 1985); ( see, e.g., Fraser v. Prudential Ins. Co. of Am., Civil Action No. 14-
strike because movant did not show “how it was harmed or otherwise prejudiced”).
That said, this court has the discretion to strike “clutter” as “repetitious and
unnecessary” even without “a showing of prejudice.” Sheffield v. City of Boston, 319 F.R.D.
IV. Conclusion
If this court is to protect the due and orderly administration of justice and . . .
maintain the authority and dignity of the court, it must not allow its Magistrate to
promulgate and utilize illegal policies unnoticed to the public which favored Twitter,
which in turn created a bias and unconstitutional tribunal, and then allow Twitter, who
a non-member of the bar and as part of a fraud upon the court, would clearly prejudice
the Plaintiff by depriving him of equal protection of the law (N.H. RSA 311:7) and of
I hereby certify that on this 27th day of October 2022, the foregoing document was
made upon the Defendant, through its attorneys of record to Jonathan M. Eck
[email protected] and Julie E. Schwartz, Esq., [email protected] and
Indraneel Sur, Lead Attorney. U.S. DOJ, [email protected]
Page 19 of 19