First Motion for Declaratory Judgment

Appellant Robert M. Davidson and Appellant Vanessa E. Komar

(“Appellants”), representing themselves pro se, move this Court pursuant

to 28 U.S.C. § 2201(a) to declare Arizona Rule of Civil Procedure 5.1

(“ARCP 5.1") unconstitutional, both facially and as applied to Robert M.

Davidson and Vanessa E. Komar. See Count Six and Count Seven of the

Amended Complaint (Document #19) at USCA5 548 and USCA5 549-553,

respectively. See Document #57 at USCA5 1647 for the text of the

relevant portions of ARCP 5.1, which states, in pertinent part,

“No attorney shall be permitted to withdraw as attorney ofrecord after an action has been set for trial, (i) unless thereshall be endorsed upon the application therefore either thesignature of a substituting attorney stating that such attorneyis advised of the trial date and will be prepared for trial, or thesignature of the client stating that the client is advised of thetrial date and has made suitable arrangements to be preparedfor trial, or (ii) unless the court is satisfied for good causeshown that the attorney should be permitted towithdraw.”

The constitutionality of ARCP 5.1 is material to the question of

whether Appellants stated claims under the civil RICO statute (18 U.S.C.

1964 ( c)) and under the Civil Rights Act of 1871 (42 U.S.C. § 1983 and §

1985) against Michael J. Meehan (“Meehan”), Bruce R. Heurlin

(“Heurlin”), Jay Grossman (“J. Grossman”), and Eudice Grossman (“E.

Grossman”). See Count Two and Count Three of the Amended Complaint

at USCA5 521 and 542, respectively. See Plaintiffs’ Consolidated Response

(Document #56 of IOR) at USCA5 1508 where it states,

“Michael J. Meehan became a coconspirator and properdefendant in Count Two, Count Three, Count Four, Count Six,and Count Seven, when he repeatedly refused to bring Arizonafraud, Arizona RICO, and federal RICO actions, on behalf ofhis then clients, the Davidsons, despite repeated requests by theDavidsons to bring such actions, and despite MJM’s actualknowledge of the content and substance of the Prosecution

Memorandum of November 20, 2000. MJM’s repeated refusalswere intended to conceal the racketeering conspiracy which hadbeen ongoing for nearly two decades, in both New York andArizona, and facilitate MJM’s candidacy for anticipatedvacancies in the Arizona Supreme Court and Division IIArizona Court of Appeals. See ¶s 54, 57-59, 69, and 85-87 of theAmended Complaint. See Exhibits #5-7 and #9-16, to thisConsolidated Response. Exhibits #14 and #15 representfraudulent misrepresentations which employed the U.S. Mails.These mail frauds were directly targeted at thePlaintiffs. Plaintiffs do not seek money damages from anyJudges of Division II Arizona Court of Appeals or from anyJustices of the Arizona Supreme Court.”

“Bruce R. Heurlin became a coconspirator and properdefendant in Count Two, Count Three, Count Four, Count Six,and Count Seven, when he reached an agreement with MichaelJ. Meehan and the State trial Judge Jane L. Eikleberry(“JLE”), and comitted overt acts, to coerce the dismissal ofDavidsons’ retained legal counsel by fiat of the trial court undercolor of Arizona Rule 5.1. See ¶ 69 of the Amended Complaint.See Exhibits #5-7 and #9, to this Consolidated Response. Theattorney withdrawal was ordered by the Court, after motion byMJM and QBSL citing authority under rule 5.1 and non-objection by opposing legal counsel [Karp, Heurlin & Weiss].Bruce R. Heurlin actually drafted the Trial Judge’s Order. TheOrder of the Trial Judge bears the letterhead of Bruce R.Heurlin. Davidsons were the real parties in interest to attorneywithdrawal, not Grossmans. QBSL, MJM, and opposing legalcounsel already knew that the Trial Judge would OrderAttorney Withdrawal. QBSL, MJM, and opposing legal counselwere so confident of this assertion that opposing counsel (BruceR. Heurlin), actually drafted the Trial Judge’s Order, effectivelymaking MJM, QBSL, opposing counsel (Bruce R. Heurlin), andthe Trial Judge (JLE), state actors, all acting pursuant to Rule5.1. The Motion to Withdraw was a self-fulfilling prophecy,culminated by the Trial Judge’s signature on the previouslywritten Order [by opposing counsel] and encouraged andenabled by Rule 5.1. These coconspirators’ fraudulentmisrepresentations employed the U.S. Mails. These mailfrauds were directly targeted at the Plaintiffs. Thesecoconspirators all knew that the term of Justice Thomas A.Zlaket as Chief Justice was due to expire on January 7, 2002,four days before the Order of January 11, 2002, which coercedthe dismissal of Davidsons’ retained legal counsel, under color

First Motion for Declaratory Judgment 07-20650 Davidson v. Grossman 3

of Arizona Rule 5.1. These coconspirators had personalextrajudicially-acquired knowledge that the Motion toWithdraw as Counsel of Record, under color of ArizonaRule 5.1, was a willful, malicious violation of Davidsons’civil rights, motivated by bad faith (evil intent), animproper motive (personal political and financial gain),and with deliberate reckless indifference to thefederally-protected rights of the Davidsons.”

Appellants’ incorporate here by reference all of the arguments,

points, and authorities found in Document #56 captioned Plaintiffs’

Consolidated Response, under the heading “State Action under Color of

Arizona Rules of Civil Procedure Rule 5.1" at USCA5 1515-1525. This

Court is referred to USCA5 1532-1534 for the Affidavit and Index to the

Appendix of Exhibits in Support of Plaintiffs’ Consolidated Response. See

USCA5 1626-1627 and 1629, for the Announcement Letter of Change of

Law Firm on January 15, 2001, from Meehan to the Davidsons, and the

Letter of October 17, 2001 from Meehan to Davidson. Appellant’s

incorporate here by reference all of the allegations found at Count Six and

Count Seven of the Amended Complaint. See USCA5 548-554.

The constitutionality of ARCP 5.1 has already been thoroughly

briefed and is ripe for adjudication by this Court. There is considerable

case law precedent for a constitutional right to retained counsel in a civil

case. A civil litigant has a Constitutional right to retain hired counsel. See

Potashnick v. Port City Construction Company, 609 F.2d 1101. See The

Right to Counsel in Civil Litigation, 66 Colum. L. Rev. 1322 (1966). The

right to representation is basic to system of justice and extends to every

facet of judicial process. See Montgomery Elevator Co. v. Superior Court

of the State of Arizona, 135 Ariz. 432, 661 P.2d 1133. Representation of

party by his duly constituted attorney is fundamental to administration

of justice. See Arizona State Department of Public Welfare v. Barlow, 80

Ariz. 249, 296 P.2d 298. There is constitutionally-guaranteed right to

retain hired counsel in civil matters under due process clause of


Fourteenth Amendment. See Texas Catastrophic Proprerty Insurance v.

Morales, 975 F.2d 1178. Subject to certain limitations, right to counsel

expressly guaranteed by the Sixth Amendment in criminal cases, is no

less fundamental in civil cases and springs from both statutory authority

and from the constitutional right to due process of law. See McCuin v.

Texas Power & Light Co., 714 F.2d 1255.

State participation in a nominally private activity can result in a

characterization of that activity as “state action” for purposes of 42 U.S.C.

§1983. Private actors may align themselves so closely with either state

action or state actors that the undertow pulls them inexorably into the

grasp of Section 1983. There is liability of private parties who conspire

with immune officials in federal civil rights action under 42 U.S.C. §1983.

See 44 A.L.R. Fed. 547.

In Pugliano v. Staziak, 231 F.Supp. 347, the court stated that,

“unless the attorney wronged the [criminal] defendant in furtherance of a

conspiracy participated in by persons acting under color of state law, the

court declared, it would not have jurisdiction of any suit against him.”

Meehan and QBSL were not just private individuals for the purposes of

42 U.S.C. §1983. They conspired with each other, the Trial Judge, and the

Grossmans, to deprive the Davidsons of the presently-enjoyed benefit of

their retained legal counsel, just 4 months before the scheduled trial date,

under color of ARCP 5.1.

In Minns v. Paul, 542 F.2d 899, the court pointed out that no facts

were alleged in the instant case to indicate that the court-appointed

attorney had exceeded the scope of his function or that he had

intentionally “disregarded” the state prisoner’s rights. In Davidsons’ case

at bar, however, Davidsons have alleged facts to indicate that Meehan and

QBSL, exceeded the scope of their function and intentionally

“disregarded” Davidsons’ rights. Davidsons have alleged that Meehan’s

and QBSL’s conduct was intentionally harmful to the Davidsons, or


otherwise deliberately inconsistent with their obligations to the

Davidsons, so as to be a voluntary excursion outside the scope of their

duties. Liability may attach to Meehan, QBSL, the trial judge, and the

Grossmans, under 42 U.S.C. §1983, 1985, and 1988, when the acts

complained of are done outside the scope of their duty. See Carruth v.

Geddes, 443 F.Supp. 1295. Davidsons have established actual damages as

part of their claim.

Some kind of hearing is required at some time before the State

finally deprives a person of his property or liberty interest. See Parratt v.

Taylor, 101 S.Ct. 1908. 42 U.S.C. §1983 affords a “civil remedy” for

deprivations of federally protected rights caused by persons acting under

color of state law without any express requirement of a particular state of

mind. The Prosecution Memorandum provides prima facie evidence that

the Grossmans’ filing of the State court proceeding and Meehan’s and

QBSL’s filing of the Motion to Withdraw as counsel of record in the State

court proceeding, were both motivated by bad faith (evil intent).

For the purposes of 42 U.S.C. §1983, an attorney does not act under

color of state law “when performing a lawyer’s traditional functions” as

counsel to defendant in a [criminal] proceeding. See 36 A.L.R. Fed. 594,

at page 18. Meehan and QBSL were not performing a lawyer’s “traditional

function” when they filed their motion to withdraw under ARCP 5.1,

which was intended to maliciously abandon and slander the Davidsons.

Meehan’s and QBSL’s Motion to Withdraw as counsel of record for the

Davidsons was not in any way an act “on behalf of the clients [Davidsons]

in the historical and traditional manner.” Meehan and QBSL clothed their

Motion to Withdraw with the authority of State law (Arizona Rule 5.1),

and the trial judge and opposing legal counsel for Grossmans, agreed that

Meehan andQBSL should be granted withdrawal. A litigant’s right to

retain an attorney of choice can be protected on review of final judgment

[only] if appellate courts are willing when necessary to set aside verdicts,


even when they result from lengthy civil proceedings. See Richardson -

Merrell Inc v. Koller, 105 S.Ct. 2757 at pages 15-16.

Appellants’ challenge to the federal Constitutionality of ARCP 5.1

rests on procedural and substantive due process grounds, equal protection

grounds, takings clause grounds, and right to contract grounds. The strict

(heightened) scrutiny standard of review should apply. Appellants’ have

not only established that ARCP 5.1 and the state action complained of had

a disproportionate or discriminatory impact, but also that the action was

taken with intent to discriminate, so as to permanently deny their clients

a legal remedy for the crimes alleged in the federal court proceedings and

avoid their contractual and professional responsibility to their clients, just

4 months before the scheduled trial date.

See U.S. Supreme Court Docket # 04-1687, Supplemental Brief filed

on August 22, 2005, where it states,

“If federal courts adopt a per se rule and dismiss all Section1983 against [attorneys], the most egregious behavior by [anattorney], even if unquestionably the result of pressures by theState, will not be cognizable under Section 1983. Under thedoctrine of absolute judicial immunity, judges are subject tosuit only for (1) non-judicial actions, i.e. actions not taken inthe judge’s judicial capacity, or (2) “actions, though judicial innature, taken in the complete absence of all jurisdiction”. “Thejudge must have jurisdiction over the person and subject matterif he [she] is to be immune from suit for an act performed in his[her] judicial capacity.” “A third element is the power of theCourt to render the particular decision which was given.” “Thethird element in the concept of jurisdiction as used in thecontext of judicial immunity necessitates an inquiry intowhether the defendants’ action is authorized by any set ofconditions or circumstances. This inquiry begins with anexamination of the satute under which the defendant presumedto act.” “There are actions of purported judicial character thata judge even when exercising general jurisdiction, is notempowered to take.” See Briley v. State of California, 564 F.2d849.”


See U.S. Supreme Court Docket # 04-1687, Petition for Rehearing,

filed on October 26, 2005, where it states,

“Final Judgment and Memorandum Decision of April 4, 2005,from Ninth Circuit U.S. Court of Appeals (# 03-17342) andFinal Judgment and Memorandum Decision of April 4, 2005,from Ninth Circuit U.S. Court of Appeals (# 04-15304) are voidas moot because the Orders of November 24, 2003 (U.S. DistrictCourt, Arizona District, Docket No. 56, Civil Case # CV-03-00110-FRZ and February 2, 2004 (U.S. District Court, ArizonaDistrict, Docket No. 9, Civil Case # CV-03-00580-FRZ), whichdismissed Davidsons’ federal causes of action, were acts in clearabsence of all jurisdiction. See Am.Jur. Civil Rights, Section105, C.J.S. Judges, Section 208, Am.Jur. Judges, Section 75,and C.J.S. Judges, Section 207. See also Sharp v. Bivona, 304F.Supp.2d 357, Mireles v. Waco, 112 S.Ct. 286, Stamp v.Sparkman, 98 S.Ct. 1099, and Hale v. Lefkow, 239 F.Supp.2d842.

Federal District Court trial judge Frank R. Zapata hadactual knowledge of Michael J. Meehan’s (“MJM’s”) candidacyfor the Arizona bench prior to the final Orders by Judge Zapatawhich dismissed both of Davidsons’ federal causes of action.Violations of 28 U.S.C. Section 455(a) can be appliedretroactively. Only one inference can reasonably be drawnfrom the evidence. Estoppel may be a question of law,when the facts are not in dispute or are beyond dispute.See 28 Am. Jur.2d Estoppel and Waiver Section 188. ThisCourt is referred to the Affidavit and Attachments toDavidsons’ Petition for Review to the Arizona Supreme Courton September 21, 2005.”

See U.S. Supreme Court Docket # 04-1687, Petition for Rehearing,

filed on October 26, 2005, where it states,

“The Ninth Circuit holdings in Davidson v. Meehan, 127 Fed.Appx. 312, have effectively adopted a per se rule which permitsdismissal of all Section 1983 complaints against attorneys [andjudges], thereby fostering [if not actually encouraging] the mostegregious behavior by attorneys [and judges], even ifunquestionably the result of pressures by the State. The Ninth


Circuit held that privately-retained attorney and law firmcannot violate constitutional rights of clients. This ruling iscertain to have been well received by the State Actors in theState Action.”

See Meehan’s Motion to Withdraw as Counsel of Record and to

Continue Trial (USCA5 1594-1596) in Pima County Superior Court. See

Grossman’s Response to Motion to Withdraw as Counsel of Record and to

Continue Trial (USCA5 1597-1598) in Pima County Superior Court. See

the signed Order (USCA5 1599-1600) of Pima County Superior Court on

January 11, 2002, the unsigned Minute Entry Order (USCA5 1601-1603)

of Pima County Superior Court on January 20, 2004, the unsigned Minute

Entry Order (USCA5 1605-1606) of Pima County Superior Court on April

29, 2004, the signed Minute Entry Order (USCA5 1607-1609) of Pima

County Superior Court on November 9, 2004, and the signed Minute

Entry Order (USCA5 1711-1713) of Pima County Superior Court on

November 24, 2004. See the Motion to Amend Defendants’ Answer, to Add

Counterclaims, and Add Parties, (USCA5 1554-1557) in Pima County

Superior Court. See the Amended Answer to First Amended Complaint

and Counterclaims (USCA5 1558-1593) in Pima County Superior Court.

See the Memorandum Decision of Division Two Arizona Court of Appeals

Case No. 2 CA-CV 2002-0051 (USCA5 1535-1538). See the Memorandum

Decision of Division Two Arizona Court of Appeals Case No. 2 CA-CV

2005-0011 (USCA5 1539-1553). See the file-stamped Order of July 1, 2003,

in U.S. District Court Case No. CV-03-110-TUC FRZ (USCA5 969-972).

See the file-stamped Order of November 24, 2003, in U.S. District Court

Case No. CV-03-110 TUC FRZ (USCA5 973-976). See the file-stamped

Order of February 2, 2004, in U.S. District Court Case No. CV-03-580

TUC FRZ (USCA5 977-981). See Ninth Circuit U.S. Court of Appeals

Memorandum decision of April 4, 2005, in Case No. 04-15304. See Ninth

Circuit U.S. Court of Appeals Memorandum decision of April 4, 2005, in

Case No. 03-17342. See U.S. Supreme Court Docket 04-537, Petition for


Writ of Certiorari, certiorari denied on January 10, 2005. See U.S.

Supreme Court Docket 04-1687, Petition for Writ of Certiorari, certiorari

denied on October 3, 2005. See U.S. Supreme Court Docket # 04-1697,

Supplemental Brief, filed on August 22, 2005. See U.S. Supreme Court

Docket 04-1687, Petition for Rehearing, rehearing denied on November 28,

2005. See U.S. Supreme Court Docket 06-398, Petition for Writ of

Certiorari, certiorari denied on November 6, 2006.

Appellants are not pro se litigants by choice. Appellants are

victims of an egregious continuing violation. See Count Two, Count Three,

Count Four, Count Six, and Count Seven of the Amended Complaint

(Document #19 IOR). Appellees Meehan, Heurlin, J. Grossman, and E.

Grossman, are named Defendants to these Counts. See ¶s 56-59 of

Amended Complaint at USCA5 549 and 550. See ¶42 and ¶s 85-87 of

Amended Complaint at USCA5 548 and 553. “Plaintiffs’ federal

Constitutional injury in the State Action can be fairly traced to the

challenged action and is likely to be redressed by a favorable decision.

Plaintiffs are suffering continuing present adverse effects (continuous

constitutional violation and continuous jeopardy) by reason of decisions in

the State Action.”

Count One of the Amended Complaint incorporated by reference ¶

8.14 and ¶ 8.28. Count Two repeated the allegations found in ¶s 9-90.

Count Three repeated the allegations in ¶s 1-8 and incorporated by

reference the allegations found in ¶s 16-90. Count Four repeated the

allegations found in ¶s 1-15 and incorporated by reference the allegations

found in ¶s 22-90. Count five repeated the allegations found in ¶s 1-21 and

incorporated by reference the allegations found in ¶s 36-90. Count Six

repeated the allegations found in ¶s 1-36 and incorporated by reference

the allegations found in ¶s 43-90. Count Seven repeated the allegations

found in ¶s 1-44 and incorporated by reference the allegations found in ¶s

87-90.


Meehan was named Defendant to Counts Two, Three, Four, Five,

Six, and Seven of the Amended Complaint (Document 19 of IOR). Each of

the seven counts in Plaintiffs’ original Complaint (Document 1 of IOR)

incorporated by reference paragraphs from each of the other counts. See

¶ 54 of the Amended Complaint at USCA5 549 where it states, “Jay

Grossman, Eudice Grossman, QBSL,BRH, MJM, and JLE, agreed with

each other to conceal fraud by knowingly committing overt acts in

furtherance of this objective for personal, political, and corporate financial

gain. By reason of this corrupt conspiracy, Davidsons suffered direct injury

to their business and property.” See ¶ 56 of the Amended Complaint which

states, “After MJM changed law firms (he joined the law firm of Quarles

Brady Streich Lang (“QBSL”) during his representation of the Davidsons

in State court proceedings), he stated in writing in a letter of January 15,

2001, from MJM to the Davidsons, “I do not expect this [his change in law

firm] to affect or impair in any way my ability to continue effective

representation for you.”

See ¶ 59 of the Amended Complaint at USCA5 550 where it states,

“MJM’s and QBSL’s Motion to Withdraw as counsel of record(December 17, 2001), when viewed against the backdrop of theProsecution Memorandum (November 20, 2000) provides primafacie evidence of actual malice and willful misconduct by theattorney (MJM) and his law firm (QBSL) towards his clients(Davidsons). There was not “good cause appearing therefore”upon which to base the Trial Judge’s (JLE’s) Order of January11, 2002. The reasons given for attorney withdrawal are false.MJM and QBSL have defrauded the Trial Court by allegingthat ethical considerations motivated their Motion toWithdraw. MJM and QBSL actually slandered their thenclients (the Davidsons) in their Motion to Withdraw, bymaliciously characterizing their clients’ objectives as beingunprofessional, imprudent, unethical, and repugnant. Thisintentional misrepresentation inflicted irreparable harm uponthe Davidsons once the motion was filed. By information andbelief, MJM and QBSL knew the substance and content of the


Prosecution Memorandum, prior to filing their Motion toWithdraw as counsel of record. Yet, QBSL and MJM agreedwith each other to continue to refuse to bring Arizona fraud,Arizona RICO, and federal RICO actions, on behalf of theirthen clients, the Davidsons, despite repeated requests by theDavidsons to bring such actions. Davidsons did not realize atthe time that the object of the aforementioned repeated refusalsto bring fraud and racketeering actions of behalf of theirclients, and the object of their Motion to Withdraw, was notsolely to permanently deprive the Davidsons of a legal remedyfor the injuries wrought upon them by the Grossmans andothers acting in concert, and avoid their contractual andprofessional responsibility to the Davidsons, just four monthsbefore the scheduled trial date, but was also intended to concealthe racketeering conspiracy which had been ongoing for nearlytwo decades, in both New York and Arizona, and facilitateMJM’s candidacy for anticipated vacancies in the ArizonaSupreme Court and Division II Arizona Court of Appeals.”

See Document #57, captioned Appendix of Exhibits in Support of

Plaintiffs’ Consolidated Response at USCA5 1594-1600, 1605-1609, 1610-

1623, 1624-1634, and 1711-1713.

The relationship between Appellants’ injuries and the defendants’

RICO violations are direct (not attenuated). See ¶s 85-87 of the Amended

Complaint. See the affidavit and attached exhibits from Tab B of filed

Document #79, filed September 18, 2007 in Case 4:07-cv-00471. These

exhibits provide evidence that the continuing violation doctrine is

applicable. See Reno v. Metropolitan Transit Authority, D.C. Tex. 1997,

977 F.Supp. 812 (in deciding whether continuing violation doctrine is

applicable, factors considered are whether acts involve same type of

discrimination, which tends to connect them in continuing violation,

whether acts are recurring or are more in nature of isolated work

assignment or employment decision, and whether acts have degree of

permanence which should trigger employee’s awareness of and duty to

assert his or her rights). See Harvey v. Chevron U.S.A., Inc.,D.C. Tex.

1997, 961 F.Supp. 1017. See Jackson v. Texas A&M Univ. Sys., D.C. Tex.


1996, 975 F.Supp. 943. See Interamericas Inv. Ltd. v. Board of Governors

of the Fed. Reserve Sys., C.A.5th, 1997, 111 F.3d 376 (continuing violation

applies when conduct is ongoing, rather than single event).

Under the Texas fraudulent concealment law, a number of the

Defendants (J. Grossman, E. Grossman, Petrillo, Thiry, Ott, Mello, Wray,

and Meehan) to this lawsuit, were charged with a legal duty through a

special relationship to reveal the concealed facts to the plaintiff enabling

plaintiff to claim tolling under this theory. See Dougherty v. Gifford, 826

S.W.2d 668 (Tex. App.-Texarkana 1992). Courts construing §1983 actions

“borrow” the forum state’s general personal injury limitations period.

Because the Texas statute of limitations is borrowed in § 1983 cases,

Texas’ equitable tolling principles also control. See Rotella v. Pederson,

Fifth Circuit U.S. Court of Appeals Case #97-10731 (July 14, 1998);

Jackson v. Johnson, 950 F.2d 263, 265 (5 Cir. 1992). Under Texas law,th

“where a person is prevented from exercising his legal remedy by the

pendency of legal proceedings, the time during which he is thus prevented

should not be counted against him in determining whether limitations have

barred his right.”

This lawsuit was timely-filed under the Texas tolling rule as

well as the power in the federal courts to toll limitations when a

potentially valid federal interest is to be protected. See Rodriguez v.

Holmes, Fifth Circuit U.S. Court of Appeals Case #91-8090 (June 24,

1992). See Young v. Kenny, 907 F.2d 874, 878 (9 Cir. 1989), cert. denied,th

111 S.Ct. 1090, 112 L.Ed.2d 1194 (1991) “[I]t would hardly promote the

goals of the Civil Rights Act of 1871 to twice deny prisoners a federal forum

for section 1983 complaints, once for being too early and again for being too

late.” Plaintiffs in this lawsuit have been more than “twice denied”.

Plaintiffs in this lawsuit have certainly not at any time “slept on their

rights”.

The filing of Plaintiffs’ Original Complaint and Application for


Injunctive Relief on November 20, 2003, in the U.S. District court for the

District of Arizona (Case No. CV 03-580-TUC FRZ) against Meehan and

QBSL, tolled the limitations period as to MJM and Count Seven of the

Amended Complaint (Document #19 in Case 4:07-cv-00471). The filing of

Plaintiffs’ Original Complaint on February 19, 2003, in the U.S. District

Court for the district of Arizona (Case No. CV 03-110-TUC FRZ) tolled the

limitations period as to Counts One, Two, and Three. See Preveza

Shipping Co. V. Sucrest Corp., 297 F.Supp. 954 (S.D.N.Y. 1969). (when a

federal statute of limitations is involved, the federal rule is applied to the

effect that the statute of limitations is tolled when the complaint is filed).

The limitations period as to Meehan, Heurlin, J. Grossman, and E.

Grossman, is tolled under Texas fraudulent concealment law, Texas

tolling rule, and continuing violation doctrine. See Porter v. Charter

Medical Corp., D.C. Tex. 1997, 957 F. Supp. 1427 (to toll statute of

limitations under Texas’ doctrine of fraudulent concealment, plaintiff

must show that defendant had actual knowledge of fact that wrong has

occurred, and fixed purpose to conceal wrong).

Appellants’ have shown that they have suffered actual injury

in both Arizona and Texas. Appellants have demonstrated that the

State Actor’s (Meehan, Heurlin, Eikleberry, J. Grossman, and E.

Grossman) conduct caused the injury. Granting the relief requested likely

would redress Appellants’ injury. See the affidavit and Exhibits attached

to this Motion. As an irrefutable example of immediate adverse legal

interests between the parties, warranting the issuance of a declaratory

judgment, this Court is referred to pages of 7 of 23 and page 8 of 23 of

Document # 79-3, filed on September 18, 2007, in Case 4:07-cv-00471,

which are true and correct copies of the certified Letter of July 9, 2007,

from Daniel J. Artz (with copy to Heurlin) to Centers for Medicare and

Medicaid Services. Thus, the State Actors, by means of a surrogate

(their retained Texas legal counsel, Daniel J. Artz) have directly


and maliciously interfered with Davidsons’ professional practice

of internal medicine in Texas. Mr Artz feigns not to know that the

effective date for the issuance by Medicare of Davidsons’ new NPI

numbers was August 1, 2006. Davidson provided this information from

Medicare regarding Davidsons’ new NPI numbers (with the effective date)

by fax to the attention of Mr Artz. Dominion has provided no

professional medical services to patients since July 31, 2006.

Dominion began winding-down operations on August 1, 2006.

On May 10, 2007, Grossmans were granted a second turnover

application in Gregg County Texas, this time as to Davidsons’ ownership

interests in Dominion Health Services P.A. and Health Patrons P.L.L.C.

On August 1, 2007, Davidsons were issued a Certificate of Dissolution for

Dominion Health Services P.A. by the Office of the Secretary of State for

the State of Texas. On September 21, 2007, Davidsons were issued a

Certificate of Dissolution for Health Patrons P.L.L.C. by the Office of the

Secretary of State for the State of Texas.

To date, under the Uniform Enforcement of Foreign Judgments Act

and the default judgment in Arizona (the State Action), the State Actors

have succeeded in “stealing” Davidsons’ life savings, “stealing” Davidsons’

real property in Arizona, and destroying Davidsons’ professional medical

practice (“Dominion”). Davidsons are suffering continuing present

adverse effects by reason of decisions in the State Action. There

exists a substantial controversy between the parties having adverse legal

interests of sufficient immediacy and reality to warrant the issuance of a

declaratory judgment. The interests of justice will be advanced and an

adequate and effective judgment may be rendered. There is an adequate

and full-bodied record. The Arizona state court adjudication was not

complete until the Arizona Supreme Court issued its final decision (April

20, 2006), more than 3 years after Davidsons commenced the Arizona

federal court proceedings.


Davidsons’ Notice of Appeal was timely-filed under Rule 4(a) of the

Federal Rules of Appellate Procedure. Jurisdiction on appeal is proper

based upon 28 U.S.C. §1291. “Any court of the United States” may render

a declaratory judgment based upon 28 U.S.C. § 2201 (a).

WHEREFORE, based upon all of the aforementioned arguments,

points, and authorities, Appellants pro se, pray for this Court to remedy

ongoing violations of constitutional law by declaring that Arizona Rules

of Civil Procedure Rule 5.1 is repugnant to the U.S. Constitution (both on

its face and as applied to the Davidsons) and therefore held by this Court

to be be unconstitutional, and order such “further necessary or proper

relief” to aid enforcement of the judgment. This Court may wish to

advance the briefing schedule on the calendar to accomodate a hearing on

this Motion.

RESPECTFULLY signed, on this 25 Day of October, byth

________________________ and ______________________________

ROBERT M. DAVIDSON VANESSA E. KOMAR

First Motion for Declaratory Judgment

Documents

Transcript of First Motion for Declaratory Judgment