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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 of


record after an action has been set for trial, (i) unless there
shall be endorsed upon the application therefore either the
signature of a substituting attorney stating that such attorney
is advised of the trial date and will be prepared for trial, or the
signature of the client stating that the client is advised of the
trial date and has made suitable arrangements to be prepared
for trial, or (ii) unless the court is satisfied for good cause
shown that the attorney should be permitted to
withdraw.”

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 proper


defendant in Count Two, Count Three, Count Four, Count Six,
and Count Seven, when he repeatedly refused to bring Arizona
fraud, Arizona RICO, and federal RICO actions, on behalf of
his then clients, the Davidsons, despite repeated requests by the
Davidsons to bring such actions, and despite MJM’s actual
knowledge of the content and substance of the Prosecution
Memorandum of November 20, 2000. MJM’s repeated refusals
were intended to conceal the racketeering conspiracy which had
been ongoing for nearly two decades, in both New York and
Arizona, and facilitate MJM’s candidacy for anticipated
vacancies in the Arizona Supreme Court and Division II
Arizona Court of Appeals. See ¶s 54, 57-59, 69, and 85-87 of the
Amended Complaint. See Exhibits #5-7 and #9-16, to this
Consolidated Response. Exhibits #14 and #15 represent
fraudulent misrepresentations which employed the U.S. Mails.
These mail frauds were directly targeted at the
Plaintiffs. Plaintiffs do not seek money damages from any
Judges of Division II Arizona Court of Appeals or from any
Justices of the Arizona Supreme Court.”

“Bruce R. Heurlin became a coconspirator and proper


defendant in Count Two, Count Three, Count Four, Count Six,
and Count Seven, when he reached an agreement with Michael
J. Meehan and the State trial Judge Jane L. Eikleberry
(“JLE”), and comitted overt acts, to coerce the dismissal of
Davidsons’ retained legal counsel by fiat of the trial court under
color of Arizona Rule 5.1. See ¶ 69 of the Amended Complaint.
See Exhibits #5-7 and #9, to this Consolidated Response. The
attorney withdrawal was ordered by the Court, after motion by
MJM 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. The
Order of the Trial Judge bears the letterhead of Bruce R.
Heurlin. Davidsons were the real parties in interest to attorney
withdrawal, not Grossmans. QBSL, MJM, and opposing legal
counsel already knew that the Trial Judge would Order
Attorney Withdrawal. QBSL, MJM, and opposing legal counsel
were so confident of this assertion that opposing counsel (Bruce
R. Heurlin), actually drafted the Trial Judge’s Order, effectively
making MJM, QBSL, opposing counsel (Bruce R. Heurlin), and
the Trial Judge (JLE), state actors, all acting pursuant to Rule
5.1. The Motion to Withdraw was a self-fulfilling prophecy,
culminated by the Trial Judge’s signature on the previously
written Order [by opposing counsel] and encouraged and
enabled by Rule 5.1. These coconspirators’ fraudulent
misrepresentations employed the U.S. Mails. These mail
frauds were directly targeted at the Plaintiffs. These
coconspirators 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 coerced
the dismissal of Davidsons’ retained legal counsel, under color
of Arizona Rule 5.1. These coconspirators had personal
extrajudicially-acquired knowledge that the Motion to
Withdraw as Counsel of Record, under color of Arizona
Rule 5.1, was a willful, malicious violation of Davidsons’
civil rights, motivated by bad faith (evil intent), an
improper motive (personal political and financial gain),
and with deliberate reckless indifference to the
federally-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
First M otion for Declaratory Judgment 07-20650 Davidson v. Grossman 3
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

First M otion for Declaratory Judgment 07-20650 Davidson v. Grossman 4


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,

First M otion for Declaratory Judgment 07-20650 Davidson v. Grossman 5


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 Section
1983 against [attorneys], the most egregious behavior by [an
attorney], even if unquestionably the result of pressures by the
State, will not be cognizable under Section 1983. Under the
doctrine of absolute judicial immunity, judges are subject to
suit only for (1) non-judicial actions, i.e. actions not taken in
the judge’s judicial capacity, or (2) “actions, though judicial in
nature, taken in the complete absence of all jurisdiction”. “The
judge must have jurisdiction over the person and subject matter
if he [she] is to be immune from suit for an act performed in his
[her] judicial capacity.” “A third element is the power of the
Court to render the particular decision which was given.” “The
third element in the concept of jurisdiction as used in the
context of judicial immunity necessitates an inquiry into
whether the defendants’ action is authorized by any set of
conditions or circumstances. This inquiry begins with an
examination of the satute under which the defendant presumed
to act.” “There are actions of purported judicial character that
a judge even when exercising general jurisdiction, is not
empowered to take.” See Briley v. State of California, 564 F.2d
849.”

First M otion for Declaratory Judgment 07-20650 Davidson v. Grossman 6


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) and
Final Judgment and Memorandum Decision of April 4, 2005,
from Ninth Circuit U.S. Court of Appeals (# 04-15304) are void
as moot because the Orders of November 24, 2003 (U.S. District
Court, Arizona District, Docket No. 56, Civil Case # CV-03-
00110-FRZ and February 2, 2004 (U.S. District Court, Arizona
District, Docket No. 9, Civil Case # CV-03-00580-FRZ), which
dismissed Davidsons’ federal causes of action, were acts in clear
absence of all jurisdiction. See Am.Jur. Civil Rights, Section
105, C.J.S. Judges, Section 208, Am.Jur. Judges, Section 75,
and C.J.S. Judges, Section 207. See also Sharp v. Bivona, 304
F.Supp.2d 357, Mireles v. Waco, 112 S.Ct. 286, Stamp v.
Sparkman, 98 S.Ct. 1099, and Hale v. Lefkow, 239 F.Supp.2d
842.
Federal District Court trial judge Frank R. Zapata had
actual knowledge of Michael J. Meehan’s (“MJM’s”) candidacy
for the Arizona bench prior to the final Orders by Judge Zapata
which dismissed both of Davidsons’ federal causes of action.
Violations of 28 U.S.C. Section 455(a) can be applied
retroactively. Only one inference can reasonably be drawn
from 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. This
Court is referred to the Affidavit and Attachments to
Davidsons’ Petition for Review to the Arizona Supreme Court
on 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 permits
dismissal of all Section 1983 complaints against attorneys [and
judges], thereby fostering [if not actually encouraging] the most
egregious behavior by attorneys [and judges], even if
unquestionably the result of pressures by the State. The Ninth

First M otion for Declaratory Judgment 07-20650 Davidson v. Grossman 7


Circuit held that privately-retained attorney and law firm
cannot violate constitutional rights of clients. This ruling is
certain to have been well received by the State Actors in the
State 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
First M otion for Declaratory Judgment 07-20650 Davidson v. Grossman 8
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.

First M otion for Declaratory Judgment 07-20650 Davidson v. Grossman 9


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 the
Prosecution Memorandum (November 20, 2000) provides prima
facie evidence of actual malice and willful misconduct by the
attorney (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 January
11, 2002. The reasons given for attorney withdrawal are false.
MJM and QBSL have defrauded the Trial Court by alleging
that ethical considerations motivated their Motion to
Withdraw. MJM and QBSL actually slandered their then
clients (the Davidsons) in their Motion to Withdraw, by
maliciously characterizing their clients’ objectives as being
unprofessional, imprudent, unethical, and repugnant. This
intentional misrepresentation inflicted irreparable harm upon
the Davidsons once the motion was filed. By information and
belief, MJM and QBSL knew the substance and content of the

First M otion for Declaratory Judgment 07-20650 Davidson v. Grossman 10


Prosecution Memorandum, prior to filing their Motion to
Withdraw as counsel of record. Yet, QBSL and MJM agreed
with each other to continue to refuse to bring Arizona fraud,
Arizona RICO, and federal RICO actions, on behalf of their
then clients, the Davidsons, despite repeated requests by the
Davidsons to bring such actions. Davidsons did not realize at
the time that the object of the aforementioned repeated refusals
to bring fraud and racketeering actions of behalf of their
clients, and the object of their Motion to Withdraw, was not
solely to permanently deprive the Davidsons of a legal remedy
for the injuries wrought upon them by the Grossmans and
others acting in concert, and avoid their contractual and
professional responsibility to the Davidsons, just four months
before the scheduled trial date, but was also intended to conceal
the racketeering conspiracy which had been ongoing for nearly
two decades, in both New York and Arizona, and facilitate
MJM’s candidacy for anticipated vacancies in the Arizona
Supreme 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.

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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 (5th Cir. 1992). Under Texas law,
“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 (9th Cir. 1989), cert. denied,
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

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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

First M otion for Declaratory Judgment 07-20650 Davidson v. Grossman 13


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.

First M otion for Declaratory Judgment 07-20650 Davidson v. Grossman 14


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 25th Day of October, by

________________________ and ______________________________


ROBERT M. DAVIDSON VANESSA E. KOMAR

First M otion for Declaratory Judgment 07-20650 Davidson v. Grossman 15