Professional Documents
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Before a person can be found in contempt, it must first be established that this
Court has obtained personal jurisdiction over him or her. It is elementary that [j]urisdiction is
the power of the court to decide a matter in controversy, and presupposes the existence of a duly
constituted court with control over the subject matter and the parties. Pinner v. Pinner, 33
N.C.App. 204, 206 (1977).
2.
Whether this Court has jurisdiction over a defendant is governed by Fed. R. Civ.
(A)
There has been no proper service of process, and there has been no waiver. Therefore, there can
be no contempt because this Court had not established control over Mrs. Palmer because of the
Plaintiffs failure to properly serve her. 1
3.
The Plaintiffs sole attempt to assert that he had completed service of process is
found in paragraph 6 of his MSCO, where he claims to have personally served Mrs. Palmer by
mail as follows: [a]ccording to the U.S. Postal Service, Defendant Palmer received and accepted
her service packet from Plaintiff on December 28, 2015.
However, this is forbidden under Rule 4(c)(2), which states that the parties cannot personally
carry out service of process as follows: [a]ny person who is at least 18 years old and not a party
may serve a summons and complaint (emphasis added). Because the Plaintiff sent this service
personally, this attempted service is a nullity. Indeed, the Plaintiffs attempted service on
February 13, 2016, is a silent confession that he knew he didnt serve Mrs. Palmer correctly the
first time.
4.
Further, if one examines Exhibit 1, it does not establish that Sarah Palmer actually
received it. First, Exhibit 1 has clearly been altered to an unknown degree. Second, even if one
recovers the tracking data from the USPS website (removing the Plaintiffs alterations) one is
still left only with a statement that it was delivered to some unknown address in Reidsville,
North Carolinanot necessarily Mrs. Palmers house. Third, the same Exhibit 1 doesnt state
that the mail was sent restricted delivery; therefore, even if it was sent to Mrs. Palmers home,
there was no guarantee that it would have been received by Mrs. Palmer.
1
Further, Mrs. Palmer has also contested whether this Court could exercise personal jurisdiction
over her. See the Joint Motion To Dismiss Under Rule 12(b)(1), (2), and (5), and Opposition to
Leave to Amend filed simultaneously with this opposition, on pages 5-14.
2
Case 2:15-cv-01516-NJ Filed 03/01/16 Page 2 of 5 Document 14
5.
Furthermore, Mrs. Palmer had a good reason to ignore any and all mail from the
Plaintiff. Attached as Exhibit A is a true and correct copy of a No Contact Order for Stalking or
Non-Consensual Sexual Contact (hereinafter the No Contact Order) issued in order to protect
Mrs. Palmer from the Plaintiff. It forbade (in part) the instant Plaintiff from contacting Mrs.
Palmer by telephone, written communication, or electronic means. 2 The existence of this
order shows that Mrs. Palmer had a very good reason for disregarding mailed communications
from the Plaintiff.
6.
Indeed, as pointed out in the Joint Motion To Dismiss Under Rule 12(b)(1), (2),
and (5), and Opposition to Leave to Amend, 3 the Plaintiff still hasnt properly served Mrs.
Palmer. Not only did he fail to serve a copy of the original complaint, but he failed to serve
either Mr. Johnson or Mrs. Palmer with a copy of the Consent to Proceed Before a Magistrate
Judge form when he attempted service.
Defendants Palmer and Johnson have filed their Consent to Proceed Before a Magistrate Judge
forms as downloaded by counsel. This is done by Defendants Johnson and Palmer without
waiving any rights of jurisdiction, notice, process, service of process, joinder, or venue.
7.
In summary, because the Plaintiff has failed to properly serve Mrs. Palmer there is
WHEREFORE, this Court should deny the Plaintiffs motion for a show cause order because, to
this day, Defendant Palmer has never been properly served in this case.
2
What is attached is a non-certified copy of No Contact Order. In compliance with this Courts
Electronic Case Filing Policies and Procedures Manuel, counsel has retained certified copy of
this No Contact Order in his records and will provide it to this Court if there is any question of
the authenticity of the attached document.
3
This opposition was filed simultaneously with the Joint Motion To Dismiss Under Rule
12(b)(1), (2), and (5), and Opposition to Leave to Amend.
3
Case 2:15-cv-01516-NJ Filed 03/01/16 Page 3 of 5 Document 14
Respectfully submitted,
s/ Aaron J. Walker
Aaron J. Walker, Esq.
Attorney for Defendants Johnson and Palmer
Va Bar# 48882
DC Bar #481668
P.O. Box 3075
Manassas, Virginia 20108
(703) 216-0455
(No fax)
AaronJW1972@gmail.com
VERIFICATION
I, Aaron Walker, state under penalty of perjury under the laws of the United States of
America that the foregoing is true and correct and that all exhibits are true and correct copies of
the originals.
Executed on Tuesday, March 1, 2016.
s/ Aaron J. Walker
4
Case 2:15-cv-01516-NJ Filed 03/01/16 Page 4 of 5 Document 14
CERTIFICATE OF SERVICE
I certify that on the 1st day of March, 2016, I served copies of this document on William
Schmalfeldt at 3209 S. Lake Drive, Apt. 108, St. Francis, Wisconsin 53235 by mail.
s/ Aaron J. Walker
5
Case 2:15-cv-01516-NJ Filed 03/01/16 Page 5 of 5 Document 14
EXHmITA
15 CVD 2054
In The General Court Of Justice
District Court Division
County
__
NC
J
NO-CONTACT ORDER
FOR STALKING OR
27320
VERSUS
WILLIAM M SCHMALFELDT
3209 S LAKE DRIVE # 108
STFRANCIS
G.S.50C-7
53235
FINDINGS
This matter was heard by the undersigned district court jUdge, the court has jurisdiction o,'er the parties and subject matter, and the
defendant has been proviaed notice of the hearing.
The Court hereby finds that:
IfS
1. (If this block is checked, skip to the Order portion of the Order.) This Order is entered by default for the remedy sought in the complaint
file an answer
appear at this hearing
and the allegations in the complaint are
because the defendant failed to
sufficient to justify a no-contact order for stalking or nonconsensual sexual conduct.
2. Present at the hearing were:
the plaintiff, represented by
_
o
0
o the defendant, represented by
o 3. The plaintiff has suffered unlawful conduct by the defendant in that:
o 4. Other:
CONCLUSIONS
5. The defendant not contact the plaintiff by telephone, written communication, or electrcihic means.
6. The defendant not enter or remain present at the plaintiffs residence, place of employment, and other places listed below at times
when the plaintiff is present.
List Other Places Where Defendant Ordered Not To Be
(Over)
AOC-CV-524, Rev. 10/15
2015 Administrative Office of the Courts
7. Other: (specify)
I
Name Of D1ct Court Judge (type or print)
Date
Time
IJ
00
AM
Signature
PM
f!J
.(
NOTICE TO DEFENDANT: A KNOWING VIOLATION OF A CIVIL NO-;tfC ACT ORDER SHAd BE PUNISHABLE AS CONTEMPT
OF COURT, WHICH MA Y RESUL T IN A FI
'e R IMPRISONMENT. THE COURT MA Y FIND YOU IN
CIVIL OR CRIMINAL CONTEMPT.
I
I certify this Order is a tru\3 copy.
Datp
...-,
/ t,.
I- ( n
"
ISigna!tIc;l:.p.(
A.-<I.
'\
1\
"
n\ I
Deputy CSC
Clerk Of Superior Court
Assistant CSC
NOTE TO CLERK: G.S. 50C-9 provides: "The clerk OfCcGt shall deliver on the same day that a civil no-contact order is issued, a certified copy of
that order to the sheriff." The statute also provides that a copy of the order shall be issued promptly to the police department of the
municipality of the victim's residence, or the sheriff and any county police department if the victim does not live within a municipality
with a police department.
I certify that this No-Contact Order For Stalking Or Nonconsensual Sexual Conduct was received and served as follows:
Date Served
D
D
Time Served
AM
Name Of Defendant .
PM
Date Received
Date Of Return
Date Mailed
County Of Sheriff
Signature Of Clerk
D
D
DeputyCSC
Assistant CSC
Clerk Of Superior Court
NOTE TO CLERK: G.S. 50C-9(b) provides: "If the {defendant] was not present in court when theorder was issued, the (defendant] may be served in
the manner provided for seNice of process in civil proceedings in accordance with Rule 4{j) of the Rules of Civil Procedure."
day of
, 2016,
hereby
ORDERED that the Plaintiffs Motion for Order to Show Cause Why Defendant Sarah
Palmer Should not be Held in Contempt of Court (ECF No. 8) is DENIED.