Plaintiff

                       Defendants 

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Plaintiff xxxxxxxx hereby moves ("to correct a clear error and prevent manifest injustice") this Court, pursuant to Rule 60, to reconsider its judgment of Decmber 18, 2008, dismissing the complaint. Quoting MR. JUSTICE BLACK in a dissent arguing against a similar abuse-of-discretion "I think that the order of the District Court dismissing this case has no sound basis in law, in fact or in justice".

The sheer volume of arguments that can be made demonstrating "reversible error" in the court's action makes it abundantly clear that "error" had nothing to do with the court's destruction of my 14th Amendment rights, and the crime against those rights was quite deliberate. Nevertheless, I shall make a reluctant argument to this obviously malicious court to protect against any questions that may arise on appeal.

Background for the arguments that will be made.

In a October 21, 2008 "Notice of special circumstances and request for accommodation and time." I informed the court:

...That I have a disability "recognized by the Social Security Administration (most recent evaluation 2007)" that "has been declared by a New Jersey Superior Court as entitling me to coverage under the Americans with Disabilities Act."

and I requested of the court:
That "consistent with the provisions of the ADA" I be granted "any necessary reasonable modifications to regular procedure, that will make possible the prosecution of my claims without compromising any real rights of any other parties involved. The most obvious implication of my disability is an inability to make "in person" appearances in court. I would suggest widely used audio and video technology (currently used in court procedures) can provide a most satisfactory duplication of any useful purpose of live court appearance."

I further requested:
That the "court respond with objections so the plaintiff may have opportunity to dispel those objections, or seek a more accommodating venue, to prevent wasting the time of all interested parties on process that has no reasonable prospect of completion."

More than 50 days later, and two days before the scheduled conference I was informed that I must appear in a court more than 1,500 mi. from my home, (regardless of the fact that I have not been much more than a mile from my home in over 25 years.)

Argument No. 1:
The lack of "judicial temperament", demonstrated in the courts preposterous (under the circumstances) demand is manifest. Even if it were possible for me to travel 1,500 mi. to arrange such a trip in two days is not a reasonable expectation, or reasonable demand to impose, on a Pro-Se plaintiff of limited financial means.

By logical consequence, if such an expectation is to be deemed reasonable--considering the non vital nature of personal appearance at an initial conference --than the court might as well say explicitly, for the sake of logical consistency, that it does not believe the 1st or 14th Amendments to the United States Constitution "reasonably" applies to poor people.

Argument No. 2:
In the notes regarding rule 16 it states:
"As under the prior rule, while a scheduling order is mandated, a scheduling conference is not."

The Supreme Court held in Societe Internationale v. Rogers, 357 U.S. 197, 212 (1958), that Rule 37
"should not be construed to authorize dismissal of [a] complaint because of petitioner's noncompliance with a pretrial production order when it has been established that failure to comply has been due to inability, and not to willfulness, bad faith, or any fault of petitioner."

As the Court is no doubt aware scheduling conferences were contrived to expedite judicial process... they were intended to enable efficient litigation and not to in any way create a barrier to it... the Court action has turned this helpful tool into a weapon of destruction, and not by any requirement to satisfy fairness, justice, or any binding rule... but to satisfy the inclinations of the Courts own prejudgment and bias.

The facts clearly demonstrate that the failure of plaintiff to satisfy the demands of the court was "due to inability, and not to willfulness, bad faith, or any fault of petitioner." Quite obviously, there has been no "want of prosecution" demonstrated or even indicated. What is clear is the courts "Want of Judicial Temperament" and willingness to destroy fundamental constitutional rights for no cause but self satisfaction and the theft of $350.

Argument No. 3:
The Americans with Disability Act establishes it as a national principle that the liabilities of certain human frailties should be mitigated against when all that is required is minor and reasonable accommodation.

Considering the routine and extensive use of teleconferencing in court procedure to save time and expense in processing justice, the court is without reasonable excuse in denying the plaintiff the reasonable accommodation requested. Adding insult to that injury, was the court's unwillingness to even acknowledge the request, and provide some reasoned explanation regarding how rejection could be demonstrated to be consistent with established principle/Law.

The plaintiff intends to file a ADA complaint with the United States Department of Justice regarding the court's action in this case.

Argument No. 4:
The defendant in this case had also informed the court that he would also be unable to attend the conference. If the plaintiff had been able to afford counsel to attend the conference, would the court have entered a default judgment for $1 million in favor of the plaintiff as a sanction against the non-appearing defendant who lived quite factually more than a thousand miles closer to the court?

There is reasonable cause to demand that the court not only defend applying a sanction in this case, where both parties are "guilty" of the same act and there can be no claim of a harm to fairness, but that the Court should also be required to justify the severity of applying the absolute maximum "penalty" for the perceived "infraction".

Argument No. 5:
As the court may be aware there is a information/communication technology in the world today called the Internet. This technology is fast replacing numerous elements of traditional social infrastructure, making it necessary to reformulate much law to adjust to the new environment. The Digital Millennium Copyright Act was the result of Congress attempting to effectively deal with this changing environment. The law intends to rebalance rights and responsibilities in an effort to maintain pre-existing freedoms and protections.

The DMCA is relatively new law and there exists very little case law defining the practical meaning of the new law and its requirements. This case was filed in compliance with the requirements of the DMCA in an effort to clarify through judicial decision what the law means in real application.

Through its decision this court has established that the DMCA will not protect or serve any rights or interests of the millions of copyright holders of low or moderate disposable income. I believe it can be stated with absolute certainty that Congress had no such intent, and that if the court's interpretation of the law were made part of the act, the act would not have been accepted by Congress.

Clearly without rewriting (abolishing) the United States Constitution, or rewriting many of its laws including the DMCA, this Court's decision cannot be sustained as being obedient to the Constitution or the laws of the United States of America. It seems plainly reasonable to conclude that the brokenness (obvious contradictions) created by this court decision is a consequence of grotesque flaws in the decision, and correction of those flaws should be immediate and decisive.

What has taken place in this case is clear, the court has "abused its discretion" to dispose of litigation to serve an illegitimate and no doubt malicious purpose. There has been, and can be, no rational alternative explanation.

Quite appropriately, the plaintiff requests that the court correct for this "indiscretion" by restoring the plaintiff's right to completely and efficiently prosecute its claims in obedience to constitutional and statutory law.

Date: 	Decmber 22, 2008	
Original +1: 	Clerk's Office
(1 copies)	Clerk's Office
cc: 		None