LIBERI V TAITZ (APPEAL) - ECF FILER: Motion To Withdraw Case - Motion To Withdraw Appeal - Transport Room

Case: 09-3403 Document: 003110112231 Page: 1 Date Filed: 04/21/2010
U.S. District Court,

Eastern District of Pennsylvania Case Number: 09-cv-01898 ECR
Court of Appeals No. Case Number: 09-3403
UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT
_____________ Ο _____________
LISA LIBERI, et al,

Plaintiffs’ – Appellants’,
v.
ORLY TAITZ, et al,
Respondents’ – Appellees’.
____________ Ο _____________
APPELLANTS’ WITHDRAWAL OF THEIR APPEAL OR IN THE

ALTERNATIVE, APPELLANTS MOTION FOR VOLUNTARY DISMISSAL
OF THEIR APPEAL PURSUANT TO FEDERAL RULES OF APPELLATE
PROCEDURE 42(b) [F.R.A.P. 42(b)]
____________ Ο _____________
Philip J. Berg, Esquire

555 Andorra Glen Court, Suite 12
Lafayette Hill, PA 19444-2531
PA Identification: 09867
Ph: (610) 825-3134
Fx: (610) 834-7659
Email: philjberg@gmail.com
Attorney for the Appellants’

TABLE OF CONTENTS
Pages
TABLE OF CONTENTS…………………………………………………………...i
TABLE OF AUTHORITIES…..……………………………………………...……ii
APPELLANTS MOTION TO WITHDRAW THEIR APPEAL

OR IN THE ALTERNATIVE APPELLANTS MOTION TO
DISMISS THEIR APPEAL……………………………………………………...1-2
STATEMENT OF FACTS…...…………………………………….………………3
ARGUMENT………………………………………………………..…………...5-7
I. APPELLANTS WITHDRAW OF THEIR APPEAL

IS APPROPRIATE IN THIS SITUTATION……………………....5-6
II. APPELLANTS’ VOLUNTARY DISMISSAL OF THEIR

APPEAL IS WARRANTED IN THIS CASE AND
MUST BE GRANTED……………………………………………..6-7
CONCLUSION………………………………………………………………….…7
CERTIFICATE OF SERVICE…………………………………………………...8-9
i
TABLE OF AUTHORITIES
Cases Page(s)
Third Circuit Court of Appeals
Frank's GMC Truck Center, Inc. v. General Motors Corp.,

847 F.2d 100, 102-03 (3d Cir. 1988)…………………………………………….…6
In re Penn Cent. Transp. Co., 630 F.2d 183, 189-90 (3d Cir. 1980)………….……7
Swartzwelder v. McNeilly 297 F.3d 228 (3rd Cir. 2002)…………………………...5
U.S. District Court Eastern District of Pennsylvania
Prison Health Servs., Inc. v. Umar,

2002 U.S. Dist. LEXIS 12267 (E.D. Pa. May 8, 2002)………………………….…5
Mertz v. Houstoun, 155 F. Supp.2d 415 (E.D. Pa 2001)…………………………...5
Bieros v. Nicola , 857 F. Supp. 445, 446-47 (E.D. Pa. 1994)……………………...5
PENNSYLVANIA RULES OF APPELLATE PROCEDURE
Page(s)
Rule 42(b)………………………………..………………………………1, 2, 5, 6, 7
ii
COME NOW Appellants’, Lisa Liberi [hereinafter “Liberi”]; Philip J. Berg,
Esquire [hereinafter “Berg”], the Law Offices of Philip J. Berg; Evelyn Adams
a/k/a Momma E [hereinafter “Adams”]; Lisa Ostella [hereinafter “Ostella”]; and
Go Excel Global by and through their undersigned counsel, Philip J. Berg, Esquire,
hereby Withdrawal their Appeal or in the Alternative Move to Voluntary Dismiss
Their Appeal pursuant to the Federal Rules of Appellate Procedure 42(b) [F.R.A.P.
42(b)] on the following grounds:
 Appellants filed their Appeal on August 17, 2009 for the issuance of an
Immediate [TRO] Temporary Restraining Order and/or Injunction to
Prohibit Defendant/Respondent Orly Taitz from further distribution of
Appellants, especially Appellant Liberi’s Social Security number; date of
birth; place of birth; mother’s maiden name and other private confidential
information;
 Appellants did not receive the cost of their Transcript from the lower
Court until April 16, 2010;
 To date, no action has been taken by the Appellate Court and no briefing
schedule has issued; however, the lower Court has placed
Plaintiffs/Appellants case in suspense mode until resolution of the
Appeal by the within Court;
 Since the filing of the Appeal for the Temporary Restraining Order
and/or Injunction, Defendant/Respondent Taitz has continued her
distribution of Plaintiff Liberi’s Social Security number, date of birth,
place of birth, mother’s maiden name and other private confidential
identifying information;
 The damages caused by Defendant/Respondent Taitz are beyond repair

and a Temporary Restraining Order and/or Injunction will not prevent
the extensive further damages that have occurred since we filed this
1
Appeal to the Third Circuit on August 17, 2009, eight [8] months ago and
therefore the Appeal is Moot;
 Plaintiffs/Appellants have sought leave from the lower Court to hold

Defendant/Respondent Taitz in Contempt of Court as a result of further
publication of Appellant Liberi’s private and confidential identifying
information. However, until the resolution of this Appeal, as stated
above, the case is in suspense and Plaintiffs/Appellants are barred from
moving forward; and
 None of the Defendants/Respondents have Entered their Appearance in

this Appeal and thereby have not incurred any expenses. Moreover, no
briefing schedule has issued. Therefore, all parties are to bear their own
expenses related to this interlocutory appeal.
For the reasons stated herein, Appellants respectfully request to Withdraw
their Appeal or in the Alternative this Court Grant their Voluntary Dismissal of
Their Appeal pursuant to F.R.A.P. 42(b).
Respectfully submitted,
April 21, 2010 s/ Philip J. Berg

______________________________
PA Identification: 09867
Ph: (610) 825-3134
Fx: (610) 834-7659
Email: philjberg@gmail.com
2
I. STATEMENT OF FACTS:
This appeal arises from Defendant/Respondents Neil Sankey, Sankey
Investigations, Inc., The Sankey Firm, Inc. a/k/a The Sankey Firm; Orly Taitz, et
al; and Defend our Freedoms Foundations, Inc. illegal access to and distribution of
Plaintiff/Appellants private confidential data including but not limited to Appellant
Liberi’s full Social Security number; date of birth; place of birth; mother’s maiden
name and other private confidential information. Defendant/Respondent Orly
Taitz, et al prior to her distribution and destruction of Appellant Liberi stated she
was going to take Philip J. Berg, Esquire down and to do so she would destroy his
paralegal, Lisa Liberi and anyone associated with them, which
Defendant/Respondent Taitz has admitted in her filings with the lower Court.
Defendant/Respondent Taitz’s threat has been carried out.
Appellants/Plaintiffs filed for an Emergency TRO [Temporary Restraining
Order] and/or Injunction to Prohibit any further Distribution of Plaintiff Liberi’s
private confidential information. The lower Court denied Plaintiffs/Appellants
request for emergency relief on two (2) occasions. Appellants filed their
interlocutory Appeals of the lower Court’s orders in attempts to prevent the further
distribution of private data and to prevent severe damages to the Appellants caused
by said distribution.
3
It should be noted however, Judge Robreno in the lower Court did order on
June 25, 2009 that Defendants, including Defendant Taitz, et al who was present in
Court, were not to publish and/or distribute anyone’s Social Security number.
Despite this, Defendant/Respondent Orly Taitz has continued her wide publication
and distribution of Appellant Liberi’s Social Security number, date of birth, place
of birth, mother’s maiden name and other private confidential information. As a
result of Defendant/Respondent Taitz’s failure to obey the lower Court’s Orders,
Appellant Lisa Liberi and Lisa Ostella are now the full victims of full identity theft
and been placed in harms way, which have been reported to the proper law
enforcement agencies. An injunction or restraining order at this point will not
prohibit said damages.
Appellants filed their Interlocutory Appeal on or about August 17, 2009,
over eight [8] months ago. In December 2009, Judge Robreno in the lower Court
placed Plaintiff/Appellants case in suspense pending the outcome of the appeal.
Unfortunately, no action has been taken on the appeal and the damages to the
Appellants’ are beyond repair. At this point and juncture, a TRO [Temporary
Restraining Order] and/or Injunction will not prevent damages from incurring,
which is the sole purpose of an Emergency TRO [Temporary Restraining Order]
and/or Injunction. Thus, Appellants request is moot.
4
Since the Plaintiffs/Appellants have incurred such serious damages, it is
imperative for their case in the lower Court to move forward.
None of the Defendants/Respondents have entered their appearances in this
Appeal and therefore, have not incurred any expenses associated with this Appeal.
Thus, all parties are to bear their own costs and expanses. Nor, has this Court
issued a briefing schedule in the within Interlocutory Appeal.
For these reasons, Plaintiffs/Appellants respectfully Move to Withdraw their
Appeal or in the Alternative Move to Voluntarily Dismiss their Appeal pursuant to
F.R.A.P. 42(b).
II. APPELLANTS WITHDRAW OF THEIR APPEAL IS

APPROPRIATE IN THIS SITUTATION:
As stated herein, Appellants Withdrawal of their Interlocutory Appeal is
appropriate, as damages incurred pending the outcome of their appeal are severe
and a TRO [Temporary Restraining Order] and/or Injunction are moot at this point.
As this Court is aware, the request for a TRO [Temporary Restraining Order]
and/or Injunction is to prevent damages from incurring. See Swartzwelder v.
McNeilly, 297 F.3d 228, 234 (3rd Cir. 2002); Prison Health Servs., Inc. v. Umar,
Civil Action No. 02-2642, 2002 U.S. Dist. LEXIS 12267 (E.D. Pa. May 8, 2002).
The standards for a Preliminary Injunction and a TRO are the same. Mertz v.
Houstoun, 155 F. Supp.2d 415, 425 n.12 (E.D. Pa 2001); Bieros v. Nicola, 857 F.
5
Supp. 445, 446-47 (E.D. Pa. 1994). The irreparable harm requirement is only met
if a Petitioner demonstrates a significant risk that he or she will experience harm
that cannot adequately be compensated after the fact by monetary damages. See
Frank's GMC Truck Center, Inc. v. General Motors Corp., 847 F.2d 100, 102-03
(3d Cir. 1988).
Here, the damages have incurred since the filing of their Interlocutory
Appeal which a TRO [Temporary Restraining Order] and/or Injunction will not
prevent. Therefore, the Interlocutory Appeal is moot and Withdrawal thereof is
appropriate.
III. APPELLANTS’ VOLUNTARY DISMISSAL OF THEIR

APPEAL IS WARRANTED IN THIS CASE AND MUST BE
GRANTED:
Appellants’ have moved for Withdrawal of their Appeal or in the Alternative
Voluntary Dismissal of their Appeal pursuant to Federal Rules of Appellate
Procedure, Rule 42 (b) [F.R.A.P. 42(b)]. F.R.A.P. 42(b) states:
“F.R.A.P. 42(b) - Dismissal in the Court of Appeals”

“The circuit clerk may dismiss a docketed appeal if the parties file a
signed dismissal agreement specifying how costs are to be paid and
pay any fees that are due. But no mandate or other process may issue
without a court order. An appeal may be dismissed on the appellant’s
motion on terms agreed to by the parties or fixed by the court.”
6
In the case at bar, the Appellees have never entered their appearance and
therefore have not bore any costs and there are absolutely no terms to agree too.
Appellants agree to bear their own costs. In addition, no briefs and/or Appendices
have been prepared, as this Court has not issued a briefing schedule.
There is not any reason for this Court to deny Appellants Motions to
Dismiss the Appeal, as the Appellees will not be burdened by the dismissal of this
appeal. See In re Penn Cent. Transp. Co., 630 F.2d 183, 189-90 (3d Cir. 1980)
(explaining standard for granting motions for voluntary dismissal); F.R.A.P. 42(b).
For these reasons, Appellants Withdrawal of their Appeal should be granted
or in the alternative treated, as a Motion to Dismiss their Appeal must be granted.
IV. CONCLUSION:
For the reasons stated herein, Appellants Withdrawal of their Appeal
should be granted. In the alternative Appellants have sought Dismissal of their
Appeal pursuant to F.R.A.P. 42(b) which is appropriate and must be granted.
Respectfully submitted,
Dated: April 21, 2010 ____________________________

s/ Philip J. Berg
(610) 825-3134
7
U.S. District Court,

Eastern District of Pennsylvania Case Number: 09-cv-01898 ECR
Court of Appeals No. Case Number: 09-3403
UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT
_____________ Ο _____________
LISA LIBERI, et al,

Plaintiffs’ – Appellants’,
v.
ORLY TAITZ, et al,
Respondents’ – Appellees’.
_____________ Ο _____________
CERTIFICATE OF SERVICE
_____________________
I, Philip J. Berg, Esquire, hereby certify that Appellants’ Request to
Withdrawal their Appeal or in the alternative to Dismiss their Appeal pursuant to
F.R.A.P. 42(b) was served this 21st day of April 2010 electronically upon the
following Appellees’:
Orly Taitz
Defend our Freedoms Foundation, Inc. (unrepresented)
26302 La Paz Ste 211
Mission Viejo, CA 92691
Email: dr_taitz@yahoo.com
And by Fax to (949) 766-7603
8
CERTIFICATE OF SERVICE, Continued
Neil Sankey
The Sankey Firm, Inc. a/k/a The Sankey Firm (unrepresented)
Sankey Investigations, Inc.
2470 Stearns Street #162
Simi Valley, CA 93063
Email: nsankey@thesankeyfirm.com
Linda Sue Belcher

201 Paris
Castroville, Texas 78009
Email: Newwomensparty@aol.com and
Email: starrbuzz@sbcglobal.net
Ed Hale
Caren Hale
Plains Radio
KPRN
Bar H Farms
1401 Bowie Street
Wellington, Texas 79095
Email: plains.radio@yahoo.com; barhfarms@gmail.com;
ed@barhfarnet; and ed@plainsradio.com
s/ Philip J. Berg
________________________
PHILIP J. BERG, ESQUIRE

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LIBERI V TAITZ (APPEAL) - ECF FILER: Motion To Withdraw Case - Motion To Withdraw Appeal - Transport Room

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Case: 09-3403 Document: 003110112231 Page: 1 Date Filed: 04/21/2010

U.S. District Court,

UNITED STATES COURT OF APPEALS

LISA LIBERI, et al,

APPELLANTS’ WITHDRAWAL OF THEIR APPEAL OR IN THE

Philip J. Berg, Esquire

Attorney for the Appellants’

APPELLANTS MOTION TO WITHDRAW THEIR APPEAL

I. APPELLANTS WITHDRAW OF THEIR APPEAL

II. APPELLANTS’ VOLUNTARY DISMISSAL OF THEIR

Third Circuit Court of Appeals

Frank's GMC Truck Center, Inc. v. General Motors Corp.,

Swartzwelder v. McNeilly 297 F.3d 228 (3rd Cir. 2002)…………………………...5

U.S. District Court Eastern District of Pennsylvania

Prison Health Servs., Inc. v. Umar,

Mertz v. Houstoun, 155 F. Supp.2d 415 (E.D. Pa 2001)…………………………...5

Bieros v. Nicola , 857 F. Supp. 445, 446-47 (E.D. Pa. 1994)……………………...5

PENNSYLVANIA RULES OF APPELLATE PROCEDURE

COME NOW Appellants’, Lisa Liberi [hereinafter “Liberi”]; Philip J. Berg,

a/k/a Momma E [hereinafter “Adams”]; Lisa Ostella [hereinafter “Ostella”]; and

hereby Withdrawal their Appeal or in the Alternative Move to Voluntary Dismiss

42(b)] on the following grounds:

 The damages caused by Defendant/Respondent Taitz are beyond repair

 Plaintiffs/Appellants have sought leave from the lower Court to hold

 None of the Defendants/Respondents have Entered their Appearance in

For the reasons stated herein, Appellants respectfully request to Withdraw

Their Appeal pursuant to F.R.A.P. 42(b).

April 21, 2010 s/ Philip J. Berg

Attorney for the Appellants’

This appeal arises from Defendant/Respondents Neil Sankey, Sankey

Plaintiff/Appellants private confidential data including but not limited to Appellant

name and other private confidential information. Defendant/Respondent Orly

paralegal, Lisa Liberi and anyone associated with them, which

Defendant/Respondent Taitz’s threat has been carried out.

Appellants/Plaintiffs filed for an Emergency TRO [Temporary Restraining

Order] and/or Injunction to Prohibit any further Distribution of Plaintiff Liberi’s

private confidential information. The lower Court denied Plaintiffs/Appellants

of birth, mother’s maiden name and other private confidential information. As a

result of Defendant/Respondent Taitz’s failure to obey the lower Court’s Orders,

enforcement agencies. An injunction or restraining order at this point will not

prohibit said damages.

Appellants filed their Interlocutory Appeal on or about August 17, 2009,

placed Plaintiff/Appellants case in suspense pending the outcome of the appeal.

which is the sole purpose of an Emergency TRO [Temporary Restraining Order]

and/or Injunction. Thus, Appellants request is moot.

Since the Plaintiffs/Appellants have incurred such serious damages, it is

imperative for their case in the lower Court to move forward.

None of the Defendants/Respondents have entered their appearances in this

issued a briefing schedule in the within Interlocutory Appeal.

For these reasons, Plaintiffs/Appellants respectfully Move to Withdraw their

Appeal or in the Alternative Move to Voluntarily Dismiss their Appeal pursuant to

II. APPELLANTS WITHDRAW OF THEIR APPEAL IS

As stated herein, Appellants Withdrawal of their Interlocutory Appeal is

and/or Injunction is to prevent damages from incurring. See Swartzwelder v.

if a Petitioner demonstrates a significant risk that he or she will experience harm

(3d Cir. 1988).

prevent. Therefore, the Interlocutory Appeal is moot and Withdrawal thereof is

III. APPELLANTS’ VOLUNTARY DISMISSAL OF THEIR

Appellants’ have moved for Withdrawal of their Appeal or in the Alternative

Voluntary Dismissal of their Appeal pursuant to Federal Rules of Appellate

Procedure, Rule 42 (b) [F.R.A.P. 42(b)]. F.R.A.P. 42(b) states:

“F.R.A.P. 42(b) - Dismissal in the Court of Appeals”

For these reasons, Appellants Withdrawal of their Appeal should be granted