rule 50 motion for judgment as a matter of law

7/27/2019 Rule 50 Motion for Judgment as a Matter of Law

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Brian King, Esq.

KFIRM LLP

40 Wall St, 28th

Floor Phone:202-251-2121

New York, NY 10005 Fax:718-313-0050

1

Honorable Brian M. Cogan May 29, 2013U.S. District Court Judge

U.S. District Courthouse

225 Cadman Plaza EastBrooklyn, New York 11201

Via Electronic Filing (CM/ECF)

Re: Judgment as a Matter of Law

Dear Judge Cogan:

As Your Honor knows, I entered my appearance on behalf of Sonny Southerland in this

case on April 30, just under a month ago. It is my duty to inform the Court, based upon

information divulged in post-remand discovery and in the various pre-trial conferences before

Judge Bloom, that the defendant Timothy Woo has perpetrated a fraud on this Court. Most

crucially, Woo has represented to this Court and the Second Circuit that he obtained an order

from the New York Family Court affirming his June 1997 removal of the Southerland children

from the custody and care of their father Sonny Southerland. Woo revealed in a pre-trial

conference held on May 15, however, that he never in fact obtained any such order, and that he

does not in fact have any such order now. Further, Woo confirmed in a May 24 pre-trial

conference that there is no June 1997 order.Looking back over the history of this case, Woos fraud began with his false affidavit on

June 6, 1997, to obtain a search warrant. His perverseness continued when he removed the

children in the absence of emergency circumstances. He then filed several false petitions with

the New York Family Court to cover his prior indiscretions. Woos most recent act of fraud is

embodied in his filing to the Court of this afternoon (Doc. 283), wherein he attempts to defeat

the plaintiffs procedural due process claims by submitting what appears to be fabricated court

records. As explained in Section III, if the docket sheets Woo submitted today are not

fabrications, his May 24, 2013 submission must be a fabrication.1 The recent discovery of

1 This would explain why Woos counsel, Martin Bowe, objected vehemently to Judge Blooms directive that he

provide the Court a certified copy of the May 24 submission (see Exhibit 1), which purports to be an order dated

July 1, 1998, bearing the docket number 13423/97. Tellingly, in support of his objection, Mr. Bowe told the Courtthat he had never been required to produce certified copies of orders he submitted as evidence in cases. Judge

Bloom, detecting the fraud, repeatedly overruled the objection, ultimately ordering Mr. Bowe to please sit down.

Case 1:99-cv-03329-BMC-LB Document 286 Filed 05/29/13 Page 1 of 11 PageID #: 1684


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Brian King, Esq.

KFIRM LLP

40 Wall St, 28th


New York, NY 10005 Fax:718-313-0050

2

Woos fraud upon this Court and other courts, outlined in detail below, entitles all the plaintiffs

to a judgment as a matter of law with regard to their individual procedural due process claims.

For the same reasons, the plaintiffs are also entitled to relief from this Courts orders of

May 25, 2012 (Doc. 202) (dismissing the plaintiffs substantive due process claims), May 15,

2013 (Doc. 258) (issuing various oral rulings regarding the admissibility and excludability of

evidence), and May 17, 2013 (Doc. 263) (limiting the scope of the plaintiffs claims for

damages). See Fed. R. Civ. P. 60(b)(3) and (d)(3) (2013) (authorizing a district court to relieve a

party from an order or judgment procured by fraud, misrepresentation, or misconduct by a party).

I. Woo has adduced insufficient evidence to support a finding that emergencycircumstances existed at the time of the removal.

In order for the plaintiffs to prevail on their procedural due process claims, they must

prove either of two theories of liability. The first theory of liability would be satisfied if

defendant Woo removed the Southerland children from the physical custody of Mr. Southerland

without prior court authorization and in the absence of emergency circumstances. See Hurlman

v. Rice, 927 F.2d 74, 80 (2d Cir. 1991) ([O]fficials may remove a child from the custody of the

parent without consent or a prior court order only in emergency circumstances. Emergency

circumstances mean circumstances in which the child is immediately threatened with harm, for

example, where there exists an immediate threat to the safety of the child, or where the child is

left bereft of care and supervision, or where there is evidence of serious ongoing abuse and the

officials have reason to fear imminent recurrence.).

It is undisputed that Woo removed the children without prior court authorization. The

inquiry does not end with that fact, however, because Woo maintains that emergency

circumstances existed. Notwithstanding that averment, in 2007 this Court found that Woo had

adduced no evidence as to why the particular circumstances that Woo encountered in the

Southerland home established that there was imminent danger to the childrens life or limb

requiring removal in the absence of a court order. See Southerland v. City of NY., 521 F. Supp.

2d 218 at 234 n.29 (EDNY 2007) ("Southerland II"). This Court further found that Woo had

adduced no evidence that there was insufficient time for Woo to seek judicial authorization for

the removal. Id. at 235 n.31.



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Brian King, Esq.

KFIRM LLP

40 Wall St, 28th


New York, NY 10005 Fax:718-313-0050

3

Likewise, the Second Circuit Court of Appeals reviewed all of Woos evidence in May

2012, and concluded that this Court was correct in finding that Woo had not adduced evidence

showing either that emergency circumstances existed or that Woo lacked time to obtain a court

order before removing the Southerland children from their home. Southerland v. City of New

York, 680 F.3d 127, 151 (2d Cir. 2012) (Southerland III) ([W]e cannot conclude as a matter

of law that it was objectively reasonable for Woo to believe that his acts did not violate those

clearly established rights.) (internal quotations and citations omitted).

Importantly, the Second Circuits opinion recommended - but did not require - this Court

to permit the parties to engage in additional discovery before trial to determine whether judgment

as a matter of law would be appropriate. Id. at 162 (The district court may, although it need not,

permit additional discovery, a renewed motion for summary judgment, or both.). Despite this

Court providing Woo extraordinary latitude in seeking additional evidence via subpoenas,

several depositions, and additional discovery requests, Woo has not produced to the Court or to

the plaintiffs even one additional new fact in support of his contention that emergency

circumstances existed at the time of the removal.

Additionally, Woo conceded in a May 14, 2013, pre-trial conference that police officer

Christopher Aitola, who accompanied Woo during the search and removal, testified under oath

that he did not observe any hazardous or dangerous conditions in the apartment at the time of the

removal. Woos concession that P.O. Aitola denied dangers or hazards were present further

rebuts Woos claim that emergency circumstances existed. Surely, where a police officer

specially trained as a first-responder to emergencies states under penalties of perjury that no

emergency existed, Woo could not feasibly rebut such testimony by merely restating the same

evidence that this Court and the Second Circuit already deemed insufficient to show emergency

circumstances. This point is especially poignant when viewed in conjunction with Woos May

21, 2013, revelation in that he misplacedall of the Family Court hearing transcripts, six in total,

which contained sworn testimony about the events giving rise to this litigation. See Woo Email

of May 21, 2013, attached as Exhibit 2. By mislaying those transcripts, Woo lost his last

remaining opportunity to prove that testimony given in those Family Court proceedings pointed

to evidence indicating emergency circumstances at the Southerland home on June 9, 1997.



4/11

Brian King, Esq.

KFIRM LLP

40 Wall St, 28th


New York, NY 10005 Fax:718-313-0050

4

What is more, at the close of the Family Court proceedings in July 1998, the Family

Court issued an order in which it declined to affirm that emergency circumstances attended the

June 1997 removal. See Woo Letter of May 16, 2013 (Doc. 260). The Family Courts 1998

order leaves no doubt that the preponderance of sworn testimony given in the Family Court

corroborated the plaintiffs contention that no emergency circumstances existed. And because

Woo somehow lost all six of the transcripts from the underlying proceedings, the Family Court

order further corroborates the exact conclusion that this Court reached in 2007, and the Second

Circuit reached last year: none of Woos proffered evidence is sufficient to show that emergency

circumstances existed at the time of the June 1997 removal. Indeed, the July 1998 order supports

only the conclusion that no emergency circumstances existed when Woo, accompanied by P.O.Aitola, removed the children.

Before analyzing the July 1998 order further, it should first be noted that Woo did not

produce a copy of the order to the plaintiffs until May 24, 2013, less than one week ago, and

more than eleven years after it was first due2

as a mandatory initial disclosure pursuant to Rule

26. See Fed. R. Civ. P. 26(a)(1)(C) (mandating that initial disclosures be made within 14 days of

the Rule 16(f) conference).

As a second violation of Rule 26, Woos disclosure of the order comes more than ten

years after the plaintiffs demanded it in discovery requests. See Plaintiffs First Set of

Interrogatories and Request for Production of Documents, attached as Exhibit 3.

Third, Woo achieved a veritable trifecta of Rule 26 violations by producing the July 1998

order to the plaintiffs merely 10 days before trial, which violates Rule 26s mandate that it be

served at least 30 days before trial. See Fed. R. Civ. P. 26(a)(3)(iii) and (a)(3)(B).

The fact that Woo missed the November 2001 initial disclosure deadline might have been

excusable but for the fact that Rule 26 imposes an ongoing duty on all parties to supplement

initial disclosures and discovery responses in a timely manner. See Fed. R. Civ. P. 26(e)(1)(A)

(mandating that a party must supplement or correct its disclosure or response in a timely

manner if the party learns that in some material respect the disclosure or response is incomplete

2 The Rule 16(f) Scheduling Order in this case was entered on October 8, 2001 (Doc.72).



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Brian King, Esq.

KFIRM LLP

40 Wall St, 28th


New York, NY 10005 Fax:718-313-0050

5

or incorrect, and if the additional or corrective information has not otherwise been made known

to the other parties during the discovery process or in writing.).

Certainly, where Woo has invoked the July 1998 order in virtually every filing in this

case, including filings with the Second Circuit and the U.S. Supreme Court, it seems doubtful

that his 11-year delay in disclosing it was merely an oversight. Woos act of withholding this

document intentionally for over a decade, only to produce it on the eve of trial, demonstrates his

complete disregard for the numerous courts and judges before whom he has appeared. As such,

this Court should order Woo to show cause why he should not be assessed financial penalties for

leading this Court, the Second Circuit, the U.S. Supreme Court, and the plaintiffs on what turned

out to be a wasteful and extravagant 14-year thought experiment. See Fed. R. Civ. P. 11(c)(3).As noted before, this Court permitted Woo to conduct post-remand discovery for the

explicit purpose of finding additional evidence that would support a motion for judgment as a

matter of law. As also stated, the plaintiffs were permitted no further discovery. In a twist of

irony, Woos unfettered discovery privileges have revealed that a police officer did not observe

emergency circumstances or hazards at the Southerland home at the time of the removal. Those

same generous discovery privileges have revealed that Woo lost every transcript of sworn

testimony that might have feasibly contained evidence to the contrary. And those same

discovery privileges have revealed that the Family Court, after receiving the sworn testimony of

P.O. Aitola and other affiants, declined to affirm Woos assertion that emergency circumstances

were afoot at the time of the removal. That is, the July 1998 Family Court order, declining to

affirm Woos allegations of emergency circumstances, comports perfectly with this Courts and

the Second Circuits identical finding that Woo failed to present sufficient evidence that

emergency circumstances warranted an extra-judicial removal. As a matter of formal logic,

where one state court and two federal courts have reviewed Woos entire body of evidence and

found it insufficient to support a finding that emergency circumstances existed, no reasonable

jury could find upon hearing a police officer testify in the negative that such emergency

circumstances existed. Surely, a jury ought not to be impaneled simply to confirm what three or

more separate courts have already concluded: No emergency circumstances were afoot at the



6/11

Brian King, Esq.

KFIRM LLP

40 Wall St, 28th


New York, NY 10005 Fax:718-313-0050

6

time of the removal. Poetically, Woos post-remand discovery efforts have only yielded

evidence rebutting his own contentions and proving the plaintiffs claims.

In sum, because it is undisputed that the Family Court, this Court, and the Second Circuit

all found that Woo failed to adduce sufficient evidence supporting his contention that emergency

circumstances were present; and because it is undisputed that P.O. Aitola provided sworn

testimony that no emergency circumstances were in fact present; and finally because it is

undisputed that Woo has failed to uncover, despite strenuous searches over the last several

months, new evidence from any of source corroborating the existence of emergency

circumstances, the plaintiffs are presently entitled to a favorable judgment on claims that Woo

violated their procedural due process rights by conducting a removal in the absence ofemergency circumstances.

II. Woos qualified immunity defense based upon objective reasonableness necessarilyfails in the absence of competent evidence that emergency circumstances existed at the

time of the removal.

Consequently, the foregoing circumstances also foreclose Woos qualified immunity

defense based upon objective reasonableness. As this Court is aware, the objective

reasonableness defense is a mixed question of law and fact. See Bailey v. Pataki, 708 F.3d 391

(2d Cir. 2013) (entering a judgment dismissing the defendants qualified immunity defense after

finding that the evidence adduced at the summary judgment staged failed to demonstrate that the

defendants acts were objectively reasonable). A direct application of the undisputed facts in

Section I requires this Court to find, as it did in 2007, and as the Second Circuit found in 2012,

that Woo has failed to adduce evidence sufficient to support a finding of objective

reasonableness. To be sure, logical reasoning forecloses this Court from reversing its own

previous findings as well as the previous findings of the Family Court and the Second Circuit

in the wake of new information corroborating those findings, and in the absence of new

information rebutting those findings. Accordingly, this Court must enter a judgment in favor of

the plaintiffs on their procedural due process claims.



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Brian King, Esq.

KFIRM LLP

40 Wall St, 28th


New York, NY 10005 Fax:718-313-0050

7

III. Woos May 24, 2013 revelation that he never in fact obtained an order confirming theexistence of emergency circumstances proves the plaintiffs claims that they did not

receive a timely and adequate hearing after the removal.

Turning to the plaintiffs second theory of liability, Woo must be held liable for

violations of the plaintiffs procedural due process rights if Woo cannot adduce evidence that the

plaintiffs were given an adequate and timely opportunity after the June 1997 removal to contest

Woos proffered explanation for the removal. See Southerland III, 680 F.3d at 151 n.22 ([A]

plaintiff may have a viable claim for violation of procedural due process even where emergency

circumstances existed at the time of the removal, if the plaintiff does not receive a timely and

adequate post-deprivation hearing.).

Woos feverish, if not desperate, post-remand discovery efforts gives light to yet another

pivotal revelation: Woo never obtained an order from a Family Court judge affirming that

emergency circumstances existed at the Southerland home. Notwithstanding repeated

representations over the last 16 years that he obtained an order from Judge Turbow in June 1997,

Woo revealed on May 24, 2013, just five days ago, that he did not in fact obtain such an order.

This eleventh-hour revelation could not have been less timely, considering that the existence or

non-existence of the order is a matter of utmost materiality to every claim the plaintiffs have

lodged and every defense Woo has invoked in this sprawling litigation. In illustration of the

orders import, Woos representation that Judge Turbow issued such an order was so crucial that

a unanimous panel of Second Circuit judges relied upon it as the sole basis for dismissing the

plaintiffs substantive due process claims. Of course, neither this Court nor the Second Circuit

could have known that Woo would later reveal, more than a year later, that he does not now nor

has he ever possessed any such order.

From the time this case was filed in June 1999, Woo has repeatedly misled this Court as

well as reviewing courts about the existence of the mythical June 1997 orderonly to admit ten

days before trial that he never actually obtained any such order. Woos misrepresentations and

omissions seem to have no end. Woo stands accused of knowingly misrepresenting information

and omitting material facts in order to defraud a state court into giving him a search warrant.

Thus, it should not be to anyones astonishment that he waited well over a decade to advise this

Court and the plaintiffs that he did not actually obtain an order affirming the June 1997 removal.



8/11

Brian King, Esq.

KFIRM LLP

40 Wall St, 28th


New York, NY 10005 Fax:718-313-0050

8

It might never have occurred to Woo that there is something unethical about withholding this

pivotal fact, thereby needlessly diverting federal judicial resources over the span of this

litigation. By the same token, Woo apparently was undeterred by the fact that his material

omissions worked a further hardship upon the plaintiffs. The plaintiffs have waited 16 years for

some type of explanation and redress regarding Woos woeful decision to remove them from

their happy home only to learn last week that Woo never obtained an order affirming the

grounds for the removal.

Undoubtedly, if any questions persist as to whether Woo willfully, knowingly, or

maliciously misrepresented or omitted material facts in order to obtain a search warrant in 1997,

one might reasonably infer that if Woo could mislead this Court and other courts over a period of14 years, he would readily mislead a state court for the purposes of obtaining a search warrant. It

is not clear how reasonable jurors could conclude otherwise -- excepting, of course, the reality

that Woo, a clear enemy of truth and the rule of law, would be just as inclined to mislead and

defraud a jury as he is inclined to defraud state and federal courts.

The consequences of Woos recent revelation are numerous the most important being

that by revealing at this late date that he did not obtain an order, Woo has generously satisfied

the plaintiffs burden of showing that he did not obtain an order. To clarify, the presumed

existence of a June 1997 order was taken by this Court as well as the Second Circuit as possible

evidence that the plaintiffs had been provided an adequate and timely opportunity to contest the

propriety of the June 1997 removal. As the theory goes, the order itself would possibly show

that the children and/or Mr. Southerland had an adequate and timely opportunity to contest the

propriety of Woos June 1997 removal. The sufficiency of the orders contents in evincing an

adequate and timely adversarial hearing was, of course, entirely speculative because the

document itself had apparently never been produced by or to any party, nor attached to any

filings or pleadings, nor otherwise possessed by Woo or his attorneys, who smartly make no

claim of having ever possessed a copy of the order.

Even if this Court were to take Woo at his word that such an order ever existed, the fact

that Woo does not have an order, combined with the fact that he lost the transcripts of the post-

removal proceedings, forecloses any opportunity he might have otherwise had to corroborate his



9/11

Brian King, Esq.

KFIRM LLP

40 Wall St, 28th


New York, NY 10005 Fax:718-313-0050

9

assertion that those proceedings accorded the plaintiffs the procedural due process to which they

were entitled. However, as outlined in Section II above, it does not appear that those transcripts

would have availed Woo even if he could locate them being that at the end of the Family Court

proceedings, the purported July 1998 Family Court order gave no indications that the plaintiffs

were permitted to challenge Woos basis for the removal. The July 1998 order, in fact, omitted

any reference to the conditions Woo allegedly observed in June 1997. Likewise, the July 1998

order did not corroborate in any way Woos assertions that emergency circumstances were at

hand in June 1997. Tellingly, the order does not even make reference to 1997 or dates therein.

Judging by the contents of the purported July 1998 order, it is inconceivable that the proceedings

leading to it would have corroborated either the existence of emergency circumstances or theexistence of a June 1997 order.

Astonishingly, a careful inspection of the June 1998 order, when compared to documents

Woo filed today, May 29, 2013, reveals that Woo will stop at nothing short of fabricating

documents in order to mislead this Court. To wit, today Woo submitted a document purporting

to be a record of a case begun on June 13, 1997. See Letter by Timothy Woo of May 29, 2013

(Doc. 283, Exh. B). Woos Exhibit B indicates that the docket number for the case carrying the

removal affirmation order is N-13432/97. It would seem, upon reviewing this submission, that

Woos will to deceive is only delimited by his poor attention to detail -- for in submitting a July

1998 order with the docket number 13423/97, he transposed the numbers 2 and3 in the

docket number that appears on his Exhibit B. This means that either the document he submitted

today with 13432 is a fabrication, or, alternatively, the document he provided the plaintiffs on

May 24, bearing 13423, is a fabrication. To be sure, a 1998 order could not have a docket

number that was issued before the docket number of a 1997 order it is averred to affirm. Stated

differently, Woo has tried to convince this Court that the docket number relating to the July 1998

order affirming Woos decision was somehow issued before the alleged June 1997 action was

even docketed. The plaintiffs do not know and need not prove which of Woos submissions is a

fabrication because, no matter which one is the fabrication, they both illustrate the murky, lurid

depths to which Woo will stoop, shamelessly, in order to defraud any and every court that gives

him the opportunity to be heard. Woo so desperately wants to avoid liability here that he has



10/11

Brian King, Esq.

KFIRM LLP

40 Wall St, 28th


New York, NY 10005 Fax:718-313-0050

10

mounted a challenge to scientific conceptions of space-time. Judgment for the plaintiffs is not

only due; it is long overdue.

IV.ConclusionFor the last 14 years this Court has engaged in a constitutional analysis on the basis of

what ultimately turned out to be merely a hypothetical June 1997 order. As a hypothetical, the

order might have recorded the solemn and necessary legal procedures antecedent to depriving

Mr. Southerland ofthe fundamental right ... to make decisions concerning the care, custody,

and control of his children. Southerland III, 680 F.3d at 142 (emphasis added). For a decade

and a half, Woo touted that the same hypothetical order would, when finally unveiled, show that

he was justified in depriving the Southerland children of theirparallel constitutionally

protected liberty interest in not being dislocated from the emotional attachments that derive

from the intimacy of daily family association. Id. (emphasis added). Such an order, embodying

all the procedural process that the plaintiffs contend they were denied, and Woo contends they

were provided, was as much the centerpiece of Woos defense strategy and it was a stumbling

block for the plaintiffs procedural due process claims.

Plaintiffs have contended from the start that they were not provided a timely and

adequate opportunity to challenge Woos removal decision. Up until a few days ago, Woo

lacked the integrity and decorum to advise any person or court that he never in fact possessed an

order. Now that this fact is known, Woos thought experiment must come to an end for if there

is no order, Woo could not hope to prove that the plaintiffs were provided an adversarial hearing

in order to challenge Woos removal decision. In the absence of record evidence as to the

substance of the post-removal judicial confirmation proceeding, Woo simply adduces no

evidence permitting the conclusion that the Family Court confirmed the June 1997 removal

and/or that the plaintiffs received procedural due process. Certainly, where this Court and the

Second Circuit have each found the residuum of Woos evidence insufficient to demonstrate

emergency circumstances, the non-existence of the June 1997 order further corroborates that no

court has ever found, upon review of Woos evidence, that emergency circumstances abided the

Southerland home on June 9, 1997.



11/11

Brian King, Esq.

KFIRM LLP

40 Wall St, 28th


New York, NY 10005 Fax:718-313-0050

11

The law requires that Woos allegations be cast in the most favorable light for the

purposes of determining the merits of this motion. Notwithstanding that standard, no amount of

favor, preference, or benefit of the doubt can overcome the grotesque luminescence of Woos 16-

year secret, to which he finally confessed last week -- only after Judge Bloom demanded he turn

over a copy of the coveted June 1997 order. Indeed, Woo has relied upon the benefit-of-the-

doubt from the moment he filed a false affidavit in 1997 seeking a search warrant. From that

moment forward he has continued to abuse the trust and confidence society ought to be able to

place in governmental officers especially those performing the duties of a family social worker.

He has flagrantly violated the trust of the Family Court, this Court, the Second Circuit, the U.S.

Supreme Court, and most grievously, the millions of U.S. citizens that counted on him to carryout his role as a social worker with integrity. The most favorable light casts Woo as a rogue

governmental official, who has led numerous state and federal court on a complicated, complex

scam in order to avoid his responsibility to bear, faithfully, his governmental authority.

The undersigned, formerly and always a United States Marine, sworn to protect and

defend the United States Constitution against all enemies, foreign and domestic, has yet to

reconcile Woos actions over the last 16 years with his trusted role as a governmental official. In

contrast to what one would come to expect from a government official, Woos long-running

scheme displays him as a preeminent enemy of the U.S. Constitution and the rule of law. And

owing to Woos extraordinary distinction, only recently brought to light, I seriously doubt that

any person sworn to uphold the U.S. Constitution and the rule of law would now be inclined to

shake his sullied hands.

Respectfully and Dutifully,

/s/Brian KingBrian King, Esq.
