Professional Documents
Culture Documents
JAMES B. STEGEMAN,
JANET D. MCDONALD, CIVIL ACTION
Plaintiffs FILE NO: 1:08-CV-1971
vs.
of Order Denying Plaintiffs Relief from Judgment. Plaintiffs Move the Court to
Reconsider it‘s Order Denying them Relief, and to cite authority supporting this
Court‘s Ruling.
This Court has failed/refused to address the grounds for which Plaintiffs
requested relief under Rules 60(b)(2),(3),(4), and (6) and stated only that Plaintiffs
were barred by the one year statute of limitations, and what was not barred by the
one year statute of limitations, Judge Duffey himself has been deemed untimely
anyway.
Plaintiffs have shown through undisputed fact that there is newly discovered
and with intent to harm Plaintiffs fabricated and forged real property documents
and committed a fraud upon the court to obtain rulings in their favor and to defraud
the Plaintiffs.
Plaintiffs, only a few days ago, discovered that the Exhibits they had
attached to their Rule 60(b) Motion/Brief, appear nowhere on the Docket as having
been filed, and are not included as part of the Brief. It is unconscionable that due
conclusive, that the Courts, the court‘s Clerks, and others who are officers of the
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disputes, signing and having Orders filed eighteen minutes before the hearing is set
to begin, and that a Judge would act as counsel for the defendants as the only
It is further unconscionable that the Courts and their clerks have tampered
with and hindered Plaintiffs‘ ability to prosecute their case and their Right to
Appeal.
EXHIBIT 1: The Docket Report - clearly shows that the last entries prior
to Plaintiffs‘ Motion for Relief under Rule 60(b)(2),(3),(4), and (6), was on March
attachments included with the March 2010 Motion and Brief. Either the Court or
it‘s clerk removed the Exhibits of ―newly discovered evidence‖, and falsified the
date the Motion was delivered to the Court, so that the claim could be made that
1
*EXHIBIT 2 from the United States Postal Service, shows they delivered the
Motion and Brief on March 31, 2010; the Docket report shows April 1, 2010 Judge
Duffey claimed that the Motion was untimely, because of a one year statute of
limitation, thus the explanation of why the Motion was held until the following day
before being filed.
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Judge Duffey, failed/refused to address the grounds for which Plaintiffs
sought relief under FRCP Rules 60(b)(2),(3),(4), and (6); the three (3) page Ruling
The Court complained that Plaintiffs had already filed a motion for
entertained.‖ Plaintiffs have met the requirements for their Motion, they have
shown that there is new evidence which could not have been obtained prior to the
Court‘s Ruling, or in time for a Rule 59 motion for new trial; they have shown that
defendants committed fraud upon the court to obtain rulings in their favor; they
have shown that they were denied a fair and impartial tribunal thereby denied due
process which makes rough the Court‘s Rulings void; and other acceptable grounds
for the setting aside of the judgment. Nevertheless, the court ignored, and denied
Further, the court is well aware that the Plaintiffs would be,2 and have been
2
Although in his Ruling, Judge Duffey stated that he was confident that Plaintiffs would
have the opportunity to bring their Civil and Constitutional Rights violations in front of
Judge Becker [Doc.20,pgs.19-20], Judge Duffey knew for a fact that Plaintiffs‘ case had
been dismissed with prejudice by Judge Becker in retaliation, the day after Judge Becker
was served with Summons and complaint. Nevertheless, Judge Duffey‘s claim of
confidence in Judge Becker, must have meant that he was confident that she would not
recuse herself and that even though neither she nor the Superior Court had jurisdiction
over Plaintiffs‘ real property at that point, that Judge Becker would see to it that Georgia
Power prevailed.
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denied the Right to seek redress of Civil and Constitutional Rights under color of
law in state court, and have no other avenue to seek redress for the violations.
Judge Duffey‘s Order dismissing under Younger states that Plaintiffs may have a
legitimate complaint, but should they come back to Federal Court, he will have the
guaranteeing the defendants that Plaintiffs will be blocked should they try to refile
their case.
that Dale Reiner from Georgia Power Co. contacted him on August 13, 2007 for a
title search; page 3, ¶10 shows that Mr. Reiner again contacted Mr. Calloway
November 20, 2007 to request a public records search. Defendants filed their
Verified Answer in Superior Court on December 3, 2007 well after Mr. Calloway‘s
research.
Having been denied all knowledge of Mr. Calloway and the services he had
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performed for Georgia Power, has violated due process of law, and kept pertinent
information from the Plaintiffs that would have assisted their prosecution of their
case.
perjured themselves within the courts, thereby committed fraud upon the court to
obtain favorable rulings. The Court aided the defendants‘ and showed favoritism
toward the defendants by creating and adding defenses for them; Judge Duffey‘s
actions denied Plaintiffs due process of law, denied Plaintiffs a fair and impartial
tribunal. The Rulings are not merely voidable, they are void and must be set aside.
judgment as void if the court ―acted in a manner inconsistent with due process." Id.
at 86 (citing Wonder v. Southbound Records, Inc., 364 So. 2d 1173 (Ala. 1978)). It
should be noted here that a Rule 60(b)(4) motion involves a different standard of
review than the other Rule 60(b) subsections since the court held "[w]hen the grant
or denial turns on the validity of the judgment, discretion has no place for
operation. If the judgment is void it must be set aside ...." Fisher, 565 So. 2d at 87.
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The first time Georgia Power contacted Mr. Calloway, Plaintiffs‘ property
had yet to be trespassed onto and criminally damaged. Undisputed facts clearly
show that Georgia Power had actual knowledge that they lacked an easement over
Plaintiffs‘ property.3 This vital information had been secreted from Plaintiffs in
both the Superior Court, and in this Court, it is newly discovered evidence.
"Since attorneys are officers of the court, their conduct, if dishonest, would
constitute fraud on the court." H.K. Porter Co., Inc. v. Goodyear Tire & Rubber
Co., 536 F.2d at 1119‖ In Bulloch v. United States, 763 F.2d 1115 (10th Cir.
Judgment and Prescriptive Easement to Georgia Power, shows the Order was
signed and file by 9:12 AM the morning that the hearing was supposed to begin at
9:30 AM.
3
Mr. Calloway further stated that Georgia Power had him look into the property again in
November, before Georgia Power filed their Verified Answer in Superior Court, showing
that Georgia Power‘s Verification in Superior Court was an act of fraud upon the Court
and perjury by Georgia Power‘s in house counsel.
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Plaintiffs have failed to comprehend how a Ruling claiming that Plaintiffs
failed to appear at the hearing [Ex.4] was already signed and filed, eighteen (18)
minutes before the hearing began. In DeKalb County Superior Court, the Judge is
Plaintiffs‘ property to Georgia Power. The Order and references on their Deeds,
and Real Property Records at DeKalb County Property Tax Division [Ex.4,5] are
also ―newly discovered evidence that could not have been discovered in time to file
aimed at judgments which were unfairly obtained, not at those which are
factually incorrect.)
The conduct complained of must be such as prevented the losing party from
fully and fairly presenting his case or defense. Toledo Scales Co. v. Computing
Scale Co., 261 U.S. 399, 421, 43 S.Ct. 458, 464, 67 L.Ed. 719 (1923); Atchison,
Topeka & Santa Fe Ry. Co. v. Barrett, 246 F.2d 846, 849 (9th Cir. 1957); Rubens
v. Ellis, 202 F.2d 415, 417 (5th Cir. 1953). Although Rule 60(b)(3) applies to
4
As shown on file at the Superior Court Clerks Authority website:
http://www.gsccca.org
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misconduct in withholding information called for by discovery, Petry v. General
Motors Corp., 62 F.R.D. 357 (E.D.Pa.1974), it does not require that the
information withheld be of such nature as to alter the result in the case. Seaboldt v.
Pennsylvania RR. Co., 290 F.2d 296, 299-300 (3d Cir. 1961).5
The mere fact that Georgia Power‘s in house counsel perjured himself, and hid
the fact that there had been an examination of Plaintiffs‘ real property records and
and evidence was withheld ―that prevented‖ the Plaintiffs from ―fully and fairly
Wright & Miller comments further on the nature of the "special showing"
to Dismiss [Doc.3-2] pg. 10 is an implied admission that has never been disputed
5
See generally, 11 C. Wright & A. Miller, Federal Practice and Procedure, § 2861 (1970)
6
See generally, 11 C. Wright & A. Miller, Federal Practice and Procedure, § 2864 (1970)
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―committed fraud upon the court, maliciously and negligently
abused process within the Court, made false statements to and
within the Court, then requested the Court to Falsify a record for
them … Georgia Power and its attorneys sought to have the case
against it dismissed.‖
with the Superior Court defendants, and fraud upon the court to obtain rulings in
their favor consistent with the requirements for ―a void judgment‖. It has been
held that ―A void judgment is one that has been procured by extrinsic or collateral
fraud‖ Rook v. Rook, 233 Va. 92, 95, 353 S.E.2d 756, 758 (1987).
Plaintiffs‘ Motion and showing to the Court required the Court to ―vacate
―As many circuits have recognized the absence of discretion under Rule
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60(b)(4) necessitates de novo review.‖ Sea-Land Serv., Inc. v. Caramica Europa
II, Inc., 160 F.3d 849, 852 (1st Cir. 1998); Carter v. Fenner, 136 F.3d 1000, 1005
F.3d 406, 409 (10th Cir. 1995); Indoor Cultivation Equip., 55 F.3d @ 1317; Export
Group v. Reef Indus., Inc., 54 F.3d 1466, 1469 (9th Cir, 1995); Page v. Schweiker,
disqualify himself, which he refused to do; he clearly acted ―outside of his legal
powers‖ Carter, 136 F.3d at 1005 (citation omitted); see also Antoine, 66 F.3d at
108 (quoting In re Edwards, 962 F.2d 641, 644 (7th Cir. 1992)).
The Georgia Power defendants have never disputed that they fabricated the
easement document, and never rebutted Plaintiffs‘ showing that Mr. Wells never
existed. ―Fabrication of evidence… will constitute a fraud upon the court.‖ ―That
fraud which will dictate that the Ruling must be set aside.‖ As the district court
F.Supp. 22, 29 (D.Conn.1972), aff'd without opinion, 410 U.S. 919, 93 S.Ct. 1363,
Wright & Miller comments further on the nature of the "special showing"
Defendants in both state and federal Courts worked a fraud upon the Court
to obtain judgments in their favor. See Bulloch v. United States, 763 F.2d held the
following:
―Fraud upon the court" has been defined by the 7th Circuit:
The Georgia Power defendants have made a mockery of the court(s); and the
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Court‘s clerks‘ apparent willingness to violate rules and procedures, shows a
furtherance of fraud upon the Court.‖ ―Fraud upon the court" has been defined by
the 7th Circuit Court of Appeals to "embrace that species of fraud which does, or
attempts to, defile the court itself, or is a fraud perpetrated by officers of the court
so that the judicial machinery can not perform in the usual manner its impartial
task of adjudging cases that are presented for adjudication." Kenner v. C.I.R., 387
F.3d 689 (1968); 7 Moore's Federal Practice, 2d ed., p. 512, ¶ 60.23. The 7th
Circuit further stated "a decision produced by fraud upon the court is not in essence
Where Rule 60(b)(4) is properly invoked on the basis that the underlying
Shalala, 30 F.3d 1307, 1310 (10th Cir. 1994) (quoting V.T.A., Inc. v. Airco, Inc.,
Judge Duffey tried to claim that Plaintiffs‘ Motion was not timely, but sister
circuits have long held that ―Although Rule 60(b)(4) is ostensibly subject to the
"reasonable" time limit of Rule 60(b), at least one court has held that no time limit
applies to a motion under the Rule 60(b)(4) because a void judgment can never
acquire validity through laches. See Crosby v. Bradstreet Co., 312 F.2d 483 (2nd
Cir.) cert. denied, 373 U.S. 911, 83 S.Ct. 1300, 10 L.Ed.2d 412 (1963) where the
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court vacated a judgment as void 30 years after entry. See also Marquette Corp. v.
Priester, 234 F.Supp. 799 (E.D.S.C.1964) where the court expressly held that
Court‘s Ruling is void, and Plaintiffs have made a proper showing, the ruling must
be set aside.
Court December 26, 20087. Appellant filed Motion for Appointment of Counsel
January 7, 2009.
Appointment of Counsel January 16, 2009, stated that Plaintiff Ms. McDonald
denied Ms. McDonald her Rights to Appeal. Motion for Reconsideration was
7
District Court Order Ruled that the Appeal is not frivolous, and that Appellant is
disabled with limited resources
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nor allowed to cure the defect. The U.S. Supreme Court has stated that Right to
and afforded opportunity to cure the defect‖. Becker 532 U.S. at 764, 766. Judge
In Casanova v. Dubois, 289 F.3d 142, 145 (1st Cir. 2002) at 146 ―eighteen
months had passed after Notice of Appeal had been filed‖; ―based on Becker, the
Appellant filed Motion to Recuse Judges Hull, Wilson and Marcus February
18, 2009; Georgia Power Appellees filed Objection February 23, 2009 to which
Appellant filed a Reply on March 6, 2009. The Motion went totally ignored.
The Appellate clerk ruled Motion to Recuse Moot, and dismissed the appeal
Appeals‘ own Rules and the FRAP, thereby she further violated Plaintiffs‘ Rights.
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B. Denial of Mr. Stegeman‟s Right to Appeal
From inception, the Appellate Clerk tampered with and hindered Plaintiffs‘
attempt to Appeal. Judge Hull saw to it that a Plaintiff Ms. McDonald was not
afforded opportunity to cure defect in Notice, and take part in the appeal; and the
Appellate Clerk failed to adhere to 11th Cir. R. 42-1(b), thereby denying Plaintiff
Mr. Stegeman his‘ Right to Appeal, obvious disparate treatment. Plaintiffs had
been treated differently than others in the same position, which resulted in
applies to the class of cases implicating the accessibility of judicial services‖ 541
U.S. at 331.
8
The case was before Judges Edmondson, Hull and Forrester
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541 U.S. at 522-523; accord Constantine, 411 F.3d at 486-487.
―Mere negative attitudes alone cannot justify disparate treatment
of those with disabilities‖ University of Ala. V. Garrett, 531 U.S.
356, 367 (2001).
Plaintiff was not provided the Court of Appeals Local Rules, Rule 42-1(b)
Notice, which goes against U.S. Supreme Court Rulings on the issue. One doesn‘t
predetermined.
The United States Supreme Court, and sister circuits have long held that
that the late filing of a brief is ―insufficient to warrant dismissal‖, see Marcaida v.
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(late filing of record).
―In Childs v. Kaplan, 467 F.2d 628 (8th Cir. 1971), the court
held that the appeal of an appellant who did not file a brief would
not be dismissed for want of prosecution….‖
C Clerk‟s Communications
To the average lay person apprised of all the facts, would be forced to
conclude that this Court and it‘s clerk, working in harmony with the Appeals court
and it‘s clerk effectively halted Plaintiffs‘ ability to appeal the trial court‘s ruling.
The following shows to what extent the appellate clerk had been willing to go to
that the Appeal had been Dismissed for failure to prosecute, and Motion to Recuse
was Moot.10 Motion to Recuse is an appealable Order that cannot become Moot
because the appellate court and it‘s Clerk chose to ignore it.
Appellant‘s Brief and Record Excerpts11 per April 6, 2009 conversation with
9
(a) thru (d) are subsections of Exhibit 7, i.e. Exhibit 7(a); 7(b), etc.
10
Appellant was not sent Notice, or an Order, he only received the Clerk to Clerk
communication which stated Appeal was dismissed and Motion to Recuse was Moot.
11
Records Excerpts consisted of: District Court Docket Sheet, Complaint, Answers from
both sets of Appellees, the Rulings/judgments Appealed, Certificates of Interested
Persons, and Certificates of Service.
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clerk, were hand delivered to the Court Clerk, via courier on April 13, 200912
(b) April 18, 2009 Appellant received a letter from the Appellate Clerk stating
Mr. Stegeman had failed to file a Motion to Reinstate.13 Plaintiff quickly, within
three (3) days, filed Motion to Reinstate the Appeal April 22, 2009.
(c) May 8, 2009 letter from the Appellate Clerk that the Court had not received
Although Appellant is 100% positive the documents had been submitted with the
Brief and Record Excerpts, he re-submitted them, via USPS Overnight signed for
(d) May 22, 2009 letter stated ―if the corrections for the record excerpts were
not received within fourteen days, the motion to reinstate will be returned unfiled‖.
Plaintiff called the clerk, was told she was out of town for the week. Appellant
12
Appellant quotes the date he received a communication from the Clerk; the date(s) he
references as filing or filed are the dates stamped ―FILED‖ on Appellant‘s copies;
Appellant calls to this Court‘s attention that he cannot be sure what was actually Filed, as
the Docket Report does not coincide with his ―Filed‖ copies. Appellant cannot say for
sure the document was ever even Filed, although his copy does reflect ―Filed‖, not
―Received‖, but ―Filed‖.
13
The telephone conversation with the Clerk informed Appellant that the only thing
needed to be filed was the Brief and Record Excerpts, which was timely complied with;
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July 09, 2009, Plaintiff Mr. Stegeman received Order Denying Motion to
defendants in order to defraud the Plaintiffs and to obtain rulings in their favor in
disparate treatment; denied his Fourth, Fifth and Fourteenth Amendment Rights,
process bestowed upon the Plaintiffs in this case shows ―such a degree of
United States, 510 U.S. 540, 114 S.Ct. 1147, 127 L.E.2d 474, (1994):
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517 F. 2d 1044, 1051 (CA5 1975), cert. denied, 425 U.S. 944
(1976)).
Judge Duffey, Jr., and the verbal assault upon these Plaintiffs falls within
the category of the ―pervasive bias exception to the extrajudicial source doctrine‖.
Obviously, the Judge‘s actions clearly show that he could not find in favor of
Plaintiffs whether every other Judge would have or not. The ―high degree of
favoritism and antagonism displayed by Judge Duffey against these Plaintiffs show
first. Plaintiffs have read many of Judge Duffey‘s Rulings in other cases, which he
always addresses the Plaintiffs, and then the defendants as other Judges do. When
these particular Plaintiffs are before the Court, the defendants are discussed first;
showing his deep seated favoritism. There is no question that Judge Duffey had to
disqualify himself from sitting over this case due to prejudice/bias, and
the defendants.
cannot come in as a party if they filed a dispositive motion to dismiss and refuse
a party being denied any property, could logically be viewed as having been
verbal assault and over twenty pages that it took to write an Order to Dismiss under
Younger Abstention, for lack of jurisdiction. The U.S. Supreme Court has held in
a long and venerable line of cases that, without proper jurisdiction, a court cannot
proceed at all, but can only note the jurisdictional defect and dismiss the suit. See,
e.g., Capron v. Van Noorden, 2 Cranch 126; Arizonans for Official English v.
Arizona, 520 U.S. 43. Bell v. Hood, supra; National Railroad Passenger Corp. v.
National Assn. of Railroad Passengers, 414 U.S. 453, 465, n. 13; Norton v.
Mathews, 427 U.S. 524, 531; Secretary of Navy v. Avrech, 418 U.S. 676 , 678 (per
14
Black’s Law Dictionary, 7th Ed. pg. 94
15
Black’s Law Dictionary, 7th Ed. pg. 95
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curiam); United States v. Augenblick, 393 U.S. 348 ; Philbrook v. Glodgett, 421
U.S. 707, 721; and Chandler v. Judicial Council of Tenth Circuit, 398 U.S. 74,
Judge Duffey, Jr. ruled that he had investigated into the proceedings in
Superior Court16 and found no constitutional or due process violations. One can
only conclude that Judge Duffey has deemed Georgia statute concerning land
Supreme Court and Georgia Court of Appeals have ruled wrongly concerning real
property and easements; and deemed that The United States and State of Georgia
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2002); In Re Atlantic Pipe Corp., 304 F.3d 136, 143 (1st Cir.
2002)
Judge Becker in the Superior Court action, and a defendant, lacked personal
and subject matter jurisdiction over Plaintiffs and their real property, ruled in favor
Motion for Summary Judgment. Becker‘s ruling, a ruling obtained through fraud
and fraud upon the Court, violated due process of law, and Plaintiffs‘ right to a fair
and impartial tribunal.. Her Rulings go directly against Rulings of The Supreme
Court of Georgia which has consistently Ruled against utility companies having
prescriptive easement. The ruling isn‘t merely voidable, but it is Void on it‘s face.
Plaintiffs as they sought redress against state entities for acts which violated
Plaintiffs‘ Civil and Constitutional Rights under color of law, while Plaintiffs had
been attempting to exercise their statutory, civil and constitutional rights. Judge
Becker, without following mandatory Georgia statute for issues involving real
property and owners of the real property, granted Georgia Power what the Courts
have repeatedly insisted Georgia Power cannot be granted. Judge Becker aided
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and assisted Georgia Power in the perpetration of several crimes.
When a party has been denied the fundamental right of due process of law,
real property taken without just and adequate compensation, they have a right to
seek redress against the state. The Courts are not a sacred palaces reserved only
for Judges and attorneys, in which the Judges have an obligation to attorneys, and
act and rule in a manner that will guarantee the attorneys, long successful careers
The actions of the Courts in this matter, causes everyone who has read the
Briefs to question the integrity of the three Courts discussed above, and the
integrity of the Judicial system as a whole. Relief setting aside the Ruling is
By: ______________________________
JAMES B. STEGEMAN, Pro Se
821 Sheppard Rd
Stone Mtn, GA 30083
(404) 300-9782
By: ______________________________
JANET D. MCDONALD, Pro Se
821 Sheppard Rd
Stone Mtn, GA 30083
(404) 300-9782
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CERTIFICATE OF COMPLIANCE
In compliance with LR 7.1D, N.D. Ga., I certify that the foregoing Motion
has been prepared in conformity with LR 5.1, N.D. GA. This Motion was prepared
with Times New Roman (14 point) type, with a top margin of one and one-half
(1.5‖) inches and a left margin of one (1‖) inch, is proportionately spaced.
___________________________
JANET D. MCDONALD, Pro Se
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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA,
Atlanta Division
JAMES B. STEGEMAN,
JANET D. MCDONALD, CIVIL ACTION
Plaintiffs FILE NO: 1:08-CV-1971
vs.
RELIEF FROM JUDGMENT
SUPERIOR COURT STONE
MOUNTAIN JUDICIAL CIRCUIT,
et., al;
Defendants
CERTIFICATE OF SERVICE
I Certify that I have this 4th day of May, 2010, served a true and correct
copy of the foregoing Plaintiffs’ Motion for Reconsideration of Order Denying
Plaintiffs Relief from Judgment. upon Defendants, through their attorney on file
by causing to be deposited with U.S.P.S., First Class Mail, proper postage affixed
thereto, addressed as follows:
Daniel S. Reinhardt Devon Orland
Troutman Sanders, LLP State of Georgia Dept. of Law
Bank of America Plaza – Suite 5200 40 Capitol Square, S.W.
600 Peachtree Street, NE Atlanta, GA 30334-1300
Atlanta, GA 30308-2216
_____________________________
JAMES B. STEGEMAN
821 Sheppard Rd,
Stone Mtn, GA 30083
(404) 300-9782
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