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Case 4:08-cv-01791-CEJ Document 1

Filed 11/19/08 Page 1 of 33

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION James Helenthal, Plaintiff, v. CHARLES POLK And LATHROP & GAGE, L.C. And GILBERT BOYCE And Defendants ) ) ) ) ) ) ) ) ) )

Cause # JURY TRIAL DEMANDED ________________________

COMPLAINT For his causes of action against the defendants, plaintiff states: JURISDICTION: 1. Jurisdiction is based on diversity of citizenship and amount under Title

28 U.S.C. 1332. Plaintiff James Helenthal is a citizen of Illinois. Defendant Charles Polk is a citizen of Missouri who is currently a prisoner in the custody of the Bureau of Prisons of the U.S. Government serving a sentence Ordered by Hon. Judge Limbaugh of this Court in Cause # 4:05-CR-00157-SNL-FRB on August 31, 2006, after Polk plead guilty to a series of federal crimes, including crimes against plaintiff Helenthal that are in part the subject of this suit. Defendant Lathrop & Gage, L.C. is a limited liability company and a citizen of Missouri. Defendant Boyce is a citizen of Washington, D.C. The amount in controversy exceeds Seventy Five Thousand dollars, exclusive of interest and costs. 2. Pursuant to Rule 8(a)(2)(3), Plaintiff states that in Count 1 he seeks a

1

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judgment awarding damages against defendant Polk based on Polks tortious misconduct in filing and prosecuting a lawsuit against Helenthal in U.S. District Court Washington D.C. claiming Helenthal breached a contract to employ Polk as his General Counsel in Washington D.C., when that suit was prosecuted to cover up and obstruct Helenthals pursuit of justice with respect to crimes Polk committed against Helenthal, and for which Polk has accepted responsibility and accepted a plea bargain sentence in Cause # 4:05-CR-00157-SNL-FRB that included paying Helenthal restitution of $382,000.00. 3. Pursuant to Rule 8(a)(2)(3), plaintiff states that in Count 2 he seeks a

judgment awarding damages against defendant Lathrop & Gage L.C. for its multiple acts of negligence with respect to Helenthal, its client: negligence in hiring Polk as a lawyer, without adequate research into his competence and fitness, where all his federal crimes were discoverable, among a larger list of misconduct; and/or negligence in making Polk Vice Chairman in charge of Lathrops Washington D.C. office, when Polk was only licensed to practice law in Missouri; and/or negligence in allowing Polk to participate in representing Helenthals Tri-State Shopper Illinois Federal court antitrust suit when Polk was incompetent in antitrust law, and unlicensed in Illinois; and/or negligence in failing to monitor, supervise, and stop Polks fraudulent Fairness for OKC scheme perpetrated on Helenthal while Polk was Lathrops Vice Chairman in charge of its Washington D.C. office; and/or negligence in failing to assist Helenthal in obtain immediate refund and mitigation of losses. 4. Pursuant to Rule 8(a)(2)(3), Plaintiff states that in Count 3 he seeks a

judgment awarding damages against defendant Boyce based on Boyces tortious2

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Filed 11/19/08 Page 3 of 33

misconduct in filing and prosecuting Polks lawsuit against Helenthal in U.S. District Court Washington D.C. claiming Helenthal breached a contract to employ Polk as his General Counsel in Washington D.C., when that suit was prosecuted to cover up, and obstruct Helenthals pursuit of justice with respect to, the crimes Polk committed against Helenthal when on its face the suit was fraudulent and frivolous, and when he knew or should have known the pretenses. 5. Pursuant to Rule 8 (a)(2)(3), Plaintiff states that in Count 4 he seeks a

judgment declaring that a partial summary judgment entered by the City of St. Louis Circuit Court in favor of Lathrop & Gage L.C. against some of Helenthals claims that Lathrop was vicariously liable for Polks misconduct vis--vis Helenthal, and for mail fraud in billing Helenthal for Polks legal work is invalid because it violated Helenthals Constitutional Rights not to be deprived of his property without due process of law, and hence Lathrop & Gage is vicariously liable for all damages Polk has been assessed owing to Helenthal, and liable for mail fraud in billing Helenthal thousands of dollars through the U.S. Mail for legal work by Polk that Polk admitted he never provided all an extension of frauds Polk committed against other clients and which Polk admitted in deposition he never provided, and a Lathrop bill to Helenthal for Polks work in creating the above alleged agreements launching Polks fraudulent Fairness for OKC scheme. More particularly, Helenthal sued Polks in St. Louis County, and sued Lathrop separately in St. Louis City Circuit Court. Helenthal won a default judgment against Polks in the County, and a Damages Only inquiry. Helenthal waived jury trial for the damages only default judgment inquiry as to the damages Polks owed Helenthal.3

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The Court allowed Lathrop to participate as Intervenor in that case, notwithstanding the City Court case had exclusive jurisdiction over Helenthals claim against Lathrop. In unprecedented civil procedure, during the default inquiry the court stopped Helenthals damages proof, and then made findings of fact unnecessary to the damages, without notice, despite objection, and without litigation, to exonerate Lathrop & Gage L.C. and stop Helenthals suit in the City. Helenthal appealed those unlitigated unnecessary findings. The Missouri Court of Appeals affirmed the Default Judgment awarding Helenthals damages from Polks, and ordered that its opinion to be unpublished, not to be cited or used in other case, on the basis it had no precedential value. But then Lathrop convinced the City Circuit Court to use that secrete opinion to collaterally estop Helenthals City Circuit Court case claims Lathrop was vicariously liable for Polk, and mail fraud claims. Helenthal again appealed, and the Missouri Court of appeals issued another secret opinion, not to be used or published memorandum affirming the partial summary judgment, on the basis it had no precedential value. The default judgment damages only inquiry in favor of Helenthal against Polk in St. Louis County secret do not publish, do not use, do not cite, secret appellate opinions do not satisfy Helenthals rights to Due Process of law under the U.S. Constitution, and the estoppel is faulty under principles of law summarized in Restatement (Second) of Judgments, 86-Effect of State Court Judgment in a Subsequent Action in Federal Court (1) (2); 81-Invalid Judgments (multiple state application); 80 Relief in The Course of a Subsequent Action; 71 Judgment Based on Mistake (c) denial of Fair Hearing by the court of the opportunity to present a claim; Judgment other wrongs; 69 Lack of jurisdiction of4

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the County Circuit Court to validly assert any findings purporting to affect Helenthals rights vis--vis Lathrop & Gage (as Intervenor) where the City Circuit Court always had exclusive jurisdiction over Helenthals claims against Lathrop; 1 Requisites of a Valid Judgment; 2 Adequate Notice, and Irregular Notice and subject jurisdiction. Beyond the judgment declaring the purported partial summary judgment is invalid, Helenthal seeks a judgment that Lathrop & Gage is liable vicariously for all Polks damages to Helenthal based on either common law agency, or more importantly extraordinary vicarious liability established by Missouri Limited Liability Company Act, particularly for the County Judgment awarding Helenthal 3.5 million dollars from Charles Polk, and the restitution ordered by this court, and further that Lathrop & Gage L.C. is liable for actual and punitive damages for mailing bills to Helenthal for thousands of dollars of charges ostensibly for legal work Polk did on his case, where Polk admitted (1) he was incompetent in antitrust law, and (2) he never did any legal work for Helenthal, and (3) Lathrop billed Helenthal for Polks legal work in composing the fee split contracts above that launched Polks fraudulent and criminal Fairness for OKC scheme. 6. In Count 5 Helenthal seeks a judgment of damages against Lathrop &

Gage, L.C. for its role in contributing to Polks tortious lawsuit in Washington D.C. where Lathrop was trying to secretly broker a settlement with Helenthal its client while it continued to represent him a federal antitrust suit in Illinois court, knowing that Polk had conned Helenthal for hundreds of thousands of dollars, but refused to credit him. Polk truncated his deposition by invoking his 5th Amendment privileges so5

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Filed 11/19/08 Page 6 of 33

Plaintiffs ability to discover all the dimensions of this has not been fulfilled. 7. In Count 6 Helenthal seeks a declaratory judgment of his rights to have the

Order of Restitution enforced as a judgment in his favor under the Crime Victims Rights Act. 8. Hereafter plaintiff pleads facts with heightened specificity under

F.R.Civ.P. Rules 8(a) and 9(b), as construed in Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955 (2007), Erickson v. Pardus, 127 S.Ct.2187 (2007) and BJC Health System v. Columbia Casualty Co. et al, 478 F.3d 908(8th Cir. 2006) because this case relates to Polks crimes involving fraud culminating in a fraudulent and malicious abuse of process suit by Polk against Helenthal to cover up and obstruct Helenthals pursuit of justice vis--vis Polk and Lathrop & Gage as to those crimes. All attachments are incorporated by reference without repetitive pleading. I. Background