No. 10-11202

In the

United States Court of Appeals

for the Fifth Circuit

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NETSPHERE, INC. Et Al,

Plaintiffs

JEFFREY BARON,

Defendant-Appellant

ONDOVA LIMITED COMPANY,

Defendant-Appellee

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Appeal of Order Appointing Receiver in Settled Lawsuit

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Cons. w/ No. 11-10113

NETSPHERE INC., Et Al, Plaintiffs

JEFFREY BARON, Et Al, Defendants

QUANTEC L.L.C.; NOVO POINT L.L.C.,

Appellants

PETER S. VOGEL,

Appellee

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From the United States District Court

Northern District of Texas, Dallas Division

Civil Action No. 3-09CV0988-F

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EMERGENCY MOTION FOR LIMITED STAY, DISSOLUTION OR

OTHERWISE TO ALLOW JEFF BARON TO DEFEND HIS

INTEREST IN THE “SERVERS.COM” DOMAIN IN THE ONDOVA

BANKRUPTCY PROCEEDINGS

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Case: 10-11202 Document: 00511655466 Page: 1 Date Filed: 11/04/2011

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Cons. w/ No. 11-10289

NETSPHERE, INC., ET AL, Plaintiffs

JEFFREY BARON, Defendant- Appellant

DANIEL J SHERMAN, Appellee

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Cons. w/ No. 11-10290

NETSPHERE, INC. ET AL, Plaintiffs

JEFFREY BARON, ET AL, Defendants

QUANTEC L.L.C.; NOVO POINT L.L.C., Non-Party Appellants

PETER S. VOGEL, Appellee

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Cons. w/ No. 11-10390

NETSPHERE, INC. ET AL, Plaintiffs

JEFFREY BARON, Defendant – Appellant

QUANTEC L.L.C.; NOVO POINT L.L.C., Appellants

ONDOVA LIMITED COMPANY, Defendant – Appellee

PETER S. VOGEL, Appellee

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Cons. w/ No. 11-10501

NETSPHERE, INC. ET AL, Plaintiffs

JEFFREY BARON, Defendant – Appellant

QUANTEC L.L.C.; NOVO POINT L.L.C., Appellants

CARRINGTON, COLEMAN, SLOMAN & BLUMENTHAL, L.L.P.,

Appellant

PETER S. VOGEL; DANIEL J. SHERMAN, Appellees

Case: 10-11202 Document: 00511655466 Page: 2 Date Filed: 11/04/2011

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Interlocutory Appeals of

Orders in Receivership on Appeal

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From the United States District Court

Northern District of Texas, Dallas Division

Civil Action No. 3-09CV0988-F

Hon. Judge William R. Furgeson Presiding

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CERTIFICATE OF INTERESTED PERSONS

The undersigned counsel of record certifies that the following listed persons

and entities have an interest in the outcome of this case. These representations are

made in order that the judges of this Court may evaluate possible disqualification

or recusal.

1. PARTIES

a. Defendant/Appellant: JEFFREY BARON

b. Defendant/Appellee: DANIEL J. SHERMAN, Trustee

for ONDOVA LIMITED COMPANY

c. Intervenor: Rasansky, Jeffrey H. and Charla G. Aldous

d. Intervenor: VeriSign, Inc.

e. Plaintiffs: (1) Netsphere Inc

(2) Manila Industries Inc

(3) Munish Krishan

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f. Appellants: (1) Novo Point, LLC

(2) Quantec, LLC

g. Appellee: Peter S. Vogel

2. ATTORNEYS

a. For Appellant: Gary N. Schepps

Suite 1200

5400 LBJ Freeway

Dallas, Texas 75240

Telephone: (214) 210-5940

Facsimile: (214) 347-4031

b. For Appellee Vogel: Gardere Wynne Sewell LLP

(1) Barry Golden

(2) Peter L. Loh

1601 Elm Street, Suite 3000

Dallas, Texas 75201

Telephone (214) 999-3000

Facsimile (214) 999-4667

bgolden@gardere.com

c. For Appellee Sherman:

Munsch Hardt Kopf & Harr, P.C.

(1) Raymond J. Urbanik, Esq.

(2) Lee J. Pannier, Esq.

3800 Lincoln Plaza / 500 N. Akard Street

Dallas, Texas 75201-6659

Telephone: (214) 855-7500

Facsimile: (214) 855-7584

c. For Intervenor VeriSign: Dorsey & Whitney (Delaware)

(1)Eric Lopez Schnabel, Esq.

(2)Robert W. Mallard, Esq.

d. For Intervenor Rasansky and Aldous: Aldous Law Firm

(1) Charla G Aldous

Case: 10-11202 Document: 00511655466 Page: 4 Date Filed: 11/04/2011

d. For Plaintiffs:

(1) John W MacPete, Locke Lord Bissell & Liddell

(2) Douglas D Skierski, Franklin Skierski Lovall Hayward

(3) Franklin Skierski, Franklin Skierski Lovall Hayward

(4) Lovall Hayward , Franklin Skierski Lovall Hayward

(5)Melissa S Hayward, Franklin Skierski Lovall Hayward

(6) George M Tompkins, Tompkins PC

3. OTHER

a. Companies and entities purportedly seized by the receivership:

(1) VillageTrust

(2) Equity Trust Company

(3) IRA 19471

(4) Daystar Trust

(5) Belton Trust

(6) Novo Point, Inc.

(7) Iguana Consulting, Inc.

(8) Quantec, Inc.,

(9) Shiloh LLC

(10) Novquant, LLC

(11) Manassas, LLC

(12) Domain Jamboree, LLC

(13) Genesis, LLC

(14) Nova Point, LLC

(15) Quantec, LLC

(16) Iguana Consulting, LLC

(17) Diamond Key, LLC

(18) Quasar Services, LLC

(19) Javelina, LLC

(20) HCB, LLC, a Delaware limited liability company

(21) HCB, LLC, a U.S. Virgin Islands limited liability company

(22) Realty Investment Management, LLC, a Delaware limited liability

company

(23) Realty Investment Management, LLC, a U.S. Virgin

(24) Islands limited liability company

(25) Blue Horizon Limited Liability Company

(26) Simple Solutions, LLC

(27) Asiatrust Limited

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(28) Southpac Trust Limited

(29) Stowe Protectors, Ltd.

(30) Royal Gable 3129 Trust

b. Receiver / Mediator / Special Master: Peter Vogel

c. Non-party attorneys seeking fees from the receivership res:

1. Garrey, Robert (Robert J. Garrey, P.C.)

2. Pronske and Patel

3. Carrington, Coleman, Sloman & Blumenthal, LLP

4. Aldous Law Firm (Charla G. Aldous)

5. Rasansky Law Firm (Rasansky, Jeffrey H.)

6. Schurig Jetel Beckett Tackett

7. Powers and Taylor (Taylor, Mark)

8. Gary G. Lyon

9. Dean Ferguson

10.Bickel & Brewer

11.Robert J. Garrey

12.Hohmann, Taube & Summers, LLP

13.Michael B. Nelson, Inc.

14.Mateer & Shaffer, LLP (Randy Schaffer)

15.Broome Law Firm, PLLC

16.Fee, Smith, Sharp & Vitullo, LLP (Vitullo, Anthony “Louie”)

17.Jones, Otjen & Davis (Jones, Steven)

18.Hitchcock Evert, LLP

19.David L. Pacione

20.Shaver Law Firm

21.James M. Eckels

22.Joshua E. Cox

23.Friedman, Larry (Friedman & Feiger)

24.Pacione, David L.

25.Motley, Christy (Nace & Motley)

26.Shaver, Steven R. (Shaver & Ash)

27.Jeffrey Hall

28.Martin Thomas

29.Sidney B. Chesnin

30.Tom Jackson

CERTIFIED BY: /s/ Gary N. Schepps

Gary N. Schepps

COUNSEL FOR APPELLANT

Case: 10-11202 Document: 00511655466 Page: 6 Date Filed: 11/04/2011

TABLE OF CONTENTS

CERTIFICATE OF INTERESTED PERSONS........................................................................... 2

TABLE OF CONTENTS ................................................................................................................ 6

BACKGROUND.............................................................................................................................. 8

The Emke-Vogel Connection ...................................................................................8

The Emke Settlement...............................................................................................8

Baron Prevented From Protecting his Property Rights .............................................9

Vogel Working Against Receivership Estates.........................................................10

Background of Sherman-Vogel and the Receivership.............................................12

STANDARD IN GRANTING STAY PENDING APPEAL........................................................ 16

ARGUMENT & AUTHORITY.................................................................................................... 17

A. LIKELIHOOD OF SUCCESS ON APPEAL – LEGAL ANALYSIS....................... 17

THE RECEIVERSHIP ORDER IS UNCONSTITUTIONAL................................17

THE RECEIVERSHIP ORDER IS NOT AUTHORIZED IN EQUITY.................19

THE POST-APPEAL LEGAL JUSTIFICATIONS OFFERED FOR THE

RECEIVERSHIP ARE LEGALLY GROUNDLESS..............................................19

B. IRREPARABLE INJURY.................................................................................................. 22

C. NO SUBSTANTIAL HARM TO OTHER PARTIES................................................... 23

D. PUBLIC INTEREST........................................................................................................... 23

CONCLUSION.............................................................................................................................. 24

PRAYER......................................................................................................................................... 24

TABLE OF AUTHORITIES ........................................................................................................ 27

CERTIFICATE OF SERVICE..................................................................................................... 29

CERTIFICATE OF NOTICE....................................................................................................... 29

Case: 10-11202 Document: 00511655466 Page: 7 Date Filed: 11/04/2011

TO THE HONORABLE JUSTICES OF THE FIFTH CIRCUIT COURT OF

APPEALS:

COMES NOW JEFFREY BARON, Appellant, and moves for an emergency

order issued by Monday, November 7, allowing Baron to retain counsel of his

choice and to file an objection to the sale of the domain name “servers.com” in the

Ondova bankruptcy proceedings

. All Baron seeks by this motion is the

opportunity to exercise his right as a citizen of the United States to be heard in

court to defend his legal rights in the domain name “servers.com”.

Sherman, the chapter 11 trustee in the Ondova bankruptcy, has filed a

negative-notice motion to sell the “servers.com” domain. See Exhibit B. Unless

Baron is allowed to object by Monday, November 7, he will be unable to stop the

approval and sale of the name, and the purchaser of the name will cut off his rights.

This motion does not seek to take anything out of the receivership res, but rather,

the emergency relief requested is necessary to protect a substantial

receivership asset from liquidation and loss and involves no cost to the

receivership estate.

This Honorable Court has stayed the District Court below from liquidating

or distributing any further receivership assets. Vogel, the receiver, and Sherman

have therefore moved over to the Bankruptcy Court (which has not been stayed), in

an attempt to ‘end run’ the stay imposed on the District Court and liquidate

Baron’s recently vested interest in “servers.com” via the bankruptcy proceedings.

Northern District of Texas (Dallas) bankruptcy case 09-34784-sgj11.

Case: 10-11202 Document: 00511655466 Page: 8 Date Filed: 11/04/2011

BACKGROUND

The Emke-Vogel Connection

In 2003 a dispute arose between Mike Emke and Ondova (f/d/b/a Compana)

over the domain “servers.com”. Emke claimed he owned the name. Peter Vogel’s

law firm, Gardere, represented Emke in the dispute, and was attorney of record for

Emke in at least two Federal suits spanning almost half a decade.

Then, in July

2009, Judge Furgeson announced that he was going to appoint Vogel as special

master in the lawsuit below. Pressure was placed on Baron and he was intimidated

into believing that if he did not immediately settle his lawsuit with Emke

(involving “servers.com”), there would be consequences in the lawsuit below

(involving half a million domain names). Accordingly, Baron settled the suit with

Emke on July 6, 2009. Exhibit A. Three days later, the order appointing Vogel as

special master was formally entered in the proceedings below. R. 394.

The Emke Settlement

The Emke settlement transferred most of the rights to “servers.com” to a

new entity (Servers, Inc., a Nevada corporation). The new corporation’s stock was

owned 50/50 by Ondova and Emke. No one disputes Ondova’s right to ownership

of the Servers, Inc. stock. However, the Emke settlement expressly reserved an

interest in the domain name for Emke and Baron personally. Pursuant to the

agreement, Baron and Emke reserved a security and reverter interest in the

Northern District of Texas cases: (1) Compana, LLC v. Emke et al. (3:03-cv-02372-M); and

(2) Compana, LLC v. Emke et al 3:05-cv-00285-L.

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domain name, reverting ownership on the condition that the corporation was ever

placed into receivership. Specifically the Emke settlement agreement (Exhibit A)

provides:

“In the event of insolvency, receivership and/or other default of the

jointly owned company, the domain name <servers.com> shall

revert to Jeff Baron and Mike Emke, to be owned jointly and

equally. To this degree, these two principals shall maintain a first

lien and security interest in the domain name superior to any other

investor, equity holder or creditor.”

Recently, on October 18, 2011, the Ondova Bankruptcy Court Judge entered

an order placing Servers, Inc. into receivership. Exhibit C. Accordingly, as a

matter of Texas and Nevada state law, Baron and Emke became 50/50 owners of

the domain name “servers.com”. The domain name has been appraised at

$1,400,000.00 to $4,200,000.0 in value. Accordingly, Baron’s legal interest in 50%

of the domain name is substantial— valued between $700,000.00 and

$2,100,000.00.

Baron Prevented From Protecting his Property Rights

Baron, however, has been prohibited by the receivership order (challenged in

this appeal) from exercising any of his legal rights. Sherman argues that Vogel (as

receiver) holds all of Baron’s rights. See Exhibit D. Yet, Vogel and his firm

Gardere, have a clear conflict of interest litigating against Gardere’s former client

with respect to a matter for which Gardere represented that client against Ondova

and Baron. Vogel, moreover, has taken positions that are clearly not in Baron’s

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interest nor reasonably calculated to protect Baron’s interest. Rather, Vogel has

actively attempted to orchestrate fabricated incidents to ‘prove’ that Baron is

“despicable” (Vogel’s term).

Vogel Working Against Receivership Estates

Vogel has failed to take actions to protect receivership assets or to fulfill the

duties normally associated with a receiver, such as defending arbitration claims

against receivership assets, or filing tax returns and paying federal taxes for the

multiple receivership entities under Vogel’s receivership, etc.

This is also

illustrated by Vogel’s filings in the Bankruptcy Court, as shown by the following

example: Prior to the global settlement, Sherman claimed ownership of about a

dozen domains. That ownership was contested, and Baron’s counsel sent a letter

confirming that the domains listed in a letter (in which Sherman claimed

ownership of the domains) were the domains considered to be in dispute. Vogel

initially claimed these domains were owned by Ondova. Novo Point LLC’s Cook

Island manager hired counsel to move to have the domains turned over to the

receivership. In that motion it was clearly established that Ondova did not have

See, e.g., GENERAL RESPONSE TO MOTIONS FOR FEES FOR VOGEL, HIS

PARTNERS, AND OTHER “RECEIVER PROFESSIONALS” (Document 00511600278 in

case 10-11202 filed on 9/12/2011) (describing the Vogel’s orchestrated attempt to falsely make it

appear that Baron was harassing, intimidating, and ‘obstructing’) (at pdf page 14, et.seq.); and

SR. v5 pp102-110 (the emails with Vogel’s office’s digital IDs proving the affair was an

orchestrated set-up by Vogel).

See Document 00511604732 filed on 9/16/2011 in case 10-11202 (Failure to pay any taxes or

file any tax returns) and Document 00511618411 Filed 09/29/2011 in Case 10-11202 (Refusal to

defend Domain Name arbitration disputes).

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title to the names, and that title to those domain names was transferred to Novo

Point LLC in the global settlement. See Exhibit E.

At the hearing related to that motion, it was admitted —on the record— that

Sherman and Vogel had agreed that all of the domains except one (mondial.com)

were the property of Novo Point, and would be turned over to Novo Point.

Exhibit F. However, instead of enforcing the rights of Novo Point—even as were

expressly agreed on the record, Vogel subsequently filed a motion making it look

(falsely) like Baron’s counsel had agreed that the disputed names belonged to

Ondova. See Exhibit G. First, Vogel attached an affidavit that the whois

information showed Ondova as the owner of “Petfinders.com”. However, the

whois information of nearly all of Ondova’s domains listed Ondova as the owner

as a privacy protection feature for the actual owner. ICANN (the international

internet organization that regulates domain names) prohibits a registrar (such as

Ondova) from registering its own names. It would have been impossible for

Ondova to be both owner and registrar.

In any case, Ondova had quitclaimed all of its domain name inventory to

Blue Horizon in 2005. Exhibit E. Blue Horizon then quitclaimed those names to

Novo Point in the global settlement agreement. All of this Vogel hides from the

Court. Instead, Vogel pastes a giant header “12 Domains that are registered and

owned by Compana” to ‘mock up’ an e-mail from Gerrit Pronske to make it look

like it is confirming that fact, when the Pronske letter is actually confirming the

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opposite—that the 12 names are disputed names. See Exhibit G. In short, Vogel

‘mocked up’ a letter to create false evidence against the position and rights of the

receivership parties, in an effort to support Sherman’s sale of Petfinders.com in a

private, non-auction sale for $25,000.00.

Background of Sherman-Vogel and the Receivership

In September 2010 the Ondova bankruptcy estate had some $2,000,000.00 in

cash and only around $900,000.00 in claims— ie., more than a million dollar

cash surplus. This was achieved when Baron agreed for Ondova to take all of the

settlement proceeds in the global settlement because he was promised by the

Ondova chapter 11 trustee (Sherman) that:

“[I]f I were going to be entering into this settlement agreement,

that … once the creditors were paid, that there would be a

significant amount of money that was left over, that would come

back, that would stay, you know, in a company that I would have

at the end of the day. … I was told that obviously if you look at

the settlement agreement, I individually am not getting any, a

penny from it myself. … the settlement agreement was that

Ondova was going to be able to walk away out of the bankruptcy,

after it paid its creditors, with a large amount of cash, and we

were thinking maybe even a million dollars.”

Barons testimony before the Bankruptcy Court on 9/15/2010.

Doc 470, Page 95 in Ondova Bankruptcy (case no. 09-34784-sgj11).

Sherman should have immediately closed the Ondova bankruptcy in

September 2010 when there was the MILLION DOLLARS CASH surplus.

Sherman’s counsel let the truth slip out in the District Court, admitting “The

“Petfinders.com” has been appraised at $2,000,000.00 to $6,000,000.00.

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negotiation was to pay the debts and give the keys back to Mr. Baron. But that

didn't happen.” R. 4598:11-12. Instead, Sherman kept the bankruptcy open and ran

up over $300,000.00 in additional attorney fees.

Baron eventually objected. Within three business days of Baron’s objection,

Sherman and Vogel had Baron placed into receivership (with Vogel as receiver) ex

parte in the district court case (where Vogel was employed as special master).

Sherman notably did not act on his own, but filed his motion seeking to appoint

Vogel as receiver over Baron only after secret consultations with Vogel.

After

consulting with Vogel, Sherman filed the receivership motion falsely representing

that the Bankruptcy Judge ordered that if Baron fired his counsel and proceeded

pro se that a receivership was to be placed over him.

What the Bankruptcy Judge

actually stated was:

“I am thinking very, very carefully about doing a Report &

Recommendation to Judge Will Furgeson that he appoint a receiver

over Mr. Baron and his assets pursuant to 28 U.S.C., 20 Section 754

and 1692 so that a receiver can seize assets and perform the

obligations of Jeff Baron under the settlement agreement.”

Ondova Bankruptcy Doc 470 at 58.

However, by November 2010 when Sherman and Vogel had Vogel

appointed ex parte as receiver over Baron, Baron had already fully performed all

of his settlement agreement obligations.

Thus, Sherman did not allege Baron was

SR. v5 p238.

R. 1576.

It has been alleged that a de minimis $2,500.00 payment obligation had been skipped.

Case: 10-11202 Document: 00511655466 Page: 14 Date Filed: 11/04/2011

in breach of the settlement. Rather, Sherman’s motion falsely represented the

receivership was to be imposed merely if Baron fired his bankruptcy counsel and

proceeded pro se. Yet, simply misrepresenting the Bankruptcy Court’s order was

not sufficient—Sherman and Vogel still had to show that Martin Thomas (who was

Baron’s counsel in the bankruptcy court) was fired. So a fraudulent story was

fabricated that Baron filed an ethics complaint against Thomas, didn’t pay him,

and thereby caused Thomas to withdraw.

The story was false and fabricated, but

it was not the only one.

Another story was also needed because Baron was also represented in the

bankruptcy court by Stan Broome. Accordingly, with Broome’s participation a

false claim was fabricated that (1) Broome’s fee contract contained no provision

capping his monthly fees at $10,000.00 per month; (2) Baron wrongfully refused to

pay more than that amount, and thus (3) Broome was owed tens of thousands of

dollars and withdrew. The fabricated claim was sufficient to obtain the ex parte

receivership order, but eventually Vogel was forced to produce Broome’s contract.

When that happened, the “claim” was shown to be completely fabricated. See SR.

v8 p1212 (the written terms in Broome’s contract, imposing a $10,000.00 per

month cap on fees incurred and requiring express written authorization to exceed

the cap); SR. v5 pp426-430 (Broome’s fraudulent statements denying the existence

R. 1576.

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of such a term in his contract).

Notably, Vogel was intimately involved in the ex parte proceedings to

appoint himself as receiver over Baron, and Vogel personally filed the receivership

order. R. 27, 1604. Baron appealed the receivership and Vogel then, on his own

motions, moved for a long list of companies to be added as receivership parties and

placed in his hands as receiver. Other than brutally punishing Baron— limiting his

access to medical care, keeping him from owning an operating vehicle, keeping

him from traveling outside of Dallas, keeping him from having heat or air-

conditioning, prohibiting from being allowed to earn any money or engage in any

business transactions, and burning up his COBRA coverage, etc.— literally, the

receivership has achieved nothing other than to: (1) prevent Baron from hiring any

legal counsel, (2) create a list of groundless, non-diverse state law attorney fee

‘claims’ against Baron (solicited by Vogel); and (3) provide a platform for Sherman

and Vogel to run up fee demands to a combined total of over FOUR MILLION

DOLLARS.

As a fundamental principle of equity, “Fraud vitiates everything it touches.”

White v. Union Producing Co., 140 F.2d 176, 178 (5th Cir. 1944). Accordingly, the

receivership over Baron should be dissolved. The undersigned counsel, unpaid by

order of the District court, despite Herculean efforts to bring the matter to the

The evidence is black and white. There is no ambiguity. However, when confronted with

the evidence that the receivership had been procured through fabricated allegations, the District

Court sealed that portion of the record. SR. v7 p379.

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attention of this Honorable Court, has been apparently previously unable to

sufficiently articulate the factual and legal situation involved in the proceedings

below, and this Honorable Court has declined to grant a general stay or to dissolve

the receivership. This Honorable Court, has, however, stayed the proceedings in

the District Court below, preventing the further distribution of Baron’s assets (and

the assets of multiple more ‘receivership entities’ that were placed by the District

Court into Vogel’s hands upon Vogel’s own motions) to attorneys fees for Vogel,

Sherman and Vogel’s “professionals”.

Baron should not be denied the fundamental right of a citizen to be heard

in court to protect his own assets. On paper, Baron is represented in the

Bankruptcy Court by Martin Thomas, but Thomas has refused to take any action

before the Bankruptcy Court on Baron’s behalf. See Exhibit D. Notably, Thomas

is one of the attorneys who participated in allowing the District Court to believe

the fabricated allegations asserted in Sherman’s motion to appoint a receiver over

Baron, including, ironically, that Baron had filed an ethics complaint against

Thomas, and that Thomas had withdrawn as Bankruptcy Court counsel.

STANDARD IN GRANTING STAY PENDING APPEAL

The Fifth Circuit has adopted the four factor test set out in Virginia

Petroleum Job. Ass'n v. Federal Power Com'n, 259 F.2d 921 (DC Cir. 1958) to

determine whether stay pending appeal should be granted. Belcher v. Birmingham

Trust National Bank, 395 F.2d 685 (5th Cir. 1968). Those factors are:

Case: 10-11202 Document: 00511655466 Page: 17 Date Filed: 11/04/2011

(1) Likelihood of success on the merits; (2) A showing of irreparable injury if the

stay is not granted; (3) Whether granting the stay would substantially harm the

other parties; and (4) Granting of the stay would serve the public interest. Id.

ARGUMENT & AUTHORITY

A. LIKELIHOOD OF SUCCESS ON APPEAL – LEGAL ANALYSIS

THE RECEIVERSHIP ORDER IS UNCONSTITUTIONAL

The seizure clause of the Fourth Amendment prohibits the unreasonable

interference with possession of a person’s property. Severance v. Patterson, 566

F.3d 490 (5th Cir. 2009). The seizure ordered by the District Court was purely

arbitrary—ordered without a trial on the merits of any claim, and entered based on

no objective guidelines or guiding principles. See e.g., Skinner v. Railway Labor

Executives' Assn., 489 U.S. 602, 613-614 (1989) (Fourth Amendment guarantees

the privacy, dignity, and security of persons against arbitrary acts by officers of the

Government). Accordingly, the receivership order was issued in violation of the

Fourth Amendment and should be declared void.

Further, the Supreme Court has held that where the taking of one's most

basic property rights is so obvious, no extended argument is needed to conclude

that absent notice and a prior hearing, the order violates the fundamental

principles of due process. Sniadach v. Family Finance Corp. of Bay View, 395

U.S. 337, 342 (1969). The Supreme Court has held that there is a “root

requirement that an individual be given an opportunity for a hearing before he is

Case: 10-11202 Document: 00511655466 Page: 18 Date Filed: 11/04/2011

deprived of any significant property interest”. Boddie v. Connecticut, 401 U.S. 371,

379 (1971); Cleveland Bd. of Ed. v. Loudermill, 470 U.S. 532, 543 (1985). The

Supreme Court has also held that the hearing must be granted before the

deprivation of basic property rights, and no later hearing can cure the constitutional

violation. Fuentes v. Shevin, 407 U.S. 67, 81-82 (1972). Further, where the

property interest is not basic such that pre-trial deprivation may be constitutionally

effected, the Supreme Court has held that a showing of exigent circumstances is

mandatory and has suggested that a bond to compensate for wrongful deprivation

and a detailed affidavit setting out the grounds are also required. Connecticut v.

Doehr, 501 U.S. 1, 10, 18 (1991).

However, the District Court’s order appointed a receiver and seized all of

Baron’s property and rights, without any bond to compensate Baron for wrongful

deprivation, and without any type of hearing prior, and was not supported by

affidavit nor showing of any exigent circumstance. The ex parte receivership order

should therefore be declared void for lack of due process of law. See Pennoyer v.

Neff, 95 U.S. 714, 737 (1878) (“such proceeding is void as not being by due

process of law”); World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 291

(1980) (“rendered in violation of due process is void in the rendering”); Margoles

v. Johns, 660 F. 2d 291,295 (7th Cir. 1981)(“void only if the court that rendered it

lacked jurisdiction ... or if it acted in a manner inconsistent with due process of

law”).

Case: 10-11202 Document: 00511655466 Page: 19 Date Filed: 11/04/2011

THE RECEIVERSHIP ORDER IS NOT AUTHORIZED IN EQUITY

The Supreme Court has held that receivership is not authorized as a stand-

alone-remedy. Gordon v. Washington, 295 U.S. 30, 37-38 (1935). Accordingly, as

a matter of established law, the district court lacks authority to administer

receivership as a remedy for ultimate relief. Id. at 38. This Honorable Court has

similarly held that equity receivership is authorized only to conserve property

where distribution of that property is sought pursuant to some other equitable

form of relief. Tucker v. Baker, 214 F.2d 627, 631 (5th Cir. 1954). No other

equitable relief has been sought against Baron’s property. Receivership in this case

is therefore not a remedy authorized by law.

THE POST-APPEAL LEGAL JUSTIFICATIONS OFFERED FOR THE

RECEIVERSHIP ARE LEGALLY GROUNDLESS

The basis offered to defend the receivership are legally groundless, as

follows:

1. Baron is alleged to be a ‘vexatious’ litigant who fires attorneys to disrupt

the court proceedings. An individual in a civil case, as a matter of law, cannot

interfere with a court’s jurisdiction by firing his attorney. The worst a party

can do is hurt their own presentation by being forced to litigate without the

assistance of counsel. Since that is the statutory right of every individual litigant in

federal court— to proceed pro se, the act of firing an attorney, or a thousand

attorneys can work no involuntary or improper cost on the court. See Winkelman ex

Case: 10-11202 Document: 00511655466 Page: 20 Date Filed: 11/04/2011

rel. Winkelman v. Parma City School Dist., 127 S. Ct. 1994, 2007 (2007). A court

can simply decline to accept new counsel to appear before it. Further, substitution

of counsel has no effect under the rules of procedure upon any deadline, time limit,

etc. Finally, every substitution of counsel occurred with court approval. Even if

Baron changed lawyers every week, the Court approved it. Accordingly,

substitution of counsel, as a matter of law, cannot be ‘vexatious litigation’. Baron

submitted to the Court’s authority and received permission for every substitution of

counsel. The alleged conduct lacks the “stubborn resistance to authority”

necessary to justify punishment by the court. E.g., John v. State of La., 828 F.2d

1129, 1132 (5th Cir. 1987).

2. Baron is alleged to have defrauded attorneys. That is a state law issue

outside of the jurisdiction of the District Court. It is a claim in law, and does not

invoke receivership rights. The ‘claims’ have been discussed in recent appellate

briefings and shown to have been solicited by Vogel and Sherman and to be

groundless. These claims are not even ‘good faith’ disputes by lawyers. Rather,

they are groundless and fraudulent claims, and have been shown to be so. Up until

today, the Fifth Circuit has required that a person be placed on trial and a

verdict be entered against them before their property can be seized for alleged

debts. That is a healthy system. The Fifth Circuit should maintain it. Where a

person is denied the right to hire with their own money experienced trial

counsel of their own choice, and their property is seized, and then a ‘summary

Case: 10-11202 Document: 00511655466 Page: 21 Date Filed: 11/04/2011

hearing’ is held on an expressly one-sided report excluding all exculpatory

evidence, the system is unhealthy and invites the filing of ‘claims’ of the type

now seen in this case.

3. Baron is alleged to risk the Ondova bankruptcy by firing his attorneys.

This claim deserves careful attention. The Bankruptcy Code sets up the right of

every creditor to have his reasonable attorneys’ fees paid by the bankruptcy estate

when the creditor has provided a substantial benefit to the estate. The creditor can

seek reimbursement, or his attorneys can seek payment directly. 11 U.S.C.

§503(b)(3)(D); and see e.g., In re DP Partners Ltd. Partnership, 106 F. 3d 667,

671-673 (5th Cir. 1997). The argument that somehow Baron should be put in

receivership to prevent him hiring lawyers who will then make substantial

contributions to the Ondova estate and seek payment for it, is legally frivolous and

has no support in law. If the creditor has paid the professional who made the

contribution, the creditor is entitled to reimbursement from the bankruptcy estate.

Id. If the professional has not been paid by the creditor, the professional is entitled

to be paid directly from the bankruptcy estate. 11 U.S.C. §503(b)(4); and see e.g.,

In re Consolidated Bancshares, Inc., 785 F.2d 1249,1253 (5th Cir. 1986). In either

case, by law the party responsible for paying the cost of any qualifying substantial

contribution is the bankruptcy estate and not the creditor who makes the

contribution. It should be noted that to qualify as a substantial contribution, the

benefit provided to the estate must be greater than the expense of the claim. E.g., In

Case: 10-11202 Document: 00511655466 Page: 22 Date Filed: 11/04/2011

re DP Partners, 106 F. 3d at 673. In summary, the imposition of a receivership in

order to force a creditor to pay the costs of substantial contributions to the

bankruptcy estate—an obligation imposed by law upon the estate— involves the

use of a prohibited means (see 11 U.S.C. §105(b)), to controvert the clear statutory

framework of the Bankruptcy Code.

B. IRREPARABLE INJURY

It is well settled that the loss of constitutional freedoms for even minimal

periods of time constitutes irreparable injury. Deerfield Med. Center v. City of

Deerfield Beach, 661 F.2d 328, 338 (5th Cir. 1981).

If the “servers.com” domain is allowed to be sold by the Bankruptcy Court,

the buyer will cut off Baron’s property right in the asset, and it cannot be

subsequently restored. See, e.g,. American Grain Ass'n v. Lee-Vac, Ltd., 630 F.2d

245, 247 (5th Cir. 1980). All Baron is seeking is to be restored his right to assert

his legal right to protect his own property in court proceedings. The property is

unique and represents a unique business opportunity selling internet server services

via the internet at “servers.com”. The Bankruptcy Court Judge will have the

opportunity to determine the merits of the right asserted by Baron.

Notably, Baron cannot recover damages later against Ondova. Since Mr.

Baron is the equitable owner of Ondova, any recovery against the Ondova estate

would just be taken out of Baron’s own pocket. Accordingly, as a very real matter

the damages threatened are irreparable.

Case: 10-11202 Document: 00511655466 Page: 23 Date Filed: 11/04/2011

C. NO SUBSTANTIAL HARM TO OTHER PARTIES

Baron is seeking the right to assert his rights before the Bankruptcy Court.

The Bankruptcy Court will determine the substantive issues in the first instance.

No party can be harmed.

D. PUBLIC INTEREST

There is a compelling public interest in upholding the U.S. Constitution:

Protecting an individual’s rights in his property in court proceedings. There are

important public interests served by granting the relief requested by Mr. Baron. It

is frightening to think that after an individual objects to fees in a bankruptcy case,

that the federal courts would allow that individual to: (1) have all his assets and

private documents stripped from him, (2) become a ward of the court– incarcerated

in ‘house arrest’ in one city, (3) be prohibited from earning a wage or engaging in

business transactions, (4) be prohibited from hiring legal counsel to protect his

rights, and (5) be prohibited from defending his rights to his own property in court.

Case: 10-11202 Document: 00511655466 Page: 24 Date Filed: 11/04/2011

CONCLUSION

The District Court below suspended ex parte Mr. Baron’s constitutional

right to own, access, and control, and defend his own property in court. The order

exceeds the authority of a district court and violates the US Constitution. This

Honorable Court Stayed the District Court from further liquidation or distribution

of receivership assets. However, Vogel and Sherman have moved over to the

Ondova Bankruptcy Court which was not stayed and are seeking to liquidate

receivership assets via the Ondova bankruptcy proceedings. Next Monday,

November 7, is the deadline for an objection to the sale of “servers.com”. Baron

requests the opportunity to assert his right to ownership of 50% of servers.com and

prevent the irreparable sale of his interest in the asset, and the loss of that unique

property.

PRAYER

Wherefore, Jeffrey Baron prays:

(1) That this Honorable Court consider and grant this motion on an

expedited basis, and enter a limited Stay of the Order Appointing Receiver over

the person and property of Mr. Baron signed by the District Court below on

November 24, 2010 [Docket #124, and Docket #130, Entered 11/30/2010], or to

fully or partially dissolve the receivership, and to allow Baron to be represented by

counsel of his choice in the Ondova Bankruptcy proceedings in order to object to

Case: 10-11202 Document: 00511655466 Page: 25 Date Filed: 11/04/2011

the sale of the domain name “servers.com” and to protect Baron’s property

interest in that domain name.

(2) Jointly and in the alternative, prayer is re-urged that the receivership be

dissolved or stayed because it serves no articulable purpose authorized by law and

clearly is causing irreparable injury to Jeff Baron by suspending his constitutional

rights, including fundamental rights such as his freedom of expression (he is

prohibited from owning a website to tell his story); his right to earn wages, to

conduct business transactions, to hire paid counsel, (all these are expressly

prohibited by the District Court’s order), etc.

(3) Jointly and in the alternative, prayer is again re-urged that the

receivership be partially dissolved or stayed so that Mr. Baron be allowed to (A)

work freely, (B) engage in business transactions, (C) receive wages, (D) receive

and cash checks, (E) retain counsel of his choice, and to exercise all other rights of

a free citizen of the United States including the right to retain counsel with his own

money. If the Court considers granting this relief and finds need to retain Mr.

Baron’s non-exempt, or even exempt and non-exempt property in receivership, at

least a partial stay or dissolution of the receivership, as prayed for herein, will

restore some fundamental rights to Mr. Baron.

Case: 10-11202 Document: 00511655466 Page: 26 Date Filed: 11/04/2011

Respectfully submitted,

/s/ Gary N. Schepps

Gary N. Schepps

Texas State Bar No. 00791608

5400 LBJ Freeway, Suite 1200

Dallas, Texas 75240

(214) 210-5940 - Telephone

(214) 347-4031 - Facsimile

Email: legal@schepps.net

COUNSEL FOR APPELLANT,

JEFFREY BARON

Case: 10-11202 Document: 00511655466 Page: 27 Date Filed: 11/04/2011

TABLE OF AUTHORITIES

FEDERAL CASES

American Grain Ass'n v. Lee-Vac, Ltd., 630 F.2d 245, 247 (5th Cir. 1980)..........22

Belcher v. Birmingham Trust National Bank, 395 F.2d 685 (5th Cir. 1968) ...16, 17

Boddie v. Connecticut, 401 U.S. 371, 379 (1971).................................................18

Cleveland Bd. of Ed. v. Loudermill, 470 U.S. 532, 543 (1985).............................18

Connecticut v. Doehr, 501 U.S. 1, 10, 18 (1991)...................................................18

Deerfield Med. Center v. City of Deerfield Beach, 661 F.2d 328, 338 (5th Cir.

1981).................................................................................................................22

Fuentes v. Shevin, 407 U.S. 67, 81-82 (1972).......................................................18

Gordon v. Washington, 295 U.S. 30, 37-38 (1935) ...............................................19

In re Consolidated Bancshares, Inc., 785 F.2d 1249,1253 (5th Cir. 1986)............21

In re DP Partners Ltd. Partnership, 106 F. 3d 667, 671-673 (5th Cir. 1997)....21, 22

John v. State of La., 828 F.2d 1129, 1132 (5th Cir. 1987).....................................20

Margoles v. Johns, 660 F. 2d 291,295 (7th Cir. 1981)...........................................18

Pennoyer v. Neff, 95 U.S. 714, 737 (1878) ...........................................................18

Severance v. Patterson, 566 F.3d 490 (5th Cir. 2009) ...........................................17

Skinner v. Railway Labor Executives' Assn., 489 U.S. 602, 613-614 (1989) ........17

Sniadach v. Family Finance Corp. of Bay View, 395 U.S. 337, 342 (1969)..........17

Tucker v. Baker, 214 F.2d 627, 631 (5th Cir. 1954)..............................................19

Case: 10-11202 Document: 00511655466 Page: 28 Date Filed: 11/04/2011

Virginia Petroleum Job. Ass'n v. Federal Power Com'n, 259 F.2d 921 (DC Cir.

1958).................................................................................................................16

White v. Union Producing Co., 140 F.2d 176, 178 (5th Cir. 1944) .......................15

Winkelman ex rel. Winkelman v. Parma City School Dist., 127 S. Ct. 1994, 2007

(2007)................................................................................................................20

World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 291 (1980) ..............18

FEDERAL STATUTES

11 U.S.C. §105(b).................................................................................................22

11 U.S.C. §503(b)(3)(D).......................................................................................21

11 U.S.C. §503(b)(4) ............................................................................................21

Case: 10-11202 Document: 00511655466 Page: 29 Date Filed: 11/04/2011

CERTIFICATE OF SERVICE

This is to certify that this brief was served this day on all parties who receive

notification through the Court’s electronic filing system.

CERTIFIED BY: /s/ Gary N. Schepps

Gary N. Schepps

COUNSEL FOR APPELLANT

CERTIFICATE OF NOTICE

This is to certify that notice of the filing of this request for emergency relief was

provided by telephone to the Clerk of the Fifth Circuit Court of Appeals and to

counsel for the Appellee.

CERTIFIED BY: /s/ Gary N. Schepps

Gary N. Schepps

COUNSEL FOR APPELLANT

Case: 10-11202 Document: 00511655466 Page: 30 Date Filed: 11/04/2011