Motion for Stay . . .

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

Kenneth R. Smoot              )          CASE NO. 1:94CV0485

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Plaintiff,                           )      JUDGE PETER S. ECONOMUS

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-VS-                                 )

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UNITED TRANSPORTATION )

UNION, et al.,                   )

Defendants.                      )

MOTION FOR STAY OR IN THE ALTERNATIVE, PLAINTIFF’S

MOTION FOR DECLARATORY JUDGMENT FOR NO PUNITIVE DAMAGES

II. Plaintiff’s Motion for Declaratory

Judgment for No Punitive Damages

Plaintiff has read UTU’s Pre-Hearing Brief in Support of Punitive Damages Award. Suffice to say, UTU’s case law consistently sites cases involving "compensatory damages"? Neither UTU nor CSX ever sought "compensatory damages", but rather elected for "statutory damages" in lieu thereof. Perhaps an open admission that they had no "compensatory damages" as defined by law. UTU goes on to misrepresent this "theory" by stating:

"In this case, Smoot’s egregious and repeated violations of the FWA resulted in a relatively small compensatory damages award, given the "single sum approach to statutory damages adopted by the court of appeals. Therefore, the current award of punitive damages is proper in that it reflects the increased harm to the UTU cause by Smoot’s repeated violations of the FWA. In addition, the injury to the UTU’s reputation, as found by this Court, is precisely the sort of noneconomic harm that warrants an increased punitive damage award. See, BMW of N. Am., Inc. v. Gore, 517 U.S. at 582. Indeed, in light of the fact that wiretapping violations are subject to criminal sanctions of imprisonment up to five years, fines, or both, the current punitive damages award is not excessive. . . ."

In the above, read "an overturned statutory damages" in lieu of relatively small "compensatory" damages award. While the legal definitions are self-explanatory relative to the difference in "compensatory", i.e., "actual" damages as opposed to "statutory" and there is no punitive damages associated with "statutory damages", serious questions remain regarding UTU’s "theory". What is the documentation of my egregious and repeated violations of the FWA? What was the harm to UTU’s reputation (or CSX’s for that matter)? Why didn’t UTU and CSX seek criminal prosecution if the law allowed? Of course, the answer to the final question is that any potential "prosecutor" would have listened to the tape and read the transcript before considering any criminal charges. In essence, there were no criminal charges to prosecute in the instant case unless they were against the UTU and CSX for abusing the intent and process of the Railway Labor Act.

With regard to the first two questions, there is no evidence in the record to support either conclusion. With regard to the first question, all alleged interception and disclosure occurred before any legal filings and no disclosure occurred after Judge Smalkin issued TRO. The second question remains a mystery until the Court listens to the tape or reads the Executive Session Transcript to determine how any use or disclosure of the contents could have harmed UTU’s (or CSX’s) reputation? Indeed, the Supreme Court said it best in the Syllabus at Page 3 or Bartnicki: "The Court’s refusal to construe the issue more broadly is consistent with its repeated refusal to answer categorically whether publication of truthful information may ever be punished consistent with the First Amendment."

Plaintiff submits Affidavit of Lance E. Ruck in these matters with exhibits as attached as Appendix A with exhibits.

This Court’s determination that Earley had credibility can’t change "what appeared to be" the Executive Session Transcript into anything other that was it was, i.e., the Atlanta Edition of the El Paso Express. Both Ruck and Boyd can confirm that and I respectfully request they provide evidentiary testimony if and when there is a hearing. The record is void of a scintilla of proof that I ever disclosed the Executive Session Transcript after the Smalkin TRO other than "what appeared to be" in the Summary Bench Trial. If the Judicial System based legal determinations on what something appeared to be rather than what factual evidence could poove it actually was, the system would collapse or justice would truly be blind.

WHEREFOR PREMISES CONSIDERED, Kenneth R. Smoot, Pro se, respectfully requests the Honorable Court to Stay the Hearing scheduled for August 30, 2001 until after the decision of the Supreme Court OR IN THE ALTERNATIVE, issue Declaratory Judgment for No Punitive Damages consistent with the undisputed facts of the case!

Respectfully submitted,

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