Samuel Lipari vs General Electric BUSH RICO Judge Fernando J Gaitan Jr

En Banc Reconsideration

Breaking News December 10, 2009





Appellant, )


v. ) Case No. 08-3115




Appellees. )



Comes now the appellant appearing pro se and petitions for en banc

review of the dismissal of his appeal for the following reasons:

1. The appeals panel has in clear error of law and fact in upholding

Hon. Judge Fernando J. Gaitan Jr.’s failure to recognize tangible

injury pled in the appellant’s complaint and proposed amended


The trial court of Hon. Judge Fernando J. Gaitan Jr. was in error over

the concept of “concrete” property loss. The plaintiff-appellant’s complaint

described his sale of the lease remainder to General Electric for $350,000.00

and the ownership and resulting right to possession and accompanying entry

onto the premises of the Coronado office building which is a $10.5 million

concrete” pre-cast office building.


All of which are recognizable RICO business property interests under

Missouri state law, Eighth Circuit precedent and the US Supreme Court. The

trial court of Hon. Judge Fernando J. Gaitan Jr. was in error over the concept

of “concrete” injury or business loss as it is applied in determining RICO


The Eighth Circuit recognizes the appellant’s business property in his

chose in action for recovering in court on his contract with the GE

defendants over 1600 NE Coronado which has survived repeated dismissal

motions: “...given a surviving chose in action for protection of property

rights and a valid merger agreement, Western Delaware could acquire a

capacity along with Beneficial to sue Gamble-Skogmo by virtue of an

effective assignment.” Western Auto Supply Co. v. Gamble-Skogmo, Inc.,

348 F.2d 736 at 741 (C.A.8 (Minn.), 1965)

The complaint described the plaintiff’s purchase of 1600 NE Coronado

and sale of the remainder of the 5.4 million dollar lease to GE

Transportation. Underr the averments of the complaint, the appellant was

injured in his business through the loss of a property right under Missouri

State law:

“We hold therefore, that plaintiff's Counts I and II state a cause of

action for negligent interference with a tenant's right to use and enjoy a

leasehold within the limitations we expressed in Counts I and II of the

Chubb Group opinion.


Should plaintiff be able to prove its cause of action, it would be entitled

to its prospective profits, limited by the general rule that such profits

are recoverable only when proved to be reasonably certain had it not

been for defendant's tortious conduct, and when ascertainable and

measurable with reasonable certainty. Riddle v. Dean Machinery Co.,

564 S.W.2d 238, 257 (Mo.App.1978).”

Volume Services, Inc. v. C.F. Murphy & Associates, Inc., 656 S.W.2d

785 at 792 (Mo. App.W.D., 1983). See also Shaw v. Greathouse, 296

S.W.2d 151 at 153 (Mo. App., 1956).

2. The appeals panel has violated the stare decisis of the 8th Circuit in

Little Rock School District v. Armstrong, No. 02-3867EA (8th Cir., 2004)

Under Little Rock School District v. Armstrong, No. 02-3867EA (8th

Cir., 2004), this court treats the motion for Hon. Judge Fernando J. Gaitan

Jr.’s recusal as a director on the board of directors of a defendant as a pre

judgment request in the same matter or controversy.

In Little Rock School District v. Armstrong, No. 02-3867EA (8th Cir.,

2004) the Eighth Circuit was required to determine if a “mandamus

proceeding in 1987 involved the same ‘matter in controversy’ as the present

questions before us for purposes of 28 U.S.C. § 455(b)(2)” Id at 4-6. This

Circuit’s analysis would find that because the state law claims are consistent

and unchanged (and as yet never ruled on), the present action is the same

matter in controversy” as Lipari v. General Electric et al 06-0573-CV-WFJG

where Hon. Judge Feranado J. Gaitan did not rule on the plaintiff’s


timely motion for recusal See Motion to Recuse exb. 1 Supp. Apdx. Vol.

Three Pg. 1051, also Pltf Mtn to Alter or Amend Judgment Doc. 61 filed.

08/04/2008 that contained the recusal as exhibits 1, 1-1 and 1-2.

Under stare decisis, once a court has answered a question, the same

question in other cases must elicit the same response from the same court or

lower courts in that jurisdiction.

Respectfully submitted,

S/Samuel K. Lipari

Samuel K. Lipari


I certify I have sent a copy via email to the undersigned and opposing counsel on

10th Day of December 2009.

John K. Power

Leonard L. Wagner

Michael S. Hargens

Husch Blackwell Sanders, LLP

1200 Main Street

Suite 2300

Kansas City, MO 64105


Fax: (816)421-0596

via email

Attorneys for the GE Defendants


J. Nick Badgerow

Spencer Fane Britt & Browne, LLP

9401 Indian Creek Parkway

Suite 700

Overland Park, KS 66210


Fax: (913)345-0736


Attorney for Seyfarth Shaw LLP

USA John Wood

Jeffrey P. Ray

Office of the United States Attorney

400 E. 9th St.

Room 5510

Kansas City, MO 64106

(816) 426-3130

Fax: (816) 426-3165

Attorney for Bradley J. Schlozman

S/ Samuel K. Lipari


Samuel K. Lipari

3520 NE Aiken #918

Lee's Summit, MO 64064


Pro se