Office of U.S. Trustee vs. Harmon - Answer to Motion for Contempt

BOBBY N. HARMON, CPCU, ARM

Email:

Website: www.kycbs.net

Defendant, Pro Se

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF HAWAII

JAMES B. NICHOLSON, ) CASE NO. CV05-00030 DAE KSC

SUCCESSOR TRUSTEE, )

) DEFENDANT’S ANSWER TO

Plaintiff, ) PLAINTIFF JAMES B. NICHOLSON’S

) MOTION FOR CONTEMPT AGAINST

v. ) DEFENDANT BOBBY N. HARMON

) FILED AUGUST 22, 2006, AND

) COURT’S ORDER GRANTING

BOBBY N. HARMON, ) PLAINTIFF’S MOTION FOR ENTRY OF

) JUDGMENT ON THE ARBITRATION

Defendant ) AWARD AGAINST BOBBY HARMON;

) MOTION FOR ABATEMENT OF

) AWARD; MOTION FOR DAMAGES;

) CERTIFICATE OF SERVICE

)

) Hearing Date:

) Time:

) Judge:

)

DEFENDANT’S ANSWER TO PLAINTIFF JAMES B. NICHOLSON, SUCCESSOR
TRUSTEE’S MOTION FOR CONTEMPT AGAINST DEFENDANT
BOBBY N. HARMON OF FINAL JUDGMENT FILED AUGUST 22, 2006,
AND COURT’S ORDER GRANTING PLAINTIFF’S MOTION FOR ENTRY
OF JUDGMENT ON THE ARBITRATION AWARD AGAINST
BOBBY N. HARMON FILED AUGUST 18, 2006

Defendant BOBBY N. HARMON hereby submits this Answer to Plaintiff JAMES B. NICHOLSON’s MOTION FOR CONTEMPT AGAINST DEFENDANT filed on or about November 20, 2006.

I. ARGUMENT

A. Defendant has made a good faith effort to comply with the Court’s Order.

In a letter dated August 25, 2006, addressed to Curtis Ching, Gayle Lau and James Nicholson, Office of the United States Trustee, c/o Steven Guttman, Esq. (www.kycbs.net/CV05-00030-OUST-8-25-6.htm), Defendant asked Plaintiff to specifically identify those pages which contained “any reference to ‘Protected Subject Matters’, as that term is described and defined in the Arbitration Award dated October 6, 2004.”

Steven Guttman, in his response dated August 29, 2006 (www.kycbs.net/Guttman-8-29-6.pdf), stated:

“... We are not going to provide you with a ‘listing of all pages’ which Judge Ezra has order you to remove within ten days of August 22, 2006. After you have made a good faith effort to comply with the Court’s order and have reported to the Court and us as to what has been removed, we should then be able to communicate with you as to whether we think there is any additional material that needs to be deleted.

“The pre-requisite to any dialogue is that you act in good faith. The goal has been for you to comply with the Settlement Agreement that was negotiated after you filed for bankruptcy. Upon seeing that you have taken positive action to comply with the Settlement Agreement, we will attempt to work with you as to any item that remains on your website which we believe falls within a category that you have been order to remove.”

Defendant has complied with Plaintiff’s instructions and has made a good faith effort to remove all “Protected Subject Matters” as he understands the meaning of that term and his rights to Free Speech under the First Amendment of the United States Constitution.

B. PLAINTIFF has FAILED TO: (a) clearly identify all sites which allegedly contain “Protected Subject Matters”; (b) distinguish between documents which allegedly contain “Protected Subject Matters,” and documents which can be published under the protection of the First Amendment; and (c) correctly identify the host for Defendant’s website www.kycbs.net .

Plaintiff claims that the Court’s Order identified the specific websites and attachments that needed to be removed, including:

• www.kycbs.net/RICO-BH.htm

• www.kycbs.net/Claims-By-Harmon.htm

• www.kycbs.net/Claims-Branch-P-C.htm and all web-sites listed in this web-site, plus the web-sites entitled “P&C Insurance Company, Inc.” and the other sites entitled “The Harmon Chronicles-1988-1996,” “The Harmon Chronicles-1997-1999,” “Harmon’s Letters To The FBI,” “Harmon’s Letter To The IRS,” “The Kamehameha Schools Pension Plan,” and “RICO in Paradise”; and

• www.kycbs.net/HarmonArbitration.htm

Defendant argues that none of these sites violate the original Settlement Agreement for the following reasons:

• These sites DO NOT contain ‘confidential,” and/or “attorney-client privileged,” information as defined in the original Settlement Agreement.

• All information contained in these sites is PUBLIC INFORMATION (including www.kycbs.net/RICO-BH.htm).

• These sites are listed as Defendant’s Exhibits in this case, and are absolutely necessary for his defense arguments.

• Many of the letters listed by Plaintiff, are letters that were sent to law enforcement and government regulatory agencies to report fraudulent and illegal activities, and are in the interests of public safety and welfare.

• The Office of the United States Trustee, and Steven Guttman, Esq., have never legally represented Kamehameha Schools/Bishop Estate, P&C Insurance Company, Marsh & McLennan, the Chubb Group, PricewaterhouseCoopers, or other entities named in my RICO lawsuit, so the Trustee has no legal standing to argue the interpretation of the terms of the Settlement Agreement on behalf of these third parties.

• The Settlement Agreement, itself, was obtained through fraud and misrepresentation, and is therefore NOT a valid, enforceable contract.

• Many of the sites listed by Plaintiff contain letters and documents related to various ongoing INSURANCE CLAIMS made against various parties, including the American Arbitration Association, Judith Neustadter Fuqua, the Office of the United States Trustee, Mary Lou Woo, Steven Guttman, Matt Tsukazaki, Robert Katz, Kenneth Hipp, Roy Hughes, Colbert Matsumoto, Island Insurance Company, Greg Dunn, Bradley Tamm, etc., and cannot be classified or interpreted as containing “Protected Subject Matter”.

• All information presented in these sites are protected under Defendant’s First Amendment Rights (see www.kycbs.net/Freedom-To-Sing.htm)

• The Arbitration Award was obtained through fraud, unlawful collusion, and misrepresentation, and is therefore invalid and unenforceable. (See www.kycbs.net.HarmonArbitration-x.htm)

• The Plaintiff’s lawsuit against Defendant is in violation of Hawaii’s Anti-SLAPP Statute Vol. 13, Chap. 634F, which defines “SLAPP” as “a strategic lawsuit against public participation and refers to a lawsuit that lacks substantial justification or is interposed for delay or harassment and that is solely based on the party's public participation before a governmental body.” [L 2002, c 187, pt of §2] (see www.kycbs.net/SLAPP.htm )

Plaintiff further falsely asserts in his Motion for Contempt:

“Contrary to his claim that he has complied with the Final Judgment and the Court’s Order, Harmon simply moved the websites behind a password protected site which purportedly requires the reader to secure a password from Harmon for access to the site. Harmon has rejected the requests from Plaintiff to provide him access to the site”

Plaintiff’s statements are false and misleading. In my letter dated October 4, 2006, addressed to Curtis Ching, Gayle Lau and James Nicholson, Office of the United States Trustee, c/o Steven Guttman (www.kycbs.net/CV05-00030-Guttman-10-4-6.htm ), I wrote:

This replies to Steven Guttman’s letters dated September 11 and September 25, 2006, which were in response to my letter dated September 2, 2006, addressed to Theresa Lam of the U.S. District Court for the District of Hawaii, transmitting the pleading entitled Confirmation of Removal of “Offensive Materials” from Any Web-Site Owned, Managed or Operated by Defendant.

In Mr. Guttman’s letter of September 11, he states: “We appreciate the actions you have taken thus far to comply with the Order Granting Motion for Entry of Judgment on the Arbitration Award dated August 16, 2006, and the Final Judgment entered on August 22, 2006. However, based on your Confirmation pleading, we are unable to determine what specific items were deleted from your web-site. Therefore, we are requesting that you provide us with an itemized list of the deletions and/or modification that you have made to the web-site in compliance with the Order and Final Judgment.”

In Mr. Guttman’s letter of September 25, he states:

“By letter dated September 11, 2006, we requested that you provide us with an itemized list of the deletions and/or modifications that you have made to www.kycbs.net web-site in compliance with the Order and Final Judgment issued by the U.S. District Court. As of this date, we have not received any response from you to our request.

“As an alternative to providing us with the requested information concerning the website amendments you have made due to the Court Order, we ask that you provide us with the website password so we can access the site for the explicit purpose of verifying that you have made changes to the website and if so, what changes were made as to your representation of compliance with the Court’s Order.”

My delay in responding to your letters is due to the fact that I was traveling at the time and did not receive your letters until a couple of days ago. In answer to your original request for an itemized list of the deletions and/or modifications that I have made, I’m afraid that this would be a very difficult task for me to accomplish for several reasons, the first of which is the shear volume of materials and the fact that, because this is a periodical publication, additions, deletions and revisions are being made daily. I do not maintain records of what specific revisions are made - only the date that the page was revised.

With regard to your suggested alternative of providing you with the website password, the problem that I have with this is the fact that I consider these documents Privileged and Confidential, as they are pertinent to not only the subject case, but also to my related claims against various parties – including former Trustee Mary Lou Woo, Steven Guttman and his law firm, and the Office of the United States Trustee. Also, although I am acting without the advice of an attorney, I believe that I may have the right to refuse your request under the Fifth Amendment to the United States Constitution.

What I would propose as an alternative solution, however, is that you have your Professional Liability Insurance carrier(s) contact me as soon as possible in response to my latest Notice of Claim letter dated August 28, 2006 . I will then provide a website password to any carrier-authorized individuals in order that we can attempt to reach a global settlement on ALL CLAIMS involving the Office of the United States Trustee - including CV05-00030 and a possible anti-SLAPP lawsuit.

Your prompt response to this proposal is requested...

Plaintiff did NOT RESPOND to my alternate proposal, and now FALSELY CLAIMS that I did not respond to his letter and that I have rejected his requests to provide him access to the site.

Plaintiff continues with further irrational, illogical and unconstitutional requests, and includes erroneous information regarding the host of Harmon’s website::

“Plaintiff requests that this Honorable Court: (1) find Harmon in contempt of the Final Judgment filed herein on August 22, 2006, and the Court’s Order Granting Plaintiff’s Motion for Entry of Judgment on the Arbitration Award Against Harmon filed herein on August 18, 2006; (2) order Harmon’s website, including providing all access codes and/or passwords which would provide Plaintiff with the ability to enter the web page and remove the offensive materials; (3) issue a writ directed to Voyager Info-Systems, the company that operates the internet site on which Harmon’s website was created and is maintained, to close down Harmon’s website completely and to publish the creation of any new site by Harmon with Voyager Info-Systems.”

Defendant answers these unconscionable requests by Plaintiff as follows:

(1) Defendant has made a good faith effort to comply with the Court’s Order, as described above, and is not in Contempt;

(2) Defendant should not be ordered to provide Plaintiff with complete and unrestricted access codes and/or passwords to Defendant’s website which would provide Plaintiff with the ability to enter the web page and remove the “offensive materials” as this would violate Defendant’s Constitutional First Amendment Rights of Free Speech, and his Fourth Amendment Rights, which guarantees: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.”

(3) The Court should not grant Plaintiff’s request for a writ directed to Voyager Info-Systems to close down Defendant’s website for the following reasons:

(a) This action would violate Defendant’s First and Fourth Amendment Rights;

(b) Plaintiff has incorrectly identified Voyager Info-Systems as the company that operates the internet site on which Defendant’s website was created and is maintained. Worse yet, apparently without the Court’s prior approval, Plaintiff has already contacted Voyager Info-Systems in a letter dated October 27, 2006, regarding “Termination of Kycbs web-site posted by Bobby N. Harmon” (see www.kycbs.net/CV05-00030-Guttman-10-27-6.pdf), in which Steven Guttman states:

...”A quick review of the ‘kycbs’ web-site will immediately confirm that Mr. Harmon continues not only to post material which is in violation of the Arbitration Award, the USDC Order and the Judgment, but that he also used the web-site to ‘post, email, or otherwise transmit [any] data which is illegal, harassing, threatening, abusive, or obscene...’ A review of the web-site will also reveal that Mr. Harmon has posted information and allegations against hundreds of private citizens, companies and other organizations ‘without permission of that individual, company, or organization.’

“Mr. Harmon has also posted, transmitted, reproduced and distributed thousands of ‘copyrighted material, trademarks, or other proprietary information without obtaining prior consent from the owner of such proprietary rights’. It is highly probable that such action ‘violate[s] applicable local, state, federal or international law.’...

“One of the most disturbing aspects about Mr. Harmon’s web-site is that he links the site, and publishes and disseminates the materials on his web-site by emails and letters, to national and local politicians, governmental organizations, businesses and individuals throughout the country. ... Some of the letters and emails have been copied to California Governor Arnold Schwarzenegger and to the U.S. Attorney General Alberto Gonzales. All of this web-site activity is made accessible and available to Mr. Harmon by Voyager Info-Systems.

“The ability of Mr. Harmon to maintain his web-site and continue to post offensive and protected materials is troubling. It appears there has been a complete absence of monitoring of these abuses. The Successor-Trustee, through his counsel, hereby requests that pursuant to the terms and conditions of the ‘VoyForums Policy and User Agreement’, that you ‘terminate without notice’ the web-site identified as ‘kycbs’ no later than November 13, 2006, and that you provide me with documentation evidencing that the web-site has been shut down.

“In the event the site is not timely terminated, we will seek a supplemental Order through the U.S. federal courts to shut down Mr. Harmon’s entire web-site due to his failure to comply with the USDC Order and his insistence on continuing his offensive behavior in contempt of the existing Orders and Judgment. In our attempt to enforce the Court’s Orders and Judgment, we may be required to address the Writ of Enforcement to Voyager Info-Systems.”...

Defendant responded to Plaintiff’s letter on November 8, 2006 (see www.kycbs.net/CV05-00030-Guttman-11-8-6.htm), stating, in part:

...”My comment to the above quotes from Steven Guttman’s letter is simply to say, to the best of my knowledge and belief, that under my Constitutional First Amendment Rights of Free Speech, my postings are not in violation of the Arbitration Award, the USDC Order and the Judgment, and that any data that I have posted is not illegal, harassing, threatening, abusive, or obscene. It is also my belief that Steven Guttman does not legally represent the “hundreds of private citizens, companies and other organizations” that he mentions, and that he has no legal right to speak on their behalf in claiming that my postings have harmed these entities in any way, or that I have violated any local, state, federal, or international law by these postings. If any private citizen, company or other organization believes that I have in some way illegally offended or harmed them, then I expect that entity to contact me directly to discuss ways to resolve those issues - not James B. Nicholson or the Office of the United States Trustee....

“It is my sincere belief that my letters reporting insurance fraud, bribes, kick-backs, tax evasion, racketeering and other illegal acts to the Attorney General’s office, the IRS, the FBI, the SEC, the Office of the Insurance Commissioner, and other law enforcement and regulatory agencies, are altogether appropriate, legal and in the public interest. It is also my belief that both myself and Voyager Info-Systems have the constitutional right to publish these documents, and that your continuing efforts to silence my reporting of these illegal activities to the proper authorities are in violation of my First Amendment Rights and Hawaii’s anti-SLAPP statutes.”...

These written statements by Steven Guttman to a third-party are clearly inappropriate, intimidating, reputation-damaging, and libelous–especially in light of the fact that his letter was mistakenly sent to the WRONG ENTITY. The actual host for the website www.kycbs.net is YAHOO Small Business Web Hosting–not Voyager Info-Systems, which is responsible for a separate website, “Welcome to The Catbird’s Forum”, located at www.voy.com/129276/

II. CONCLUSION

Based upon the facts and arguments presented above, Defendant respectfully requests that this Honorable Court deny Plaintiff’s Motion For Contempt Against Defendant.

III. MOTION THAT THE COURT ABATE THE ARBITRATION AWARD AND THE RESULTANT FINAL JUDGMENT.

Based upon the facts and arguments presented above, Defendant respectfully asks the Court to ABATE the ARBITRATION AWARD, and the resultant FINAL JUDGMENT.

IV. MOTION FOR DAMAGES

Based upon the facts and arguments presented herein, Defendant hereby motions the Court to award Defendant damages for time and expenses in defense of the original underlying lawsuits, the Arbitration and the instant case, plus General Damages and Punitive Damages, in reasonable amounts to be determined in accordance with existing laws of the land.

DATED: SPRINGFIELD, KENTUCKY, December 2, 2006.

BOBBY NORRIS HARMON,

Defendant, Pro Se

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