Office of U.S. Trustee vs. Harmon - Answer to Plaintiff's Opposition Memo

BOBBY N. HARMON, CPCU, ARM

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Website: www.the-catbird-seat.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, ) OPPOSITION MEMORANDUM BY

) SUCCESSOR TRUSTEE JAMES B.

v. ) NICHOLSON TO DEFENDANT BOBBY

) N. HARMON’S: (1) MOTION TO ABATE

) ORDER GRANTING PLAINTIFF’S

BOBBY N. HARMON, ) MOTION FOR CONTEMPT AGAINST

) DEFENDANT BOBBY N. HARMON OF

Defendant ) FINAL JUDGMENT FILED AUGUST 22,

) 2006, FILED FEBRUARY 8, 2007...

)

) [FULL SUBJECT ON NEXT PAGE]

)

) [NON-HEARING MOTION]

)

) JUDGE: Hon. David A. Ezra

)

DEFENDANT’S ANSWER TO OPPOSITION MEMORANDUM BY PLAINTIFF-TRUSTEE JAMES B. NICHOLSON TO DEFENDANT BOBBY N. HARMON’S:
(1) MOTION TO ABATE ORDER GRANTING PLAINTIFF’S MOTION FOR
CONTEMPT AGAINST DEFENDANT BOBBY N. HARMON OF FINAL
JUDGMENT FILED AUGUST 22, 2006, FILED FEBRUARY 8, 2007;
(2) MOTION FOR ORDER THAT THE ORIGINAL SETTLEMENT AGREEMENT
AND THE ARBITRATION AWARD AGAINST BOBBY N. HARMON FILED
AUGUST 18 2006, BE DECLARED VOID, FILED FEBRUARY 8, 2007; AND
(3) MOTION FOR DAMAGES, FILED FEBRUARY 8, 2007

I. ANSWER TO PLAINTIFF’S ALLEGATION THAT ALL THREE MOTIONS ARE ESSENTIALLY MOTIONS FOR RECONSIDERATION

Plaintiff Nicholson alleges that all three motions by Defendant Bobby N. Harmon (“Defendant”) request the Court to change the decision entered in the Order Granting Plaintiff’s Motion for Contempt Against Defendant. Plaintiff then proceeds to give reasons why the alleged “motions for reconsideration” may be brought only upon certain grounds which he cites. Defendant’s basic answer to this argument is that the motions by Defendant ARE NOT all motions for reconsideration. These are clearly motions for: (1) Abatement; (2) Voidance; and (3) Damages, as plainly stated in Defendant’s motions. Therefore, Plaintiff’s arguments are NOT valid in this case.

Even if the Court accepted Plaintiff’s assertions that these were all motions for reconsideration, his subsequent arguments contain several false and inaccurate statements. For example, Plaintiff alleges, “There is no argument or claim in any of Defendant’s motions that he has discovered new material facts that were not previously available or that there was an intervening change in the law. At best, Defendant’s arguments in all three motions seem focused on whether there was a “manifest error of law or fact.” As Plaintiff, and this Court, are well-aware, Defendant has, on a continuing basis, provided NEW MATERIAL FACTS in this case as can be readily seen in his ever-increasing list of Exhibits which are posted on the Internet at:

www.the-catbird-seat.net/CV05-00030-Exhibits.htm

Contained in Defendant’s exhibits, the Court will find that, contrary to Plaintiff’s assertions, Defendant also has provided notice of “intervening changes in the law” which can be found at:

www.the-catbird-seat.net/SLAPP.htm

www.the-catbird-sea.net/Freedom-To-Sing.htm

Defendant further maintains that if he had not been DENIED his Constitutional Right to subpoena witnesses and documents, even more new and factual evidence would have been presented to this Honorable Court as indicated in Defendant’s Lists of Documents and Witnesses to be subpoenaed, which can be found at:

www.the-catbird-seat.net/CV05-00030-Docs-Subpoena.htm

www.the-catbird-seat.net/CV05-00030-Witness-Index.htm

II. ANSWER TO PLAINTIFF’S ASSERTION THAT ALL THE ANSWERS FILED BY DEFENDANT CONTAIN ARGUMENTS THAT WERE PREVIOUSLY ASSERTED BY DEFENDANT AND ADDRESSED BY THE COURT

Plaintiff asserts that: “As for Defendant’s arguments concerning the purported submittal of a December 2, 2006 Answer [Defendant’s Exh. “D”] to the Trustee’s Motion for Contempt, it is quite apparent from Defendant’s arguments that the December 2 Answer contained nothing new and in fact repeated the same arguments and points that had been raised in Defendant’s previous filings in this action.” Plaintiff then proceeds to list prior documents which he claims contains the same arguments. Defendant’s response to this assertion is: (1) Plaintiff’s motions of December 2, 2006 were actual - not “purported” - motions; (2) Plaintiff’s motions of December 2, 2006, were never acknowledged, heard by, or ruled upon by this Honorable Court; therefore, (3) it is entirely reasonable and appropriate that, under these circumstances where a Hearing and the subpoena of witnesses and documents have been unconstitutionally denied, that Defendant repeat the arguments and points made in his Motions filed on December 2, 2006, and February 2, 2007, which are posted on the Internet at:

www.the-catbird-seat.net/CV05-00030-Motions-12-2-6.htm

www.the-catbird-seat.net/CV05-00030-Motions-2-2-7.htm

Plaintiff further alleges that “due consideration was provided by the Court to the arguments, points, and conclusions asserted by Defendant”, and includes a chart listing certain points in my Answer and Motions dated December 2, 2006, and his January 17, 2007 Answers. A careful reading of the examples cited in Plaintiff’s chart will clearly show that the Court has NOT YET GIVEN “due consideration” to Defendants arguments, points, and conclusions, and that Plaintiff’s January 17, 2997 Answers DO NOT ANSWER, or even address, the main arguments by Defendant, which are:

A. The ORDER contains blatantly FALSE STATEMENTS regarding Defendant’s Answer and Motion For Abatement of Award and His Motion For Damages (“Answer”) filed on December 2, 2006.

B. Plaintiff did not make a reasonable effort to obtain a copy of the “purported” missing Answer and Motions prior to the Courts review.

C. The Cancellation of the Hearing scheduled for January 16, 2007, WITHOUT GIVING PRIOR NOTICE TO THE DEFENDANT, was improper court procedure and gave unfair advantage to the Plaintiff.

D. The Order does not answer the question of what actually constitutes “Protected Subject Matter” that was so broadly, ambiguously, and unconstitutionally defined in the award by Arbitrator Judith Neustadter Fuqua.

E. The Order does not address or answer Defendant’s Arguments in his Answer served on December 2, 2006, and does NOT provide a Ruling on Defendant’s Motion for Abatement of the Judgment and his Motion for Award.

In Steven Guttman’s Declaration dated February 16, 2007 (www.the-catbird-seat.net/CV05-00030-Guttman-Dec-2-16-7.pdf), he states:

“2. Pursuant to the Court’s Order Granting Plaintiff’s Motion for Contempt Against Defendant Bobby N. Harmon of Final Judgment Filed August 22, 2006, etc...Defendant Bobby N. Harmon was ordered by the Court to ‘provide Plaintiff with access, including all passwords, to Harmon’s website such that Plaintiff would be able to enter all areas of the site and remove any PSM’ within 10 days of January 26, 2007, the date on which the Order was issued.

“3. On February 5, 2007, Defendant provided me with what was purported to be the username and password to Defendant’s website, subject to the various ‘permissions, limitations and admonitions’ itemized in his letter. Attached hereto as Exhibit ‘A’ is a true and correct copy of Defendant’s letter to Plaintiff, in care of the undersigned, dated February 5, 2007.” (Reference: www.the-catbird-seat.net/CV05-00030-Re-Order-2-5-7.htm)

“4. After reading Defendant’s letter, I entered ‘www.the-catbird-seat.net‘ website and, through application of the username and password, was able to gain visual access to the password protected sites. However, I was unable to manipulate, remove or otherwise alter any of the material located at these password protected sites. Contrary to the Court’s Order, access was limited to a ‘read only’ status.

“5. The January 26, 2007, Order states: “If Mr. Harmon fails to so comply with this Order, the Final Judgment and Entry of Judgment, within 10 days, then this Court will issue an order to Yahoo! Small Business Hosting directing it to shut down Mr. Harmon’s website and forbid him from creating another website until such time as Mr. Harmon has verified to this Court that the new website will not contained [sic] any PSM. The January Order further states: ‘In addition, if Mr. Harmons [sic] fails to so comply with this Order, the Final Judgment, and Entry of Judgment, within 10 days, this Court will enter an order prohibiting Mr. Harmon from creating any new website, with any new host, until such time as Mr. Harmon has verified to this Court that the new website will not contain any of the PSM.

“6. At [sic] noted herein, the Defendant has, once again, purposefully and blatantly ignored this Court’s clear and direct orders. In light of the Defendant’s long history of disregarding settlement agreements, arbitration awards and court orders, neither the Plaintiff nor I have any reason to believe the Defendant will ever voluntarily comply. Therefore, on behalf of the Plaintiff, I respectfully request that the Court issue an order directed to “Yahoo! Small Business Hosting” to terminate and forever close down Defendant’s website and, furthermore, that the Court issue an order barring Defendant from creating another website until such time as he has verified to the Court that the new website will not contain any protected information.

“I declare under penalty of law that the foregoing in true and correct.

“DATED: Honolulu, Hawaii, February 16, 2007,”

<s> STEVEN GUTTMAN

Defendant answers the foregoing declarations by Steven Guttman, as follows:

1. Defendant did make a good faith effort to remove from public view all materials containing “PSM” from his website, as he understood the meaning of that broad, ill-defined term, and as he understands his Rights under the First Amendment of the United States Constitution, which Rights this honorable Court has sworn to uphold.

2. Defendant did, as Mr. Guttman admits, provide Plaintiff with a username and password to enable him to enter the website for the PURPOSE OF IDENTIFYING which sites contained “PSM”, as he understands the meaning of this term, in order that he could advise Defendant which SPECIFIC sites needed to be revised, or eliminated completely, from the website (ref. www.the-catbird-seat.net/CV05-00030-Re-Order-2-5-7.htm). It was Defendant’s expressed intent to fully comply with the Court’s Order and remove all “offending materials” as soon as these materials were clearly identified by Plaintiff, and agreed to by Defendant and/or the Court, that the Court-ordered removal of these specific materials did not violate Defendant’s First Amendment Rights. Defendant considers his letter of February 5, 2007 to Mr. Guttman, to be clear evidence of his good-faith efforts and intent to comply with the Court’s Orders, and that Mr. Guttman has unfairly and unjustly mis-characterized Defendant’s character and intent when he wrongfully alleges that “Defendant has, once again, purposefully and blatantly ignored this Court’s clear and direct orders.”

3. Defendant avers that it has been the PLAINTIFF, and NOT the Defendant, who has NOT made a good-faith effort to resolve these disputed issues by: 1) REFUSING to identify which specific materials should be redacted, and/or which pages should be removed in their entirety, from the website; and 2) by REFUSING to participate in a Pre-hearing Settlement Conference to attempt to resolve these disputed issues BEFORE bringing them before this Honorable Court.

III. CONCLUSION

For reasons as stated above and in Defendant’s filings of December 2, 2006, and January 10, 2007, Plaintiff has clearly FALSIFIED his testimony and has intentionally and fraudulently misled the Court into granting an unjust and improper Order. In addition, Defendant sincerely believes that this honorable Court has made procedural errors, and has not provided a fair and impartial Hearing to Defendant, which Defendant sincerely believes violates his Constitutional rights. Therefore, in light of this clear evidence, Plaintiff respectfully requests that the Court grant Plaintiff’s Motions.

DATED: SPRINGFIELD, KENTUCKY, February 23, 2007.

BOBBY NORRIS HARMON,

Defendant, Pro Se

RELATED INTERNET REFERENCES:

www.broken-trust-book.com

www.the-catbird-seat.net/CV05-00030-Motions-2-2-7.htm

www.the-catbird-seat.net/CV05-00030-OUST-vs-Harmon.htm

www.the-catbird-seat.net/CV05-00030-OUST-Answer.htm

www.the-catbird-seat.net/CV05-00030-Docs-Subpoena.htm

www.the-catbird-seat.net/CV05-00030-Exhibits-Index.htm

www.the-catbird-seat.net/CV05-00030-Witness-Index.htm

www.the-catbird-seat.net/CV05-00030-Witness-Chang-Kevin.htm