Office of U.S. Trustee vs. Harmon - Motion to Recuse Judge Kevin S.C. Chang

BOBBY N. HARMON, CPCU, ARM

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Defendant, Pro Se

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF HAWAII

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

)

Plaintiff, ) DEFENDANT’S ANSWER TO

) PLAINTIFF’S MEMORANDUM IN

v. ) OPPOSITION TO DEFENDANT’S

) (1) MOTION FOR ORDER TO

BOBBY N. HARMON, ) DECLARE SETTLEMENT VOID;

) (2) MOTION TO DENY PLAINTIFF’S

Defendant ) MOTION FOR SUMMARY JUDGMENT;

) AND (3) MOTION TO AWARD COSTS

) AND DAMAGES TO DEFENDANT;

) CERTIFICATE OF SERVICE

)

) NON-HEARING MOTIONS

)

) JUDGE: Hon. David A. Ezra

)

DEFENDANT’S ANSWER TO PLAINTIFF’S MEMORANDUM IN OPPOSITION TO DEFENDANT’S
(1) MOTION FOR ORDER TO DECLARE SETTLEMENT VOID;
(2) MOTION TO DENY PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; AND
(3) MOTION TO AWARD COSTS AND DAMAGES TO DEFENDANT

Defendant BOBBY N. HARMON hereby submits this Answer to Plaintiff JAMES B. NICHOLSON’s Memorandum filed on or about August 8, 2006.

I. ARGUMENT

A. Defendant’s Motion to Declare Settlement Agreement Void. Plaintiff argues that I challenge the validity of the Settlement Agreement. That is true, and this constitutes the basic reason for my Motion for Order to Declare Settlement Void. Plaintiff, on the other hand, presents absolutely NO counter-arguments, or evidence, to dispute my arguments that the Settlement Agreement (the “Agreement”) was obtained through misrepresentation and fraud, and that this Agreement, plainly, is NOT a valid and enforceable contract.

Plaintiff argues that my opposition “is untimely as the appeal period for both the U.S. District Court and the U.S. Bankruptcy Court proceedings has passed.” I submit that Plaintiff’s argument is invalid since neither the Arbitrator, nor any court, has ever conducted a hearing or ruled on the validity of the Settlement Agreement. I argue that the date upon which the Court rules on my Motion to Declare the Settlement Agreement Void, will be the commencement date of the time period for appeal of that Decision by either party.

Plaintiff argues: “What remains at issue is the amount and the extent of damages to which Plaintiff is entitled due to Defendant’s failure to abide by the terms and conditions of the valid and legitimate Settlement Agreement, and the extent of the injunctive relief to be issued by this Court to allow Plaintiff to force Defendant’s compliance with the Settlement Agreement.” As argued above, the Court has never before heard, or ruled upon, arguments regarding the question of the validity of the Agreement. Therefore, contrary to Plaintiff’s argument, the question of the Agreement’s validity still remains at issue, and one which must be decided and ruled upon by this Court BEFORE any issues of the amount or extent of damages or the enforcement of Defendant’s compliance with the Agreement, can be properly addressed.

B. Defendant’s Motion that Plaintiff’s Motion for Summary Judgment be Denied. Plaintiff states: “Plaintiff’s arguments and evidence in support of his Motion for Summary Judgment and in reply to Defendant’s opposition have already been submitted to this Court. The deadline to opposed [sic] the Summary Judgment Motion was July 6, 2006, and Defendant is not allowed to circumvent this deadline by simply labeling his submission a ‘motion’.” Plaintiff clearly, by his own admission, has offered no NEW arguments or evidence to counter the arguments and factual evidence as presented in Defendant’s Motions.

Plaintiff argues that the deadline to oppose the Summary Judgment Motion was July 6, 2006, and that Defendant is not allowed to circumvent this deadline by simply labeling his submission a “Motion.” This argument is incorrect and misleading. Plaintiff did file his Motion for Summary Judgment on April 10, 2006. On, or about, April 24, 2006, I filed an Answer in opposition to that Motion, in which I included the following Motions (quote):

II. MOTION THAT THE COURT DECLARE THE ORIGINAL SETTLEMENT, RELEASE AND INDEMNIFICATION AGREEMENT; THE ARBITRATION AWARD; AND THE ORDER APPROVING SETTLEMENT TO BE INVALID.

Based upon the facts and arguments presented herein, Defendant respectfully asks the Court to declare the original Settlement Release and Indemnification Agreement, the Arbitration Decision and Award, and the Order Approving Settlement to be invalid.

III. MOTION THAT THE APPLICATION BY PLAINTIFF-TRUSTEE OFFICE OF U.S. TRUSTEE FOR CONFIRMATION OF ARBITRATION AWARD AND FOR ENTRY OF JUDGMENT AGAINST BOBBY N. HARMON BE DENIED.

Based upon the facts and arguments presented herein, Defendant respectfully asks the Court to DENY the Application by Plaintiff-Trustee Office of U.S. Trustee for Confirmation of Arbitration Award and for Entry of Judgment Against Bobby N. Harmon.

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.

< END OF QUOTATION >

These Motions were filed on, or about, April 24, 2006, in expectation of, and preparation for, a Hearing scheduled for July 24, 2006, before Judge David Ezra. I received no further Notice from this Honorable Court scheduling a Hearing on these Motions. However, on July 10, 2006, Defendant received a Notice of Electronic Filing which stated: “Motions Taken Under Advisement: (33) MOTION for Summary Judgment on the Arbitration Award Against Bobby N. Harmon. Motion to be decided on the papers without a hearing.” Then, on or about July 18, 2006, I filed, “DEFENDANT’S ANSWER TO PLAINTIFF-SUCCESSOR TRUSTEE OFFICE OF THE UNITED STATES TRUSTEE’S MOTION FOR ENTRY OF JUDGMENT ON THE ARBITRATION AWARD AGAINST BOBBY N. HARMON; MOTION THAT THE COURT DECLARE INVALID THE ORIGINAL SETTLEMENT, RELEASE AND INDEMNIFICATION AGREEMENT, THE ARBITRATION AWARD, AND THE ORDER APPROVING SETTLEMENT; MOTION THAT THE APPLICATION BY PLAINTIFF-TRUSTEE OFFICE OF U.S. TRUSTEE FOR CONFIRMATION OF ARBITRATION AWARD AND FOR ENTRY OF JUDGMENT AGAINST BOBBY N. HARMON BE DENIED; MOTION FOR DAMAGES.”

It appears from his contention that the deadline for opposing the Summary Judgment Motion was July 6, 2006, that Plaintff is referring to the Motions that I filed on, or about, July 18, 2006. To the contrary, however, my original Answer and Motions were filed on a timely basis on, or about, April 24, 2006. It now appears that Plaintiff, on the other hand, may NOT have filed a timely response to my April 24, 2006 Motions, which, if true, would give reasonable grounds for this Honorable Court to dismiss this frivolous lawsuit.

C. Defendant’s Motion for Costs and Damages. The Plaintiff argues: “The pending Summary Judgment Motion sets forth Plaintiff’s request that the arbitration Award, including attorneys’ fees and costs of approximately $49,000 be enforced and that this Court determine the amount of damages to be assessed against the Defendant. In addition thereto, Plaintiff requests that the Bankruptcy Estate be awarded additional compensation in connection with the fees and costs it has been forced to incur in responding to Defendant’s ceaseless onslaught of legal filings and correspondence. The Plaintiff is the prevailing party and there is no legal basis for Defendant’s frivolous motion for costs and damages.”

Here, again, Plaintiff presents absolutely no factual legal arguments in Answer to Defendant’s Motion for Costs and Damages. First of all, I am the Defendant in this case, acting pro se without the advice of an attorney. I have made many offers to Plaintiff to attempt to settle this case through the alternative dispute resolution technique of voluntary negotiation. Plaintiff has refused all such requests, and has been responsible for continuing this self-serving, frivolous case against me in the courts for nearly six years. It has been Plaintiff’s own court filings that has necessitated my Answers, Motions and correspondence. Does Plaintiff expect me NOT to respond to his Motions, or NOT to defend myself to the best of my limited legal abilities? And does he now have the nerve to accuse ME of a “ceaseless onslaught of legal filings and correspondence.”

Plaintiff gives absolutely NO counter-arguments to my many assertions that the Settlement Agreement was obtained through fraud, deception, misrepresentation, and for unlawful purposes, and is therefore an invalid and unenforceable contract; or to my arguments that “the original settlement negotiations and the subsequent Trustee’s Demand for Arbitration (“Demand”) against Bobby Harmon, filed on March 31, 2003, were blatant attempts to obstruct justice by various parties named in my Racketeer Influenced and Corrupt Organizations (“RICO”) lawsuit filed in US District Court on April 27, 1999 (Case No. CV 9900304), and Hawaii Attorney General Margery Bronster’s lawsuit to remove the former Kamehameha Schools/Bishop Estate Trustees (EQ2048), in which I was a named Witness at the time of Mary Lou Woo’s appointment as Trustee.” Further, Plaintiff gives NO counter-argument to my contention that this obstruction of justice was intended also to silence my “whistle-blowing” activities in the various lawsuits and actions by various regulatory agencies.

Plaintiff gives NO counter-arguments to Defendant’s argument that Trustee MARY LOU WOO’s Demand for Arbitration was an attempt to hide her own undisclosed conflicts of interests in this case, and involved a conspiracy to cover up these conflicts, errors, omissions, fraud and racketeering activities committed before, during, and subsequent to, the settlement negotiations by her attorney Steven Guttman, Esq., through ex parte communications and in conspiracy with Bishop Estate attorneys Nathan Aipa, Colleen Wong and Louanne Kam; Matt Tsukazaki and Robert Katz of Torkildson Katz Fonseca Jaffe, Moore & Hetherington; Susan Tius of Rush Moore Craven Sutton Morry & Beh; Kenneth Hipp of Marr Hipp Jones & Pepper; Jeffrey Sia of Ayabe Chong Nishimoto Sia & Nakamura; and my own attorneys, Roy Hughes, Arnold Phillips, Bradley Tamm and Greg Dunn, and others. (see Exhibits D, E, F & G)

Plaintiff gives NO counter-arguments to my contention that The American Arbitration Association, at the urging of Steven Guttman and over the repeated objections of Defendant, appointed a biased arbitrator in this case, Judith Neustadter Fuqua, for the reasons given in my Answers and Motions.

Plaintiff gives NO counter-arguments to my contentions that enforcement of the Arbitration Award would be against public policy, and would violate of Defendant’s First Amendment Rights.

In fact, Plaintiff provides NO counter-arguments, whatsoever, to my numerous factual arguments made in either of my Answers and Motions filed on, or about, April 24, 2006, and on July 18, 2006 (date-stamped by the Court on July 28, 2006).

II. CONCLUSION

Based upon the facts and arguments presented herein, Defendant respectfully asks this Honorable Court to grant approval of Defendant’s Motions.

However, let it be known to the Court that on, or about, August 7, 2006, Defendant filed a “Motion to Recuse” Judge Ezra. If he is not recused, or if Plaintiff and Defendant do not negotiate an out-of-court settlement prior to Judge Ezra’s ruling, then I respectfully beg this Honorable Court to make available to me for review, ALL documents that I have previously indicated were to be subpoenaed in this case, including those documents returned to Kamehameha Schools/Bishop Estate under court injunction, and all documents ordered sealed by the Court in EQ2048, and that they be made available for a reasonable period of time BEFORE the Honorable Judge David Ezra makes any ruling in favor of Plaintiff, and against Defendant, due to the fact that these documents are important and absolutely necessary to my proper defense in this case.

DATED: SPRINGFIELD, KENTUCKY, August 14, 2006.

BOBBY NORRIS HARMON,

Defendant, Pro Se

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