Office of U.S. Trustee vs. Harmon - Defendant's Motion to Set Aside Order

BOBBY N. HARMON, CPCU, ARM

Closed Website: www.the-catbird-seat.net

New 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 BOBBY N. HARMON’S

Plaintiff, ) MOTION TO SET ASIDE ORDER

) SIGNED BY JUDGE DAVID EZRA ON

v. ) FEB. 28, 2007, RE DEFENDANT’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 BOBBY N. HARMON’S MOTION TO SET ASIDE ORDER SIGNED BY JUDGE DAVID EZRA ON FEB. 28, 2007, RE DEFENDANT’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; EXHIBIT “A”

I. DEFENDANT RESPECTFULLY MOTIONS THE COURT TO SET ASIDE THE REFERENCED ORDER DUE TO THE FOLLOWING FACTUAL AND PROCEDURAL ERRORS:

1. With reference to the Court’s Discussion (p. 4), the Court states: “In his motion, Harmon raises five arguments, which will be addressed in turn.” The following is a listing of the factual and procedural errors found in the Court’s Order:

A. The Contempt Order Contains Blatantly False Statements (p. 5)

The Order asserts that Defendant’s “December 2^nd Answer was never properly filed with the Court, thus, Harmon has not provided strongly convincing evidence that the Court committed manifest errors of fact justifying reconsideration of the Contempt Order.

“Federal Rule of Civil Procedure Rule 5(e) defines ‘filing with the court’ as follows: ‘The filing of papers with the court as required by these rules shall be made by filing them with the clerk of the court (emphasis in the original).... A court may by local rule permit papers to be filed, signed, or verified by electronic means.

“Local Rule 7-7 provides that all documents shall be filed with the clerk. Local Rule 77.2 provides that address for the Court Clerk’s Office, which is 300 Ala Moana Blvd., Room C-338, Honolulu, Hawaii, 96850. LR 77.2 (2002). Harmon was well aware of the proper procedures for filing considering that he has properly filed papers of at least a dozen occasions in this particular case alone.

“Harmon identifies Ms. Lam as the “Court Clerk,” whereby he apparently believes that sending papers to her constitutes proper filing. This belief is mistaken. Ms. Lam is not the Court Clerk, she is this Court’s Courtroom Manager. Sending papers to Ms. Lam, or anyone other than the Court Clerk at the above mentioned address, does not constitute filing. If papers are not properly filed, this Court will not consider them.”

Defendant acknowledges that he mistakenly believed that Theresa Lam was the Court Clerk; however, the document records will show that Defendant similarly addressed filings to Ms. Lam, both before and after the December 2^nd filing, and the Court accepted those filings. The addresses on these filings were correct as noted above. My transmittal letter dated December 2^nd included the statement, “Please contact me if you have any questions. Thank you very much for your assistance.” If this transmittal was sent to the right address - in fact, the same room - but mistakenly was addressed to the wrong clerk, it would seem reasonable and prudent that Ms. Lam would realize the error and simply turn the filings over to the Court Clerk, who is apparently in the same room. Since it seems she did not take this simple action, however, the questions that beg answers are: 1) Why didn’t she take this simple action; 2) If I had improperly addressed this filing to the wrong party, why didn’t she notify me of the error and return the filing; 3) Is it standard Court Procedure to reject any filings that might mistakenly be addressed to the wrong person, and not provide notice to the sender that the filing was improper and that it was being rejected; 4) Why was this December 2^nd filing NOT recorded, while my filings both before and after December 2^nd addressed to Ms. Lam were filed; 5) What is the standard Court Procedure for disposing of these so-called “improper” filings - are they kept in file for a designated period of time, or are they shredded immediately, and what has happened to this particular December 2^nd document?

When a case has been in court for years, and a judgment of over a half million dollars is at stake, I believe that it is not unreasonable for a Defendant, 3,000 miles away in another state, to expect that his filings will not be rejected simply because he has mistakenly identified a particular individual as the Court Clerk.

B. Plaintiff Did Not Make a Reasonable Attempt to Obtain the December 2^nd Answer (p. 7)

Defendant has read this honorable Court’s clarification of the Contempt Order, but respectfully disagrees that it disposes of any argument. Due to the fact that I am not an attorney, I admit that much of the legal language in these filings are difficult for me to understand, and that I may, on occasion, use the wrong terminology in my filings. For this I apologize to the Court. However, I still fail to understand why the Court states: “No part of the Contempt Order was based on a claim by Plaintiff that Plaintiff failed to receive a copy of the December 2^nd Answer. Thus, Harmon’s misplaced argument offers no ground on which the Court should reconsider the Contempt Order.” As I have argued above, I believe the Court has made a material procedural error by not accepting my December 2^nd filing, and by not notifying me of the same. Furthermore, my arguments were intended to show that both the Court and the Plaintiff had received copies of my December 2^nd filing, and that was the reason I was questioning WHY there was no December 2^nd filing on record. The REASON for the rejected filing was not known to me until I received this instant ORDER dated February 28, 2007, with the explanation that it was addressed to the wrong clerk. I still fail to understand why this would not be a material error on part of the Court, and why this would be a “misplaced argument” which “offers no ground on which the Court should reconsider the Contempt Order.”

C. The Court Erred by Failing to Set a Hearing for the December 2^nd Answer (p. 8)

The Court states: “Harmon’s third argument is that the Court committed a procedural error by failing to set a hearing date for the Motions for Abatement and Damages that accompanied the December 2^nd Answer. Harmon alleges that this supposed error gave Plaintiff an advantage. This argument is unconvincing for two reasons:

“First, Harmon fails to specify what injury he suffered or what advantage Plaintiff gained as a result of this supposed error.”...

Defendant, not being an attorney, believed that it was obvious to the Court that Plaintiff would gain an advantage if Defendant’s Answer was not filed. The injuries that I have suffered, an am continuing to suffer, are that I have had to expend tremendous amounts of time and financial resources in fighting this frivolous, unconstitutional, SLAPP lawsuit, which has already resulted in a FINAL JUDGMENT of around a half-million dollars.

The Court continues: “Second, and more importantly, the Court has determined that the December 2^nd Answer was not properly filed, therefore, the Court was under no duty to set a hearing date for it.”...

As argued above, I believe the Court did not have sufficient justification for rejecting my December 2^nd Answer, and even less justification for not notifying me that the filing had been rejected, and the reason for the rejection so that I could have re-filed the Answer properly.

D. The Court Does Not Answer What Constitutes PSM

The Court states: “Harmon continues to insist that he cannot understand the definition of PSM. The Court believes this argument to be disingenuous. Harmon is a literate, prolific, and creative man, and this Court is confident that he can understand the common meanings of words in the English language.

“The Court believes that the real thrust of Harmon’s argument is that he believes that the First Amendment to the United States Constitution provides him the right to speak on any subject, at any time, in any manner he wishes. In this belief, Harmon is sorely mistaken. Harmon entered into a valid Settlement Agreement, which is a contract binding on the parties to the underlying litigation. ... Harmon voluntarily limited his First Amendment Rights when he signed the Settlement Agreement, and he cannot now invoke the rights he contracted away to avoid the force and effect of a voluntarily, valid agreement.”

The fallacies in the Court’s statement are:

1) It is not my belief that the First Amendment provides me “the right to speak on any subject, at any time, in any manner” I wish. I do acknowledge that there are legitimate limitations, but that the limitations that Plaintiff has argued, and the Court has Ordered, go far beyond what are legitimate, reasonable and guaranteed by the United States Constitution.

2) I have contested, many times and in many ways, that the Settlement Agreement was NOT A VALID CONTRACT. In fact, my Motions filed February 8, 2007, again asked this Court to declare the original Settlement Agreement void, and presented factual evidence as to why the Agreement was obtained through fraud and misrepresentations. A contract obtained through fraud is INVALID and unenforceable, and there is no statute of limitations on fraud or ongoing racketeering activities. I have steadfastly maintained over the past seven years that this question of the validity of this contract is one that should be ruled upon FIRST - BEFORE any other issues were taken to Arbitration, or before any other Motions were presented to this Court, or to the Bankruptcy Court. If the Court had ruled upon this matter of a valid contract early on, instead of terminating all Hearings, and denying me the right to subpoena documents and witnesses, most, if not all, of the current disputed issues of Freedom of Speech; what is or is not “PSM”, etc., would have been moot. Even at this late date, and despite Defendant’s previous Motions, Exhibits, named Witnesses, etc., the Court still has not addressed the issue of the validity of the Settlement Agreement. (See Exhibit “A”)

I do believe that, although I may not have “absolute privilege against prior restraint under the First Amendment,” that I have reasonable privileges against prior restraint, as my previous attorney, John Goemans, Esq., argued before Judge Eden Elizabeth Hifo (fka Bambi Weil). I strongly believe, as previously argued, that my letters reporting illegal activities to the IRS, the FBI, the SEC, the Attorney General, the Insurance Commissioner’s Office and other law enforcement and regulatory agencies - both before and after the Settlement Agreement was signed - are guaranteed under my First Amendment Rights and that this was also a legitimate exercise of my duties as a citizen to protect the public’s interests.

The Court’s Order states (p. 11) that: “In general, Harmon is prohibited from disseminating information relating to or obtained during his employment at KS, the circumstances of his dispute with KS, and the results of that dispute. The Court does not know how to make this restriction any clearer.” The problems that I have with this statement, as I have argued in previous filings, is that:

1) Most, if not all, of this information that has been posted on my website is, and has been for years, PUBLIC INFORMATION, as a review of my many Exhibits will bear out. This includes my RICO lawsuit - which was not sealed by the Court and is in the public record. The website for the U. S. Courts, District of Hawaii, states: ”All records are public information unless sealed by this court.” This argument stands alone and does not depend on First Amendment issues.

2) Many of the letters that the Plaintiff has argued are PSM, were sent to aid law enforcement and regulatory agencies, and provided information regarding serious criminal activities - some of which were before the courts at the time of my letters. It is difficult for me to fathom how these letters, written at different periods from 1996 to the present, could be construed as PSM. Is this Court Ordering that if, for example, I see a crime being committed at Bishop Estate’s offices, or if I were to receive, an e-mail warning from a self-proclaimed terrorist that he was going to blow up school buildings at Kamehameha Schools, that I am prohibited by Court Order from informing the police or the FBI of this warning? I believe not.

3) Many of the letters and documents that I have posted on the Internet, and which Plaintiff has argued are PSM, actually involve insurance claims against various parties, including the current trustee, James B. Nicholson; former trustee, Mary Lou Woo; their attorney, Steven Guttman; the American Arbitration Association; their arbitrator, Judith Neustadter Fuqua, and even the Office of the United States Trustee. For these parties to bring suit against me, and demand half a million dollars and the removal of all “PSM” materials from my website - including all materials related to the Arbitration proceedings, is clearly self-serving, an attempt to obstruct justice, and in violation of Hawaii’s Anti-SLAPP statute. These are insurance claims issues which were reported AFTER the Settlement Agreement was signed, and involve issues such as fraud and bad faith on the part of the insurance carriers and their insureds. There is no provision or condition in the Settlement Agreement which says that I will not, in the future, make insurance claims against any parties who may commit any type of fraud which may do harm to me.

E. The Order Does Not Address the December 2^nd Answer (p. 11)

The Court states: “Harmon’s final objection to the Contempt Order is that is does not address the arguments raised in his December 2^nd Answer and January 17^th Answer. As discussed above, the December 2^nd Answer was never filed properly, thus, it was never before this Court. Therefore, the Court did not err in failing to address and arguments made therein.” Basically, the Court’s arguments again rely upon the unreasonable premise that Defendant did not make a proper filing, which has been answered above.

The Court continues: “The Court did not err by failing to address arguments raised in the January 17^th Answer for the reasons set forth below.

“Harmon’s first argument in the January 17^th Answer is that Plaintiff’s Supplemental Concise Statement of Facts and Supplemental Declaration of Steven Guttman, Esq. ... were untimely because they were received only one week before the hearing date, which did not leave Harmon sufficient time to file a proper answer. Harmon suffered no prejudice as a result of the allegedly untimely filing. Harmon’s bald assertions to the contrary are insufficient to support his claims....” Again, I point out to the Court that Kamehameha Schools/Bishop Estate, and subsequently the Office of the United States Trustee, have kept me tied up in legal proceedings for over 10 years. I have lost my career, my home in Hawaii, my business, my car, my life savings, my life insurance, my peace of mind, and what should have been happy, comfortable retirement years with my family and grandchildren. Instead, I am now facing a Judgment of half a million dollars, and accrued interest of $115. a day, and still the Court is unconvinced that I have been injured in some way because the Court has not addressed these issues. What more do I provide to this Court to convince them that I have been truly and sorely injured, and that this is not merely a “bald assertion” as the Court has stated?

The Court continues: “Harmon’s second argument in the January 17^th Answer is that Plaintiff did not adequately respond to the arguments set forth in Harmon’s December 2^nd Answer. His third and fourth arguments are related: he contends that Plaintiff did not sufficiently respond to Harmon’s Motion to Abate the Arbitration Award and Motion for Damages, which were included with the December 2^nd Answer. These arguments fail for numerous reasons. Most importantly, these arguments fail because the December 2^nd Answer was never filed, therefore, Harmon’s arguments were never properly before the Court. In addition, Plaintiff does not have the obligation to respond to every point Harmon raises. Just because Plaintiff does not respond to an argument does not mean that Harmon must prevail on that point. For example, Harmon urged the Court to abate the Arbitration Award because Plaintiff had failed to define PSM to his satisfaction and to provide him with a list of specific webpages that contained PSM and needed to be taken down.”... This again goes back to the Plaintiff’s oft-used contention that he has no obligation to provide Defendant with any meaningful factual information, such as providing a list of which specific pages he is asking be removed from the website. It is BECAUSE Plaintiff has refused my repeated offers to meet out-of-court and discuss these complex issues such as “PSM” vs. Freedom of Speech, that this instant case has been so unnecessarily complicated and difficult to bring to resolution.

F. Harmon’s Motion To Declare the Settlement Agreement Void.

The Court states: “Harmon moves this Court to declare the Settlement Agreement void, alleging that it was obtained through ‘fraud and misrepresentations, and for the illegal purpose of obstruction just [sic] in EQ2048 and other criminal and civil lawsuits in progress’ when the parties entered the Settlement Agreement.... In his motion, Harmon does not provide facts or law supporting this contention. As discussed above, the Court cannot grant a motion on such bald assertions. Therefore, Harmon’s Motion to Declare the Settlement Agreement Void is DENIED.”

This statement is entirely erroneous. I have provided thousands of pages of facts supporting my contentions in ever-expanding lists of Exhibits and Witnesses which currently can be viewed on the Internet at.

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

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

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

Furthermore, the premature withdrawal of my attorneys in this case, lack of financial resources, the distance between my present home and the islands, and the denial of a Hearing and the subpoena of documents and witnesses, have seriously limited my ability to provide even further facts for consideration of this court.

II. New Developments Evidencing the Credibility of Defendant’s Arguments of Bias, Inconsistency, Unfair Advantage, and Failure to Follow Court Procedures in This Case

On February 23, 2007, Defendant signed and transmitted by e-mail and by U.S. first-class, certified mail, addressed to Ms. Theresa Lam, U.S. District Court, 300 Ala Moana Blvd., Rm C338, Honolulu, HI 96850, “Defendant’s Answer To Opposition Memorandum by Successor Trustee James B. Nicholson to Defendant Bobby N. Harmon’s: (1) Motion to Abate Order Granting Plaintiff’s Motion for Contempt Against Defendant, etc.” A copy of this filing was also transmitted by e-mail, facsimile and by certified U.S. Mail, to James B. Nicholson, Office of the U.S. Trustee, c/o Steven Guttman, Esq., Kessner Duca Umebayashi, et al.

This document was file stamped on February 28, 2007 by Sue Beitia, Clerk, and appears on the PACER electronic filing system as Document 95. The PACER system states that this document was filed on 02/28/2007, but not entered until 03/02/2007. This filing was preceded by Document 94, which is the instant Order Denying Denying Defendant’s motions. PACER indicates that Document 94 was Filed & Entered on 02/28/2007. These new facts provide clear, undisputable evidence that:

1) By merely sending a filing addressed to the wrong individual (Theresa Lam), does not mean that the filing will be automatically rejected;

2) Plaintiff, and this Court, were provided copies of my Answer on February 23, 2007, which would have allowed these parties time to review and reply to this Answer BEFORE the Court filed and entered the instant ORDER on February 28, 2007. Instead, this Court chose to enter the instant ORDER which makes NO REFERENCE TO my Answer which was transmitted to these parties on February 23, 2007.

III. Summary and Conclusions

1. Much of the Court’s reasoning for this Order concerns the assertion that my Answer dated December 2, 2006, was not properly filed. As argued above, I consider this to be a critical procedural error on the part of the Court, and that the Court’s refusal to accept this filing simply because I mistakenly identified Theresa Lam as the Court Clerk, is insufficient reason to reject the filing. This error was compounded by the fact the Court failed to notify Defendant of this rejection.

2. With regard to Defendant’s Motion that the Original Settlement is not valid because it was obtained through fraud and misrepresentations, the Court seems to indicate by its remarks that it has not reviewed, or taken into consideration, the hundreds of pages of Exhibits which Defendant has provided thus far, with more being added almost daily. More importantly, the Order does not indicate that the Court had reviewed my Answer signed and transmitted on 02/23/2007, filed on 02/28/2007, and entered on 03/02/2007.

3. Although the Court provides some legal precedents regarding limitations on First Amendment rights, it fails to answer Defendant’s broader arguments in his Motion dated February 2, 2007 (pages 7, 8 and 9), on this important Constitutional issue which the Court is sworn to uphold. The Court also fails to acknowledge or address any of Plaintiff’s arguments in his Answer dated February 23, 2007. (PACER Doc. No. 95, Filed 02/28/2007)

4. Although Defendant accepts the fact that judges have great latitude in deciding cases without hearings, he believes that the Court has erred in this particular case by not providing prior Notice to the Defendant that the Hearing scheduled for January 17, 2007 was cancelled. Through a recent search on PACER, I also find that for Document No. 86, which was filed on January 9, 2007, and states that there will be no hearing held for this Motion, there is no mention of Notice being provided by mail or e-mail to me. Also, there is no active link to this particular document, so I was unable to retrieve any details, which again gave Plaintiff unfair advantage in his filings.

5. Defendant has discovered through a PACER search, that this Order, which is listed as Document number 94, was filed and entered on 02/28/2007; and that Defendant’s Answer, which is listed as number 95, was also filed on 02/28/2007, but not entered until 03/02/2007. This clearly indicates that the Court’s Order was issued before Defendant’s Answer was filed and entered, indicating a procedural error on the part of the Court, and again raising the question of giving fair and unbiased consideration to the Defendant’s arguments in this case.

III. Motion to Abate or Set Aside the Order

For consideration of the facts and arguments stated above and in previous filings, including the arguments in his Answer filed February 28, 2007 (PACER Doc. #95), Defendant respectfully Motions this Court to Abate or Set Aside the subject Order; to Declare the Original Settlement Agreement and the Arbitration Award void; and to award Defendant reasonable damages for his time and expenses in defending these frivolous lawsuits, and award Defendant punitive damages for fraud, racketeering, obstruction of justice and bad faith dealings by the Office of the United States Trustee in a reasonable amount to be determined by the Court, or through the alternative means of negotiation between interested parties.

DATED: SPRINGFIELD, KENTUCKY, March 10, 2007.

BOBBY NORRIS HARMON,

Defendant, Pro Se

EXHIBIT A:

HTM FORMAT

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

PDF FORMAT

www.the-catbird-seat.net/CV05-00030-Exhibits-P1-13.pdf

www.the-catbird-seat.net/CV05-00030-Exhibits-P14-26.pdf

www.the-catbird-seat.net/CV05-00030-Exhibits-P27-48.pdf

RELATED INTERNET REFERENCES:

www.the-catbird-seat.net/Apartheid-Hawaiian-Style.htm