BOBBY N. HARMON, CPCU, ARM
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 MOTION TO ABATE
Plaintiff, ) ORDER GRANTING PLAINTIFF’S
) MOTION FOR CONTEMPT AGAINST
v. ) DEFENDANT BOBBY N. HARMON
) OF FINAL JUDGMENT DATED
) JANUARY 26, 2007; MOTION FOR
BOBBY N. HARMON, ) ORDER THAT THE ORIGINAL
) SETTLEMENT AGREEMENT AND
Defendant ) THE ARBITRATION AWARD AGAINST
) BOBBY N. HARMON FILED AUGUST
) 18, 2006, BE DECLARED VOID;
) MOTION FOR DAMAGES;
) CERTIFICATE OF SERVICE.
) Judge: Honorable David A. Ezra
Defendant hereby Motions the Court to ABATE the Order dated Honolulu, Hawaii, January 26, 2007, signed by David Alan Ezra, United States District Judge.
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.
The Order states (p. 7) that “Harmon, pro se, filed an Answer to Supplemental Concise Statement of Facts by Plaintiff, And Supplemental Declaration of Steven Guttman Filed on Jan. 4, 2007; Request that Court Grant Defendant’s Motion For Abatement of Award And And [sic] His Motion For Damages (“Answer”) on January 17, 2007. In this document, Harmon claims that he filed an Answer to the instant motion on or around December 2, 2006. The Court has no record of Harmon’s December 2, 2006 Answer. In his January 17, 2007 Answer, Harmon argues that the Plaintiff’s supplemental concise statement of facts and supplement declaration were untimely because Harmon received them only seven days before the scheduled hearing, giving him inadequate time to respond to them. (Answer at 2.) Harmon also reasserts that he has ‘made a good faith effort to remove all Protected Subject Matters as he understands the meaning of the term and his right to Free Speech under the First Amendment of the United States Constitution.’ (Answer 3.) Harmon further argues that Plaintiff failed to identify specifically which materials constituted PSM which needed to be removed, distinguishing those materials from materials that could be published under the First Amendment. Harmon also alleges that Plaintiff has not apologized for mistakenly identifying Voyager Info-systems as Harmon’s web host in the initial Motion for Contempt, a mistake which was corrected by Plaintiff’s supplemental filings. (Id.) Harmon further argues that all the information on his website, including the PSM is protected under his First Amendment Rights, the Arbitration Award is invalid and unenforceable, and that Plaintiff’s suit against Harmon violated Hawaii’s Anti-SLAPP statute. Finally, Harmon responds to Plaintiff’s Motion for Contempt as follows: (1) Harmon is not in contempt because he has made a good faith effort to comply with the Court’s Entry of Judgment and Final Judgment; (2) providing Plaintiff with the ability to remove ‘offensive materials’ from Harmon’s website would violate Harmon’s First and Fourth Amendment rights; and (3) a writ ordering the web-host to shut down Harmon’s website would violate Harmon’s First and Fourth Amendment Rights. Harmon raises additional issues, specifically, that Plaintiff has not responded to the specific issues raised in the Answer that Harmon purports to have filed on or around December 2, 2006 as well as Defendant’s Motions to abate the Arbitration Award and for Damages, that were purportedly filed with the Answer. Harmon provided a link to his website where he had apparently posted the Answer and Motions filed December 2, 2006, but the address is now inoperable.”
The above quotation from the Order contains two major falsehoods:
1) Defendant’s “Answer” was indeed sent to the Court on December 2, 2006, as evidenced by my cover letter addressed to Court Clerk, Theresa Lam (Exhibit A); by the Certified Mail Return Receipt Number 7005 1820 0002 4406 7132, showing that Steven Guttman’s office received the so-called “purported” Answer on 12/11/06 (Exhibit B); by my Certificate of Service, signed and dated December 2, 2006 (Exhibit C); and by my e-mail dated Sat., 2 Dec 2006 13:12:54 - 0800 (Exhibit D). I ask the Court to take particular note that the e-mail, which was addressed to Court Clerk Theresa Lam at the address, <firstname.lastname@example.org>, included courtesy copies which were sent to nearly 100 different addresses, including copies to James B. Nicholson, Curtis Ching, Steven Guttman, Hugh Jones, Dorothy Sellers, Samuel P. King, Barry M. Kurren, Kenneth Hipp, John D. Marshall, Bradley Tamm, John Goemans, Michael Tanoue, Susan Tius, Matt Tsukazaki, and “All (Hawaii State) Senators” and “All (Hawaii State) Representatives”. It is against all odds that the Plaintiff, and the Court, did not receive any of these documents that were sent by U.S. Postal Services, by facsimile and by e-mail. Therefore, Plaintiff avers that the Court, DID RECEIVE Defendant’s Answer dated December 2, 2006, and erred by failing to properly process the filing, and that the Order Granting Plaintiff’s Motion is erroneously based upon Plaintiff’s FALSE STATEMENT that these documents were not filed.
2) Plaintiff’s statement that “Harmon provided a link to his website where he had apparently posted the Answer and Motions filed December 2, 2006, but the address is now inoperable,” is also FALSE. According to the records maintained by Yahoo Small Business Hosting, Defendant’s Answer and Motions were posted on the Internet, and were last amended on December 13, 2006, 01:30 a.m., in a public website which can be accessed by anyone, at anytime (24 hours a day, 7days a week), from anywhere in the world at www.the-catbird-seat.net/CV05-00030-Answer-12-2-6.htm, as stated in Defendant’s letter and e-mail to Theresa Lam dated December 2, 2006. A link to this site is also provided in an index page entitled “Office of the United States Trustee vs. Bobby N. Harmon,” at www.the-catbird-seat.net/CV05-00030-OUST-vs-Harmon.htm.
B. Plaintiff did not make a reasonable effort to obtain a copy of the “purported” missing Answer and Motions prior to the Courts review.
Referring to my Answer which Plaintiff states was filed on “January 17, 2007", he states: “In this document, Harmon claims that he filed an Answer to the instant motion on or around December 2, 2006. The Court has no record of Harmon’s December 2, 2006 Answer.” First of all, Plaintiff’s statement regarding the Filing Date of my Answer is false and misleading. This Answer was actually served on January 10, 2007 - by U.S. Mail, facsimile, and e-mail (Exhibit C) - which gave Plaintiff adequate time to contact Defendant to request a copy of the “purported” missing Answer before the scheduled Hearing Date of January 16, 2007. Furthermore, if Plaintiff had answered any of my many offers to a hold Pre-hearing Settlement Conference prior the scheduled Hearing Date, this question of a “purported” missing filing could have been easily resolved at that Pre-Hearing Conference. Particularly worthy of judicial notice is the fact that Plaintiff’s Supplemental Concise Statement of Facts, and Supplemental Declaration of Steven Guttman filed on January 4, 2006, was IN ANSWER TO Defendant’s Answer and Motion For Abatement of Award And Motion For Damages served on December 2, 2006. How can Plaintiff file a Supplemental Statement of Facts and Supplemental Declaration pertaining to a “purported” filing? There is no logical explanation other than Plaintiff has DELIBERATELY FALSIFIED his testimony in order to mislead the Court.
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.
The Order states that “Pursuant to Local Rule 7.2(d), the Court finds this matter suitable for disposition without a hearing. After reviewing Plaintiff’s motion and the supporting and opposing memoranda, the Court GRANTS Plaintiff’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.” Local Rule 7.2(d) does state, “The Court, in its discretion, may decide any motion without a hearing.” However, Local Rule 7.2 (a) states: “Except as otherwise provided by this rule, all motions shall be entered on the motion calendar of the assigned judge for hearing not less that twenty-eight (28) days after service.” Plaintiff filed his Motion for Contempt on November 20, 2006, and a Hearing was scheduled for January 16, 2007, before the Honorable Judge David Ezra. As noted above, my Answer to Plaintiff’s Motion, and my Motions for Abatement and Damages were served on December 2, 2006, and, according to LR 7.2(a), should have been entered on the motion calendar no later than December 31, 2006. The failure to enter the motion on the calendar would appear to be a procedural error on the part of the Court. Furthermore, as a Hearing had already been scheduled for January 16, 2007, Defendant was of the belief that this Hearing was for the purpose of hearing ALL MOTIONS that had been made, including Defendant’s Motions for Abatement and Damages served on December 2, 2006. Then, to have the Hearing cancelled without notice to the Defendant, only added to the confusion already caused by the apparent procedural errors of the Court.
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.
Plaintiff states in the Order (p. 10):
“In her Conclusions of Law 24(a) through (h), the Arbitrator set forth with great specificity what information Harmon was forbidden from communicating, identifying this information as PSM. (Arbitration Award 22-24) This court awarded damages against Harmon for continuing to incorporate PSM, as defined in the Arbitration Award. (Entry of Judgment 15.) This Court’s Final Judgment also incorporated the Arbitrator’s definition of PSM. (Final Judgment 3.) There can be no question in Harmon’s mind as to exactly what material he is no longer allowed to disseminate or communicate.
“Harmon’s creation of password protection for sites that previously contained PSM indicates that he is fully aware that these sites are covered by the various Agreements and Orders, which he has repeatedly disregarded. Harmon claims to have made a good faith effort to remove PSM from “public view.” The Court’s various orders, however, do not contemplate mere effort to remove PSM from public view. The Court ordered Harmon to remove all PSM from his website within ten days of the entry of judgment. (Entry of Judgment 14). The requirement was unambiguous. The creation of password protected areas on the website cannot reasonably be construed as a good faith effort to permanently remove the offending content. Rather, it demonstrates blatant disobedience to the Court. Thus, Plaintiff has proved that Harmon is in contempt of this Court’s orders.”
Contrary to Plaintiff’s assumptive assertions, there have ALWAYS been “questions in Harmon’s mind as to exactly what material he is no longer allowed to disseminate or communicate,” as a reading of any of his previous Answers and Motions - including those in his December 2, 2006 and January 10, 2007 filings - will readily confirm. The instant Order does nothing to answer those questions or clarify what materials can, or cannot, be posted on the Internet - password protected or not.
Constitutional scholar and attorney, William Bennett Turner, has written, and posted on the Internet:
Fundamental free speech principles
In deciding free speech cases, the courts have elaborated some bedrock principles that inform First Amendment decision-making. What the First Amendment "freedom" means, in fact, is basically this set of principles. We should remind ourselves of them and ask whether they need adjustment for the 21st century.
Here are some of them:
• Government may not restrict or penalize speech because of its content or its viewpoint. It must remain neutral in the marketplace of ideas.
• There is no such thing as a "false idea." This principle rests on the belief that bad ideas will be driven out not by censorship but by good ideas, that the remedy for offensive speech is not suppression, but more speech.
• Restrictions on speech must not be vague or uncertain but sufficiently precise so that everyone understands exactly what is unlawful. No overly broad meat-axe regulation is allowed - any restriction must be a sensitive tool that cuts no more than is necessary to serve the precise government interest involved.
• "Journalism" is not a licensed, credentialed profession. Under our legal system, the "lonely pamphleteer" has the same First Amendment rights as the publisher of The New York Times.
• The press cannot be ordered to print statements it does not wish to print.
• "Prior restraints" on speech - government orders that certain information not be published - are prohibited.
• Penalties (like damages in libel suits) may not be imposed for innocent mistakes that happen to defame someone.
• Advocacy - including advocacy of the overthrow of the government - cannot be outlawed, so long as it does not amount to inciting people to imminent lawless action. Speech short of incitement cannot be banned because of the anticipated adverse reaction of the audience.
• Punishment for "seditious libel" - scathing criticism of government - is not tolerated under the First Amendment.
• No one can own or control facts or ideas (though a person can copyright the unique way he or she expresses those facts or ideas).
These are all great protections that allow us to call ourselves free people. And these principles apply regardless of the means of communication: via big newspapers, small magazines, telephones, television, radio, or the street-corner orator. There is no reason to fear that these principles will not apply with full force to all forms of digital communication.
In addition, a similar free-speech issue has already been decided by the California Supreme Court in re Intel Corp. vs. Hamidi, (2003) 30 Cal.4th 1342, 1363.) as reported in this 2003 excerpt from the University of California, Berkley law journal:
“On Monday, June 30, the California Supreme Court ruled in Intel vs. Hamidi, refusing to allow the technology company to block Ken Hamidi, an ex-worker, from sending mass emails to Intel employees. Professors Mark Lemley ’91 and Deirdre Mulligan, with the assistance of Samuelson Law, Technology & Public Policy clinic student Laura Quilter ’03, wrote an amicus curiae brief in support of Hamidi. The brief was submitted on behalf of more than 40 computer and intellectual property law professors.
“The decision reversed a lower court ruling that prevented Hamidi from sending Intel employees emails regarding his firing and the company’s labor practices. The brief argued that the lower court ruling created a new tort dangerous to the Internet, electronic commerce and free speech.”... (6/30/03)
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.
Although the Order quotes some of Defendant’s Arguments and Motions contained in his January 10, 2007 filing, the Court does not address these Arguments and Motions, and does not Rule on the merits of Defendant’s arguments regarding his First and Fourth Amendment Rights; or the factual errors in Plaintiff’s arguments that Defendant argued in his filings of December 2, 2006 and January 10, 2007; or the fact that Plaintiff has failed to identify specifically which materials constituted PSM which needed to be removed, distinguishing those materials from materials that could be published under the First Amendment; or Defendant’s arguments that the original Settlement Agreement and the Arbitration Award are INVALID and UNENFORCEABLE due to FRAUD; or that Plaintiff’s suit violates Hawaii’s Anti-SLAPP statute. Plaintiff’s mere brief recap of Defendant’s Arguments is NOT an ANSWER to the questions regarding Defendant’s legal and constitutional rights which the Court has sworn to uphold.
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 which should not be allowed to stand. Furthermore, the Court has made procedural errors, and has not provided a fair and impartial Hearing to Defendant, which clearly violates his Constitutional rights.
III. MOTION FOR DECLARATION THAT ORIGINAL SETTLEMENT IS VOID; MOTION FOR ABATEMENT; AND MOTION FOR DAMAGES
For reasons as stated above, and in Defendant’s court filings of April 24, 2006 (www.the-catbird-seat.net/CV05-00030-OUST-Answer.htm); July 18, 2006 (www.the-catbird-seat.net/CV05-00030-OUST-Motion-7-18-6.htm); December 2, 2006 (www.the-catbird-seat.net/CV05-00030-Answer-12-2-6.htm), and January 10, 2007, (www.the-catbird-seat.net/CV05-00030-Answer-1-10-7.htm, Defendant hereby respectfully makes the following Motions to this Honorable Court:
1. MOTION THAT THE COURT DECLARE THE ORIGINAL SETTLEMENT AGREEMENT TO BE VOID.
Based upon the facts and arguments presented herein and in previous filings, Defendant again Motions the Court to declare the original Settlement Agreement to be VOID due to the fact that it was obtained through fraud and misrepresentations, and for the illegal purpose of obstructing justice in EQ2048 and other criminal and civil lawsuits in progress at the time of the settlement negotiations.
2. MOTION THAT THE COURT ABATE THE ARBITRATION AWARD, THE RESULTANT FINAL JUDGMENT, AND THE INSTANT ORDER
Based upon the facts and arguments presented herein and in previous filings, Defendant respectfully Motions the Court to ABATE the ARBITRATION AWARD, the resultant FINAL JUDGMENT, and the INSTANT ORDER.
3. MOTION FOR DAMAGES.
Based upon the facts and arguments presented herein and in previous filings, Defendant again Motions the Court to award Defendant appropriate damages for time and expenses in defense of the original underlying lawsuits, the Arbitration, and the instant case, plus General Damages and Punitive Damages, for bringing these frivolous, fraud-ridden, justice-obstructing lawsuits and bogus arbitration procedures which caused great mental, physical, and financial harm to Defendant and his family, and which clearly violate Defendant’s guaranteed Constitutional Rights to Freedoms of Speech, Privacy, and a Trial by Jury.
DATED: SPRINGFIELD, KENTUCKY, February 2, 2007.
BOBBY NORRIS HARMON,
Defendant, Pro Se
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