BOBBY N. HARMON, CPCU, ARM
104 East Grundy Avenue
Springfield, KY 40069
Tel & Fax: 702-220-3397
Email: bobby_n_harmon@yahoo.com
Website: www.the-catbird-seat.net
(New website: www.kycbs.net )
Defendant, Pro Se
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
MARY LOU WOO, TRUSTEE, ) CASE NO. CV05-00030 DAE KSC
)
Plaintiff, ) DEFENDANT BOBBY N. HARMON’S
) ANSWER TO PLAINTIFF-
v. ) SUCCESSOR TRUSTEE OFFICE OF
) THE UNITED STATES TRUSTEE’S
BOBBY N. HARMON, ) MOTION ENTRY OF JUDGMENT
) ON THE ARBITRATION AWARD
Defendant ) AGAINST BOBBY N. HARMON;
) MOTION FOR DENIAL OF
) JUDGMENT; MOTIONS;
)
) HEARING
) DATE: July 24, 2006
) TIME: 09:45 AM
) JUDGE: Hon. David Ezra
________________________________)
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.
COMES NOW Defendant BOBBY N. HARMON and submits this OBJECTION TO PLAINTIFF’S MOTION FOR ENTRY OF JUDGMENT ON THE ARBITRATION AWARD AGAINST BOBBY N. HARMON:
I. OBJECTION AND ARGUMENTS
Defendant objects to the entry of judgment on the Arbitration Award for the following reasons:
1. The Settlement Agreement (“Agreement”) for the underlying lawsuits in this matter was obtained through fraud, deception, misrepresentation, and for unlawful purposes, and is therefore an invalid and unenforceable contract for the following reasons:
A. The Settlement Agreement, the interpretation of which was the principal issue in the Arbitration, was incomplete at the time of Harmon’s signing and at the time it was presented to the Bankruptcy Court for approval. The major omissions were “Exhibit 5", and the signatures of ALL alleged parties in interest to the Agreement. Due to the fact that the Arbitrator failed to require production of a complete, signed copy of the Settlement Agreement, the entire Arbitration proceedings, as well as the Award, were flawed, fraudulent, and unfairly biased against the Defendant. (Exhibit A)
B. As clearly evidenced in a Pacer “U.S. Party/Case Query” (Exhibit B), the negotiations leading to the Settlement Agreement were fraudulent and deceptive, and, despite Plaintiff’s false claims to the contrary, the ONLY LEGAL PARTIES IN INTEREST participating in the settlement negotiations and the signing of the Settlement Agreement were Defendant Bobby N. Harmon and P&C Insurance Company, Inc., represented by Attorney Jeffrey H.K. Sia. As this Exhibit shows, all other parties - and their attorneys - were TERMINATED on 08/09/1999, due to a breach of fiduciary duties by Trustee Mary Lou Woo, and her attorney Steven Guttman, by their failure to timely file and serve an amended complaint against all other parties named in the RICO lawsuit as noticed to Trustee Woo by my then-attorney Arnold Phillips in his letter to her dated 10/29/99 (Exhibit C). Consequently, all actions which followed in this case - including the Arbitration proceedings - were deceptive and fraudulent, therefore making the both the Settlement Agreement and the subsequent Arbitration Award invalid and unenforceable under law.
D. The Settlement Agreement was secretly and fraudulently amended by means of an undisclosed “side letter” by Federal Insurance Company, Matt Tsukazaki, Robert Katz and others, AFTER Defendant and his wife had signed the Agreement on January 27, 2000. This Amendment has never been produced to me, the Arbitrator, or the Court. I ask the Court to note that the “effective date” of the Agreement is shown to be on ”this 24 day of April, 2000". The Trustee’s check for Defendant’s portion of the settlement proceeds was issued on May 30, 2000. Yet, on June 2, 2000, Steven Guttman sent a letter to my attorney, Arnold T. Phillips II, in which he stated:
“... As of this date, Federal Insurance has not fully paid its portion of the settlement. Based on communications from Jeff Sia, my impression is that you are aware of the issue they have raised and the coordination being done by Bob Katz as to the resolution of the issue. I have confirmed with Lissa Andrews that she has received the check from her client as to who has been authorized to issue it upon receiving the fully signed side letter [emphasis added]. I am uncertain as to who has been requested to sign the side letter and of those individuals, who has not signed off on it. If the matter of the remaining payment is not resolved soon, the Trustee is prepared to file the appropriate motion with the Bankruptcy Court. ... In my last conversation with Mr. Sia, there were 3 parties who had not paid the settlement amount, including Federal Insurance and the process to resolve the Federal Insurance matter was still under discussion...”
I also ask the Court to note that Federal Insurance Company did not sign the Settlement Agreement until June 29, 2000, and that Marsh & McLennan did not sign it until September 11, 2000, which was over four months after the “effective date” of the Agreement. (Exhibit A) Also, it is my belief that this undisclosed “side letter” between Federal Insurance Co. and certain unidentified parties, constituted an undisclosed amendment to the Settlement Agreement, which should have been more diligently questioned by Trustee Woo and Steven Guttman before filing the Agreement with the Court for approval. I maintain that this “side letter,” in itself, was the initial violation of the terms of the Settlement Agreement which states: “This AGREEMENT shall not be altered, amended, modified or otherwise changed in any way or respect whatsoever, excepting in a writing duly executed by all the parties...”
2. Defendant maintains 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, and related to, 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 (EQ 2048), in which I was a named Witness at the time of Mary Lou Woo’s appointment as Trustee. I maintain that this obstruction of justice was also intended to silence my “whistle-blowing” activities in the federal lawsuit against former Hawaii legislator and Bishop Estate employee, Milton Holt, who was later convicted and sentenced for campaign finance abuses and parole violations, and other related persons, businesses, government entities, and attorneys.
3. Defendant argues that Trustee MARY LOU WOO’s Demand for Arbitration was another 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 during, and subsequent to, the settlement negotiations by her attorney Steven Guttman, Esq., Kessner Duca Umebayashi Bain & Matsunaga, in conspiracy with KSBE’s in-house 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. (Exhibits D, E, F & G)
4. Defendant argues 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 following factual reasons:
A. At the time of her appointment, Ms. Fuqua was a Hearing Officer for the Maui County Planning Commission, and was a defendant in lawsuits against Maui County relating to the Commission’s denial of a zoning variance for Hale O Kalua Church. My initial objection to her appointment was due to the fact that Kamehameha Schools, and various law firms who had represented the Estate, also had appeared before the Maui County Planning Commission to request rezoning of parcels near the same church, and had received approvals for their rezoning. After Ms. Neustadter had been approved by the AAA as the Arbitrator, I discovered several additional undisclosed conflicts which I pointed out in numerous letters to the AAA; however, all of my objections were refuted by Steven Guttman and Judith Neustadter Fuqua as not rising to a conflict of interest - which always resulted in the AAA’s reconfirmation of Ms. Neustadter’s appointment. Because of these undisclosed conflicts-of-interests, Defendant argues that the Arbitration decision was biased and, for this reason, the Court should deny the arbitration awards. (Exhibits H, I, J, K, L & M)
B. Due to the financial connections between Kamehameha Schools and various insurance companies involved in the RICO lawsuit, including Marsh & McLennan and Federal Insurance Company (Chubb Group), one of my oft-repeated requests for disclosure from Judith Neustadter Fuqua, as well as from Mary Lou Woo, Steven Guttman, Matt Tsukazaki, Robert Katz, Jeffrey Sia, Susan Tius, and Kenneth Hipp was to provide the names of the insurance carriers, and their agents or brokers, for their professional liability coverages. To date, all have declined to provide this material factual information. As reported in the December 11, 2004, of the Star-Bulletin:
“Maui County’s insurance carrier will pay $700,000 to a small church to settle religious discrimination lawsuits in state and federal courts, county officials said yesterday. Hale O Kaula Church filed lawsuits against the county after the Maui Planning Commission denied it a permit to build a chapel on agricultural land in Upcountry Maui in 2001. The Christian church argued it was a victim of religious discrimination. ... County officials said its insurance carrier, Royal & SunAlliance, decided to pay the settlement rather than proceed to trial.”
Kamehameha Schools has ties to Royal & SunAlliance through its substantial financial holdings in Goldman Sachs. As reported in London by Reuters on September 4, 2004:
“Britain’s Royal & Sun Alliance Insurance Group Plc asked shareholders for 960 million pounds ($1.5 billion) on Thursday to help cover asbestos and other claims, and said another 1,000 UK jobs would go. ... The company is selling U.S. assets to reduce risk and focus on general insurance in Britain, Scandinavia and Canada, said Chief Executive Andy Haste, who joined Royal & Sun in April. ... In a rights issue, a company raises money by offering shareholders extra shares based on their existing holdings, usually at a major discount to the prevailing market price.
The issue is fully underwritten by investment banks Merrill Lynch, Goldman Sachs and Cazenove, which stand to make up to 35 million pounds in total fees.... The company said on Thursday it was selling renewal rights to its U.S. personal lines business and most of its commercial lines business to Travelers Property Casualty Corp for a maximum of $90 million.”
This is only one example of why the names of the insurance carriers and brokers for Judith Neustadter Fuqua, and all other parties involved, should have been disclosed prior to the Arbitration hearings in order that I could have made factual objections regarding conflicts of interests in this case. In addition, recent court cases have resulted in civil and criminal charges, and convictions, against a number of prominent insurance brokers and carriers alleging fraud, kick-backs, bid-rigging, over-charging, stock fraud, etc. Prominently included in these companies are ACE, American Re, Aon, Marsh & McLennan, Chubb Group, St. Paul Travelers, Zurich Financial Group, and others. All of these companies were either Defendants in my RICO lawsuit, or had substantial financial connections with each other.
C. The Arbitrator imposed undue secrecy on the arbitration proceedings and unconscionable restraints on Harmon’s freedom of speech. Just days prior to the Hearing, and after Harmon had invited interested parties to attend the June 14, 2004, Arbitration Hearing, the Arbitrator ruled that the Hearing would be closed to the public.
D. One of the major issues in Claimant’s Demand for Arbitration was “b. Whether the payment of settlement proceeds under the Agreement constituted wages from the Kamehameha Schools and were entitled to such treatment”. The Arbitrator has ruled: “Based on the express provisions of the Settlement Agreement, the payment of the settlement proceeds under the Settlement did not constitute the payment of wages.“ I have never disputed the fact that the provisions of the Agreement did not specifically state that the settlement would be treated as wages; however, I have always argued that the provisions of the Agreement do not preclude the proceeds from being treated as wages. I have consistently and rightfully argued that this is a legal tax issue regarding IRS regulations [Exhibits Y and AE] which needs to be decided between Kamehameha Schools, the IRS and myself, rather than being a matter of interpretation of the Agreement to be decided by the Trustee or an Arbitrator.
E. Regarding the issue of Harmon’s “letter writing campaign,” the Arbitrator has stated:
“After Mr. Tamm’s withdrawal, Respondent continued to disagree with the explanations he was given on these issues. Respondent continued to engage in a letter writing campaign, writing and sending many letters to Claimant, her counsel, and other individuals and entities. Respondent’s letter writing campaign extended to the Trustees and Chief Executive Officer of KS, the Internal Revenue Service, the Hawaii Department of Taxation, the Insurance Commissioners in the States of California and Hawaii, the United States Department of Justice, KS’s insurance carriers and agents, and government employees in the States of New Jersey and New York. Many of Respondent’s letters extended beyond the two main points, setting forth other matters related to the Settlement Agreement and his former employment with KS and relationship with P&C.
“After the Arbitration was initiated, Respondent wrote and sent letters to many people, entities, and government agencies about the Arbitration, and the process by which the Arbitrator had been selected. Respondent also demanded, and continued to demand after disagreeing with any responses - or non-responses - he had received, that KS, and its insurance carriers, defend and indemnify him in this Arbitration. Respondent sent copies of his letters to many people, entities, and government agencies, with no identifiable relationship to this Arbitration or the Settlement Agreement.”
In her Award, the Arbitrator has ruled:
“Respondent shall not mail, fax, email, or in any other manner send or issue any correspondence of any type which mentions, discusses, or refers to a Protected Subject Matter to any individual or entity other than Claimant’s counsel, Steven Guttman, Esq., and the AAA;
“Respondent shall not disclose, discuss, disseminate, or communicate, by any means whatsoever, including by posting on a website, a Protected Subject Matter to any individual or entity...”
Defendant continues to argue that, regardless of any terms or conditions contained in the Settlement Agreement, which I maintain is invalid and unenforceable, I still have the legal right, and a civic duty, to report any criminal activities of which I have knowledge to regulatory and law enforcement authorities. Therefore, I have continued to report what I consider to be illegal activities to the proper authorities, and have offered to provide whatever evidence I might possess to these authorities. Plaintiff-Successor Trustee OUST is now asking the Court to award an assessment of damages and attorney’s fees and costs of over a half a million dollars because Defendant has exercised his First Amendment Rights to report these criminal acts to the proper authorities and concerned citizens, and to distribute copies of his letters to whomever, and by whatever means, he chooses.
F. Regarding Defendant’s postings on the website, www.the-catbird-seat.net, the majority, if not all, of the information reported therein has been taken from public documents, including news media and court filings. For example, my RICO lawsuit which can be found at www.the-catbird-seat.net/RICO-BH.htm is a public court document for which the Plaintiff is now requesting an award of $500 per day for each day this document remains posted on the website. Plaintiff also cites the web page at www.the-catbird-seat.net/Claims-By-Harmon.htm, as a another specific example of “Protected Subject Matter” which the Plaintiff states Defendant should be “ordered to remove and delete all web-sites and attachments containing or referring to Protected Subject Matter information or events...”. This specified site contains excerpts from numerous published news articles and other public documents; therefore, Plaintiff and the Arbitrator have no legal basis for concluding that this distribution of public information has, in any way, violated the terms of the Agreement or that these pages were “Protected Subject Matter,” or that the Court should impose substantial monetary awards against Respondent for distributing this public information.
G. Defendant asks the Court to note that prior to the Arbitration Hearings, he had requested that P&C provide to him, and to the Arbitrator, a copy of the Contract that Defendant had signed upon becoming an officer of the company, which contained an Indemnity Agreement that indemnified me in the event of any claims arising from the performance of my duties as an officer of P&C. One of my duties as President was to report any illegal activities involving the operations of this captive insurance company to the Hawaii Insurance Commissioner, which I did. The Arbitrator stated that it was not required that P&C provide me, or her, a copy of P&C’s contract which contained this Indemnity Agreement. When I raised the issue of my tender of defense to P&C Insurance Company, the Arbitrator ruled that insurance matters were not an issue in the Arbitration, and promptly cut off any discussion of insurance-related issues. However, the Award clearly contradicts the Arbitrator’s statement by including prohibitions against pursuing my claims of fraud, breach of contract, malpractice, and other wrongful acts committed by the parties in this case. Many of the letters in my so-called “letter writing campaign”, as the Arbitrator has admitted, had “no identifiable relationship to this Arbitration or the Settlement Agreement.” This is true because the fraudulent acts I have described were not discovered by me until after the Settlement Agreement had been signed, and the selection of an Arbitrator was well underway. These awards, and the substantial legal fees being requested by Steven Guttman, are clearly self-serving and meant to obstruct justice and intimidate the Respondent to prevent him from reporting new claims and illegal activities involving the Plaintiff, other parties to the Settlement Agreement, their attorneys, and the Arbitrator.
H. The Trustee’s settlement of Defendant’s RICO case, and the subsequent arbitration proceedings, were fraught with errors and rift with conflicts of interests, and were initiated for the purposes of obstructing justice and covering up the ongoing, illegal activities of Kamehameha Schools, Marsh & McLennan, Federal Insurance Company, ACE, Aon, AIG, St. Paul Travelers, and others; and for the self-enrichment of Mary Lou Woo, Steven Guttman, Judith Neustadter Fuqua, and others involved in these proceedings. Material discrepancies that I have pointed out to the Trustee and the Arbitrator, include the fact that several of the signatories to the Settlement Agreement could not be identified due to illegible handwriting, and the fact that the names were not printed or typed on the document. Some of these signatures did not show the date of signing. Also, these signatures were not notarized, which is related to one of my previous testimonies to the Attorney General’s office that, at the direction of Nathan Aipa and other KSBE attorneys, the Kamehameha Schools’ notaries were often directed to notarize the signatures on legal documents without actually witnessing the signing. This was the reason for my allegations to Steven Guttman that I suspected that one or more of the signatures on the Settlement Agreement might be forgeries. In spite of my repeated requests for the identities of all the unknown signatories to the Agreement, the Arbitrator ruled that it was not necessary for the Claimant to provide this information. In response to my allegations of possible forgery and other fraud involved in the underlying litigation, Ms. Neustadter remarked in the Hearings that this was not an issue to be decided in the Arbitration, but one that could be later presented to the Court, which I am doing at this time.
I. Defendant respectfully asks to court to take notice that in recent months a number of legal actions have been initiated by New York Attorney General Eliot Spitzer, and other legal authorities, against Marsh & McLennan, Aon, Chubb Group, Prudential, St. Paul Travelers, AIG, and other insurance brokers and carriers for fraud, bid-rigging, kick-backs and other illegal acts. For example, in an Associated Press news article published by The Insurance Journal, on December 3, 2004, headlined “MARSH ADMITS OVERCHARGING SCHOOL DISTRICTS,” reported that:
“State insurance regulators are investigating Marsh USA, which has acknowledged overcharging six Oregon school districts and Lane Community College since 2000. Marsh, the nation’s biggest insurance brokerage, alerted the districts to the inflated bills in late October and has offered to reimburse them, said Ed Healy, managing partner of Marsh’s office in Portland....”
This illegal overcharging by Marsh & McLennan is nearly identical to the overcharging of Kamehameha Schools and P&C Insurance Company which I reported to the former trustees of Kamehameha Schools/Bishop Estate; Coopers & Lybrand; the Hawaii Insurance Commissioner; the Hawaii Attorney General’s Office; the U.S. Attorney General’s Office; the Internal Revenue Service; the Federal Bureau of Investigation, and other regulatory organizations beginning in November, 1996, and continuing to the present time. This new information has caused me to request a criminal investigation into the activities of Marsh & McLennan, Inc; Aon Corporation; Federal Insurance Co. (Chubb Group); XL Insurance Company; Kamehameha Schools; P&C Insurance Co; PricewaterCoopers and other entities related to this case, as described in my letter to Hawaii Attorney General Mark Bennett dated December 10, 2004 (Exhibit N), which has remained unanswered to this date. I argue that under the protection of The First Amendment of the U.S. Constitution, the Arbitrator DOES NOT HAVE has the legal right or authority to prohibit me from reporting these criminal activities to the proper authorities and to the public at large.
J. I argue that the sole witness for Claimant at the Arbitration Hearing, Kamehameha Schools’ in-house counsel Louanne Kam, had conflicts of interests in this case since she was a named Defendant in my RICO lawsuit, and that she should not have been called as Plaintiff’s sole witness to testify at the Arbitration Hearings due to this conflict. Furthermore, Ms. Kam has admitted that she had advised the estate’s Trustees that my claims lacked legal merit and that SHE HAD NOT REPORTED THESE CLAIMS to their professional liability insurance carriers. I maintain that Louanne Kam does not have the legal authority in this case to decide on behalf of any insurance carrier, whether a claim has merit or whether a claim should be reported to the insurance company. As described in my RICO lawsuit, and in other court documents and newspaper articles, this non-reporting of claims by Kamehameha Schools to their insurance carriers has previously resulted in losses of millions of dollars to the Estate due to later denials by the insurance companies for violating the claims reporting provisions of the insurance policies. This became a major issue in the Attorney General’s lawsuit to remove the former trustees, and was described in detail in my RICO lawsuit. Despite the Plaintiff’s knowledge of Kamehameha Schools’ alleged violations of the reporting provisions in their insurance policies, Mary Lou Woo and Steven Guttman proceeded to negotiate settlement of the underlying lawsuits with the very same attorneys named in my RICO lawsuit, without verifying that these attorneys had, in fact, been authorized to act on behalf of the insurance companies (Federal and XL) which provided the professional liability insurance coverages to KSBE and P&C in both this case and in EQ2048. The Plaintiff, Steven Guttman, and the attorneys who falsely purported to represent Kamehameha Schools and P&C Insurance Company in the RICO case, have repeatedly denied my requests to provide Attorney of Record letters. Likewise, they have refused to provide written evidence that their representation was authorized by the insurance carriers of Kamehameha Schools and P&C Insurance. In fact, the settlement negotiations were largely conducted behind closed doors between Steven Guttman and Matt Tsukazaki. I argue that this was a major breach of fiduciary duties on the part of Trustee Woo and Mr. Guttman in that they did not bring all involved parties to the negotiating table - including the claims representatives for the insurance companies. In addition, the principal entity that negotiated the Settlement, and drafted the Settlement Agreement, was the Torkildson Katz law firm, which was also a named Defendant in the RICO lawsuit and represented by Robert Katz. From my years of experience in the insurance business, no insurance company would ever permit its insured to represent themselves in a lawsuit. Nor would any insurance company ever allow a co-defendant in a lawsuit to represent their insured. These facts clearly demonstrate that this firm had multiple conflicts of interests in this case, and fraudulently misrepresented to Harmon, and to the Court, that they had the authority to act on behalf of their insurance companies to negotiate a settlement in this case. Respondent also argues that this failure to include all involved parties in the settlement negotiations was a major breach of the fiduciary duties of the Trustee to collect all monies due the Bankruptcy Estate for the benefit of its creditors as well as the benefit of the debtors and Defendant in this case.
K. Defendant argues that the Trustee and her attorney failed to diligently and adequately pursue his RICO lawsuit. For examples: the Trustee did not subpoena any witnesses or documents (including those documents returned to Kamehameha Schools/Bishop Estate and P&C Insurance Co. under court injunction which were the primary basis for contention in this case); did not conduct any meaningful investigation; did not demand a jury trial as I had requested in my original RICO lawsuit; did not require the opposing attorneys to provide Attorney of Record letters or other evidence that they were legally representing their purported clients and their insurance companies (and misled the Defendant into believing that all parties were participating in the settlement negotiations); and did not permit the Defendant to participate directly in any of the settlement discussions with the other parties. These actions and omissions have resulted in new reports of claims against various entities, and their purported attorneys, involved in this case. (Exhibits O, P, Q, and R)
L. Defendant argues that the judges hearing this instant case, Kevin Chang and David Ezra, both have multiple, undisclosed, conflicts-of-interest and the appearance of bias, and should have recused themselves from all hearings. Defendant also argues that their decisions also violated Defendant’s Constitutional Rights of Free Speech and Trial by Jury. (Exhibits A, B, C, D, E, F, G, H, I, J, K, L, M, Q, R, S, T, Z, AA, AB, AC, AD, AE, AI, AJ, AK, AL, AM, AN and AO)
M. Defendant argues that Magistrate Judge Barry Kurren, who heard the RICO case and who remained as judge for the settlement negotiations and the Settlement Agreement, had multiple, undisclosed, conflicts-of-interests and the appearance of bias, and should have recused himself from those hearings. (Exhibits B and U).
N. Defendant argues that Judges Lloyd King and Robert Faris, who heard the bankruptcy case, had undisclosed conflicts-of-interests and the appearance of bias, and should have recused themselves from those hearings. (Exhibits V and W).
O. Defendant argues that Judge Eden Elizabeth Hifo (fka Judge Bambi Weil), who heard both Kamemaheha Schools/Bishop Estate’s case regarding the permanent injunction prohibiting release of Harmon’s documents, and his appeal of the Department of Labor’s decision to deny Unemployment Compensation payments, had undisclosed conflicts-of-interest and the appearance of bias, and should have recused herself from those hearings. Defendant also argues that Judge Hifo failed to follow through with an in camera review of ALL documents returned to Kamehameha Schools/Bishop Estate under injunction to determine exactly which of these hundreds of documents (Exhibit AM) were truly “privileged and confidential,” and/or, which contained “trade secrets” - the disclosure of which could cause serious financial loss to Bishop Estate - and which documents did not fall into these categories and were to be returned to the Defendant. Because Judge Hifo did not determine which specific documents were actually “confidential” and/or contained “trade secrets,” the Plaintiff cannot reasonably argue that any of the specific pages that Defendant has subsequently distributed by letters, e-mail, the internet, or any other means, violated the injunction. (Exhibits X, AI, AM, AN, and AO)
P. Defendant argues that the actions of all complaining parties and their attorneys in this case have been deliberate efforts to obstruct justice. As stated in my original RICO lawsuit:
“C) OBSTRUCTION OF JUSTICE § 4.02 [4]
“[d] Obstruction of Justice - Expenses, Delays and Inconvenience
“Two circuits have found that expenses caused by defendant’s obstruction of justice are recoverable in RICO action. Obstruction of justice involves actions during the course of litigation meant to increase expenses, delay and inconvenience, intimidate witnesses, and destroy or hide evidence and other actions. Expenses for investigation of RICO cases have also been found to be recoverable.
“Rule 11 of the Federal Rules of Civil Procedure, Fed. R. Civ. P. 11, reads:
“The signature of an attorney or part constitutes a certificate by the signer that the signer has read the pleading, motion, or other paper; that to the best of the signer’s knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of the litigation. If a pleading, motion, or other paper is signed in violation of this rule, the court, upon motion or upon its own initiative, shall impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion, or other paper, including a reasonable attorney’s fee.”...
“Under RICO, the compensatory damages awarded must be trebled and an award of attorney’s fee is mandatory where any damages are adjudged. Indeed, the Fifth Circuit held that, where plaintiff has brought several claims under related legal theories under a ‘common core of facts’, and only two of the claims provide for mandatory legal fees (the RICO claims and a claim based on a state fraud statute), attorney’s fees for the work done on all such related claims are recoverable.”...
“Although RICO itself does not provide for punitive damages, “Several courts have awarded both treble damages on a RICO claim and punitive damages on a pendant claim.”...
“U.S. SUPREME COURT RULES RICO APPLIES TO INSURERS.
A) In a unanimous decision handed down January 20, 1999, the U.S. Supreme Court ruled that Humana, Inc. could be sued under RICO. See Humana Inc. et al. v. Forsyth et al (97-303) 114 F.3c 1467, affirmed.
B) Quoted from BestWeek, January 25, 1999, published by A.M. Best Company, Inc.:
“Insurers can be sued under federal racketeering laws, the U.S. Supreme Court ruled Jan. 20.
“The case Humana Inc. vs. Mary Forsyth, is the largest class-action lawsuit ever filed in Nevada....
“The plaintiffs sued under the federal Racketeer Influenced and Corrupt Organizations Act, which triples the damages that could be awarded in the case...”
“In a unanimous decision handed down Jan. 20, 1999 the country’s highest court ruled that Humana could be sued under RICO.
“Justice Ruth Bader Ginsburg, who wrote the opinion for court, said if the federal law does not conflict with state regulations ‘the McCarran-Ferguson Act does not bar federal action’....”
“...The National Association of Insurance Commissioners supported the plaintiff’s use of RICO against insurers. In a friend-of-the-court brief, the NAIC said RICO is an ‘additional tool in their regulatory arsenal’.”
“...Held: Because RICO advances the State’s interest in combating fraud, and does not frustrate any articulated Nevada policy or disturb the State’s administrative regime, the McCarran-Ferguson Act does not block the respondent beneficiaries’ recourse to RICO in this case. Pp. 5-13....
“114 F.3c 1467, affirmed. Ginsberg, J., delivered the opinion for a unanimous Court.”
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.
DATED: LAS VEGAS, NEVADA, April 24, 2006
_____________________________
BOBBY NORRIS HARMON,
Debtor Pro Se