Free Motion for Protective Order - District Court of Colorado - Colorado

Case 1:04-cv-01271-EWN-BNB

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No. 04-cv-01271-EWN-BMB PATRICK M. HAWKINSON, Plaintiff, v. JAMES A. MONTOYA R. LYNN KEENER ROBERT SCRANTON, in their individual and official capacities, and ESTATE OF OPAL WILSON Defendants. ______________________________________________________________________________ MOTION FOR PROTECTIVE ORDER PURSUANT TO F.R.C.P. 26(c) ______________________________________________________________________________ COMES NOW, R. Lynn Keener, individually, Robert Scranton, individually and the Estate of Opal Wilson by and through the Personal Representative, R. Lynn Keener ("Amended Defendants"), by and through their attorney, and files this Motion for Protective Order Pursuant to F.R.C.P. 26(c) as follows: FACTUAL BACKGROUND Concurrent with this case, the factual underpinnings of this case are also before the court in the District Court of El Paso County, State of Colorado on Hawkinson's claim against the Estate of Opal K. Wilson for payment of services allegedly rendered in the remodel and/or repair of the decedent's residence and/or payment for merchandise sold to Opal K. Wilson, the decedent under an alleged contract of sale.

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Prior to the death Opal K. Wilson, the decedent in this case, Hawkinson filed two civil actions against her, individually, in El Paso County District Court, cases, 02 CV 4252 and 03 CV 858, and obtained default judgments in each case. The 02 CV 4252 case involved alleged home improvements to Opal's residence and the 03 CV 858 case involved the sale of "collectibles" to Opal. In the pleadings, there was no presentation of evidence describing any factual basis for either lawsuit. Only upon the action to void those two default judgments did Hawkinson disclose the underlying allegations and factual basis for the lawsuits. The default judgments were discovered by Keener after the death of the decedent as liens against the decedent's personal residence. Subsequently, these two liens were removed as a result of the discovery that the liens and civil cases were based on fraud by Hawkinson against the Court in his representation that the Decedent had been properly served, when in fact she had not. This fact was documented by James A. Montoya, an investigator with the Office of the Inspector General of the Colorado Department of Corrections. During the process of removing the liens, the Estate incurred over $3,000.00 in legal fees, not to mention the additional costs to date in dealing with the appeal to the Colorado Court of Appeals and Hawkinson's subsequent filing in Federal Court claiming the Personal Representative violated his civil rights. Additional publicity about Hawkinson's fraudulent acts, appeared in the Denver Post on March 15, 2004. (Please see the attached Exhibit A) After department of corrections investigation in Hawkinson's misuse of department employees in the fraudulent notarization of the service documents, Hawkinson was convicted of 2

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fraud regarding his claims in the 02 CV 4252 and 03 CV 858 cases, the subject matter of which is the same as the various claims Hawkinson has made in this case and on various motions as well. Hawkinson's conviction was obtained in Bent County, Colorado, by Rodney D. Fouracre, District Attorney, Sixteenth Judicial District, 311 Santa Fe Avenue, P.O. Box 928, La Junta, CO 81050, Bent County District Court Case No. 2004 CR 11, Div. A. (Please see the attached Exhibit B) Hawkinson appealed the judge's decision in 03 CV 858 to the Colorado Court of Appeals in case number 05 CA 1768. The essential facts regarding that appeal are as follows: The 03 CV 858 case arose out of the filing of a complaint by the Hawkinson on March 7, 2003, alleging that Opal N. Wilson (the "Decedent") owed Charity's Crafted Keepsakes, et. al, $52,600.00 for personal property claimed delivered to her at her residence located in Colorado Springs, Colorado. At the time of the filing of the pleading, Hawkinson alleged that Charity's Crafted Keepsakes was a Colorado Registered Business. Such was and is not the case. There is no record with the Colorado Secretary of State Office that would indicate that the name, "Charity's Crafted Keepsakes" or any similar name is registered in the State of Colorado. Presumably, Hawkinson believes that by claiming the decedent did business with a registered business, he (Hawkinson) can claim some relief under the Uniform Commercial Code that is not otherwise available to him. That being noted, the Uniform Commercial Code does not apply in this case nevertheless, as this is not a business to business transaction and therefore the Uniform Commercial Code does not come into play. The Complaint in the case alleges that certain unnamed items of goods were delivered and that since delivery, requests for payment or return of 3

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the items yielded no response from the Decedent. Hawkinson obtained a default judgment against the Decedent on May 1, 2003 for $52,500.00 for actual damages, plus eight percent (8%) interest from April 15, 2002 and $100.00 in costs. Hawkinson, filed the civil action in the District Court for El Paso County Colorado on March 7, 2003. On March 12 or March 13, 2003, the Decedent was admitted to Memorial Hospital in Colorado Springs. She never returned to her private residence after this hospital stay. On March 16, 2003, the Decedent was moved to the nursing home at the Bridge in Colorado Springs. Later on May 5, 2003, the Decedent was a moved to the Life Care Center of Colorado Springs, located at 2494 International Circle, Colorado Springs, Colorado 80910. The Decedent died in Hospice care at the Life Care Center of Colorado Springs on October 21, 2003 at the age of ninety-five (95). At all times during the periods alleged by Hawkinson wherein he asserts that he delivered goods, Hawkinson was an inmate under the supervision of the Department of Corrections assigned to the Columbine Community Corrections Center located at 4280 Columbine Street, Denver, Colorado 80216. The Department of Corrections has documents that establish that Hawkinson was employed at the Travelodge Denver West Hotel located at 11595 W. 6th Avenue, Lakewood, Colorado 80215 and that Hawkinson's movements and leave were restricted to his employment at the Travelodge Hotel. The Personal Representative of the Estate of Opal N. Wilson became aware of the default judgments against the Decedent when he began administration of the Estate sometime after January 15, 2004, the date of his appointment as Personal Representative. The Personal 4

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Representative was contacted on or about March 2, 2004, by attorney Kent Gray who was engaged by Hawkinson to act as his legal representative in the collection of the Judgment in the amount of $52,600.00 plus interest against the Estate. The Personal Representative contacted the Office of the Inspector General, Colorado Department of Corrections, after reviewing the documents related to the Judgment, and requested an investigation because of his suspicions of fraudulent conduct against the Decedent. Soon thereafter, as a result of the investigation conducted by James A. Montoya, an investigator with the Office of the Inspector General, Colorado Department of Corrections, attorney Kent Gray withdrew as attorney of record in the collection matter for Hawkinson on April 14, 2004. The Personal Representative filed a Motion for relief from final default judgment pursuant to C.R.C.P. Rule 60(b)(5) on February 13, 2004. On March 22, 2004, El Paso County District Court Judge, Kirk S. Samelson, held that Hawkinson had not properly served the Decedent. Thereafter, on July 23, 2004, Judge Samelson ruled on Hawkinson's motion for reconsideration and once again held that the Decedent had not been properly served and ordered that Hawkinson file a valid proof of service with the court within thirty (30) days of July 23, 2004 or the matter would be dismissed. More than a year later, on August 11, 2005, Judge Samelson ruled that the Hawkinson's motion for second default judgment against the Personal Representative of the Estate of the Decedent must fail because service cannot be made on the Decedent and noted that the Hawkinson filed a duplicative action in the Decedent's Estate. Judge Samelson dismissed the Hawkinson's motion for second default judgment with prejudice.

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Hawkinson appealed Judge Samelson's orders in the District Court Case based on a section of C.R.C.P. Rule 60 for which relief was not requested by the Personal Representative nor granted by the Trial Court. The section referenced by the Hawkinson, C.R.C.P. Rule 60(b)(2), references "fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party." The Hawkinson asserted that the Personal Representative's motion for relief should have been made "within a reasonable time, . . . not more than six months after the judgment, order, or proceeding was entered or taken," pursuant to the six-month bar rule of C.R.C.P. Rule 60(b)(2). However, the Personal Representative never asked for relief under C.R.C.P. Rule 60(b)(2), but rather, C.R.C.P. Rule 60(b)(5), which does allow the court to set aside a judgment based on fraud and misrepresentation against the court. Such was the case and subsequently, Hawkinson has been convicted of such fraud in Bent County, Colorado, by Rodney D. Fouracre, District Attorney, Sixteenth Judicial District, 311 Santa Fe Avenue, P.O. Box 928, La Junta, CO 81050, Bent County District Court Case No. 2004 CR 11, Div. A. (a copy of a letter from District Attorney Fouracre is attached hereto as Exhibit B) The Colorado Court of Appeals denied Hawkinson's appeal, upholding Judge Samelson's ruling regarding the failure of Hawkinson to obtain jurisdiction of the court based on Hawkinson's failure to properly serve the decedent. The Judge also dismissed Hawkinson's various motions for reconsideration including his second motion for summary judgment with prejudice.

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At this time, in the El Paso County District Court case number 03 PR 1228, the Estate has a pending Motion to Dismiss for Res Judicata. Hawkinson's Motion for Summary Judgment has been denied. ARGUMENT 1. Defendant has not conferred with the Plaintiff regarding this Motion as required by the Federal Rules of Civil Procedure. Under the circumstances of this case, involving a pro se litigant that has alleged in a motion that Defendant has yet again violated the law and Plaintiff's Civil Rights, Defendant would therefore ask leave of the court to file this Motion as in compliance under said rules because direct contact with the Plaintiff and or any staff members of the correctional facility wherein the Plaintiff resides could place the Defendant in peril as it relates to the facts of this case. That is, that such contact could provide the Plaintiff with facts necessary for the Defendant to make baseless allegations that the Defendant has violated Plaintiff's Civil Rights through some sort of conspiracy with state officials. Therefore, Defendant would argue that direct contact with an unrepresented pro se litigant under the facts and circumstances of this case is both unwise and potentially dangerous to the Defendant. Therefore, Defendant would ask the court to accept this Motion as his contact with the Plaintiff satisfying the rules pertaining to conference. 2. F.R.C.P. 26(c) states as follows: *** (c) Protective Orders. Upon motion by a party or by the person from whom discovery is sought, accompanied by a certification that the movant has in good faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute without court action, and for good cause shown, the court in which the action is pending or alternatively, on matters relating to a deposition, the court in the district where the deposition is to be taken may make any order 7

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which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following: (1) that the disclosure or discovery not be had; (2) that the disclosure or discovery may be had only on specified terms and conditions, including a designation of the time or place; (3) that the discovery may be had only by a method of discovery other than that selected by the party seeking discovery; (4) that certain matters not be inquired into, or that the scope of the disclosure or discovery be limited to certain matters; (5) that discovery be conducted with no one present except persons designated by the court; (6) that a deposition, after being sealed, be opened only by order of the court; (7) that a trade secret or other confidential research, development, or commercial information not be revealed or be revealed only in a designated way; and (8) that the parties simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the court. If the motion for a protective order is denied in whole or in part, the court may, on such terms and conditions as are just, order that any party or other person provide or permit discovery. The provisions of Rule 37(a)(4) apply to the award of expenses incurred in relation to the motion. 3. Defendant alleges that the Plaintiff is using the process of discovery to harass, intimidate and gather confidential information about the Defendant to commit further crimes of fraud upon the Defendant. Simply stated, the Plaintiff's claim against the Defendant in this Case is a violation of the Plaintiff's Civil Rights. Many of Plaintiff's questions are irrelevant to underlying claims in this case as illustrated by the Defendant's questions regarding personal and irrelevant information such as: (1) your past residence for the last seven years complete with dates; (2) driver's license information; (3) the name, address, and telephone number of every person you contacted regarding invoice 02-003; and (4) name, branch, address and telephone number of all Opal Wilson's bank accounts.

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4. Plaintiff's interrogatory questions that are not directly related to the issues of this Case and that will not lead to discovery of relevant evidence should be restricted to prevent Plaintiff from exercising any further frauds upon the Defendant. Such questions are both burdensome and could lead to Plaintiff obtaining confidential personal information and either using such information for illegal uses or possibly sharing such information with other resident felons thereby placing the Defendant and the Defendant's family in harms way on many fronts, both tangible (personal safety) and intangible (identity theft). 5. Because of liberal discovery and the potential for abuse, the federal rules confer broad discretion on the district court to decide when a protective order is appropriate, and what degree of protection is required. Miscellaneous Docket Matter #1 v. Miscellaneous Docket Matter #2, 197 F.3d 922 (8th Cir. 1999). 6. Trial courts have broad powers to regulate or prevent discovery and such powers have always been freely exercised. Simons-Eastern Co. v. United States, 55 F.R.D. 88 (D. Ga. 1972). Federal district court's discretion to limit discovery is broad. Dolgow v. Anderson, 53 F.R.D. 661 (D. NY 1971). 7. Where a plaintiff has shown not even reasonable grounds to support his allegations of liability, and where the discovery costs faced by the defendant are substantial, justice requires that a protective order be granted. Isaac v. Shell Oil Co., 83 F.R.D. 428 (D. Mich. 1979). 8. Defendant certifies that he and counsel had made every effort to answer Plaintiff's interrogatories, requests for admissions and documents. Simply stated, there is little

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discovery available in this Case because this case is based on the Plaintiff's paranoid allegations of conspiracy. Defendant is a private individual and has no connection with the State of Colorado or the Federal Government, such that, Defendant's actions could rise to the level of a "state action" for the purpose of Plaintiff's Civil Rights claims. Thus, it necessarily follows that Defendant has little to provide Plaintiff in the way of information, either tangible or intangible, other than a denial of almost every request because of the complete lack of factual or legal basis for the Plaintiff's claims. 9. Defendant alleges that the Plaintiff's Motion to Compel is frivolous. WHEREFORE, Amended Defendants respectfully request the Court grant a protective order and limit the Defendant's interrogatories and discovery requests pursuant to the courts prior numerical limit as determined and additionally to limit those inquiries to only the issues presented by Plaintiff's Civil Rights claim. Further, Amended Defendants respectfully request the Court find that the Plaintiff's Motion to Compel is frivolous nor does Plaintiff's Motion comply with the Federal Rules of Civil Procedure regarding conferring with opposing counsel before filing a motion requesting discovery sanctions.

Respectfully submitted this 25th day of January, 2007.

ATTORNEY FOR THE AMENDED DEFENDANTS

By:__/s/_Robert J.M. Scranton_______________ Robert J.M. Scranton, 30638 (Colo.) Attorney for Amended Defendants R. Lynn Keener, Robert Scranton and the Estate of Opal Wilson 231 E. Vermijo Ave. Colorado Springs, CO 80903 (719) 477-0333

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CERTIFICATE OF SERVICE (CM/ECF) I HEREBY CERTIFY that on the 25th day of January, 2007, I electronically filed the forgoing RESPONSE TO PLAINTIFF'S MOTION TO COMPEL AND DEFENDANT'S MOTION FOR A PROTECTIVE ORDER PURSUANT TO F.R.C.P. 26(c) with the Clerk of the Court using the CM/ECF system and hereby certify that I have mailed or served the foregoing document on the following non-CM-ECF participant(s) in the manner (mail, hand delivery, etc.) indicated by the non-participant's name: VIA U.S. MAIL: Patrick M. Hawkinson #62702 P.O. Box 6000-SCF Sterling, CO 80751 By:__/s/_Robert J.M. Scranton_______________ Robert J.M. Scranton, 30638 (Colo.) Attorney for Amended Defendants R. Lynn Keener, Robert Scranton and the Estate of Opal Wilson 231 E. Vermijo Ave. Colorado Springs, CO 80903 (719) 477-0333

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