Free Response to Motion - 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. ______________________________________________________________________________ RESPONSE TO PLAINTIFF'S MOTION TO COMPEL ______________________________________________________________________________ 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 responds to Plaintiff's ("Hawkinson") Motion to Compel 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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Case 1:04-cv-01271-EWN-BNB

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

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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 Defendant's Response to Plaintiff's Motion to Compel Response to Plaintiff's Factual Background 1. Defendant admits the allegations in Paragraph 1 of Plaintiff's Motion to Compel. 2. Defendant denies the allegations in Paragraph 2 of Plaintiff's Motion to Compel in that on November 29, 2006, by court order, Defendant was granted an extension until December 11, 2006 to respond. 3. Defendant admits the allegations in Paragraph 3 of Plaintiff's Motion to Compel to the extent that the Court granted an extension of time to respond. All other allegations are denied. 4. Defendant denies the allegations in Paragraph 4 of Plaintiff's Motion to Compel in that Defendant did not e-file any such Certificate of Service with the court nor did Defendant mail any such answers on November 29, 2006 to Plaintiff. Defendant acted in good faith and upon Plaintiff's instructions as follows: a. Defendant chose to wait until December 11, 2006 to file and serve the Plaintiff with the answers to Plaintiff's interrogatories. b. Defendant received notice that Plaintiff was no longer a resident of the Correctional Facility located in Crowley, Colorado on December 5, 2006 and would be moving to

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

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the Correctional Facility located in Sterling, Colorado, and Plaintiff himself requested that all subsequent documents be forwarded to him at that facility. c. On December 19, 2006, a status conference was conducted in the El Paso County District Court case number 03 PR 1228. Plaintiff attended by phone and confirmed that he was now residing at the Sterling Colorado Correctional Facility. d. Thereafter, and immediately on the same day, Counsel for the Defendant forwarded the answers to the interrogatories as requested by the Plaintiff in his December 5, 2006 pleading and as noted on the Amended Certificate of Service attached thereto which specifically stated that Plaintiff's move to a new correctional facility delayed the mailing of the answers to a correct address. 5. Defendant admits the allegations in Paragraph 5 of Plaintiff's Motion to Compel to the extent that Defendant answered the interrogatories and discovery requests in good faith. Defendant denies the allegations in Paragraph 5 of Plaintiff's Motion to Compel in that Defendant's answers were neither generic, terse, improper, illegitimate and in violation of the law. 6. Defendant admits the allegations in Paragraph 6 of Plaintiff's Motion to Compel in that none of the items requested are in the possession of the Personal Representative, are work product of the Probate Case 03 PR 1228, or are in the various court records of which the Plaintiff is already either Plaintiff, Defendant or alleged creditor. Additionally, it might be noted that this case involves an alleged violation of Hawkinson's Civil Rights. The personal documents of parties unrelated to those allegations are of no evidentiary value in this case and therefore would not and could not lead to any discoverable evidence the issue of which is relevant to

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

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this Case, under any circumstances. It might be noted that the Defendant is puzzled by many of the requests as the Defendant does not recognize many of the names of the parties for which the Plaintiff is seeking related documents or communications with the Defendant. 7. Defendant denies the allegations in Paragraph 7 of Plaintiff's Motion to Compel. Defendant has received no letter and Plaintiff has made no attempt to communicate with Attorney Scranton by phone or any other means. It is apparent that the allegations contained in Paragraph 7 of Plaintiff's Motion to Compel are alleged for the sole purpose of giving the appearance that the Plaintiff has complied with the letter of the law regarding F.R.C.P. 37(a)(2)(A), specifically, "[t]he motion must include a certification that the movant has in good faith conferred or attempted to confer with the parting not making the disclosure in an effort to secure the disclosure without court action." Defendant would reiterate, that Plaintiff has committed more than one fraud upon a court in his lifetime. Plaintiff has been convicted of fraud in the 03 CV 858 El Paso County civil case in Bent County and evidence thereof is as attached hereto as Exhibit B. Therefore, the notion that Attorney Scranton has had any contact with the Department of Corrections involving the Plaintiff's phone privileges is beyond absurd. Additionally, Defendant would assert that Plaintiff's cause of action in this Case, based on a violation of civil rights, must necessarily include "state action." As such, Defendant would allege that Plaintiff's fabrication of the events described in Paragraph 7 of his Motion to Compel are an attempt to create "state action" where none exists and said allegations are in bad faith and a fraud upon the court.

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8. Plaintiff cites the wrong rule regarding certification of interrogatory answers, however, Plaintiff is correct that Attorney Scranton must certify all objections. Defendant attaches those hereto. (see Second Amended Defendant's Answers to Plaintiff's Interrogatories and Requests for Admissions filed contemporaneously with this Response) 9. Defendant denies the Plaintiff's general allegations that there is no limit to discovery. Defendant shall therefore file contemporaneously with this Response, a Motion for Protective Order Pursuant to C.R.C.P. 26(c) to limit Plaintiff's discovery requests to the issues related to his claim for violation of his civil rights and not to include issues related to whether there is a valid claim, contract, sales agreement or relationship with the Opal K. Wilson (deceased) and/or her Estate. WHEREFORE, Amended Defendants request that the Court deny Plaintiff's request for actions against the Amended Defendants and dismiss Plaintiff's Motion to Compel with 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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Case 1:04-cv-01271-EWN-BNB

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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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