Free Response to Motion - District Court of Arizona - Arizona

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John P. Flynn State Bar No. 015065 Ryan M. Wackerly State Bar No. 022077
THIRD FLOOR CAMELBACK ESPLANADE II 2525 EAST CAMELBACK ROAD PHOENIX, ARIZONA 85016-4237 TELEPHONE: (602) 255-6000 FACSIMILE: (602) 255-0103 [email protected] [email protected]

Attorneys for Metwest Mortgage Services, Inc. IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA In re: MICHAEL HARVEY LYNN, CIV-03-2164-PHX-DGC BK NO. 00-08572-PHX-GBN

12 Debtor. 13 14 15 16 17 METWEST MORTGAGE SERVICES, INC., 18 Appellee, 19 20 21 22 23 24 25 26
289375/7078-005 Case 2:03-cv-02164-DGC

MICHAEL HARVEY LYNN, Appellant, v. APPELLEE'S RESPONSE TO APPELLANT'S MOTION FOR NEW TRIAL

Metwest Mortgage Services, Inc. (the "Appellee") hereby responds and objects to Appellant's Motion For New Trial Pursuant to Rule 59 Federal Rules of Civil Procedure, Based Upon The Fact That Orders Entered By This Court Are Contrary To Law As Provided For In The Local Rules of This Court (sic) (the "Motion"). Amazingly, Appellant has filed yet another spurious motion, without cause to support the relief requested, as his most recent vexatious attempt to prolong this decided litigation in a

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continued and futile attempt to have Appellee found in violation of § 524 of the Bankruptcy Code. As far as Appellee can discern, Appellant demands this Court's September 28, 2005 Order be vacated, although the exact relief sought in his motion is difficult to decipher.1 This Court has already denied Appellant the requested relief on three previous occasions.2 Ironically, Appellant bases the instant motion on an alleged failure to adhere to the Federal Rules of Civil Procedure, when the Rules certainly do not permit him to bring motions for reconsideration ad infinitum. Appellant has abused the process again by bringing forth another motion devoid of new issues or argument. Furthermore, although the merits of Appellant's motion are immaterial, the basis for his motion, as best can be deciphered, is that Appellee failed to file a timely response to his Motion for Reconsideration, despite the fact that a response is not required by the Rules. Appellant's malicious and wasteful antics have continued long enough, and will not cease without the firm intervention of this Court.3 The continued filing of motions not permitted by Rule and challenging a repeatedly affirmed judgment can only be characterized as malicious and

Appellant, in his conclusory paragraph, states that "it is respectfully requested that this Court set Aside its particular Orders (Orders #1,4,5, & 6), entered on September 28, 2005, be vacated and new Orders be entered consistent herewith (sic)." As the Court stated in its September 28, 2005 Order, because there was no trial, the Court must construe Appellant's continuing line of motions as Motions for Reconsideration pursuant to Rule 59(e) and for relief from judgment pursuant to Rule 60(b). This Court previously affirmed the Bankruptcy's Court's October 23, 2003 denial of Appellant's Motion for Reconsideration, and the Bankruptcy Court's dismissal of the Appellant's case in BK 00-08572, and ordered the Clerk of the Court to terminate this action, on March 31, 2005. Appellant thereafter filed a Motion for Reconsideration of the Court's March 31, 2005 Order, which was denied on April 26, 2005. On May 4, 2005, Appellant filed yet another Motion for Reconsideration, this time characterized as a Motion to Vacate the Court's March 31, 2005 Order, which was denied on September 28, 2005. True to form, Appellant's continues to beleaguer the point and waste the time and money of the Court, and of Appellee with the instant motion, another groundless Motion for Reconsideration. As evidence of the fact that he will not stop this incredible waste of time and money unless forced to pay fees and costs, today Appellant filed another Notice of Appeal in which he seeks to appeal this Court's September 28, 2005 Order to the Ninth Circuit. The absurdity of his litigious behavior has reached a new high, as he has filed a Notice of Appeal of the Court's September 28, 2005 Order before this pending Motion for Reconsideration of the same Order is even decided. Clearly, Appellant refuses to accept the Court's ruling and restrain himself from filing wasteful motions, and his actions to this point evidence that it will continue, if not intensify, if he is not restrained by sanctions.
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intentional. An attorney or pro se litigant "who so multiplies the proceeding in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys' fees reasonably incurred because of such conduct." 28 U.S.C. §1927, see Wages v. IRS, 915 F.2d 1230, 1235-36 (9th Cir. 1990). The continued filing of frivolous motions, coupled with the fact that the same motion, containing the same arguments, has been repeatedly denied by this Court, confirms that Appellant's improper behavior is intentional and amounts to bad faith, supporting an award of sanctions. Appellee therefore respectfully requests this Court enter an Order denying Appellant any of the relief prayed for in his Motion and awarding Appellee its attorneys' fees and non-taxable costs incurred in defeating this most recent spurious filing. Furthermore, as this Court's March 31, 2005 Order to the Clerk of Court, which confirmed that this action be terminated, failed to prevent Appellant's continued abuse, Appellee respectfully requests that this Court enter an order barring Appellant from filing any additional motions in this Court requesting reconsideration or other relief from the judgment. RESPECTFULLY SUBMITTED, this 7th day of November, 2005. TIFFANY & BOSCO, P.A.

By:

/s/ John P. Flynn John P. Flynn Ryan M. Wackerly 2525 East Camelback Road, Third Floor Phoenix, Arizona 85016-4237 Attorneys for Appellee

COPY of the foregoing mailed this 7th day of November, 2005, to: Michael H. Lynn 3040 N. 36th Street, Apt. S-208 Phoenix, AZ 85018 __________________________________

289375/7078-005 Case 2:03-cv-02164-DGC

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