IN THE SECOND JUDICIAL DISTRICT COURT
COUNTY OF BERNALILLO
STATE OF NEW MEXICO
DAVID DERRINGER
Plaintiff,
No. CV-2012-1307
v.
DEBBIE HARMES, IRWIN HARMES, et al
Defendants,
MOTION FOR ORDER TO SHOW CAUSE, REQUEST FOR ORDER FOR FREE SERVICE OF SUMMONS AGAINST BARRIE DERRINGER aka BARRIE CROWE FOR TESTIMONY AT A HEARING OF THIS MOTION, AND FOR THE TRIAL; REQUEST TO CONSIDER SANCTIONS AND REQUEST TO CONSIDER ORDER FOR DIRECTIVE TO LAW ENFORCEMENT
COMES NOW the Plaintiff with his motion as stated above and respectfully moves this court for an order to show cause for blatant violations and refusal to obey this court’s Order of January 18, 2013 concerning violations of discovery.
CONTEMPT OF THIS COURT BY DEFEDANTS
The Plaintiff served discovery upon the defendants not only to obtain needed information for trial against Debbie and Irwin Harms, but to discover and define the identity of the other 10 persons that were involved with Barrie Derringer in breaching the Derringer storage to convert all Derringer property to that of only Barrie Derringer. Hercules Powder Co. v Rohm & Haas Co. (1944 DC Del) 3 FRDJ 328, 60 USPQ 437 “One purpose of interogatories under Rule 33 is to ascertain facts and to procure evidence or secure information as to where pertinent evidence exists and can be obtained.” On August 23, 2012 in DM-12-610, Barrie Derringer admitted under oath that there were in fact 12 persons involved with these actions of February 4th , 25th of 2012, and in fact there was another incident on March 8th, 2012. Barrie Derringer was, and presumably still is, an employee of the Defendant’s Harms believed by David Derringer to be working under their cult control at all times from the time David Derringer met his wife Barrie in June, 2009 until the present. Mallinckrodt Chemical Works v. Goldman, Sachs & Co. (1973 SD NY) 58 FRD 348, CCH Fed Secur L Rep 93793, 16 FR Serv 2d 1517 “Test of whether request is reasonably specific is whether reasonable man would know what documents or thing were called for, and where Plaintiff sought order compelling Defendant to produce for Plaintiff’s inspection ...it was clear that Defendant could identify … demands by Plaintiff..” Defendants’ Harms refused in their incomplete answers to the initial discovery to divulge the names and identities of either themselves or the other persons involved in these incidents, of which on February 4, 2012 the persons with Barrie engaged in criminal assault and battery against husband David Derringer, who was in fact also the leaseholder of the premises. At the time the Plaintiff only recognized the two Defendants Harms and has no idea who the other persons are except that they are men and one woman claiming in the incident to be a friend of Barrie whom David Derringer never met during the marriage with Barrie to his knowledge. In the first responses of Discovery, the Defendants willfully refused to either divulge the numbers of persons involved in the assault and battery and conversion or any identities, and falsely claimed that they had no prior conversations with Barrie to do these acts, and only had appeared at the premises of 101 Florida SE Unit C without prior conversations on Saturday morning February 4, 2012, and disavow that their own vehicles were involved when in fact the vehicles have already been identified. In fact the vehicles involved have already been identified by the Plaintiff, witness Bruce Davis, with other witnesses available for trial as “Sun Vista” logos’ visible that identified the vehicles as corporate property of Sun Vista LLC which is a sister and co-company owned by the Defendants Harms and Steve Maestas of NAI Maestas and Ward LLC Commercial Real Estate of which Barrie Derringer is the accountant, notably confirming that the “bosses” of Barrie were totally intertwined in a covert operation to do larceny without any authorization by the husband on a Saturday of private storage of an employee; Barrie Derringer. The Defendants Harms have already committed criminal perjury and fraud to disavow any knowledge of ether the already identified vehicles of their corporation and claim no knowledge of the men involved in driving those vehicles, trying to state that these persons were “church helpers” engaged only by Barrie Derringer, but which were obviously driving company trucks of “Sun Vista” in the operation, but which are in fact believed by the Plaintiff to be company employees of Sun Vista LLC which is a sister and co-company owned by the Defendants Harms and Steve Maestas of NAI Maestas and Ward LLC Commercial Real Estate. The Plaintiff was forced to file a motion for Order to compel discovery.
The Plaintiff spent considerable time at the hearing of January 18, 2012 properly informing the Judge that a “gang” existed in conspiracy in which in several other intertwining matters, including a fraudulently filed “Order of Protection” of DV-12-234 and a divorce action of DM-12-610 by Defendant’s employee Barrie Derringer, which is believed instigated and perpetuated by the employers of Barrie Derringer; and that the Plaintiff believed the perpetrators would “refuse” to divulge the other criminals that attacked the Plaintiff in assault and battery and who conducted conversion. The Defendants in this case of Harms notably “impeached” themselves in their own Discovery already with inconsistent testimony which is under oath in discovery, making their provably false statements “perjury” under the meaning of NMSA 30-25-1, a fourth degree criminal felony. Condry v. Bucheye, SS Co., (1945 DC Pa.) 4 FRD 310 “This rule (relevancy) is not available for discovery purposes..”
Without being a party to the DV-12-234 and DM-12-610 cases, the Defendants on January 18, 2013 were unaware that Barrie Derringer has already testified to having prior plans and conversations with the Defendants prior to the incident of February 4, 2012, of which the Defendants claim never happened, as well has already disclosed that there were 12 persons present of which Debbie and Irwin Harms were two of those 12. Defendants have now changed their testimony to agree with Barrie, when in fact then contradicts their previous testimony; known commonly as “impeachment”. The Plaintiff respectfully informed the court his belief that the Defendants would still not disclose the other persons even with a court order to “obstruct justice” and to protect the other 10 of 9 men and some claimed friend of Barrie Derringer. Order was issued by this court to comply with Discovery by February 4, 2013, to include the names of the others for future summons for prosecution in this court case under requirements of both “Rule 19” and “justice itself”. The Defendants “refuse” to comply with the Order of the Court, [Exhibit 1] and under no set of circumstances will they disclose the identities of the 10 other criminals despite the order, lying that they have no knowledge and have no way to find or determine their identities even though they know that Barrie Derringer, their own employee knows these persons absolutely, in which they have employment and other “control” of Barrie Derringer. The Defendants “lie” that those 9 men are “church people” acquired by Barrie Derringer, and that they have never been introduced to the “woman friend of Barrie Derringer”.
David Derringer has already talked to the “by husband known” “church of Barrie Derringer, and to the priest of that Catholic church at 4th and Alameda in Albuquerque and has been assured that no persons from that church either helped Barrie Derringer move on February 4th , 25th, 2012, nor do they do that for any other church member, and that Saint Vincent de Paul would also not provide any persons for such an endeavor, but may only provide some money to help. Simply stated, the Priest said Barrie Derringer “lied” and is a totally believable entity in comparison with either Barrie Derringer or the Defendants. In short, there is a total disregard for this court’s order; that includes perjury, fraud and conspiracy and other criminal acts involved, and a gang that will not allow the Plaintiff to sue the proper parties, and the Plaintiff seeks redress from the affront to the authority of this court by the Defendants with sanctions, and some severe exemplary punishment.
Within Your Possession Custody or Control: The phrase "within your possession custody or control" refers to documents or tangible things in your actual possession; documents or tangible things in your custody or possession, although located elsewhere; documents or tangible things in your care, custody, and control, although in the possession of your attorneys, accountants, agents, employees; and all other documents or tangible things, wherever located, as to which you have the right of possession. The phrase "within your possession, custody or control" includes constructive possession, adverse possession, possession by fraud, or possession by larceny.
Person: The word "person" where it appears herein means all natural persons or entities, including, without limiting the generality of the foregoing, any individual, firm, corporation, company, association, partnership, business, public agency, department, bureau, board, organization, or any other form of public, private or legal entity.
Identify: The word "identify" where it appears herein means, with respect to the documents referred to that are in your possession, custody or control that your are to supply an answer with the following information; type of document (e.g. letter, legal instrument, report, memorandum, etc.), title date, author's name, and addressee's name, if any. With respect to any documents which you know to have existed at one time, but which no longer exist, identify the type of document, title, date, author's name, addressee's name, last location, and circumstances of loss or destruction. With respect to a person, as defined above, the word "identify" or "identity" means that your are to supply and answer with the following information: full name, last known address and telephone number, occupation, and title, if any.
This matter is about both a defiance of discovery and realization of the more extensive larceny/conversion/perjury/fraud and defiance that has taken place.
REQUEST FOR ORDER FOR FREE SERVICE OF SUMMONS AGAINST BARRIE DERRINGER aka BARRIE CROWE FOR TESTIMONY AT A HEARING OF THIS MOTION, AND FOR THE TRIAL
Clearly, it is mandatory for Barrie Derringer to be supoena’d by David Derringer to testify under oath to all matters before this court as to the intertwined discovery from the Defendants and to be made to disclose the other 10 Defendant parties to be joined to this suit for justice to be served.
As Barrie Derringer has already testified to some substance of this matter in DV-12-234 and DM-12-610, she needs to be on the witness stand of both a hearing on this matter and in the trial itself. Barrie Derringer will be placed in a position of either telling the “truth” as mandated by law under oath and NMRA Rule 1-090; will be lying to protect her bosses, as some testimony of Barrie is already impeaching the Defendants Harms, or she will be lying to protect her bosses, which will impeach Barrie herself of former testimony in other cases; and Barrie will be forced to disclose the total identities of all other 12 persons involved, or Barrie herself will defy this court and “justice itself”. United States v City of Torrance (1995 CD Cal.) 164 FRD 493 “FRCP 26(b) is liberally interposed to permit wide ranging discovery of all information reasonably calculated to lead to discovery of admissible evidence; however, discoverable information need not be admissible at trial.”
Plaintiff David Derringer seeks this court’s Order to gain free service of subpoena for Barrie Derringer aka Barrie Crowe by the Sheriff Department for a hearing on this matter and for the trial of September 9, 2013 to be forced to appear before this court.
REQUEST TO CONSIDER SANCTIONS AND REQUEST TO CONSIDER ORDER FOR DIRECTIVE TO LAW ENFORCEMENT
As expected, Defendants have now defied the court order for compliance of discovery, with attorney Floyd Wilson absolutely involved with the clients perjury and fraud, (NMRA Rules 16-401/16-804) and this court would be expected to be under insult, both as a judge and as part of the judicial system, and the Plaintiff requests extreme sanctions in extreme amounts to punish those instant litigants and to deter others from acting in a similar manner. Robinson v. Volkswagenwerk AG, 940 F.2d 1369 cert. denied 112 Supreme Court 1160, 502, US 1091, 117 L.Ed.2d 408 “CA 10 (Oklahoma) 1991 Private law firm was not absolutely immune from liability for allegedly fraudulent discovery and litigation statements.”; Rorer International Cosmetics Ltd v. Halpern, (1979ED Pa) 85 FRD 43, 28 FR Serv 2d 837. “discoverable as relevant to central allegations of fraud.”; Rio Grande Gas Co. V. Gilbert, 83 N.M. 274, 491 P.2d 162 (1971) Where defendants attempts to comply with court’s order ….and where none of the defendant’s actions were performed with a true effort to comply with court’s order, failure to produce documents was willful.; Pittard v. Four Seasons Motor Inn, Inc. 101 N.M. 723, 688 p.2d 333 (Ct. App. 1984) “Severe sanctions should be imposed where there is a willful or bad faith failure to comply.”
Clearly, there are multiple criminal acts including the torts of substance of this suit, but also multiple criminal acts underlying this court itself that should include a directive to law enforcement about the perjury, fraud, conspiracy, control of others, and multiple other matters involved here by Defendants that are all intertwined with DV-12-234, DM-12-610, CV-12-10816 and this instant CV-12-1307. United Nuclear Corp. v. General Atomic Co. 96 N.M. 155, 629 P.2d 231 (1980) appeal dismissed 451 US 901, 101 Supreme Court 1966, 68 L.Ed 2d 289 (1981) “Such as where illicit attempt to conceal information or gross disregard for discovery, the willfulness to sustain the severe sanctions may be predicated upon either an illicit attempt to conceal damaging information, or a gross disregard for the requirements of the discovery process.”; Tyus v. Martinez, 106 Supreme Court 1787, 475 US 1138, 90 L.Ed.2d 333 on remand 800 F.2d 230 “A judge is not only entitled, but also has a duty to take all lawful measures reasonably necessary to prevent the occurrence of a crime in his courtroom.”
If indeed a trial is to be held, Defendants should be stopped from any proof or witnesses at trial. Michigan Window Cleaning Co. v. Martino, (1949 CA6 Mich) 173 F2d 466, 16 CCH LC 65039 “If party declines to answer interrogatories he may be precluded by district court from offering proof at trial.”; Pizza Hut of Santa Fe, Inc. v. Branch, 89 N.M. 325, 552 P.2d 227 (Ct. App. 1976) “Just as it is proper for a trial court to dismiss an action for failure of the Plaintiff to appear for deposition, it is also proper to dismiss an action for failure of the plaintiff to comply with an order of the Court if this case, and order to answer interrogatories.” ; Kalosha v. Novick, 77 NM 627, 426 P.2d 589 (1967) “Willful failure” Wrongful intent to disregard the requirements of this rule is not necessary to constitute a willful failure.., but willful failure does imply a conscious or intentional failure, and distinguished from an accidental or involuntary noncompliance.”
SUMMARY
There now exists court records to show testimony of both a witness to the assault and battery, of which many more exists, but as or more important, Barrie Derringer has made statements under Oath as a witness and in cross examination, that sustains both perjury and fraud of the Defendants. Clearly, the Defendants should have attended some of the divorce hearings, so that their testimony and discovery statements jive with Barrie Derringer’s testimony under oath, which they don’t. Barrie has already testified that 12 persons helped her in the break-in of February 4, 2012 and others, and that she took David Derringer’s firearms and that others touched and loaded tangible items with “friend” meaning Irwin Harms helped Barrie destroy locks and jimmyrig the shop wiring for lights and unloaded David Derringer’s firearms. Barrie has further testified that the break-in of February 4, 2012 was well orchestrated many days before, with knowledge by all persons that David Derringer was supposed to be out of town, but what is to be done if David Derringer appears? Las Luminarias of the New Mexico Council of the Blind v. Isengard 587 p.2d 444, 92 NM 297 “Existence of civil conspiracy must be pled either by direct allegations or by allegations of circumstances from which a conclusion may be reasonably inferred.” What has occurred here is a well planned action involving 12 other persons besides Barrie Derringer, and all met well beforehand and discussed what was to be accomplished, what would happen if David Derringer appeared, what trucks and trailers were needed to accomplish the task, who would drive each vehicle, and what time on Saturday, February 4, 2012 the operation would start and many other details. In other words, the Defendants met with Barrie Derringer and 10 other individuals in a well conceived plan of “conspiracy” with an understanding by all of the objectives, the time frame, the possible interference, and what to do if anything went wrong, and all knew or should have known by the discussions that likely several things or many things that had planned or that could go wrong would involve them breaking the laws. U.S. v. Pedreza 27 F.3d 1515 cert denied 115 Supreme Court 347, 513 U.S. 941, 130 L.Ed.2d 303 cert denied “Elements of conspiracy are agreement with another person to violate law, knowledge of essential objectives of conspiracy, knowing and voluntary involvement, and interdependence among alleged co-conspirators.” It is of court record now in the divorce case by testimony under Oath by Barrie Derringer that she had orchestrated 12 people for the break-ins that happened with her trying to take all property before a divorce. Plans had been made for Debbie and Irwin Harms, and 10 others and use of the Maestas and Ward trucks and equipment many days before the actual incident on February 4, 2012 that involved the assault and battery. Clearly, a gang scenario technique was to be used with that number of persons, and undoubtedly Barrie and the Harms discussed before the incident what they would do if husband David Derringer arrived or caught the action. This was not simply a spontaneous calling of friends and bosses on Saturday morning to help move some things from the storage, but Barrie had already talked to the landlord of taking her name from the lease and had already contacted a locksmith the day before. The corruption of both motives and actions have now moved into the courts, and a continued or new conspiracy has evolved to cover up the actions of before and to protect those involved that David Derringer does not have the identity. US v. Kanchanalak, 37 F. Supp.2d 1 “Statute defining “corruptly”, as “acting with an improper purpose, personally influencing another, including making a false, misleading statement, or withholding, concealing, altering, or destroying a document or other information.” Barrie believed that David Derringer was going to be gone out of town the whole weekend of February 4, 2012 so that the Maestas gang was going to be free to take everything without David Derringer knowing until it was too late and over. With the admitted orchestration of this mess well before the actual day of February 4, 2012 on that Saturday, it is clear that Defendants Debbie and Irwin Harms knew who would be driving all of the vehicles and trailers, how many people would be there to help, and who these other 10 people were. It is clear in the discovery that there is no intention whatsoever to ever allow David Derringer to know the names and identities of the other 10 people that did the assault and battery and conversion.
Respectfully submitted by __________________________
David Derringer
SUBSCRIBED AND SWORN TO before me this 26th day of February, 2013 by David Derringer.
____________________________________
(Seal) Notary Public
My commission expires:_________________________
CERTIFICATE OF SERVICE February 26, 2013
I hereby certify that I delivered a copy of this pleading for filing to:
Second Judicial District Court
400 Lomas NW
Albuquerque, New Mexico 87102
I hereby certify that I hand delivered a copy of this pleading to the attorney Floyd Wilson for the Defendants at:
Floyd Wilson
1401 Central Ave. NW
Albuquerque, New Mexico 87104
No comments:
Post a Comment