CV-12-1307 consolidated with CV-12-10816

STATE OF NEW MEXICO

COUNTY OF BERNALILLO

IN THE SECOND JUDICIAL DISTRICT COURT

DAVID DERRINGER

Plaintiff,

No. CV-12-1307 consolidated with CV-2012-10816

v.                                                                                

DEBBIE HARMS, IRWIN HARMS, BARRIE CROWE AKA

BARRIE DERRINGER AKA BARRIE BEVERLEY, ALAIN JACKSON,

GERALDINE (JERRY) CROWE, AND WARREN

CROWE; ALL AS INDIVIDUALS,

Defendants,

MOTION UNDER NMRA RULE 1-060 FOR RECONSIDERATION OF THE ORDER OF MAY 31, 2013 DISMISSING/STRIKING THE PLAINTIFF’S LEGAL STATUTORY RIGHT OF PEREMPTORY EXCUSAL AS UNTIMELY AND UNAVAILABLE UNDER NMRA RULE 1-088.1(B)(b)(C) PURSUANT TO “REASSIGNMENT”

COME NOW the Plaintiff of the consolidated cases with his motion as stated above.

Before the cases CV-12-1307 and CV-12-10816 were consolidated, only as of May 30, 2013, there existed Case CV-12-1307 under Judge Malott, and Case CV-12-10816 under Judge Brickhouse. At no time did the Plaintiff seek to recuse or excuse either judge in either case in which David Derringer is the Plaintiff, and the Opposing parties did not legally seek to recuse/excuse either judge in either case in any timely or legal manner. However, “illegally” the new attorneys Alicia Santos sought in only April , 2013 in only CV-12-10816, to use a peremptory excusal in legal error both after asking the court for a discretionary act, and “untimely” under NMRA Rule 1-088.1 (B)(1)(a). This act of peremptory excusal was to remove Judge Brickhouse of CV-12-10816, having nothing to do with Judge Malott in CV-12-1307. Judge Malott, on May 30, 2013 ruled that the peremptory attempt to excuse Judge Brickhouse was in gross legal error for an attorney. In error of the clerks, the case CV-12-10816 was moved to the jurisdiction of Judge Malott, when Judge Brickhouse had jurisdiction of CV-10816, including, but not limited to hearing the Plaintiff’s Motion to Strike the illegal peremptory excusal of Judge Brickhouse. The Plaintiff had properly filed his Motion to Strike the peremptory excusal with Judge Brickhouse and did not file any motion with Judge Malott over CV-12-10816, as legally without merit of peremptory excusal, Judge Malott did not have jurisdiction of CV-12-10816. Without any motion before Judge Malott in CV-12-10816, the court itself, sua sponte sought to consolidate the two cases; a motion not brought before the court by any action of the Plaintiff, David Derringer.

In the hearing of May 30, 2013, the court determined that the Defendant’s Motion to peremptory excuse under NMRA Rule 1-088.1 was invalid and illegal, making the proper Judge of CV-12-10816 Judge Brickhouse prior to any “consolidation”. Upon “Consolidation” only as of May 30, 2013 Case CV-12-10816 became one with Case CV-12-1307 making the Case CV-12-10816 “reassigned” at only that time from Judge Brickhouse to Judge Malott. Under NMRA Rule 1-088.1(B)(C) a “reassignment” of a case enables a party to use the peremptory excusal by Rule within a ten day period of such reassignment. Thus, as Plaintiff David Derringer sought both timely and properly under Rule NMRA Rule 1-088.1(B0(C) to excuse the newly assigned Judge Malott to CV-12-10816 as newly consolidated with CV-12-1307, the peremptory excusal by Plaintiff David Derringer was valid under Rule, and should apply to excuse the new Judge Malott from a case newly assigned as now consolidated with CV-12-1307. Judge Malott has to step down by Rule, without the Plaintiff having to give any reason for the excusal mandated by the Rule. The Order of May 31, 2013 does not comply with the Rules of Civil Procedure and indicates that Judge Malott has personal reasons that he wants to continue to preside over this matter. The Rule 1-088.1(B)(C) supports the filing of the Plaintiff on May 30, 2013 to excuse Judge Malott from the newly assigned consolidated case CV-12-10816 that was previously assigned properly without any valid peremptory excusal of the Defendants to Judge Brickhouse, and the Plaintiff did such excusal within a ten day time frame of the reassignment of the Case CV-12-10816 to Judge Malott under the time frame of Rule NMRA 1-088.1(B)(C).

Rule 1-088.1 PEREMTORY CHALLENGE TO A DISTRICT JUDGE; RECUSAL; PROCEDURE FOR EXERCISING

Rule 1-088.1(B)(b) Procedure for Excusing a District Judge

A party may exercise the statutory right to excuse the district judge before whom the case is pending by filing with the clerk of the district court a peremptory election. The peremptory election to excuse must be (1) signed by a party plaintiff or that party’s attorney and filed within ten (10) days after the later of : (b) mailing by the clerk of notice of assignment or reassignment of the case to a judge;

(C) Notice of Reassignment: Service of Excusal. After the filing of the complaint, if the case is reassigned to a different judge, the clerk shall give notice of the reassignment to all parties. Any party electing to excuse a judge shall serve notice of such election on all parties.

Case CV-12-10816 has now been reassigned from Judge Brickhouse to Judge Malott and Plaintiff David Derringer has every right under rule to excuse the honorable Judge Malott from presiding in the consolidation of CV-12-1307 and CV-12-10816.

Plaintiff David Derringer properly and timely exercised his statutory right to peremptory excusal of Judge Malott as a newly “reassigned” judge to Case CV-12-10816 by the act of consolidation of the Cases CV-12-1307 with CV-12-10816, pursuant to NMRA Rule 1-088.1(B)(C), and this right of peremptory excusal should be honored as a matter of the statutory laws of New Mexico wherein Judge Malott “shall proceed no further”.

Section 38-3-9 - Peremptory challenge to a district judge.

38-3-9. Peremptory challenge to a district judge.
A party to an action or proceeding, civil or criminal, including proceedings for indirect criminal contempt arising out of oral or written publications, except actions or proceedings for constructive and other indirect contempt or direct contempt shall have the right to exercise a peremptory challenge to the district judge before whom the action or proceeding is to be tried and heard, whether he be the resident district judge or a district judge designated by the resident district judge, except by consent of the parties or their counsel. After the exercise of a peremptory challenge, that district judge shall proceed no further. Each party to an action or proceeding may excuse only one district judge pursuant to the provisions of this statute. In all actions brought under the Workmen's Compensation Act (52-1-1 to 52-1-69 NMSA 1978) [Workers' Compensation Act (52-1-1 NMSA 1978)], the employer and the insurance carrier of the employer shall be treated as one party when exercising a peremptory challenge to the judge under this statute. The rights created by this section are in addition to any arising under Article 6 of the constitution of New Mexico.   

Respectfully submitted by: ____________________________________________

David Derringer Pro-Se Box 7431, Albuquerque, New Mexico 87194

CERTIFICATION OF SERVICE                   June 7, 2013

I hereby certify that I hand delivered a copy of this pleading to:

Second Judicial District Court

400 Lomas NW

Albuquerque, New Mexico 87102

I hereby further certify that I delivered a copy of this pleading to:

Defendant Jackson at:

423 6^th St. NW. Albuquerque, New Mexico 87102

Attorney Floyd Wilson for Barrie Crowe Defendant at:

Floyd Wilson

12480 Hwy. 14 North. Ste. 105

Cedar Crest, NM 87008

Attorney for Geraldine and Warren Crowe:

Alicia Santos of O’Brien & Padilla P.C.

6000 Indian School Road NE Suite 200

Albuquerque, New Mexico 87110