STATE OF NEW MEXICO
COUNTY OF BERNALILLO
IN THE SECOND JUDICIAL DISTRICT COURT
DAVID
DERRINGER
Plaintiff,
No.
CV-12-1307 consolidated CV-12-10816
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,
PLAINTIFF’S MOTION
FOR RECONSIDERATION UNDER NMRA RULE 1-060 OF THE ORDER JUNE 13, 2013
DENYING REINSTATEMENT OF ORIGINAL COMPLAINT OF CV-12-1307 WITH LEGAL REQUEST
FOR THIS MOTION TO BE HEARD BY A DISINTERESTED JUDGE FROM A DIFFERENT DIVISION
COMES NOW the Plaintiff, with his motion as
stated above, with a request for this motion to be heard in a different
district with an impartial justice, just as the parallel motions filed this
date also for Recusal for Cause of Judge Malott and Motion for Change of Venue
for justice to be served. The Judge states that “he has a Constitutional duty to preside over those cases assigned to
me, and has no personal concern or interest in Plaintiff or his claims
whatsoever.” That matter, however would not to be to deny due process, persecute
pro-se parties, admonish and single out David Derringer in particular, deny equal
protection, violate law, Oath, and refuse to correct legal error, or to
admonish and threaten David Derringer when the Plaintiff states the facts
involving the “interference” and torts complained of, which necessitates dialog
of a personal, emotional and observation level of such particular torts
including allegations of “fraud” and perjury of the Defendants. The court
Orders the Plaintiff “if the Plaintiff
possesses any actual evidence of an improper motive, design, or action by this
court, he shall make a showing of same in an appropriate motion immediately”.
Substantially, thus the Plaintiff makes the three motions of this instant PLAINTIFF’S
MOTION FOR RECONSIDERATION UNDER NMRA RULE 1-060 OF THE ORDER JUNE 13, 2013
DENYING REINSTATEMENT OF ORIGINAL COMPLAINT OF CV-12-1307 WITH LEGAL REQUEST
FOR THIS MOTION TO BE HEARD BY A DISINTERESTED JUDGE FROM A DIFFERENT DIVISION;
PLAINTIFF’S MOTION TO RECUSE JUDGE MALOTT FOR CAUSE OF VIOLATION OF
CONSTITUTION, LAW, BIAS AND PREJUDICE WITH LEGAL REQUEST FOR THIS MOTION TO BE
HEARD BY A DISINTERESTED JUDGE FROM A DIFFERENT DIVISION; AND MOTION FOR CHANGE
OF VENUE WITH LEGAL REQUEST FOR THIS
MOTION TO BE HEARD BY A DISINTERESTED JUDGE FROM A DIFFERENT DIVISION. Canon 3 of the Code of Judicial Conduct
states a judge "should" [shall] disqualify himself or herself
"in a proceeding which his [or her] impartiality might reasonably be
questioned .... * Judge Malott works in
teamwork with Judge Hadfield; Judge Hadfield ruling against law and
Constitution against the “Respondent” even continuing cases DV-12-234 where the
“Respondent” was never served any summons in “fundamental error” and compares
those ruling against David Derringer to sustain other rulings against David
Derringer in his own court; each time the Plaintiff indicates that other cases
cannot be used to make rulings in the instant case, wherein Judge Malott
peruses all other cases and as some of those rule in error against the
Plaintiff precipitates the animosity and rulings against David Derringer in the
instant case. Matter of Charge of Judicial Misconduct or Disability,
39 F.3d 374, 309, US App. DC 97 “Judge in adversarial judicial proceeding...who
reaches outside of record to decide case defiles process.” In short the
Plaintiff is persecuted and penalized for prior use of the courts regardless of
the issues of which this instant judge “was not” the finder of facts. State
v. Reynolds, 111 NM 263, 267, 804 P.2d 1082, 1086 (Ct. App. 1990) “Matters outside the record present no issue for review”. The
ruling against the law in CV-12-1307 is provable, the ruling and manipulation
of times, service and reassignment with very questionable circumstances intent
on defeating David Derringer’s statutory rights under NMSA 38-3-9 and proper
use of NMRA Rule 1-088.1(B)(C)[1]
so that the judge stays on these cases, the rulings to intimidate the Plaintiff
and dismissal of Plaintiff’s legal actions to find and prosecute the parties
responsible for egregious acts of “assault and battery” are clearly designed to
protect the Defendants, defeat prosecution of the claims and direct the
Plaintiff to abandon his litigation. State v. Cruz, 517 A.2d 237,
240 (R.I. 1986) "Judges must refrain from presiding over cases in which
they might be interested and avoid all appearance of bias." ; Martinez
v. Worley Mills, Inc., 634 P.2d 1295, 1298 (N.M. Ct. App. 1981). A normal
situation would be for a justice to state: If there is any valid reasonable
question to the judge’s impartiality the
judge shall recuse himself or herself in a proceeding in which that be
questioned. Daitchman v. Daitchman, 483 A.2d 270, 271 (Vt. 1984). Vt. R. Crim. P. 50(d) “requires Vermont judges faced with a motion to recuse to pass
the motion to a disinterested judge.” Certainly, in this situation, there is
more than a reasonable question as to why rules, statutes, law and Constitution
are continually violated for the benefit of the Defendants, when the law is
entirely supported on the side of the Plaintiff and there is obstruction to
gain the necessary parties before the court, when they also are Defendants, and
to stop the Plaintiff from exposing and stating facts that are “distasteful” to
the Defendants, even though such facts presented have extreme bearing on the
emotional torts claimed in the Complaint. The “honor” and “oath” of the
Defendants are “defended” by the court even when the Plaintiff shows proof of
contradictions and impeachment from the very parties under oath in such
diametrically opposed statements of their own in discovery; their “oath”
remains to the court unimpeachable and the Plaintiff’s proof of perjury deemed
“vexatious”. Despite the mandates under discovery that Defendants gain
“information within their custody or control” the Defendants Harms are not held
to the standards of discovery to obtain the needed information “from their own
employee” Barrie Derringer. "It is the right of every citizen to be tried
by judges as impartial as the lot of humanity will admit." N.H. CONST. pt.
I, art. 35. State v. Linsky, 379 A.2d 813, 823-24 (N.H. 1977). The
extreme animosity of Judge Malott against the Pro-Se Plaintiff is very
apparent in all Orders from this court in wording, open court animosity, and
underlying hostile environment shows a not normal judicial setting for justice.
People v. Walsh, 210 Ill. Dec. 126, 652 N.E.2d 1102, 273 Ill.
App. 3d 453, Ill App. 1 Dist. 1995 “To prevail on motion for substitution of
judge for cause, accused has to show actual prejudice, animosity, hostility,
ill-will, or distrust directed towards accused.” In this matter, there is a
bias and prejudice and willful failure of the Judge to obey the law and
Constitutional due process and equal protection for the Plaintiff, or a
personal animosity so strong, as shown easily in the Orders maligning,
admonishing, and brandishing the Plaintiff for his attempts to “tell the truth”
under NMRA Rule 1-090, and state facts in which obviously those facts are
distasteful to the judge, or a willful protection, for the Defendants that
extends well beyond the availability under the laws that have already been
presented by the Plaintiff numerous times. To any person, the claims of
“alienation of affection”, “loss of consortium” and “interference with a legal
marriage” involve emotions, suppositions, facts supported by actions and
reactions in reality, and matters of personality known mostly by the two
spouses and their interaction, wherein this court denies the Plaintiffs
“assertions” when behavior regarding such torts is hardly presentable in a
tangible piece or stone or document to the court, but in “testimony” and
intangible evidence from parties; information of intangible “facts” that this
court refuses to allow the Plaintiff to put in his legal pleadings. In re
Doe, 519 P.2d 133, 86 N.M. 37 “N.M. App. 1974 Failure to hear one
party’s evidence, when offered, establishes a presumption of prejudice.” Admonishing a Plaintiff for his presentation
of issues is hardly a way to handle tort claims that involve comfort,
fellowship, affection, companionship, conjugal love, fellowship, and
assistance; hardly something the Plaintiff can set on the table in front of the
judge. In short, the Defendants are being excused, protected, and ruled for,
when the law prohibits such rulings, and the Plaintiff is abused, admonished
and threatened against continuation of litigation, reprimanded to tell the
facts as known to the Plaintiff and ignored for uses of the case laws,
statutes, and Constitution for support legally of the Plaintiff’s assertions. US
v. Guest, US Ga. 1966, 86 S.Ct. 1170, 383 US 745, 16 L.Ed.2d 239 “This
section (Title 18 Section 241) pertaining to conspiracy against rights of citizens
encompasses due process and equal protection clauses of USCA Constitution
Amendment 14 and is not unconstitutionally vague.” The Plaintiff comes with a
motion for “review” of a particular justice’s rulings against laws, and the
same justice that made the rulings presides over the issues that such rulings
are legally incorrect; hardly an unbiased consideration of the motion. Poorman
v. Commonwealth, 782 S.W.2d 603 (Ky. 1989), cert. denied, 497 U.S. 1008
(1990), The Kentucky Supreme Court adhered to the general premise that a judge
should not sit in review of a case decided by her. The record shows no justice
being served here, if the Plaintiff is blocked from litigation while the
Defendants are instructed that they don’t even have to respond to the pleadings
of the Plaintiff. The record shows now
that the Plaintiff is not before a finder of facts, wherein the judge does not
want to hear the Plaintiff’s facts, does not want to hear the case laws that
support the legal contentions of the Plaintiff, and will not reverse rulings
when undeniably shown to be in legal error under laws of higher courts of New
Mexico over the same issues that this judge rules against. The “judge” in this
matter has deviated from a finder of facts to an advocate for the Defendants,
making it superfluous for the Defendants to even have to respond to
pleadings, since the Plaintiff is now
facing the opposition of the court itself wherein Defendant litigation has been
told can be suspended by the Defendants with the court in its stead. This
renders the litigation of this entire matter already decided by the Judge for
the Defendants with the Plaintiff kept from proper discovery, kept from being
able to have “opportunity to be heard” in his own behalf with condemnation of
writings not to the liking of the judge or statements against the opposition,
and the Plaintiff precluded from bringing his valid legal claims of torts
before the court, and precluded from attaining all proper parties before the
court. As the judge states that “further hearing on this matter is not
necessary for an appropriate determination of the issues presented”, so will
the judge already has taken that position on a trial that can never be held
without proper discovery, litigation, law, and without due process and equal
protection, so that the “trial also will be unnecessary at any time” as the
judge has already decided for the Defendants without further ado. The Plaintiff
disclosing this judicial bias and corruption has been threatened by sanctions
and dismissal of the action rendering redress unavailable. Clearly, it is time
for a disinterested justice, that rules
by law, in a different venue of a different district that would not be known or
influenced by a multi-million dollar NAI Maestas and Ward Corporation with
political influence during elections, would be a prudent move for any justice
to be served, as state more succinctly in the Motion to Recuse for Cause. It is more than interesting that the
“corporation” attorneys representing the multi-million dollar corporation NAI
Maestas and Ward Commercial Real Estate, also represent the private party
“Maestas accountant” Barrie Crowe aka Barrie Derringer with obvious questions
as to whom is paying these attorneys for an “employee”, and for what return.
In the original case CV-12-1307, Barrie Crowe
aka Barrie Derringer was not a party, but was the controlled and exploited employee
of the parties, exhibiting submission to all requests and manipulation of such
parties, including, but not limited to the destruction of the Derringer
marriage with the illegal alienation of affection, loss of consortium and
intervention by the parties into the Derringer marriage creating its demise. In
the consolidated cases of CV-12-1307 and CV-12-10816 Barrie Crowe and the
parents Crowe, and the attorney Alain Jackson are involved in and are doing the same torts complained of in
CV-12-1307. In true under cult control, Barrie Crowe comes in the consolidated
cases with a “solidarity” with her abusive bosses, and in protection of her
parents and others so as to show her submission and opposes the attempts of
David Derringer, not getting the large
picture of what has been manipulated upon and against her best interests for
any future. The Defendants Debbie and Irwin Harms, obviously are partners of
Steve Maestas of NAI Maestas and Ward Commercial Real Estate, totally control
their employee Barrie, and attempt thus also to continue to isolate and protect
their other business partner CEO, already dismissed in error, and the
underlying gross legal error that was made previously in CV-12-1307 as it is in
all of the Corporation’s best interest that the egregious acts perpetrated by
all Defendants of Maestas and Ward be covered up, lest more public will know
the control and outrageous acts performed by a company against the personal
life of an employee, including destruction of her marriage that served the best
interest of the company to “remove” a husband that sought proper labor law
relief for his own wife’s protection,
under the mandates of the US Labor Laws. (Such dialog stated by
Plaintiff legally under NMRA Rule 1-090)
The court has already defied the ability of
the Plaintiff for “due process” (CV-12-1307) as valid tort claims have been
dismissed without quotation of any authority by the court simply stating that
such claims of torts do not exist in New Mexico when in fact under law they do. Judge Malott
simply stated by his own belief without authority that loss of consortium,
alienation of affection and interference of a legal marriage contract do not
exist and therefore denied the Plaintiff his valid claims upon which relief can
be granted, with no substance to this ruling, even when requested by the
Plaintiff under Rules 59 and 60. “This
Court previously has recognized–even with respect to another statute the
legislative history of which indicated that courts were to have “wide
discretion exercising their equitable powers,” 118 Cong. Rec. 7168 (1972),
quoted in Albemarle Paper Co. v. Moody, 422 U.S. 405, 421
(1975)–that “discretionary choices are not left to a court’s ‘inclination, but
to its judgment; and its judgment is to be guided by sound legal principles.’ ”
Id., at 416, quoting United States v. Burr,
25 F. Cas. 30, 35 (No. 14,692d) (CC Va. 1807) (Marshall, C.J.). Thus, a
decision calling for the exercise of judicial discretion “hardly means that it
is unfettered by meaningful standards or shielded from thorough appellate
review.” Albemarle Paper Co., 422 U.S., at 416.” United
States v. Taylor, 487 U.S.326, 108 S. Ct. 2413, 101 L. Ed. 2d 297,56 U.S.L.W. 4744.
(Emphasis added) “At a minimum, the district court must listen to a party’s
arguments and give reasons for its decision.” Schwarz v. Folloder,
767 F.2d 125 (5th Cir. 08/01/1985).
The Plaintiff properly filed a motion to
reinstate the claims and parties of the original CV-12-1307 as law sustains,
and requested of the court to Order disclosure by all parties the names of the
other 10 persons that did the assault and battery. The Plaintiff absolutely
saturated the court record in this pleading with statutes, Constitution and an
extreme number of case laws in support, including a dialog by the NM Supreme
Court justice Franchini regarding sustenance of the same exact “TORTS” that
Judge Malott believes in error that don’t exist in New Mexico. Medina v.
City and County of Denver, 960 F.2d 1493, 1498 (10th Cir. 1992)
“ordinarily, in order for the law to be clearly established, there must be a
Supreme Court or Tenth Circuit decision on point, or the clearly established
authority from other courts that must have found the law to be as the plaintiff
maintains.” The Defendants Barrie Crowe, Debbie and Irwin Harms answered this pleading with
nothing but rhetoric about simply sustaining the Order of Judge Malott, with no
authorities whatsoever to qualify defeating the claims of torts. The Defendants
made no effort to oppose in any way the Motion for Order to identify the 10
other persons of the assault and battery; thus “unopposed”. In the Order of June
13, 2013, while the Plaintiff was writing his legal “due process” available
response to the opposition to his motion, Judge Malott rules that the
Defendants need not respond to the Plaintiff as the court will take care of
this matter, while already reading the response actually of the Defendants, and
ruled against all of the law presented by the Plaintiff, with no authorities or
reasons for his decision, and simply “ignored” the attending motion to identify
the other 10 persons involved in the assault and battery wherein the Defendants
Harms have ability under their “control” to gain this information from their
own employee Barrie Crowe, and Defendant Alain Jackson can gain this
information from his “client” Barrie Crowe, and certainly Defendant Barrie
Crowe must give up this information. As also perceived, the “other 10 persons”
involved in assault and battery are employees of the Defendants, lest one woman
who is the claimed “friend of Barrie Derringer”. The court, however, leaves the
Plaintiff with no method of gaining the other parties to be before the court,
in a clear “protection” of the parties as done time after time with the
defiance of the discovery by all Defendants in this matter, and now simply
ignores an “unopposed Motion”. Rogers v. City of Little Rock, 152
F.3d 790, 797 (8th Cir. 1998) “the behavior of the governmental officer is so
egregious, so outrageous, that it may fairly be said to shock the contemporary
conscience.” Simply put there is no compliance with the law or the Rules of
Civil Procedure by the judge, violating oath made for compliance, but indicating
to the rational mind that there is definitely some underlying reason of bias,
association or protection afforded all Defendants since the actual acts of the
judge both ignore and defy the laws presented by the Plaintiff, and defeat the prior
rulings of the higher courts. State ex rel Stratton v. Sinks, 106
N.M. 213, 220, 741 P.2d 435, 442 (Ct. App. 1987) “substantial evidence is such relevant evidence that a reasonable
mind would find adequate to support a conclusion.” The court rules for a
multi-million dollar corporation and associations, while the court itself
defeats the entire litigation of a pro-se individual who proves to the court
time after time that the law is on his side.
Now there exists a consolidated case with the
tort claims dismissed in the one side of previous action wherein the same exact
tort claims exist in the newly consolidated action, rendering the court to
either sustain its earlier ruling, and thus be consistent with the second
consolidated case, dismissing the same claims, or to abide by the law and
reverse the earlier error of law and reinstate the claims correlated with the
same claims in the second suit. ; “The
Law of the Case should not be used to accomplish an obvious injustice, or
applied where a previous decision clearly, palpably or manifestly was erroneous
or unjust.” “Where there is manifest injustice to one party, with an erroneous
decision, it should be disregarded and set aside.” New Mexico Supreme Court Opinion No.
1998-NMSC-031 No. 18,296 consolidated with: No. 19,118 (Sept 8th, 1998).; “law of the case won’t be used to uphold a
clearly erroneous decision”. Advance Opinions, New Mexico Supreme Court, Vol. 37, No. 44, October
29, 1998. As the
Plaintiff has noticed the court of its legal error in the first suit and the
court is adamant not to conform with the law or reverse the illegal decision,
it is common sense that the court will also violate the law in the second
consolidated suit leaving again the Plaintiff now without due process in yet
another action. Deprivation of “equal protection” is a violation of
Constitutional rights.
In short, this court is shown to have already
made its decision to abandon any and all claims by the Plaintiff long before
any trial on the matter and has already allowed the Defendants to win all
matters, well outside of law, counting on the provisions that any appeal will
support the lower court by default, in effect protecting all unknown
perpetrators of the assault and battery and conversion as well as covering up
the egregious acts by the bosses and parents and others involved in the
destruction of the Derringer marriage. Due to the bias, prejudice or other
personal agenda of a judge working outside of the law, the Plaintiff has been
unable to achieve due process. In correlation, of course there is no possible
“equal protection” for the “law” sits on the side of the Plaintiff with cases
identical having already become case law from much higher courts that this
court simply ignores to ram through its own agenda to defeat the Plaintiff.
Clearly we have a situation that personal beliefs of a judge has taken priority
over oath and law, and even as the judge is legally notified of legal error,
refuses to do anything to correct it, showing that there is some personal
agenda either to persecute the Pro-Se Plaintiff, or protect the multi-million
dollar Defendants, or some reasoning well outside of law that is more important
to the judge than the justice mandated to enforce laws already in effect.
The case of CV-12-1307 has now been
consolidated with CV-12-10816, wherein in CV-12-10816 the same issues of
destruction of the Derringer marriage are as claims of which relief can be
granted under New Mexico torts of alienation of affection, loss of consortium, and interference
with a legal and binding marriage contract between David Derringer and Barrie Derringer (aka Barrie Crowe). In
CV-12-10816, David Derringer properly goes after these torts inflicted upon him
and against his marriage to Barrie with perpetrators of Alain Jackson, Geraldine
and Warren Crowe, and various “friends” and conspirators in assault and battery
against David Derringer by members of the conspiracy both under influence of
these third parties and later initiated by Barrie Crowe herself in false
illusion of reality under their cult control and influence. New Mexico Supreme
Court justice Franchini proclaimed as law the importance of New Mexico recognizing such matters for just relief as
“loss of consortium” and “alienation of affection” wherein New Mexico has been quite behind in legal matters of
such, as most all other states in the nation long ago recognized these matters
as “torts”. In gross legal error, or as now perceived, a possible protection of
the highly political influential multi-million dollar corporation of NAI
Maestas and Ward Commercial Real Estate, Judge Malott seemed to have an axe to
grind in his illegal ruling that “loss of consortium”, “alienation of
affection” and “interference of a legal marriage contract” were not “torts” in
the State of New Mexico, and summarily dismissed same in CV-12-1307. In such
case, before consolidation, the Plaintiff sought to correct the legal errors of
law, and even again brought this to the attention of Judge Malott in the hearing for consolidation of the cases, wherein it is proven that
the ruling of Judge
Malott that such torts don’t exist in New Mexico is quite in legal error. Not only was the
Plaintiff and the law ignored by Judge Malott, but it was sustained illegally
that David Derringer is denied due process and opportunity to be heard over
such claims in CV-12-1307 which of course translated into “obstruction of
justice” and deprivation of “equal protection” whereas the New Mexico Supreme
Court recognizes such tort claims and allows both litigation and relief to be
granted on such torts, but lower trial court Justice Malott will not, contrary
to law. This deprives David Derringer of Constitutional due process and equal protection, which cannot be
allowed under law to seep into and continually deprive such due process in the
extreme in the same claims against different parties in CV-12-10816, defeating
again the Plaintiff’s right for redress and his ability for proper relief to be
granted under viable torts. This should be considered undeniably by NMRA Rule
1-060(B)(1)(3)(4)(6) wherein a judgment that is meant to circumvent and ignore
the previous laws is “(1) “mistake” (3) “fraud” to dismiss legal torts condoned
and allowed by the New Mexico Supreme Court (4) any judgment is void when it
conflicts with prior case law, statutory law and Constitutional rights, and (6)
a judgment is unenforceable when it defeats due process and equal protection of
the Constitutional rights of a litigant and thus attacks and attempts to make
law that is against the Constitution which violates the “Supremacy Clause” of
the Constitution Article VI wherein the federal Constitution and federal rights
of “equal protection” under US Code Title 42 Section 1981 are “the law of the
land”. The Defendants’ own case law Salmeron v. Highland Sports Sales,
Inc., 248 F. Supp.2d 1035, 1037 (DNM 2003), used in their “opposition”
in fact supports the Plaintiff absolutely for (3) the need to
correct clear error or manifest injustice, and the Plaintiff has at all times both
presented such egregious errors of law to the presiding judge, and preserved
such issues at all times that the “torts” complained of in both cases of
CV-12-1307 and CV-12-10816 have to be allowed to be litigated and prosecuted as
a matter of law. Romero v.
Byers,872 P.2d 840, 117 NM 422 rehearing denied. “A claim for loss of
spousal consortium exists under New Mexico law; overruling Rosebery v. Starkovitch, 73 NM 211, 387 P.2d 321; and Tondre v. Thurmond-Hollis-Thurmond Inc.,
03 NM 292, 706 P.2d 156. It would be highly illegal and manifest error of law
to maintain the gross disregard for due process and equal protection exhibited
in CV-12-1307 regarding the valid torts to which relief can be granted of the “loss of consortium”, “alienation of
affection”, and “interference with a legal marriage contract” claims against
perpetrators of Steve Maestas and others of CV-12-1307 and simply then deprive
due process and equal protection yet again over the same issues in now
consolidated CV-12-10816. Phelps
v. Hamilton,
122 F.3d 1309, 1323 (10th Cir. 1997). “manifest error of law is
clearly present.” Any rational justice
would see that the only option is to abide by Canon and “enforce the law” and
thus it mandates that all issues of torts of CV-12-1307 and all perpetrating
parties be “reinstated” and properly litigated for redress of legal tort issues
and the remedy that can be had of relief that can in fact be granted for
Plaintiff David Derringer. Canon
3 (B)(2). This mandates the
reversal of the idea of “torts of such are not available in New Mexico” and to
properly prosecute such torts as available under law and rights of “due
process”, making a reversal of Judge Malott’s errors of law, not only of
“merit” but mandated for justice to be served.
Any political pressure, donations of
political concerns or other underlying ability of the multi-million dollar
corporation influence of NAI Maestas and Ward as also used against Barrie Crowe
in obvious coercion and pacification by force, in the $2,000.00 increase in
salary of Barrie Derringer just after she left her husband in January, 2012, in
obvious “payment and coercion”, must be ignored and the “law” itself to
prevail. Delgado v. Costello,
91 N.M. 732, 580 p.2d 500 (Ct. App. 1978) “There is sufficient
particularity..if the facts alleged are facts from which fraud will be
necessarily implied.” All persons privy
to these facts, such as “loss of consortium”, even laymen reading such public
record on the Internet, recognize the “indiscretions” indicated to keep an
“employee” Barrie Derringer, as accountant with financial matters, when the
husband sued the company for assault and battery and all torts included in the
outrageous interference with the legal marriage of the employee, and the
egregious acts of criminal attack on the husband by the CEO’s on their assistance
in breaking into the private storage of the employee on a weekend. The
recognized bases for a motion to reconsider are present, the recognized
parameters of Constitutional rights of due process and equal protection are
present, and the gross manifest errors of law that mandate reversal are also
present. It is against the very parameters of “stare decisis” and “case law”
errors that mandate reversal of the deprivation of due process and to obtain
proper prosecution of valid torts already of law by higher courts. The lower
court has simply defeated due process and opportunity to be heard to prosecute
legal torts by a trial court that simply does not apparently “know the law” as
defined by Canon. Canon: “Law”
“denotes court rules as well as statutes, constitutional provisions, and
decisional law.” Such law
to be known that supports the Plaintiff is not only limited to: Gonzales v. Allstate Ins. Co. 921
P.2d 944, 122 NM 137 1996-NMSC-041 rehearing denied.; Archer v. Roadrunner Trucking Inc., 930 P.2d 1155, 122 NM
703, 1997-NMSC-003.; Martinez v.
Lucero, 1 NM 208, 1 gild 208.; Murray
v. Murray, 240P 303, 30 NM 557.; Trujillo v. Board of County Commissioners of Santa Fe County, 768 F.2d 1186.; Thompson v. Chapman, 600 P.2d
302, 93 NM 356, cert denied 593 P.2d 1078, 92 NM 675.; Birchfield v. Birchfield,217 p. 616, 29 NM 19.; Soto v. Vandeventer, 73 N.M. 211,
217, 387 P.2d 321, 325.; Hitaffer v. Argonne Co. 73 N.M. 211, 218, 387 P.2d 321, 326.; Weber v. Weber, 116 Minn. 494, 134 N. W.
124; Cornelius v. Cornelius, 233
Mo. 1, 135 S. W. 65.; US v.
Colombo, 616 F. Supp. 780 reversed 777 F.2d 96 “EDNY 1985.; Russell v. Russell, 106 N.M. 133,
136, 740 P.2d 127, 130 (Ct.App.1987). ; Whittlesey
v. Miller, 572 S.W.2d 665, 669 (Tex.1978).; Solon v. WEK Drilling Co., 113 N.M. 566,
829 P.2d 645 (1992).
As regards to discovery, the pending motions
wherein all Defendant parties defy discovery and attempt to protect and
insulate the other 10 parties involved in the assault and battery against David
Derringer, need to be addressed by the court with all sanctions requested and
Order issued to produce, expose and identify the other 10 persons for “proper
parties to be before the court” as required under NMRA Rule 1-019. In the now
consolidated case of CV-12-1307 and CV-12-10816, “discovery” is now again wide
open for obtaining identity of parties and other information that will
undeniably support the litigation of the Plaintiff if the Defendants are
properly ordered to comply with discovery instead of the ongoing obstruction of
facts for their motives to gain corruption of the record and concealment of
facts that have to be presented. This “obstruction” of discovery is inclusive
but not limited to all medical records of such person Defendants requested by
the Plaintiff; such medical records that will sustain herpes, emotional and
mental disorders inherited by parties that have everything to do with the
unfortunate ability of the Defendants manipulation and submission of Barrie
Derringer aka Barrie Crowe that precipitated the demise of the Derringer
marriage through no fault of the Plaintiff; outrageous acts against Barrie, that
Barrie Derringer still does not understand that such instant litigation not
only is meant to protect and gain redress of David Derringer’s rights, but also
is meant to define and still protect Barrie Derringer. Clearly, the Motion to
enforce already sustained laws, due process, and equal protection is not a
“frivolous idea”, and such errors of law substantially effect and prejudice
both cases intertwined and the rights of the Plaintiff. Reichelt v. US Army Corp of Engineers,
923 F. Supp.
1090 “ for error to be “prejudicial”, it must affect substantial rights of
aggrieved party.” ; Parsons v. Keil, 106 NM 91, 739 P.2d
505 (1987) “Court’s discretion to vacate order when justice will better be
served by doing so.”; English v.
English, 118 NM 170, 879 P.2d 802 (Ct. App. 1994) Court can change
order. ; Desjardin v. Albuquerque National Bank, 93 NM 89, 596 P.2d 858
(1979) “Court has full control of its order for correction that are deemed
proper under the circumstances.” Since not only the public of New Mexico, but the entire
society of the United States is founded in a
marriage relationship of its citizens, this matter at hand of “loss of
consortium”, “interference of a legal marriage” and “alienation of affection”
affects society of America in general and
is of extreme importance to the public of the United States. “The law
favors the preservation of the marriage relationship”. Niman v.
Niman, 15 Misc. 2d 1095, 181 NYS.2d 260 NY Sup. 1958. When any or multiple parties can “prey” upon a submissive woman
that is emotionally unstable in a bipolar and depressed and suicidal situation,
as testified of herself under oath by Barrie Derringer in DV-12-234 and
DM-12-610, and wherein these persons are allowed by a cult control and
manipulation to defeat a husband trying to protect and love his wife from such
attack, the system needs to be clearly addressed as to protect others like a
woman abused by bosses and parents similarly situated so as to allow a husband
to properly protect his own wife from such abuse. NMSA 40-1-10. In re
Bivians Estate, 652 P.2d 744, 98 NM 722 , cert quashed 652 p.2d 1213,
98 NM 762. The money, power and political influence of a powerful multi-million
dollar corporation abusing an employee and the judicial system should not
prevail over a husband attempting to protect his own wife. Franco v. Federal Bldg. Services Inc. , 98 NM 333, 648 P.2d
791 (1982) “court should be liberal in defense as good.” ; Martin v. Leonard Motor El Paso, 75
NM 219, 402 P.2d 954 (1965) “the court
should grant relief for good cause shown.”
THEREFORE, the collateral attack is
“for good” and the underlying judgment of only CV-12-1307 must be reversed as a
matter of superceding laws for justice to be served. Barela v. Lopez, 76 NM 632, 417 P.2d 441 (1966) “collateral
attack on judgment is allowed.” The
consolidated cases should be properly litigated as to all issues and claims of
both cases of CV-12-1307 and DV-12-10816 with all parties brought before the
courts to include all original parties of CV-12-1307 and reinstatement of all
original claims, and all other 10 persons that are being currently illegally
protected and insulated from prosecution by all Defendants.
As
far as the Defendants have not addressed or opposed the Plaintiff’s “MOTION FOR ORDER MANDATING DISCLOSURE OF 10
PERSONS INVOLVED IN THE ASSAULT AND BATTERY AGAINST DAVID DERRINGER ON FEBRUARY
4, 2102; KNOWN TO ALL PARTIES AND WITHIN THEIR CUSTODY AND CONTROL”, such
motion remains “unopposed” and must be granted for the Plaintiff in its
entirity.
Respectfully submitted by:
______________________________________
David Derringer Pro-Se, Box
7431, Albuquerque,
New Mexico 87194
CERTIFICATE OF SERVICE
June 14, 2013
I hereby certify
that I hand 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 mailed a copy of this pleading to Defendant Jackson at:
423 6th
St. NW. Albuquerque,
New Mexico 87102
And to the attorney Floyd
Wilson for Defendant Barrie Crowe:
Floyd Wilson
12480 Hwy. 14 North. Ste.
105
Cedar Crest, NM
87008
And to the 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
[1] Judge
Malott illegally defeats NMSA 38-3-9 and NMRA Rule 1-088.1(B)(C) against David
Derringer by falsly stating that the Plaintiff sought Motion to Strike relief
of CV-12-10816 from Judge Malott and thus had no standing under Rule to
peremptory excusal, and was outside of time frame. This information is false
for the record clearly substantiates that David Derringer filed his
Motion to Strike with “Judge Brickhouse” (filed “request for hearing”) when
Judge Malott was given the case illegally without recusal of Judge Brickhouse
by errors or clerk or Judge Malott; this being confirmed by the proof of
illegal Defendants peremptory excusal of Judge Brickhouse. Thus, the statutory
law “right” was taken illegally from David
Derringer by manipulation of the court cases
by Judge Malott. Baker v. Horn, 201
Supp.2d 592 “Fact cannot become of record solely by virtue of its inclusion in
trial court’s opinion.”
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