MOTION TO SET CASE MANAGEMENT CONFERENCE

Transcription

1 District Court, El Paso County, Colorado Court Address: 270 S. Tejon St. Colorado Springs, CO Robert Wayne Johnson, Plaintiff v. Vanessa Ralphita Dolbow, Defendant Attorney or Party Without Attorney: COURT USE ONLY Case Number: 11CV229 Robert Wayne Johnson 307 S. 26 th St. Colorado Springs, CO Division: 13 Courtroom: Phone Number: MOTION TO SET CASE MANAGEMENT CONFERENCE Plaintiff Robert Wayne Johnson, on his own behalf, moves the court to set a case management conference pursuant to C.R.C.P. 16(d) whereby Plaintiff and Defendant, Vanessa Ralphita Dolbow, may reach a court-approved and court-supervised modified case management order as permitted by C.R.C.P. 16(c) and shows to the court the following: INTRODUCTION Plaintiff filed the above action on July 8, 2011, and Defendant received service of the summons and complaint on July 13, Defendant entered a timely first appearance in the action by her letter to the Court dated July 27, 2011 and copied in part to Plaintiff. Defendant s appearance, however, failed to adhere to C.R.C.P. 8, 10, and 12 and was made without paying the requisite costs, but it was not a failure to appear for default purposes as settled by Colorado courts. Biella v. State Dep t of Highways, 652 P.2d 1100, 1102 (Colo. App. 1982), aff d 672 P.2d 529 (Colo. 1983). R.F. v. D.G.W., 192 Colo. 528, 560 P.2d 837 (Colo. Supreme Court 1977). Plaintiff responded to Defendant s letter immediately by the attached letter that offered guidance for making answer to the complaint and provided the appropriate avenue for self-help. Plaintiff understands that Colorado takes a negative view of default judgments and looks at them in its purview of a defendant s due process rights. Civil Serv. Comm'n v. Doyle, 162 Colo. 1, 424 P.2d 368 (1967). Missouri ex rel. De Vault v. Fidelity & Cas. Co., 107 F.2d 343 (8th Cir. 1939). Plaintiff realizes that his letter may be viewed suspiciously, but he maintains he desires to establish a cooperative relationship with Defendant and has no desire to see Defendant relinquish her right to defend against the claims made against her or mitigate them.

2 On August 3, 2011, having given notice to Defendant of his intent to move for a default judgment in his letter, Plaintiff filed the motion promised. While Plaintiff s motion objected to the defects in Defendant s answer, it moved for default on the substance of the answer which is incapable of doing substantial justice as required by C.R.C.P. 8(f) and was hostile and evasive. Plaintiff holds that the Court may abuse its discretion in timely acting on motions because of its special interest in the case and may use Colorado s liberal interpretation of first appearances and its critical view of default judgments to unreasonably extend Defendant s response time, which are clearly actions not in the best interest of the private parties in the case. Plaintiff s lack of confidence in the Court s ability and desire to protect his procedural and substantive rights to due process and equal protection was heightened by Defendant s first appearance letter which released for the first time facts about documents collected by the El Paso County Child Support Enforcement Unit during the application process. This information and the events reported in the motion for change of venue on August 8, 2011 support the removal of all matters before the Court in this case to a court with subject matter jurisdiction outside of the Fourth Judicial District. FACTUAL ALLEGATIONS 1. Plaintiff received a copy of Defendant s July 27, 2011 letter by certified mail on July 28, Plaintiff did not receive a true and accurate copy of the Response. His copy did not include a copy of the General Response form (JDF 81 R5/10) filed with the letter and did not include the second page of the unnumbered cover letter page bearing Defendant s signature. His copy included two copies of the unnumbered second page of the attachment to the letter bearing Defendant s signature. Plaintiff does not believe the errors were intentional, but Plaintiff did not know the full meaning of the response until August 8, 2011 when he obtained a copy of the filed letter from the District Court. Therefore, Defendant s service upon Plaintiff was incomplete until August 8, Plaintiff was required, as of July 27, 2011 when Defendant first appeared to represent herself, to ensure the diligent prosecution of his action to prevent dismissal by the court for failure to prosecute. He is responsible for case management until such time as may enter an attorney to represent him or an attorney to represent Defendant pursuant to C.R.C.P. 16(b)(2) or an attorney enters the action for a joined third party as permitted by C.R.C.P. 18 and neither the Plaintiff or Defendant are represented by counsel. Plaintiff takes this responsibility seriously. 3. Plaintiff cannot meet the presumptive case management order, which first requires Plaintiff and Defendant to meet and confer not later than 15 days from the at issue date. The at issue date liberally construed is July 27, C.R.C.P 16(b)(3) states: No later than 15 days after the case is at issue, lead counsel for each party and any party who is not represented by counsel shall confer with each other about the nature and basis of the claims and defenses; the matters to be disclosed pursuant to C.R.C.P. 26(a)(1); and whether a Modified Case Management Order is necessary pursuant to subsection (c) of this Rule. The date to meet and confer as stipulated by subsection (b)(3) will be August 18, 2011 based upon the incomplete service of the Motion to Set Case Mgt. Conf. Page 2 of 6 Johnson vs. Dolbow

3 Defendant s response. Other factors to be considered are the rulings from the change of venue and default judgment motions in the hearing yet to be placed on the court s calendar and the Court s first case review date scheduled for September 8, Therefore, this case cannot meet the presumptive case management order identified in Rule 16(b) numbers 1-10 and a modified case management order must be proposed and approved by the court. In this matter, Plaintiff further shows: a. The notice that a modified case management order is necessary is being made timely to the court and to Defendant in this motion to set a case management conference pursuant to C.R.C.P. 16(c). b. Plaintiff has the right to seek the court s assistance in setting a case management conference pursuant to subsection (d) of C.R.C.P. 16 as an unrepresented party, while Committee Comment (b) to Rule 16 states that if any party is appearing pro se an automatic and mandatory Case Management Conference is triggered. Plaintiff shall take nothing for granted in the handling of this action. c. Plaintiff has attached a preliminary modified case management order worksheet for Defendant s benefit and consideration prior to the anticipated notice from the court that a case management conference has been set. Defendant should know: i. Case management conferences are permitted to be by telephone. ii. Plaintiff expects discovery of data, documents, and facts to be nonexistent from Defendant s perspective, in that Defendant admits to being in possession of more than a 1000 pages of documents from Plaintiff. iii. Plaintiff will be prepared to submit all other mandatory disclosures pursuant to C.R.C.P. Rule 26 in short order, following the commencement of discovery in this case. iv. Plaintiff anticipates staying within the stated number of interrogatories (30). 4. The expeditious resolution of this action requires the cooperation of Defendant who obtained a permanent restraining order against Plaintiff on September 25, The threat of arrest has been ever present on the mind of Plaintiff since September The court must aid in the development of a path of communication that works to the ends of justice, while upholding the order and removing the threat of Plaintiff s arrest. Defendant states as true the following: a. Plaintiff admits he committed an act of domestic violence for which he received professional counseling. The court decided the matter at the time the act was reported by Defendant. Neither the act nor Defendant s act to seek the restraining order are at issue in this action. The acts of the Plaintiff and Defendant indicate the heightened emotional state of both parties at the Motion to Set Case Mgt. Conf. Page 3 of 6 Johnson vs. Dolbow

4 time Defendant gave notice of her desire to end their relationship. b. Plaintiff s lack of self control was inexcusable; the exercise of his physical dominance over the being of Defendant was inexcusable; and the unexpected display of violence by him and the Defendant in the presence of their son was inexcusable. c. Plaintiff gave sworn testimony in the hearing of his child support modification action that Plaintiff and Defendant enjoyed a good parenting relationship from the beginning of their separation as a family. Defendant did not challenge his contention nor did she raise any concerns about domestic violence or being fearful of Plaintiff. Plaintiff asserts: Defendant is not afraid of him, has no reason to be afraid of him, and will use the restraining order as a continued tool to prevent a reasonable inquiry in this action. d. Plaintiff was required to serve copies of pleadings and motions with attachments and exhibits on Defendant. This is not harassment. e. Plaintiff s other papers were mailed to Defendant to fully disclose the matters that concerned him in light of his oral and written notice to the Court at the hearing of his intent to file suit against Policy Studies Inc. This was not harassment. It was a courtesy extended to Defendant who is inseparable from the wrong doings of the El Paso County Child Support Enforcement Unit. 5. For a case management conference to be successful and for Defendant to properly defend against the action, the Defendant must come to some kind of understanding about Plaintiff s obsession, whether or not she believes it is well founded or real. Plaintiff believes Defendant s position that some of them [the papers] appeared confused and/or made no sense is because she has yet to grasp the key concepts driving Plaintiff s pursuit of justice or what he has been going through. Plaintiff also believes Defendant s position that the complaint has many confused facts and statements, some of which have no bearing on the Child Support issue indicates the disconnect with Plaintiff s issues. By way of examples, Plaintiff discloses: a. Plaintiff s behavior in the hearing was odd to Defendant because she did not understand the violations of Plaintiff s procedural and substantive due process rights or his right to the equal protection of the law. Plaintiff asked the Court, and the record shows, the Defendant did not know what the Court s rulings meant because everything was over my head. In making this statement, Defendant was only concerned about the determination of child support and not the real issues important to Plaintiff, which he did understand. b. The history of the divorce proceedings, including the issuance of the restraining order and the contempt citation, was given to show that Defendant had unbridled access and the support of the court from April Motion to Set Case Mgt. Conf. Page 4 of 6 Johnson vs. Dolbow

5 1996 until September 25, 1997 and during that time Defendant did not apply to the court for enforcement of the temporary orders. The attempted modification of child support and its brief history were shown to demonstrate that once again there was unbridled access to the court, yet Defendant did not seek the enforcement of the court s temporary orders that allegedly left Plaintiff owing $15,000 in unpaid temporary support. The review of the testimony in the hearing demonstrates that, even after the car accident and the resulting unemployment and having to live on loan proceeds, Defendant did not seek to collect the alleged unpaid temporary support. Taken together, these facts support Plaintiff s allegation that Defendant gave another material false statement, and this act contributes to Plaintiff s clear and convincing evidence that Defendant s conduct was outrageous. (Outrageous conduct is Colorado s equivalent of Intentional Infliction of Emotional Distress.) c. The seeming drifts from facts to feelings that may appear confusing are also necessary in proving emotional distress under an outrageous conduct claim. Plaintiff accepts that receiving papers and phone calls from him has been stressful for Defendant. But Defendant cannot begin to understand the stress he has been under dealing with all of this mentally every hour of every day for nearly three years nor can she truly appreciate the negative impact it has had on his quality of life. 6. Plaintiff is concerned about Defendant s health crisis, the negative impact of the last three years on their son, and Plaintiff s well being. Plaintiff seeks an expeditious resolution and has already offered to dismiss the action in exchange for the truth, as was clearly stated in his letter of July 28, Plaintiff is more than willing to discuss anything that will lead to a swift end to the action when the case management conference is set. Whereas Plaintiff has taken another step in establishing a cooperative and professional approach to case management by way of this Motion, the court should set a case management conference to be used to create a modified case management order that successfully allows the case to go to trial in 90 days. Submitted this day of Robert Wayne Johnson, Pro Se Motion to Set Case Mgt. Conf. Page 5 of 6 Johnson vs. Dolbow

6 CERTIFICATE OF MAILING I hereby certify that a true and correct copy of the foregoing MOTION TO SET CASE MANAGEMENT CONFERENCE with Plaintiff s July 28, 2011 letter and Preliminary Modified Case Management Worksheet attached was placed in the United States mail, postage prepaid, on August, 2011 and addressed to: Vanessa R. Dolbow 1836 Brookdale Drive Colorado Springs, CO Robert Wayne Johnson Plaintiff, Pro Se Motion to Set Case Mgt. Conf. Page 6 of 6 Johnson vs. Dolbow