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In The United States Bankruptcy Court
For The District Of Colorado

Case No. 05-40334-EEB
Chapter 7
Adv Pro. 06-1225-EEB

In re: Robbins, Barbara

Debtor

Karen Dudnikov,
Michael Meadors

Plaintiffs

vs.

Barbara Robbins

Defendant

______________________________________________________________________________
 
PLAINTIFFS' MOTION FOR SANCTIONS ______________________________________________________________________________

        Plaintiffs Karen Dudnikov and Michael Meadors do hereby submit a Motion For sanctions against Barbara Robbins ("Debtor") pursuant to the FRCP 11 (b)(1), F.R.B.P. 11 (b)(1) and Standing order 2004-1-SSB.

BACKGROUND

        1. On October 7, 2005, the Defendant Barbara Robbins ("Debtor") filed a voluntary petition ("Petition") pursuant to Chapter 7 of Title 11 of the United States Bankruptcy Code in the United States Bankruptcy Court for the District of Colorado. The Petition was assigned case number 05-40334-EEB.

        2. On February 2, 2006, Karen Dudnikov and Michael Meadors, Plaintiffs, filed an adversarial complaint ("Complaint") with Memorandum In Support ("Memorandum Supporting Complaint") against Barbara Robbins, the Debtor. This adversarial proceeding was assigned case number 06-1225-EEB.

        3. On March 2, 2006, Barbara Robbins filed her Response To Complaint ("Response To Complaint") along with thirty-three pages of material that appeared to be incomprehensible and unsupported exhibits of some sort relating to her counter-claims.

        4. On March 16, 2006, Plaintiffs filed their Reply To Debtor's Cross-Claims "Reply").

        5. On April 21, 2006, Barbara Robbins filed a frivolous and unsupported Motion To Dismiss Plaintiff's (sic) Claim With Prejudice ("Motion To Dismiss") and a frivolous and unsupported Motion To Vacate Default And Default Judgment ("Motion To Vacate"), referred to collectively as "Motions To Dismiss".

BASIS FOR MOTION

        6. Plaintiffs submit that Debtor's Motions To Dismiss, as well as her Response To Complaint, contain enough factual mistakes and/or misrepresentations, used in support of enough baseless arguments, to merit imposition of sanctions.

        "(S)anctions may be imposed, if a reasonable inquiry discloses the ... motion ... is (1) not well grounded in fact, (2) not warranted by existing law or a good faith argument ... or (3) interposed for any improper purpose...." Westmoreland v. CBS, 770 F.2d 1168, 1174 (2d Cir. 1984).

        7. Plaintiffs also submit that Debtor's Motions To Dismiss, as well as her Response To Complaint, contain deliberate and unsupported personal attacks against the Plaintiffs and Officers of the Court.

        8. FRCP 11 imposes an obligation upon the filer to conduct legal research before filing to prevent frivolous litigation.

MOTION TO VACATE

        9. Debtor's Motion To Vacate Default and Default Judgment ("Motion To Vacate") appears to be based solely upon her insistence that had she appeared at ANY hearing, the District Court would have ruled in her favor.

        10. It is difficult to imagine why Debtor posed this unsubstantiated theory in a Motion, except maybe to delay, derail or confuse the issues at bar.

        11. Debtor doesn't even bother to bolster her theory with a single declaration or other shred of documentary evidence. Since Debtor's pleadings are bereft of anything approximating a "fact," in the absence of any facts from Debtor, according to the rules, this Court has no option but to "accept plaintiffs' allegations as true." Reuber v. United States, 750 F.2d 1039, 1061-63 (D. C. Cir. 1984).

        12. A cursory examination by Debtor of legal obligations to appeal a judgment in a timely manner, and an obligation to exhaust state remedies before taking the issue into federal courts, would have prevented this frivolous motion.

        13. Instead, it appears that the Debtor researched only enough case law as to support her unwarranted contention that because she failed to "appear" at a hearing that the results of that hearing would not be binding. She ignored case law that her "responsive filings" in lieu of appearance negated a "default" and a "default judgment".

        14. Debtor's Motion To Vacate apparently misrepresents the Complaint as being invalid because she says so, adds a few mischaracterizations of Plaintiffs' claims, and glues it all together with arguments that are not well-grounded in fact.

MOTION TO DISMISS

        15. Debtor's Motion To Dismiss Plaintiff's (sic) Claim With Prejudice ("Motion To Dismiss") appears to be based on her new legal theory that "a failure to appear default judgment" (see Motion To Dismiss, page 3, 3 Summation) is grounds for this Court to seriously consider her motion.

        16. There is no reason for the Debtor to pose this unsubstantiated and unsupported theory in a Motion, other than to delay, derail or confuse the issues at bar.

        17. Debtor doesn't even bother to bolster her new theory with a single declaration or other shred of documentary evidence. Since Debtor's pleadings are bereft of anything approximating a "fact," in the absence of any facts from Debtor, according to the rules, this Court has no option but to "accept plaintiffs' allegations as true." Reuber v. United States, 750 F.2d 1039, 1061-63 (D. C. Cir. 1984).

        18. By her own admission she made pleadings on all the issues. It appears she researched setting aside a default and default judgment while not presenting a shred of evidence that any of the judgments made against her were in fact default, except for her pronouncements that they were. And she ignored the fact that her pleadings were considered in the judgments and therefor the judgments were not "default" as alleged by her.

        19. Debtor's Motion To Dismiss misrepresents the Complaint as being invalid and focuses on the District Court judgments while totally ignoring the other claims made under the Bankruptcy Laws. Debtor then adds a few mischaracterizations of Plaintiffs' claims, and glues it all together with arguments that are not well-grounded in fact.

UNSUPPORTED PERSONAL ATTACKS

        20. In both her Motion To Dismiss and her Motion To Vacate, Debtor makes an unsupported personal attack on the Plaintiffs, the former attorney for the Plaintiffs, and the process server, by stating that one of them tampered with the court summons she received in February, 2004 (see Motion To Dismiss 7a and Motion To Vacate 7a).

        21. In the Court Record for Case 01CV120, on file in Fairplay, Colorado, is an original copy of the summons. This copy shows that Judge Plotz, who signed it, apparently made an error when putting in the date and used white-out to correct it. It appears one original went to the file while one original went for service.

        22. Debtor's unsupported personal attacks don't stand up. Plaintiffs, using an attorney, never saw the summons or had it in their possession and would have been unable to alter it, which they would not have done nor would they a reason to do. It is unconscionable to assume an officer of the court would have altered the summons. The process server, who is licensed, certainly had no reason. And, to what purpose would someone alter a summons to a date earlier than the hearing, whereby the person with the summons would have adequate opportunity to find out the correct date (as did the Debtor in this case)? As the original on file plainly shows, the originals did have some white-out on them, possibly making the date on the Debtor's copy difficult to read, but that harmless error was corrected by the court clerk eighteen days BEFORE the hearing.

        23. In her Motion To Dismiss, Debtor makes an unsupported personal attack on the Plaintiffs, by stating that they made a false claim, and that "Plaintiffs knew it to be false when they made it" (see Motion To Dismiss 7b).

        24. This personal attack was totally unwarranted as when the claim was made it was supported by court documents submitted as evidence attesting to that fact. Plaintiffs' Reply, 9, states:

        "On March 1, 2004, Barbara Robbins appeared at the Courthouse in Fairplay, somehow believing that was the date of the hearing (see Attachment #20 page 4). On that date, she filed with the Court a Memorandum and a Motion (see Attachment #20 page 4). At the hearing on March 19, 2004, the Court Clerk stated to Judge Mayhew that the clerk specifically told Ms Robbins that the hearing date was March 19, 2004 (see Attachment #20 page 4). Contrary to her claims, she was aware of the date of the hearing and did not attend." (emphasis in original).

        A copy of the Integrated Colorado Online Network ("ICON") for case 01CV120 was submitted as Reply Attachment #20 undisputed and not challenged by Debtor. On page 4, approximately line 49, Event ID #51, the ICON document plainly states:

        "Clerk recalls advising Barbara Robbins that her court date was scheduled for March 19, 2004 on March 1, 2004 when she filed her motion".

        This IS NOT HEARSAY evidence as it is plainly a district court generated document, submitted in evidence, and without any objection or challenge by the Debtor. Debtor's assertion that Plaintiffs were lying and knew they were lying is a fabrication, defamatory and malicious and subject to sanctions. In their Reply, Plaintiffs very plainly referred to Attachment #20 three times while quoting it (see Reply Page 3, 9), and Debtor had this document in her possession when she made this deliberately defamatory statement.

        In Debtor's Response To Complaint, Response to Memorandum Page 7 17, Debtor states "Plaintiffs are thieves", preceding this name-calling with the claim that if her case were heard "fairly", the Court would come to this conclusion. This is another unwarranted and unsupported attempt to defame the Plaintiffs before this Court and is subject to sanctions.

AUTHORITY TO SANCTION BEHAVIOR

        26. Federal courts have addressed the interplay between Federal Rule of Civil Procedure 11 (2001) and a court's inherent power. See Chambers v. NASCO, Inc., 501 U.S. 32, 50, 111 S.Ct. 2123, 2136, 115 L.Ed.2d 27, 49 (1991); Pope v. Federal Express Corp., 138 F.R.D. 675, 681-83 (W.D. Mo. 1990).

        27. In Chambers, the United States Supreme Court found that the district court did not abuse its discretion when it resorted to its inherent powers to impose sanctions for bad faith conduct. 501 U.S. at 50, 111 S.Ct. at 2136, 115 L.Ed.2d at 49. The Court determined bad faith conduct was not covered by the Federal Rule 11 sanctioning provisions. Id.; see also Corley v. Rosewood Care Ctr., Inc., 142 F.3d 1041, 1058-59 (7th Cir. 1998) (Court determined no bad faith conduct and thus was necessary to impose any sanctions according to Federal Rule 11 rather than inherent powers). The Court in Chambers went further and noted that a federal court was not forbidden from using its inherent powers rather than a statute or rule, even if some of the conduct was covered by a statute or rule. Id. 501 U.S. at 50, 111 S.Ct. at 2136, 115 L.Ed.2d at 49. For example, the Court noted Federal Rule 11 could have been used to sanction the party for "filing 'false and frivolous pleadings.'" Id. However, the Court determined that the "entire course of conduct throughout the lawsuit evidenced bad faith and an attempt to perpetrate a fraud on the court, and the conduct sanction able under the Rules was intertwined within conduct that only the inherent power could address." Id. 501 U.S. at 51, 111 S.Ct. at 2136, 115 L.Ed.2d at 49.

        28. In Pope, the court found that the actions of a party to the litigation "constitute[d] bad faith and abusive conduct . . . and an attempt to perpetrate a fraud on the court." 138 F.R.D. at 683. Therefore, the court concluded it was appropriate for it to "impose sanctions against plaintiff pursuant to its inherent equitable power to do so." Id. The court arrived at this conclusion after analyzing the various Federal Rules, including Federal Rule 11, under which sanctions could be imposed. Id. at 681-82.

        29. In Aoude v. Mobile Oil Corp., 892 F.2d 1115, 1118 (1st Cir. 1989), the court defined fraud on the court as occurring when "it can be demonstrated, clearly and convincingly, that a party has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system's ability impartially to adjudicate a matter by improperly influencing the trier or unfairly hampering the presentation of the opposing party's claim or defense." Further, the court noted "that a federal district court possesses the inherent power to deny the court's processes to one who defiles the judicial system by committing a fraud on the court." Id. Among the bad faith conduct apparent in the case was the filing of false pleadings and documents. Id.

CONCLUSION

        30. Arguments for extensions, modifications, or reversals of existing law or for creation of new law do not violate subdivision (b)(2) provided they are "nonfrivolous." This establishes an objective standard, intended to eliminate any "empty-head pure-heart" justification for patently frivolous arguments. The extent to which a litigant has researched the issues and found some support for its theories even in minority opinions, in law review articles, or through consultation with other attorneys should certainly be taken into account in determining whether paragraph (2) has been violated. Just as important to take in account is an obvious disregard for information readily available that shows the position has no merit.

        31. Whether the improper conduct was willful, or negligent; whether it was part of a pattern of activity, or an isolated event; whether it infected the entire pleading, or only one particular count or defense; whether the person has engaged in similar conduct in other litigation; whether it was intended to injure; what effect it had on the litigation process in time or expense; whether the responsible person is trained in the law; what amount, given the financial resources of the responsible person, is needed to deter that person from repetition in the same case; what amount is needed to deter similar activity by other litigants: all of these may in a particular case be proper considerations. The court has significant discretion in determining what sanctions, if any, should be imposed for a violation, subject to the principle that the sanctions should not be more severe than reasonably necessary to deter repetition of the conduct by the offending person or comparable conduct by similarly situated persons.

        32. FRCP 11 imposes an obligation upon the filer to conduct legal research before filing to prevent frivolous litigation. The obligation is to look at both sides of the issue. Debtor did not do that. One obvious example is her reliance on Rule 60(b) for reasons to set aside judgments while ignoring the requirements of a timely motion and the time limits set in the same rule.

        33. Debtor's Motions were not only hopeless, they have no showing of prejudice, lack supporting documents and affidavits, called Officers of the Court liars, and included a lot of stretches. Her Motions, as well as her Response to Complaint, could be characterized more like cries for sympathy than legal arguments. She rambles on about how everything has gone against her while offering little legal argument and maligning those who oppose her.

        34. As Plaintiffs have shown, there was no basis for either the Motion To Dismiss or the Motion to Vacate. Both motions are frivolous, unsupported by proof, a waste of the Court's time and resources, and a vehicle for unwarranted personal attacks against the Plaintiffs and Officers of the Court.

        35. Her insistence that the Clerk of the Court in Fairplay told her things that are not contained in the official record, and did not say things that are contained in the official record, is an indication of how she represents facts and situations to fit her needs at the moment.

        36. For the reasons presented above, Plaintiffs request this Court sanction the Debtor for frivolous filings and unconscionable and defamatory conduct.

        Respectfully submitted this 5th day of May, 2006.

        __________________________________________
Karen Dudnikov

        __________________________________________
Michael Meadors

Karen Dudnikov Michael Meadors
3463 Maskoke Trail P.O. Box 87
Hartsel, CO 80449
303-913-6075

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