Suesie Kent Hempfling, Lee Kent Hempfling
Apache Junction, AZ 85120
Appearing Pro Se
IN THE SUPERIOR COURT OF ARIZONA
PINAL COUNTY
SUESIE KENT HEMPFLING, ) Case No: CV2-01102200
LEE KENT HEMPFLING )
Petitioners / Plaintiffs
) The Honorable Boyd T. Johnson
)
v )
) DATED: December 30, 2011
)
CVDC HOLDINGS LLC, et.al. )
)
) MOTION FOR RULING &
) IMMEDIATE JUDGMENT OR IN
) THE ALTERNATIVE,
) MOTIONS FOR
) RECONSIDERATION IN PART,
) STAY AND SANCTIONS,
) AFFIDAVIT
)
)
)
)
)
)
Defendants / Respondents
NOTICE
Plaintiffs do hereby give notice to ALL Defendants that: MOTION FOR RULING AND IMMEDIATE JUDGMENT Or in the Alternative, MOTIONS FOR RECONSIDERATION IN PART, STAY AND SANCTIONS are hereby filed, together with the argument, points and authorities, and affidavit in support thereof.
TABLE OF CONTENTS
Page
1: Notice 1
2: Table of Contents 2
3: Table of Authorities 3
4: Motion for Ruling and Immediate Judgment 6
5: Motion for Reconsideration in Part 11
6: Motion for Stay 13
7: Motion for Sanctions 14
8: Affidavit 16
9: Certificate of Mailing or Delivery 17
TABLE OF AUTHORITIES
[1] A.R.S. Sup.Ct.Rules, Rule 94. Superior Court Clerks “ (c) Civil Docket and Indices. The clerk shall keep a “civil docket”, in such form and style as may be prescribed by the supreme court, for each civil action or proceeding to which these Rules are made applicable, and a “civil docket index” of all such actions or proceedings. Actions and proceedings shall be assigned consecutive file numbers. The file number of each action or proceeding shall be noted on the civil docket and entered in the civil docket index. All papers filed with the clerk, all process issued and returns made thereon, all appearances, orders, verdicts, and judgments shall be noted chronologically in the civil docket assigned to the action or proceeding and shall be marked with its file number. These notations shall be brief but shall show the nature of each paper filed or writ issued and the substance of each order or judgment of the court and the returns showing execution of process. The notation of an order or judgment shall show the date the notation is made. The clerk shall also keep such indices of the contents of a civil docket as are required by law or rule of court.”
[2] TITLE 18 PART I CHAPTER 101 Section 2071 Concealment, removal, or mutilation generally: “(a) Whoever willfully and unlawfully conceals, removes, mutilates, obliterates, or destroys, or attempts to do so, or, with intent to do so takes and carries away any record, proceeding, map, book, paper, document, or other thing, filed or deposited with any clerk or officer of any court of the United States, or in any public office, or with any judicial or public officer of the United States, shall be fined under this title or imprisoned not more than three years, or both. (b) Whoever, having the custody of any such record, proceeding, map, book, document, paper, or other thing, willfully and unlawfully conceals, removes, mutilates, obliterates, falsifies, or destroys the same, shall be fined under this title or imprisoned not more than three years, or both; and shall forfeit his office and be disqualified from holding any office under the United States. “
[3] “United States v. May, 625 F.2d 186 (8th Cir. 05/30/1980);”
May contends, first, that “causing” an attempt is not prohibited by the statute, and, second, that the evidence failed to establish an attempt. He argues, first, that 18 U.S.C. § 2071 does not speak of “causing” or attempting to “cause” the concealment of records and, thus, no criminal conduct was alleged. The government maintains that “causing” can be read into section 2071 by application of 18 U.S.C. § 2(b) which states: “Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal.” May disputes the applicability of section 2(b) to section 2071 because the latter section, unlike some others to which section 2(b) applies, never contained any “causes or procures” language. We find the proffered distinction in the history of various acts in the criminal code to be meaningless. We think that section 2(b), like section 2(a), “is applicable to the entire criminal code.” See United States v. Rector, 538 F.2d 223, 225 (8th Cir. 1976), cert. denied, 441 U.S. 963, 99 S.Ct. 2410, 60 L.Ed.2d 1068 (1979), and Breeze v. United States, 398 F.2d 178, 192 (10th Cir. 1968).
[4] TITLE 18 PART I CHAPTER 101 Section 2076 “Whoever, being a clerk of a district court of the United States, willfully refuses or neglects to make or forward any report, certificate, statement, or document as required by law, shall be fined under this title or imprisoned not more than one year, or both.”
[5] See Ray v. United States, 57 S. Ct. 700, 301 U.S. 158 (U.S. 04/26/1937).
[6] “The duty of the clerk is to make his record correctly represent the proceedings in the case….” (Wetmore v. Karrick, 27 S. Ct. 434, 205 U.S. 141 (U.S. 03/11/1907).) Failing to file documents presented and reflect the documents on the docket is a failure to perform the ministerial duties of the Clerk of the Court. [3 above]
[7] “…his [Clerk of the Court] job is to file pleadings and other documents, maintain the court’s files and inform litigants of the entry of court orders.” Sanders v. Department of Corrections, 815 F. Supp. 1148, H49(N.D. Ill. 1993). (Williams v. Pucinski, 01C5588 (N.D.Ill. 01/13/2004).)
[8] A.R.C.P. Rule 12(a) “When Presented (1) A defendant shall serve and file an answer (A) within twenty days after the service of the summons and complaint upon the defendant,”
[9] A.R.C.P. Rule 5(g) (2) Papers Not to Be filed: (B) Discovery Papers. Notices of deposition; depositions, interrogatories and answers; requests for production, inspection or admission, and responses; requests for physical and mental examination; and notices of service of any discovery or discovery response; (4) Sanctions. For violation of this Rule, the Court may order the removal of the offending document and charge the offending party or counsel such costs or fees as may be necessary to cover the Clerk’s costs of filing, preservation, or storage, and the Court may impose any additional sanctions provided in Rule 16(f).
[10] A.R.C.P. Rule 12(b) “How presented; motion to dismiss: Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, crossclaim, or third-party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion: 1. Lack of jurisdiction over the subject matter. 2. Lack of jurisdiction over the person. 3. Improper venue. 4. Insufficiency of process. 5. Insufficiency of service of process. 6. Failure to state a claim upon which relief can be granted. 7. Failure to join a party under Rule 19.”
[11] 16 A.R.S. Rules of Civil Procedure, Rule 37(c)(1) states: “A party who fails to timely disclose information required by Rule 26.1 shall not, unless such failure is harmless, be permitted to use as evidence at trial, at a hearing, or on a motion, the information or witness not disclosed, except by leave of court for good cause shown.”
[12] Rule 55(b). Judgment by Default “1. By Motion. When the plaintiff’s claim against a defendant is for a sum certain or for a sum which can by computation be made certain, the Court upon motion of the plaintiff and upon affidavit of the amount due shall enter judgment for that amount and costs against the defendant, if the defendant has been defaulted for failure to appear and is not an infant or incompetent person.”
MOTION FOR RULING AND IMMEDIATE JUDGMENT
The 7th Circuit Court, in JONES v. BERTRAND, 1999 No.97-2725 stated; “… a case is filed in the procedural sense for the purpose of being placed on the court’s docket.” [1] It is logical therefore that a filing, in the procedural sense, that is stamped, but not placed on the court’s docket, although ‘filed’, is not an active document of the proceeding. The Arizona Constitution, Article 2 Section 11 states, “Justice in all cases shall be administered openly, and without unnecessary delay.” A document, not having been placed on the docket, is not open administration of justice and in the instant case, caused unnecessary delay.
Rule 1 of the Arizona Rules of Civil Procedure states in part, “They [rules] shall be construed to secure the just, speedy, and inexpensive determination of every action.” Even though cases should be decided on merits and not on technicalities, there is no more important ‘technicality’ to a Defendant, than that of meeting the deadline to respond to a law suit. There is no more important ‘technicality’ for a Plaintiff, than to be provided the rights of equal protection and due process under the law: to know that a responsive filing has been made; to not be ‘tricked’ or mislead into assuming a filing has not been made through the withholding of a document from the docket. [4] There can be no greater ‘unnecessary delay’ than to conduct a trial when there is no basis in law to conduct a trial, due to a failure to respond to a law suit within the required time. Failure to meet the deadline is the same as not responding and is admission of all allegations in the action as claimed in the complaint at that time.
Just resolution of cases requires an opportunity for each party’s voice to be fairly if not completely heard. It likewise requires each party to be afforded the opportunity to be aware that the other party has been heard. A Plaintiff’s rights at trial cannot be subordinate to a Defendant’s rights at trial. The docketing of filed documents is a ministerial act that the Office of the Clerk is obligated to perform. [5] A document (or in the instant case, documents from two different lawyers, representing multiple defendants, filed on different dates) that fails to appear within a reasonable time on the docket, is concealment by some form or intent. [2]
A document stamped by a clerk, that does not appear on the court docket until well after the date certain requirement for its filing, has not served justice, and violates Arizona Constitution Article 2, Section 11 in that it is hidden and not administered openly. If a filing is made for the purposes of being docketed, it would appear on the docket within a very reasonable period of time. If a filing is made for the purposes of not being docketed, it would not appear on the docket until such time that it was either referenced, or otherwise identified or required by the court. Arizona Constitution Article 2, Section 32 states, “The provisions of this Constitution are mandatory, unless by express words they are declared to be otherwise.” The administration of justice in Arizona that is not open is not justice. Prohibiting the Plaintiffs from knowing that the law suit has or has not been answered within the tolled time is a miscarriage of justice and a violation of Equal Protection and Due Process.
Mandatory deadlines are a matter of law as established by the Legislature. As the Supreme Court of The United States quoted Mohasco Corp. v. Silver, 447 U.S. 807, 826 (1980) in BALDWIN COUNTY WELCOME CENTER v. BROWN, 466 U.S. 147 (1984) “in the long run, experience teaches that strict adherence to the procedural requirements specified by the legislature is the best guarantee of evenhanded administration of the law.”
Having to file for an extension of time to reply and submit documents to the court, because an unnecessary delay was imposed upon the case, due to the lack of documents being posted to the official court docket within a reasonable time to ascertain compliance of defense with answering or responding to the complaint within time limits, is a violation of The Arizona Constitution, Article 2 Section 11.
In this case, the original complaint was filed, and served by process server on June 6, 2011. After receiving a document dump from Dr. Bourne [8] ,[9] and a motion to dismiss from all other Defendants, except Peggy Caffall [10] , and waiting until the time to respond had expired for all Defendant responses, Plaintiff Lee Hempfling visited the Clerk’s office in Apache Junction to inquire about what was actually filed, by requesting the clerk to view the docket. This enquiry was past 10 days since Defendants’ time to respond had expired. Plaintiff Hempfling informed Clerk ‘Becka’ that Plaintiffs had been in receipt of a large pile of documents from defendants but needed to know what, if anything, was actually filed. [6] Her response, after looking at the docket, was that nothing had been filed to date. [7] She questioned, why they would have done that?! When asked if the documents then in possession of the Plaintiffs were nothing but trash, she replied, yes they were trash.
It appears documents filed with the clerk’s office in Florence in the case by all defendants (except Peggy Caffall, who has never attempted appearance in this action) were either filed for the purposes of being withheld from the docket [8] (which can only mean they did not qualify in strict adherence to the procedural requirements specified by the legislature), or they somehow managed to become delayed in appearing on the docket. Such a delay, however it happened, violated Plaintiff’s rights under the Arizona Constitution to an open administration of justice. [3]
It would be strange, if such a gross delay was caused by error or misplacing or excusable neglect; as documents were filed on different days by different defendants, yet all were withheld from the docket, so much so, to appear to a Clerk to not have been filed at all, more than 10 days after the date they were to have been filed by deadline. It is also strange that the documents remained hidden for two updates of the on line docket retrieval system. Yet when they did appear on the docket, they appeared at the same time. So either the documents were filed to be docketed and an error was made in losing, or misplacing them: or bad faith, or abuse of process was at fault [4] . Either way, the official notice of the clerk, given to Plaintiffs, that the deadline had been missed, uncovered a want of due notice, suppression of due notice, and a thwart of the proceedings resulting in an unconscientious advantage to the defendants. At no time did clerk ‘Becka’ improperly act or in any way ignore or reject her position as clerk.
If a legal answer or other response is not filed, the Plaintiff can request a default be entered in the record, which terminates the rights of the defaulting party to defend the case. But had Plaintiffs raised this issue after being told nothing had been filed, it would have resulted in a default hearing. Had plaintiffs filed motions for default, based on the information provided by the Clerk, as logic would have dictated to do, the court would have rejected such a filing as all defendant documents showed up, pre dated, at the same time for dates that happened long before the in person notice by the Clerk that nothing was filed. That would have left one defendant, Peggy Caffall, who has not, to this day, bothered to show the respect the court deserves, and has not responded to the action. That would have deprived the Plaintiff’s rights to equal protection and due process under the law by causing a default hearing for one defendant to take place and essentially ‘trying’ the case in one short default hearing. The remaining defendants would then have had a dramatically distinct advantage at trial.
No other document filed in this case has been withheld from the docket (Other than the submission of interrogatories, requests for admission and the like, which had been served to the court by Defendant Bourne, and resides off docket in violation of Rule 5(g)(B)). No document filed has taken longer to appear on the docket than reasonable processing would dictate. Only the responsive pleadings and motions originally filed by the defendants who bothered to answer the complaint had been so delayed, which is a fundamental defect in the proceedings and so effected the Plaintiff’s, that a motion to extend time to reply had to be filed and was thereafter, granted.
The Plaintiffs do hereby move the Court [12] for a ruling on whether the mysterious disappearance of all initial responsive pleadings by two separate groups of defendants, filed on different days was due to either an administrative error, mistake or oversight; or if it was due to bad faith, or abuse of process or some other reason; and if bad faith or abuse of process was the cause of the violation of The Arizona Constitution’s, Article 2 Section 11: then NO defendant has responded to this lawsuit and the Plaintiffs so move the court to enter a default judgment [12] in the Plaintiff’s favor for all counts based on the original complaint, and grant an award of appropriate amount based on the original complaint and attached Affidavit; and the order of November 4, 2011 be set aside.
MOTION FOR RECONSIDERATION IN PART
If the MOTION FOR RULING AND IMMEDIATE JUDGMENT is not granted for all defendants, Plaintiffs do hereby move the court to reconsider its order, in part of November 4, 2011.
The court has erred in stating that this case is of one main concern: “That the gravamen, or main concern” … “is the quality of care and treatment by and/or through the Defendants.” In the order requiring removal of monetary demand from the case, the, at the time, counts 1 and 2 were ignored, and now they are likewise ignored. Counts 1 and 2 are valid claims that are of great concern and cannot be ignored just because this case ALSO contains gross negligence in malpractice and the results thereof by dentists and their affiliated, responsible companies. No count in an action can be subordinate to any other count in an action. What occurred in gross negligence is horrible and resulted in severe pain and suffering and anguish. What occurred in counts 1 and 2, in a cash transaction, is presentation to the Board of Dental Examiners of a non-paid procedure, greatly harming Plaintiff Suesie Hempfling’s rights to Due Process and Equal Protection before that board of inquiry; and the placing of the Plaintiffs in debt (which was apparently edited by the dental companies for submission to the Dental Board to show no debt, but without changing of the charitable status of the financial transaction, eliminating any potential of accounting error). Plaintiffs will not know if Plaintiffs’ financial statement was used as an instrument, until the Internal Revenue Service completes its investigation.
The standard of care or practice is not a material issue of fact in this case, as only blanket denials were offered by the defendants. No version of the story was presented by the Defendants, other than in their tardy Rule 26 disclosures, which were filed late and are not admissible. With no genuine issues of material fact before the court, there is no reason in law for any expert or lay witness. The evidence provided by the Plaintiffs is the only admissible evidence in this case.
The Plaintiff’s use of citing criminal law was not for the purposes of commencing a criminal investigation, but rather, cited as a basis for the standard. The Internal Revenue Service is already investigating, and the Arizona Attorney General’s office has already been so informed. The purpose of the use of criminal statutes was to define and set the standard of the torts they resulted in. The defense of ‘mislabeling’ the financial record is not admissible as the disclosure making that claim is not admissible.
Plaintiffs did present a claim, showing specifically what monies were unlawfully and improperly used by Defendants, to the specific definition as outlined by law, as cited, which was not filed for the purposes of a criminal investigation, but rather to bring a tort action for intentional fraud and conversion and other violations against Plaintiffs, which cannot be subordinate to any other count alleged. The allegations are intentional tort claims, and are shown to have been improperly attributed to charity before the procedures in other counts took place and continually thereafter. Citing criminal law was a viable method of defining specific intentional tort standards.
The court has stated that “Plaintiffs may only establish their claims of malpractice” which, in light of the defendants failing to meet deadlines, is not the only way of establishing claims.
Plaintiffs move the court to reconsider #3 and #4 of the order of November 4, 2011, to accept counts 1 and 2 as they were intended and to reject the need for any expert witnesses, as there are no genuine issues of material fact before this court, due to admission of all allegations by all defendants, through failure to meet mandatory deadlines.
MOTION FOR STAY
If the MOTION FOR RULING AND IMMEDIATE JUDGMENT and/or the MOTION FOR RECONSIDERATION IN PART are not granted for all defendants, Plaintiffs move the court to grant permission to the Plaintiffs to address the issues before the Court of Appeals, and place a stay on the proceedings of this case until such time as the Plaintiffs have exhausted the appeal process.
MOTION FOR SANCTIONS
Plaintiffs gave notice above, and in the motion to extend time to reply and file rule 26 initial disclosure documents. Plaintiffs were granted an extension of time, as noticed, and did comply with that order. No defendant had requested an extension of time, nor had objected to the notice given, nor had sought to justify an extension of time for themselves, and no defendant filed Rule 26 disclosure documents by the deadline they were required to do so. Bourne filed Rule 26 disclosures on the same date as the Plaintiffs (many days after HIS deadline to file had passed), never having received an extension of time, while Caffall et.al. (minus Peggy Caffall) filed many days later (likewise never having received an extension of time).
Pursuant to ARCP Rule 26.1(b) no Defendant has complied with the rule within forty (40) days after the filing of a responsive pleading to the Complaint. Parties have not agreed otherwise. Not all Defendants have answered the complaint. The extension of time to file Rule 26 disclosures was granted to the Plaintiffs only, with ample time afforded to all Defendants to request similar. Defendant responses to the request to extend time failed to request an extension of their time. The granting of time extension to Plaintiffs was not an extension of time for Defendants as no defendant had, claimed or showed good cause. Rule 26 disclosures were not served as provided by Rule 5 by any Defendant. Defendant Caffall et.al. was afforded an extra extended period time to inspect Plaintiff’s exhibits without equal protection for the Plaintiffs which is a severe harm to Plaintiffs. [11]
Therefore no defendant has disclosed evidence, information, documents or witnesses and pursuant to A.R.C.P. Rule 37(c) [11] the Defendants should not therefore be permitted to use as evidence at trial, at a hearing, or on a motion, the information, documents or witness’ not disclosed. Since no defendant has offered a version of the story, there are no genuine issues of material fact before this court.
If the MOTION FOR RULING AND IMMEDIATE JUDGMENT is not granted for all defendants, Plaintiffs do therefore move the court for sanctions and a motion to order enforcement of Rule 37(c) [11] as all Defendant’s failure to provide disclosure is most harmful to the Plaintiffs and there can be no good cause shown by the Defendants for having failed to comply with the rules.
Suesie Kent Hempfling Lee Kent Hempfling
___________________ ______________________
Plaintiff Pro Per/Pro Se Plaintiff Pro Per/Pro Se
Apache Junction, AZ 85120
AFFIDAVIT
Even though the claim filed with this court listed a sum certain, the court, after initial responses were due, ordered that sum removed from the action, due to the presence of malpractice claims: nonetheless we request a default entry against all defendants for failure to appear. The claim against the defaulted parties is for a sum certain (that was active in this action before failure to appear) or for a sum, which by computation can be made certain, and the Plaintiffs request judgment in a fair and proper amount to be determined by the court (which should be the sum certain contained in the original complaint), from the defaulted parties. The court is in possession of all admissible evidence, showing Plaintiffs are entitled. Each defaulted party is not an infant or incompetent person. The defaulted parties are not in the military service. This affidavit is made on personal knowledge and, if sworn as a witness, the Plaintiffs can testify competently to the facts in this affidavit.
Applicant: __________________________ Lee Kent Hempfling, pro se
Subscribed and sworn to before me on ________________________, Pinal County Arizona
My commission expires:_____________________
Signature: _______________________________
CERTIFICATE OF MAILING OR DELIVERY
On (date) ____December 30, 2011______ a copy of this document was (check ONLY one box):
mailed postage pre-paid, OR
delivered by _________________________________ (name of person who did the delivery) to the Defendants/Respondents at the following addresses:
Served to: Served to:
SUSAN I. MCLELLAN, ESQ FREDERICK M. CUMMINGS
RENAE A. NACHMAN, ESQ. MATTHEW L.CATES
SCHNEIDER & ONOFRY, P.C. JENNINGS, STROUSS & SALMON, P.L.C.
3101 N. CENTRAL AVENUE, SUITE 600 ONE WASHINGTON ST. SUITE 1900
PHOENIX, AZ 85012 PHOENIX, AZ 85004
Signed:_________________________________