MEMORANDUM IN SUPPORT OF Defendant’s’ FRCP 37 MOTION FOR
SANCTIONS AND TO COMPEL
Crystal L. Cox
Pro Se Defendant
Oregon Civil No. CV 11-0057 HA
UNITED STATES DISTRICT COURT
DISTRICT OF OREGON
Portland Division
OBSIDIAN FINANCE GROUP, LLC and
KEVIN D. PADRICK,
Civil No. CV 11-0057 I-IZ
Plaintiffs,
CRYSTAL COX, Defendant
MEMORANDUM IN SUPPORT
OF Defendant’s’ FRCP 37
MOTION FOR SANCTIONS AND
TO COMPEL
I. INTRODUCTION
Defendant moves for sanctions and for an order to compel against Plaintiff Obsidian Finance
Group and Attorney David Aman because he has willfully failed to respond to written discovery
/ interrogatories and has repeatedly harassed defendant and lied to the courts on defendant’s
willingness to cooperate.
Defendant moves for sanctions and for an order to compel against Plaintiff Obsidian Finance
Group and Attorney David Aman because he has no legal basis to continue to trial as Plaintiff
never asked defendant to remove that particular post, and under Oregon Retraction Laws
plaintiff must give blog author 2 weeks to remove post. Aman has read this on my blogs and
fears losing this case so he wants me “Punished” for Bad Behavior to get a Default against me.
At the same time that Plaintiff Aman refuses to respond to proper discovery, he continues to
spend countless hours writing about other cases, working on other cases and hobby’s and work
issues that “He” Maintains.
His behavior demonstrates willfulness and bad faith. Under the circumstances, the Court should
issue an order of default against Plaintiff Obsidian Finance Group and Attorney David Aman.
Alternatively, it should at a minimum issue an order requiring David Aman, Plaintiff Attorney to
STOP harassing Defendant and to produce documents and answer interrogatories immediately.
And to pay Defendant Cox for Time, Stress and Monetary Loss.
II. FACTUAL BACKGROUND
During the scheduling conference on August 30, 2011, this Court set a deadline of
October 15, 2011, for the parties to complete discovery. At this meeting Defendant asked
Judge if she could ask for Discovery. Judge told Defendant that it was long past time for
discovery. However she can ask for whatever she wants. Judge then asked Plaintiff Attorney
Aman if he too had discovery questions, after stumbling a moment he said yes and a 45
day time frame was determined by the Judge at this Hearing. Pro Se Defendant Cox at this
time asked the Judge what recourse she had if Plaintiff refused Discovery Requests. Pro Se
Defendant Cox was advised to ask an attorney.
Plaintiff received Discovery Requests and has sent copies to this court, yet Plaintiff has
never responded to the detailed, case based requests.
Plaintiff’s Attorney David Aman called Pro Se Defendant Cox at approx. 3PM on Friday
Oct. 14th to “Confer about a Motion to Sanction. Yet David Aman had already filed a Motion
to Sanction in the Oregon Courts. David Aman bully’s Pro Se Defendant Cox and Lies to
the courts on her level of cooperation. Pro Se Defendant Cox phone records and voicemail
show that Aman contacted her around 3PM and then email Pro Se Defendant Cox the Already
Filed “Motion to Sanction” at approx. 5PM. Giving Pro Se Defendant Cox NO Time to “Confer”.
David Aman used this same pressure tactic on Pro Se Defendant Cox when he called for
a time to have a Settlement Conference, (Court Rule Conference) in which at that time Pro Se
Defendant Cox agreed to and yet David Aman Flat Out Lied to the Courts on Pro Se Defendant
Cox’s cooperation on that as well. Pro Se Defendant Cox’s eMail Records can attest to the fact
that David Aman had a scheduled conference call and in that call, which Pro Se Defendant Cox
recorded, David Aman Attorney for the Plaintiff tried to get Pro Se Defendant Cox to agree to
a Default Judgement, a Summary Judgement. Pro Se Defendant Cox was VERY cooperative
and the phone call ended with Aman telling Pro Se Defendant Cox that he would get with his
client and then send over a Settlement Proposal. Within minutes after phone call David Aman,
Attorney for Plaintiff emailed a Settlement Proposal, Pro Se Defendant Cox did not reject the
proposal until AFTER David Aman had already told the courts that Pro Se Defendant Cox
rejected the proposal.
After the Very Cooperative Phone Conference Pro Se Defendant Cox agreed to and attending
with Plaintiff Attorney David Aman, the Settlement Proposal (SETTLEMENT COMMUNICATION-
SUBJECT TO FRE 408 ) was emailed immediatley. Leading Pro Se Defendant Cox to believe
that Aman flat out lied on confering with his client first as he said in the “conference”. Pro Se
Defendant Cox recorded this call and told Aman that she just wanted this over and was more
then willing to cooperate. The Details of the Settlement Communications Email and Follow Up
Rejection.
Notes on Settlement Proposal Conference and Of May 2011
The Settlement Proposal Spoke nothing of the Blog Post that I am Now On Trial For.
David Aman Claimed in Court Documents that he made a “Good Faith” Call to Me to Settle and
that I was Uncooperative. This is not true.
David Aman, Tonkon Torp, Counsel of Record for Obsidian Finance Group LLC and
Kevin
D. Padrick in suing me for 10 Million Dollars over blog postings, called me to have what
he
called a Court Rule Conference. In this Call I practically begged for a “win – win”, I
made it
known without a doubt that I wanted this over and did not want this to consume my time,
my life nor interfere with my quality of life. I made it clear that my intention was not to
favor
Summit in any way and that I wanted a quick, fair, equitable “win-win” resolution to this
10
Million Dollar “judgement” they were trying to get against me out of a federal court in the
state of Oregon. I recorded this call.
David Aman, Tonkon Torp, Counsel of Record for Obsidian Finance Group LLC and
Kevin
D. Padrick lied to a federal court in stating that I had refused to “resolve” this “issue”,
and that he, David Aman made a “good faith” attempt to settle this matter. When in
Fact, David Aman, Cousel of Record for Obsidian Finance Group LLC and Kevin D.
Padrick actually wanted me to agree that I causes “Liable” to Obsidian Finance Group
LLC and Kevin D. Padrick and I did not cause “Liable”. I, as an investigative blogger,
told the story and the Liability caused was in the true actions of Obsidian Finance Group
LLC and Kevin D. Padrick.
David Aman, Tonkon Torp, Counsel of Record for Obsidian Finance Group LLC
Scheduled a phone conference in a “supposed” attempt to resolve the issues, however David
Aman requested that I give up valuable intellectual property with no compensation and David
Aman, counsel of record for Obsidian Finance Group LLC and Kevin D. Padrick also added
into this proposal that I remove all videos regarding Kevin Padrick, which was not mentioned
at any prior time, and David Aman threw into this supposed win-win “good faith” proposal that I
not blog on Tonkon Torp as well, which is a completely unrelated company in this lawsuit and
cannot simply be thrown into a settlement just because David Aman works there.
In our phone call when I begged for a win-win, David Aman said he would talk to his client and
then send me a Settlement Proposal. Of which was in it he gave no indication. Several minutes
after I was off the phone call I had already been emailed the Settlement Communication, the
Proposal. Apparently David Aman already had the proposal ready and did not really confer with
his client, but instead had already prepared the “document”.
The Following is now a court documented Matter Of Record, Note eMail records.
Defendant, Crystal Cox responded to David Aman, Attorney of Record for Obsidian Finance
Group LLC and Kevin D. Padrick in regard to the proposed “Settlement Communication”.
Defendant pro se Cox emailed her rejection of the Settlement Communication, the “Offer to
Settle”, at 9:59 PM Mountain Standard Time on April 27th 2011.
At this time I also emailed a copy to the Oregon Courts at email address
michelle_rawson@ord.uscourts.gov . David Aman, Attorney for Plaintiff emailed a
Copy of a request for partial summary judgment at 4:38 PM Mountain Time, that same day
claiming that I, Crystal L. Cox was not cooperative in his “Good Faith” attempt to settle
the matter. However, I had not rejected the offer until many hours later.
This was a lie to federal court on my intentions. A purposeful lie, knowing full well that I had not
yet responded to the Settelment Offer. David Aman, a licensed Oregon Attorney tried to use
advantages in the court and acted in conspiracy to defame me, harass me and get a judgment
against me based on a known lie. It was certainly NOT in good faith to file this claim with a
Federal Court BEFORE I had responded as to whether I would agree to the emailed Settlement
Communication. It is flat out fraud against the courts.
David Aman, Tonkon Torp, Counsel of Record for Obsidian Finance Group LLC
Asked that I admit to Liabiltiy of which I am NOT liable for.
This Settlement “conference” was not really in “good faith” as it was not fair, equal, ethical or
based in law. The Proposed Settlement was in no way acceptable.
From David Aman to Crystal@CrystalCox.com and to SavvyBroker@Yahoo.com
On Tuesday April 26th, 2011 at 11:35 AM
“SETTLEMENT COMMUNICATION-SUBJECT TO FRE 408
Ms. Cox:
In response to your earlier email and your request again this morning during our call, Obsidian and Kevin Padrick are
willing to resolve this case under the following terms:
1) You stipulate to a final judgment in favor of Obsidian and Mr. Padrick on liability for their
defamation claim for all statements set forth in paragraph 8 of the Complaint;
2) You stipulate to a permanent injunction prohibiting you from making, or causing or
coordinating with anyone else to make, any further disparaging statements, whether oral or
written, about Mr. Padrick, Obsidian, any of Obsidian's current or former employees or agents,
or Tonkon Torp or any of its current or former partners or employees;
3) You agree to remove or prevent to the extent technically possible any current publication
of any disparaging statements described in Section 2 above, including undoing anything that
may cause the websites/web pages you maintain or control that include such statements to
appear early or first in any internet search results;
4) You agree to remove from any websites you control or maintain, and not to post or
otherwise use in any way in the future (or cause or coordinate with anyone else to do so), any
audio or video recordings of Obsidian or Mr. Padrick; and,
5) You transfer to Obsidian and/or Padrick (or as they otherwise direct) ownership of any
and all internet URLs under your control (a) that reference or include the terms "obsidian"
or "padrick" (e.g., "www.obsidianfinancesucks.com") or (b) on which you have posted any
statements about Mr. Padrick, Obsidian, any of Obsidian's current or former employees or
agents, or Tonkon Torp or any of its current or former partners or employees.
In exchange for your compliance with all six terms above, Obsidian and Mr. Padrick would agree to waive their
substantial damages claims against you for the statements you have made to date.
Please let me know if this is agreeable to you and I will prepare the appropriate documentation.
David S. Aman
Partner
Tonkon Torp LLP
1600 Pioneer Tower
888 SW Fifth Avenue
Portland, Oregon 97204
direct dial: (503) 802-2053
cell: (503) 810-0850
direct fax: (503) 972-3753
email: david.aman@tonkon.com “
David Aman sent this to the Oregon Courts that Same Day. He never spoke to me of a Rule 16
or what that even was, and I don’t remember discussions on planning or scheduling.
--- On Wed, 4/27/11, David Aman wrote:
From: David Aman
Subject: Obsidian v. Cox- Case No. 11-0057 [IWOV-PDX.FID657536]
To: michelle_rawson@ord.uscourts.gov
Cc: crystal@crystalcox.com, savvybroker@yahoo.com, "Steven Wilker"
Date: Wednesday, April 27, 2011, 4:15 PM
Ms. Rawson:
This email is to report that the parties have had their initial discovery planning/scheduling
conference, and that we are ready for a Rule 16 conference with the Court.
I will also note that plaintiff is filing a motion for partial summary judgment this afternoon. We
are requesting oral argument, but understand that the hearing date may be set as part of the
initial Rule 16 conference.
Thank you for your attention to this matter.
David S. Aman
Partner
Tonkon Torp LLP
1600 Pioneer Tower
888 SW Fifth Avenue
Portland, Oregon 97204
direct dial: (503) 802-2053
cell: (503) 810-0850
direct fax: (503) 972-3753
email: david.aman@tonkon.com
III. THE COURT SHOULD ISSUE AN ORDER SANCTIONING PLAINTIFF AND DAVID AMAN
AND/OR COMPEL HIM TO RESPOND TO THE DISCOVERY REQUESTS. And GRANT A
DEFAULT Judgement to Defendant.
Federal Rule of Civil Procedure 37(d) gives this Court broad authority to sanction
Plaintiff and Attorney David Aman for his willful refusal respond to discovery requests. And his
constant harassment of Pro Se Defendant Cox.
There is no question that plaintiff and attorney Aman has willfully refused to respond to
discovery in this case. And that David Aman has bullied Pro Se Cox, harassed her and used
dirty tactics to win this case.
Courts have issued harsh non-monetary and monetary sanctions against
parties for such willful misconduct, even where the parties were not represented by counsel.
See, e. g., CoStar Really Information, Inc. v. Field, 737 F.Supp.2d 496, 50 1-02 (D.Md. 2010)
(entering default judgment against pro se defendant who failed to respond to discovery
requests).
The appropriate sanction against Mr. Aman is an order of default, leaving the issue
of damages for trial. David Aman has refused to respond to discovery while at the same time
harassing Pro Se Defendant Cox.
The Court should send a strong message that this kind of misconduct will not be tolerated.
Plaintiff’s conduct also is prejudicial to defendant given the rapidly approaching trial date.
David Aman Knows the Following and is Seeking a Default because he has no Legal Standing
to Still be Pursuing this Case.
Defamation and Public Figures
Kevin Padrick, as a Public Figure in a Government Position as a Bankruptcy Trustee is
Considered a Public Figure in Defamation Law, in my Understanding, and Kevin Padrick must
prove that the post is not true. David Aman Knows this and wants the courts to simply Rule
against me for me “Allegedly” Misbehaving.
“A public figure is someone who has actively sought, in a given matter of public interest, to
influence the resolution of the matter. In addition to the obvious public figures—a government
employee, a senator, a presidential candidate—someone may be a limited-purpose public
figure. A limited-purpose public figure is one who (a) voluntarily participates in a discussion
about a public controversy, and (b) has access to the media to get his or her own view across.
One can also be an involuntary limited-purpose public figure—for example, an air traffic
controller on duty at time of fatal crash was held to be an involuntary, limited-purpose public
figure, due to his role in a major public occurrence. “ In a Defamation Case “A public figure
must show "actual malice"—that you published with either knowledge of falsity or in reckless
disregard for the truth. This is a difficult standard for a plaintiff to meet.” Kevin Padrick of
Obsidian Finance Group nor David Aman have done this."
Source of Quotes Above
https://www.eff.org/issues/bloggers/legal/liability/defamation
Defamation Laws and Actual Malice
I Published information I Still Believe Fully to Be True, David Aman of Tonkon Torp, nor his Client
Obsidian Finance Asked me to Retract the Post they are Suing me for 10 Million Dollars on, nor have
they provided any documents or proof in any way that the post is not true.
"
What is “Actual Malice?”
If the court determines that the plaintiff is a public official or a public figure, then the media defendant
can be found liable for defamation only if the plaintiff proves that the defendant acted with actual
malice. As already described, a media entity acts with “actual malice” if it publishes a defamatory
statement either actually knowing that the statement is false or with “reckless disregard” as to
its truth. But what does “actual malice” mean in practical terms? It means that the plaintiff must
demonstrate subjective knowledge on the part of the media defendant that the defendant knew that
a statement was false or that it in fact “entertained serious doubts as to the truth of [its] publication.”
McNabb v. Oregonian Publishing Co., 69 Or App 136, 140, 685 P2d 458 (1984) (quoting St. Amant v.
Thompson, 390 US 727, 731, 88 S Ct 1323, 20 L Ed 2d 262 (1968)). Allegations that the defendant
relied on statements from a single source, or failed to verify statements received from an adequate
news source, or performed slipshod investigation have all been rejected as bases for inferring actual
malice. Nor may malice be inferred from the fact that the accusations are of a serious nature, or
that a published statement was not “hot news,” which might otherwise justify shoddy investigation.
However, actual malice could be inferred from facts indicating that the defendant possessed
information contradictory to what was published or that the defendant had serious doubts as to the
trustworthiness of the source of its information.
In short, actual malice is not measured by what a reasonably prudent publisher would have published,
or should have investigated before publishing. Rather, actual malice concerns only the subjective state
of mind of the defendant at the time of the publication. Further, the plaintiff must establish by clear
and convincing evidence that the media publisher acted with actual malice. That is a higher standard
of proof than the typical “preponderance of the evidence” standard prevalent in most civil lawsuits.
Source of Quote
http://www.open-oregon.com/media-guide/chapter-12-defamation/
David Aman also Knows that he nor his client asked me to Retract that Christmas Day Post, nor
did Either provide me with any documentation or even a phone call or email with information
on the post being false or as to why they believe it to be false. Oregon Retraction Statutes are
clear that he must do so in order to Sue me for Defamation.
David Aman knows he did not do this and Simply Wants the Courts to Judge against me for
what he harassingly calls “misbehavoir”.
Oregon Retraction Statute Information
“OREGON’S RETRACTION STATUTE:
Truth is an absolute defense to an action for defamation; if the statement is true, a media defendant
cannot be liable for publishing it. The Oregon legislature, however, has provided another way for a
media defendant to attempt to insulate itself from some of the damages that might result from a
defamatory statement. Oregon’s Retraction Statute, ORS 30.150-30.175, provides that a plaintiff
may not recover so-called general damages (damages which are not measurable by proof of a specific
monetary loss.
In the context of defamation, general damages are designed to compensate the plaintiff for the harm
to reputation -a harm which is not measurable in a money loss.) unless a correction or retraction is
demanded but not published.
Otherwise, the only way a plaintiff might recover general damages is if he or she can prove that the
media defendant actually intended to defame him or her — a very high standard to meet. Even in
that situation, the publication of a correction or retraction may be considered to mitigate the plaintiff’s
damages.
The retraction procedure allows an allegedly defamed person or his or her attorney to make a written
demand for correction or retraction that must be delivered to the publisher of the statement — either
personally, by registered mail, or by certified mail, return receipt requested — at the publisher’s
place of business or residence within 20 days after the defamed person first becomes aware of the
defamatory statement.
The demand for retraction must specify which statements are false and defamatory and request that
they be corrected or retracted. In addition, the demand may refer to the sources from which the true
facts may be accurately ascertained. The publisher then has two weeks after receiving the demand for
retraction to investigate the demand and determine whether to publish a correction or retraction.
The retraction must appear in the first issue published, or first broadcast made, after the expiration
of the two-week deadline. The content of the retraction should substantially state that the defamatory
statements previously made are not factually supported, and that the publisher regrets their original
publication. Finally, the correction or retraction must be published in substantially as conspicuous
manner as was the defamatory statement. In other words, a retraction regarding an article that
appeared in the front page of a newspaper should not run in the classifieds section.
Publishers and broadcasters would generally be wise to consider publishing corrections or retractions,
even when the demand suffers from a procedural defect, because the retraction statute provides a
relatively cost-free method of eliminating a potential plaintiff’s claim for general damages.
Oregon courts have held that the retraction statute does not violate the Oregon constitution and that
it applies only to publishers and broadcasters, and not to individual defendants whose statements
happened to be published or broadcast.
In a case entitled Schenck v. Oregon Television, Inc., the Oregon Court of Appeals recently decided
that each time an allegedly defamatory statement is republished, the defamed person is allowed a
two-week opportunity to demand retraction.
In the Schenck case, a television station broadcast a news report in October 1993 that contained
an allegedly defamatory statement about the plaintiff. In March of 1994, the same report was re-
broadcast. Although he was aware of the October 1993 broadcast, the plaintiff did not demand a
retraction until April 11, 1994, within 20 days after the March 1994 broadcast.
The Court of Appeals held that the plaintiff’s demand for retraction was not untimely —
notwithstanding the fact that he had actual knowledge of the defamatory statement five months
earlier — because “each publication is a discrete tort.”
Source of Above Quote
http://www.open-oregon.com/media-guide/chapter-12-defamation/
Shield Laws
David Aman Knows that Shield Laws Apply to me and that I am Legally Defined as Media
and that I do not have to testify as to to my sources, though he knows my main source blog.
Knowing that Shield Laws protect me, David Aman wants the Courts to Default against me to
punish me for Allegedly Bad Behavior.
Though there seems to be no Federal Shield Law yet, there is a Montana Shield Law and there
is an Oregon Shield Law.
Shield Law information
As Legally Defined Media this Law Applies to me and I have “Qualified Privilege”.
“Oregon’s shield law, ORS 44.510 through ORS 44.540, provides broad protection for reporters and
others against compelled testimony, production of evidence and searches.
This law protects people connected with, employed by or engaged in a medium of public
communication, including print and broadcast media, books, periodicals, pamphlets, wire services
or feature syndicates. The protection extends beyond information related to news and includes
unpublished notes, out-takes, photographs, tapes or other information, regardless of whether it is
related to published information.
The statutes protect reporters from being compelled to disclose: (1) a source of information obtained
in the course of work, regardless of whether the information has been published; and (2) unpublished
information obtained or gathered in the course of work. Reporters also are protected from searches
of their papers, effects or work premises, unless there is probable cause to believe the reporter has
committed, is committing or is about to commit a crime. “
Source of Quote
http://www.open-oregon.com/media-guide/chapter-15-oregons-shield-law/
Dated This 16th Day of October 2011
Crystal L. Cox
Pro Se Defendant