DEFENDANT�S AFFIDAVIT IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT

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					                          IN THE UNITED STATES DISTRICT COURT
                                FOR THE DISTRICT OF KANSAS


DANIEL PHILLIPS,                                    )
                                                    )
                              Plaintiff,            )
                                                    )                CIVIL ACTION
v.                                                  )
                                                    )                No: 06-2442-KHV
KIMBRA L. MARTIN,                                   )
                                                    )
                              Defendant.            )
                                                    )


     DEFENDANT’S AFFIDAVIT IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT


     Defendant Kimbra Martin hereby appears and declares as follows:


1.   I am the defendant/counterclaimant in the above-entitled proceeding.


2.   The statements contained within this affidavit are made on my personal knowledge.


3.   I discuss, in the following order, (a) my involvement in Plaintiff’s criminal proceedings in


     the US District Court in Washington; (b)basic facts about the divorce of the parties; (c)


     the chronological history of child-support enforcement against Plaintiff—including Plaintiff’s


     efforts to relitigate the Washington decision in Kansas and his criminal proceedings in




DEFENDANT’S AFFIDAVIT IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT                                       1
     federal court—beginning in mid-1989, spanning eighteen years, and involving three states,


     three state courts, and four state appellate courts; and (d) the facts, as I know them, of


     Plaintiff’s income, assets, and businesses.



     A. PLAINTIFF’S FEDERAL PROSECUTION AND MY INVOLVEMENT IN IT

4.   On September 10, 2003, Plaintiff was arrested for violation of 18 U.S.C. § 228. I had


     no knowledge of his arrest until Plaintiff phoned my son at my home in Washington. In


     truth, I was completely shocked to learn that anything had been done after the lapse of


     so many years since Plaintiff’s first federal investigation. I believe it was confirmed on


     the following day, but only after I or my attorney placed a call to the US Attorney’s


     office in Seattle.


5.   I was not notified in advance that Plaintiff flew to Seattle for arraignment, and learned of


     it only after Plaintiff returned to Kansas.


6.   On January 8, 2004, Plaintiff negotiated a plea agreement on the federal charges in the


     Western District of Washington. (Exhibit A, Plea Agreement.)


7.   On January 19, 2004, I was made aware that Plaintiff pleaded guilty by way of a letter


     from Mary Brown, dated January 15, 2004. I was unaware until then that Plaintiff had




DEFENDANT’S AFFIDAVIT IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT                                   2
     even been in Seattle eleven days prior. (Exhibit B, U.S. Attorney Letter (“Letter”) dated


     1/15/04.)


8.   Ms. Brown’s letter advised me that I was not required to attend the sentencing hearing


     and referenced the “standard Victim Impact Statement Form” she had enclosed, adding


     that “submission of a Victim Impact Statement is entirely optional,” and that if I filed it,


     “your statement will then be included in the pre-sentence investigation report which will


     be reviewed by the judge, the defense counsel, the defendant and the prosecution before


     the defendant is sentenced.” (Emphasis as found.) At no time did the letter advise me


     that filing a statement conferred party status on me; nor did the letter indicate that I


     would be waiving any right to enforce the state-court order or had, in fact, any rights in


     the matter apart from the written and verbal statement to the Court for purposes of


     sentencing. (Letter, p.2.)


9.   The Victim Impact Statement was delivered with a separate sheet detailing its purpose:


                 First and foremost, it gives you an opportunity to express in your own words
                 what you, your family and friends have experienced as a result of this crime.
                 Many victims also find it helps them provide some closure to the ordeal the
                 crime has caused.


                 Secondly, the Victim Impact Statement is an important part of the pre-sentence
                 report. This report takes many factors into account to determine a sentencing




DEFENDANT’S AFFIDAVIT IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT                                     3
               range a defendant can receive under the Federal Sentencing Guidelines. Your
               statement can make a difference in the length of sentence within that range.


               Finally, the Victim Impact Statement is used to verify and assess the impact
               upon those affected most directly by this crime. This information may be used
               to determine an amount of financial loss and to consider if restitution should be
               part of the sentence.


       (Emphasis added.) (Exhibit C, “What is a Victim Impact Statement?”)


10.   To date, information has never been provided to me showing why and how Plaintiff


      successfully negotiated a reduction in federal criminal charges from felony to


      misdemeanor, or why Plaintiff’s sentence set the order of restitution at less than the


      statutory requirement under 18 USC § 3663A.


11.   It is my understanding that sentencing on conviction for a first offense on a reduced


      charge (Plaintiff’s plea agreement clearly shows a reduction from felony to misdemeanor)


      may depart from the mandatory levels required on conviction for felony and repeat crimes


      when the defendant pleads to the charge and thereby shows an acceptance of


      responsibility for crime.


12.   It is relevant that, within an hour of Plaintiff’s sentencing, I was told by Assistant US


      Attorney Jeff Sullivan that the restitution order had no effect on my civil judgment and




DEFENDANT’S AFFIDAVIT IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT                                   4
      that he had agreed to the plea bargain because it was a chance to get something from


      Plaintiff, whereas no other enforcement procedure had been effective in many years.


13.    In any case, I was not allowed to be involved in the presentence discussions between


      Plaintiff and the US Attorney in Washington that related to, preceded, encompassed, or


      followed Plaintiff’s plea negotiations; and I am capable of merely positing theories on how


      the agreement was structured.


14.   The presentencing report in Plaintiff’s federal prosecution has never been made available


      to me and is, in fact, sealed for the purpose of protecting Plaintiff’s privacy.


15.   I was never given an opportunity to present testimony in Plaintiff’s criminal proceedings,


      and found it difficult even to learn the current status of the case.


16.   Any role I played in Plaintiff’s federal criminal prosecution was strictly limited to my


      having been the party to whom Plaintiff failed to pay child support.


17.   The US Government commenced criminal proceedings against Plaintiff entirely as a result


      of his willful noncompliance with a valid Washington judgment that enforced the terms of


      the 1989 Kansas support order that had been registered in Washington in 1995.


18.   On March 31, 2004, Plaintiff was sentenced in the United States District Court for the


      Western District of Washington.




DEFENDANT’S AFFIDAVIT IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT                                    5
Prior Investigation of Plaintiff by the United States Attorney in Washington


19.   In September 1994, I met with Mr. Gene Porter, Assistant US Attorney for the Western


      District of Washington, who informed me that I could not directly refer a case to his


      office, as such referral could only come through the state’s Division of Child Support


      (DCS).


20.   I immediately contacted the then-current director of DCS in Washington, who reviewed the


      case and stated his opinion that it met the threshold for criminal prosecution under the


      former Child Support Recovery Act (CSRA), but informed me that nothing could be done


      absent my application for IV-D enforcement services.


21.   In October 1994, I filed the application for enforcement services and an investigation by


      the United States Attorney followed immediately. Plaintiff was notified of and responded to


      the federal investigation via numerous letters from and to Mr. Porter.


22.   In November 1994, I was informed by Mr. Porter that his office was poised to arrest


      Plaintiff in Kansas City when he picked up my son during Thanksgiving


      visitation. Because I strenuously objected to my 11-year-old son’s witnessing such a


      traumatic event, I stated that I would not send him for the visitation if that would be the


      result.




DEFENDANT’S AFFIDAVIT IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT                                   6
23.   Within months of my objection as to the time and manner of arrest, the investigation


      against Plaintiff idled.


24.   In the nine years between my 1994 meeting with Assistant United States Attorney Gene


      Porter and my addressing the Court at Plaintiff’s 2004 sentencing, I have never met with


      a United States Attorney, have never “instigated” a federal criminal prosecution of Plaintiff,


      and I have never been a party to, or “entered an appearance” in, a federal or state


      criminal prosecution.


25.   On approximately 2-3 occasions from 1994 to 2003, the Washington Division of Child


      Support asked me to confirm current arrearages following a request from the US


      Attorney, and in 2003, I believe my attorney faxed the most recent judgment directly to


      the US Attorney’s in response to such a request.



      B. THE PARTIES’ 1989 DISSOLUTION OF MARRIAGE

26.   Plaintiff and I were divorced in Johnson County, Kansas, in June 1989.


27.   The Johnson County District Court entered a support order for our minor son, Daniel


      Bracken Phillips. I did not ask for maintenance from Plaintiff.


28.   Prior to August 1989, Plaintiff abruptly relocated to Missouri, without providing notice to


      me or to the Johnson County District Court in Kansas.




DEFENDANT’S AFFIDAVIT IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT                                     7
      C. PLAINTIFF’S NONPAYMENT OF SUPPORT AND HISTORY OF ENFORCEMENT EFFORTS

29.   In July 1989, Plaintiff first began missing support payments and simultaneously began a


      pattern of harassment that resulted in my motions for orders of restraint, temporary


      injunction, and enforcement of the decree in September 1989. Garnishment of Plaintiff’s


      income at various Kansas City law firms kept support current nearly two years. (Exhibit


      D, Johnson County District Court docket (“JCDC Docket”), p.7.)


30.   In March 1991, my son and I moved from Kansas to New Jersey, following notice to


      Plaintiff and to the Johnson County District Court. (Docket, p. 6.)


31.   On or before November 1991, Plaintiff began a solo law practice and his income could


      no longer be monitored or attached. From that point forward, payment was either


      nonexistent or well under the established amount.


32.   In 1992, my son and I moved permanently to the state of Washington.


33.   In April 1993, in response to the Johnson County District Court’s repeated orders to


      appear on contempt, and concurrent with my proceedings in Washington to establish a


      parenting plan, Plaintiff made a special appearance, moved to quash the contempt, and


      simultaneously filed a motion to modify support and visitation. This was the first of


      several such duplicative actions he has filed in the eighteen years since the parties


      divorced, resulting in unnecessary expense and delay. (JCDC Docket, p.6.)


DEFENDANT’S AFFIDAVIT IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT                                 8
34.   On May 4, 1993, Plaintiff’s visitation action was dismissed in Kansas, but child support


      was temporarily reduced from $750 per month to $403 per month. On December 9,


      1993, following eleven months of nonpayment by Plaintiff, the parties stipulated to


      modification using the lower figure.   (JCDC Docket, p.5.)


35.   In December 1993, Plaintiff sent a letter to the Johnson County District Court Trustee,


      stating, “[a]s you are aware, neither the payor nor the recipient of the support resides in


      the state of Kansas. It appears that under KSA 60-308, jurisdiction over support


      payments no longer rest with Kansas. Because of my reading of the statute, I have paid


      Mrs. Owen directly her required support payments.” (Exhibit E, letter of Daniel D. Phillips,


      12/23/93.)


36.   As soon as I was notified by the court trustee of Plaintiff’s communication, I replied by


      certified mail and objected to discontinuation of services through Kansas. The trustee’s


      office attempted to enforce the Kansas order through March 1995. (Exhibit F, 1/25/93


      letter of Kimbra Owen.)


37.   From 1993 until the parties’ son reached his majority on August 23, 2001, Plaintiff made


      no additional attempts to reduce child support, yet made fewer than ten child support


      payments.




DEFENDANT’S AFFIDAVIT IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT                                   9
38.   In February 1995, Plaintiff refused service by certified mail of the Johnson County District


      Court’s show cause order on contempt. (JCDC Docket, p.4.)


39.   In March 1995, Plaintiff again made a special appearance in Johnson County and moved


      to quash the order to show cause on contempt. Plaintiff stated in his motion that “this


      court no longer has subject matter jurisdiction over the issues of support arising under


      the original dissolution decree,” and “the court lacks personal jurisdiction over the parties.”


      (Exhibit G, Motion to Quash, paragraphs 5 and 11, attached hereto.)


40.   On April 25, 1995, as a result of Plaintiff’s jurisdictional objections, the District Court


      Trustee moved for and was relieved of further enforcement duties. (JCDC Docket, p.4.)


41.   On May 23, 1995, I filed a summons and petition in Washington for registration, and


      enforcement of the Kansas order. (Although a default modification was issued


      simultaneously, it has been abandoned and is not the subject of recent litigation between


      the parties.) (Exhibit H, King County Superior Court Docket “KCSC Docket”, p.2.)


42.   From 1995 to 1999, Washington State’s attempts to enforce the Kansas order through


      interstate referrals to Missouri were met with jurisdictional challenges and appeals by


      Plaintiff.




DEFENDANT’S AFFIDAVIT IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT
10
43.   In January 1999 and November 1999, respectively, the Missouri Court of Appeals and


      the Missouri Supreme Court affirmed Washington’s jurisdiction to enforce the Kansas


      order. (Phillips v. Fallen, 1999 Mo. App. LEXIS 86 (Mo. Ct. App. 1999), and Phillips v.


      Fallen, 6 S.W.3d 862, 863 (Mo. 1999))


44.   Following the adverse ruling by the Missouri Court of Appeals but preceding a decision


      by the Missouri Supreme Court, Plaintiff responded by skipping state a second time—this


      time, back to Kansas, which restarted the clock on Washington’s interstate enforcement


      process.


45.   Between 1999 and 2003, Washington was ineffective in securing enforcement proceedings


      against Plaintiff in Kansas because of miscommunication between the two states.


46.   In March 2003, I sought a new contempt order against Plaintiff in the King County


      Superior Court in Washington. Plaintiff appeared and obtained a public defender to


      represent him in the civil litigation. (KCSC Docket, pp.2-3.)


47.   On August 14, 2003, the Superior Court entered its Order on Contempt. (“KCSC Docket,


      p.3.) A certified copy of the order was submitted to this Court on February 26, 2007, in


      my Request for Judicial Review.


48.   On August 25, 2003, Plaintiff moved for revision. (KCSC Docket, p.3.)



DEFENDANT’S AFFIDAVIT IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT
11
49.   On September 9, 2003, Plaintiff filed a duplicative action in the Johnson County District


      Court, seeking an order to “establish judgment and determine payment schedule.” (JCDC


      Docket, p.3.) In this action, Plaintiff reversed his decade-long position that Kansas’ lacked


      jurisdiction to enforce its order against him, and now claimed that only Kansas could


      enforce its order, as it had retained continuing, exclusive jurisdiction to do so.


50.   On October 8, 2003, the King County Washington court denied Plaintiff’s motion for


      revision and motion to stay proceedings. (KCSC Docket, p.4.)


51.   On November 6, 2003, Plaintiff filed his notice of appeal to the Washington Court of


      Appeals. (KCSC Docket, p.4.)


52.   On November 24, 2003, the Johnson County District Court granted my motion to dismiss


      Plaintiff’s proceedings to “establish judgment.” (JCDC Docket, p.3.)


53.   On December 4, 2003, Plaintiff filed with the Johnson County court his Motion for


      Reconsideration and Suggestions in Support of Motion. I filed a response to that motion


      on December 23, 2003. (JCDC Docket, p.3.)


54.   On January 6, 2004, the Johnson County Court denied Plaintiff’s motion for


      reconsideration.(JCDC Docket, p.3.)




DEFENDANT’S AFFIDAVIT IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT
12
55.   On February 5, 2004, Plaintiff filed his notice of appeal with the Kansas Court of


      Appeals, and I was required to defend against that action in Kansas during the same


      period in which I was defending against Plaintiff’s appeal in Washington. (JCDC Docket,


      p.3.)


56.   In January 2005, I filed an action in the Johnson County court to register the


      Washington judgment, as execution had not been stayed pending the Washington appeal.


57.   On February 25, 2005, the Kansas Supreme Court affirmed the Johnson County District


      Court’s order dismissing Plaintiff’s Motion to Establish Judgment. (Exhibit I, Phillips v.


      Martin, unpublished opinion of the Kansas Court of Appeals, decided February 25, 2005


      (Docket No.   91,917, at 11.))


58.   Also on February 25, 2005, Plaintiff submitted a “Notice of Payment” to the Washington


      Court of Appeals, advising the court that “1. On February 10, 2005 Appellant caused to


      be paid to the Clerk of the United States District Court for the Western District of


      Washington the sum of $32,941.00…In conjunction with the prior payments made by


      Appellant such sum represents payment in full of the restitution order for accrued child


      support of $36,090 entered in Appellee’s favor of in [sic] the case of US v. Phillips. 2.


      The outstanding sums remaining at issue in the matter before this Court are the accrued



DEFENDANT’S AFFIDAVIT IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT
13
      interest, medical reimbursements and attorneys [sic] fees of approximately $35,000.”


      (Emphasis added.) (Exhibit J, Notice of Payment, p.1.)


59.   Plaintiff did not argue that mandatory restitution had been ordered and paid; nor did he


      argue that the federal order barred the enforcement of the state-court order or that the


      appeal should now be dismissed as moot.


60.   On March 21, 2005, twenty-four days after receiving Plaintiff’s Notice of Payment, the


      Washington Court of Appeals affirmed the King County (Wash.) Superior Court order.


61.   The case was returned to the King County Superior Court on January 17, 2006. (KCSC


      Docket.)


62.   Following the mandate, Plaintiff did nothing in the ten days allowed by the Court of


      Appeals.


63.   In Kansas, on May 19, 2006, Plaintiff filed motions in Johnson County to dismiss the


      registration of the Washington judgment and to recognize that all child support orders


      were satisfied. Plaintiff’s filings in the Johnson County District Court contain a substantial


      number of untrue “facts,” alleging the Washington order had been reversed, that the


      Kansas Court of Appeals’ decision had issued a negative ruling regarding res judicata as


      to the Washington order, and other “facts” that duplicate Plaintiff’s statements to this



DEFENDANT’S AFFIDAVIT IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT
14
      Court and to the state and appellate courts in Washington. My Kansas counsel opposed


      the motions. (JCDC Docket, p.2.)


64.   On January 13, 2006, Judge Slater (Johnson County District Court) entered his


      Memorandum Decision. Judge Slater, in declining to rule on the effect of the federal


      restitution order on subsequent court proceedings, wrote, “that issue will have to be


      litigated in the state of Washington,” and that “[i]f Kimbra Martin believes she has a


      valid claim for additional child support, interest on her judgment or costs, this action will


      have to be brought in the Superior Court of King County, Washington.” (Judge Slater’s


      Memorandum Decision of 1/13/06, p.7, attached as an exhibit to Plaintiff’s 2/26/07


      Declaration in Support of Motion for Summary Judgment.)


65.   Plaintiff filed his motion for reconsideration of Judge Slater’s decision on January 31,


      2006, and filed a notice of appeal on February 13, 2006. (JCDC Docket, p.1.)


66.   The Court denied Plaintiff’s Motion for Reconsideration in its journal entry of March 23,


      2006. (JCDC Docket, p.1.)


67.   On July 27, 2006, Plaintiff filed a motion out of time for extension of time to file his


      appellant’s brief in the Kansas Court of Appeals, due on or before July 26, stating that


      his daughter, a law student not licensed to practice law in Kansas, was assisting him in



DEFENDANT’S AFFIDAVIT IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT
15
      preparing his brief. On August 10, 2006, the Kansas Court of Appeals granted the


      motion, but admonished Plaintiff, writing “[c]ontinued assistance in this appeal by the


      daughter may result in civil penalties…and may have an adverse impact on her ability to


      obtain a license to practice upon completing her education.” (Exhibit K, Kansas Court of


      Appeals letter )


68.   In July 31, 2006, Plaintiff sent a letter to the State of Washington Division of Child


      Support, demanding a conference board hearing on the State’s Notice of Support Debt


      and Demand for Payment. I was served with a subpoena to appear. (Exhibit L,


      Subpoena Duces Tecum.)


69.   On August 2, 2006, my Washington counsel filed a Motion for Contempt/Judgment in the


      King County Superior Court, and noticed Plaintiff, who responded with an untimely Reply


      to Petition for Motion on the afternoon of August 22, 2006. (KCSC Docket, p.4.)


70.   Contrary to Plaintiff’s statement to the Court, I did not apply “to the Washington State


      Court’s [sic] to reinstate the previously reversed 2003 arreage [sic] determination.”


      (Plaintiff’s Response, p.4.) As noted above, and in the Washington Court of Appeals’


      Decision, the 2003 determination was never reversed.




DEFENDANT’S AFFIDAVIT IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT
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71.   Contrary to Plaintiff’s statement to the Court (Response, p.4, footnote 3), the Washington


      Court did not give Plaintiff “10 days [sic] notice of the hearing.” My Washington counsel


      served Plaintiff on August 2, the date the motion was filed with the court. The hearing


      took place twenty-one days later.


72.   On August 23, 2006, Plaintiff telephoned the Hon. Dean S. Lum, the presiding judge,


      only minutes before the hearing, while I waited with counsel in the courtroom for the


      calendar to be called. Judge Lum took the call in chambers, then advised the courtroom


      of the contents of the phone call when he returned. Plaintiff had informed Judge Lum


      that a conflict prevented Plaintiff from appearing (presumably via telephone) at the 1:30


      docket, so the hearing would have to be delayed for approximately two hours. Judge


      Lum advised Plaintiff that the Court controlled its own docket, and Plaintiff simply hung


      up the telephone. Judge Lum filed a copy of the original minutes in the court file, and I


      have provided it to this Court as Exhibit F of my Request for Judicial Notice. The


      hearing commenced shortly thereafter, and Judge Lum entered an order, while allowing


      me leave to move for amendment of the order to include attorney fees from my former


      counsel.




DEFENDANT’S AFFIDAVIT IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT
17
73.   On September 5, 2006, Plaintiff entered his Motion for Reconsideration and Objection to


      Amended Judgment. (KCSC Docket, p.4.)


74.   On September 6, 2006, Judge Lum signed the Amended Order and Judgment, ordering


      an additional $6,000.00 for attorney fees paid to my prior counsel. (KCSC Docket, p.4.)


75.   On September 12, 2006, Judge Lum denied Plaintiff’s Motion for Reconsideration. The


      King County Superior Court docket shows no filings past that date, because Plaintiff did


      not appeal. (KCSC Docket, p.5.)


76.   On September 28, 2006, Plaintiff moved for voluntary dismissal of his Kansas appeal.


      (JCDC Docket, p.1.)


77.   On October 12, 2006, Plaintiff filed his original complaint with this Court.


78.   On November 1, 2006, I appeared for the Washington DCS conference board, but


      Plaintiff “declined to participate.” The conference board panel and the state attorney for


      DCS ruled as meritless Phillips’ renewed assertions that Washington lacked personal


      jurisdiction over him and that the Washington Court of Appeals reversed the Superior


      Court Order of 2003. (Exhibit M, Conference Board Decision.)



      D.   PLAINTIFF’S FINANCIAL RESOURCES AND BUSINESS VENTURES

      Plaintiff’s Current Businesses and Estimated Value of Inventory


DEFENDANT’S AFFIDAVIT IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT
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79.   Plaintiff owns Daneva Classical Records, LLC (DUNS #61-773-3782), Vinyl Renaissance


      (DUNS #60-330-8011), and the eBay Trading Assistant and Powerseller businesses found


      under the seller ID of vinyl-renaissance, all of which have been in continuous existence


      since 2000 or earlier, and all of which are involved in internet, mail-order, and direct


      sales of records, CDs, sound equipment and recording equipment. (Exhibit N – Dun &


      Bradstreet reports on Daneva Classical and Vinyl Renaissance; Exhibit O – eBay Seller


      Information for vinyl-renaissance)


80.   Although Plaintiff advertises on eBay that his retail store in Shawnee has “over 30,000


      LPs, 45s and CDs,” only 7,987 titles are available through vinyl-renaissance.com, which


      states ”only a portion” of the physical store’s inventory is available online. Following a


      link to download the titles I could have purchased via the internet, I was provided with


      a Microsoft Excel worksheet entitled “VinylRen12-05.xls”, a 195-page, 7,987-item “online


      inventory” that provides per-item pricing. (Because of the page total for the printed


      inventory, only the website information and the first 3 and final 3 pages of inventory are


      included here as Exhibit P, Inventory.)


81.   The online list represents less than 27% of Plaintiff’s physical inventory, and when each


      individual item was totaled, that percentage alone represented a current value of



DEFENDANT’S AFFIDAVIT IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT
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      $163,335.00. This number not only excludes the remaining 73% of Plaintiff’s recordings; it


      also excludes all the sound equipment and audio tools Plaintiff also sells.


82.   On February 26, 2007, Plaintiff was interviewed on-air as the owner of Vinyl Renaissance


      for the Kansas City television station KSHB. The video segment, filmed for the station’s


      “Business in Action” series, is still available online at the website listed at the end of


      this paragraph. In addition, I have downloaded and printed a cached transcript that was


      available through Google, as well the comments reporter Mark Clegg posted in his web


      log. (Exhibits Q and R, Transcript and Web Log)


      <www.nbcactionnews.com/mediacenter/local.aspx?videoId=241582@kshb.dayport.com>


83.    On Wednesday, June 22, 2005, Plaintiff was interviewed about “Dan Phillips’ Shawnee


      Store”, Vinyl Renaissance, by Carolyn Boyer, reporter for The Shawnee Dispatch in


      Kansas, and he described in the article how his business has grown since 2000. Ms.


      Boyer reported several facts offered by Plaintiff: that Plaintiff “just fell into” the business


      after trading for his own interests and that “then he started buying collections to sell,


      more and more until he was having trouble finding the space to store everything”, at


      which point “my wife thought I got too many of these things” when he had amassed “a


      basement and two storage units full of LPs” and Plaintiff opened the store to house



DEFENDANT’S AFFIDAVIT IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT
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      them all. Ms. Boyer noted that the store stocks new and rebuilt stereo equipment and


      some “hard-to-find LPs going for as much as $300 and collections for as much as


      $1,400.” (Exhibit S, Store Sells Recycled Classics:


      www.shawneedispatch.com/section/business/storypr/2941)


84.   Plaintiff is identified as “owner Dan Phillips” in a “case study” of Vinyl Renaissance


      published online by Authorize.net. Describing the company’s need to run more effectively


      by processing credit-card transactions at the point of sale, Plaintiff is quoted as


      remarking, “[w]e run sales at the curb of a shopping center. We didn’t want to have to


      wire the whole front-end of the building for phone service or hard-wire linkage to


      accommodate our business model. Everything is on a wireless network in the store.”


      According to the published report, Vinyl Renaissance implemented the Authorize.net Virtual


      Point-of-Sale terminal (VPOS) in April 2005. (Exhibit T, Case Study.)


85.   Plaintiff is listed in the Kansas Secretary of State’s corporation records as the resident


      agent for Daneva Classical, LLC, which has the same physical address as Vinyl


      Renaissance (6471 Quivira Road, Shawnee, Kansas), and the website danevaclassical.com


      resolves to the internet storefront for the website vinyl-renaissance.com. (Exhibit U,


      Kansas Online Business Entity Search.)



DEFENDANT’S AFFIDAVIT IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT
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86.   Vinyl Renaissance is listed as an underwriter for KPR Public Radio and as a donor for


      KCPT’s recent auction.


87.   On Saturday, April 28, 2007, I phoned Vinyl Renaissance in Shawnee, Kansas, and


      inquired as to how a vinyl record collection might be purchased by the business. The


      gentleman answering the telephone identified himself as the store manager, Frank


      Alvarez, and informed me that only two people were able to make a purchasing


      decision: the manager (Mr. Alvarez) and the owner, Dan Phillips. I asked, “There’s only


      one owner? You’re not an owner?” and Mr. Alvarez confirmed that he was the manager,


      not an owner, and that the only owner was Dan Phillips. After requesting that he spell


      Plaintiff’s surname for me and having received the response, I ended the phone call.


Plaintiff’s improper use of federal and state resources


88.   I have obtained information over the past several years that has yielded indications that


      Plaintiff’s averments of poverty, made here as well as in the state and federal courts in


      Washington, are falsely sworn to by Plaintiff.


89.   It is my belief, based on personal knowledge, that (a) Plaintiff had the assets to pay for


      legal services he has been provided by state and federal governments in the past and




DEFENDANT’S AFFIDAVIT IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT
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      (b) he had, and continues to have, significant assets to pay for his court costs in these


      proceedings.


90.   In the 2003 Washington civil contempt proceedings, held prior to his arrest, Plaintiff


      avoided litigation costs by applying for and receiving pro bono legal services from King


      County’s SCRAP (Society of Counsel Representing Accused Persons).


91.   On September 10, 2003, following his arrest, Plaintiff filed a financial affidavit with the


      United States District Court for the Western District of Washington in order to secure the


      pro bono services of his public defender. (Exhibit V, Financial Affidavit.)


92.   In his Financial Affidavit, Plaintiff claimed to be self-employed by Dow Co. and paid by


      co-worker, earning only $200.00 per month. Of this amount, he claimed to “actually


      support” the parties’ son, age 20, although he had not made a single payment in over


      six years and owed child support of $36,096.00 in principal alone. Plaintiff declared only


      two, a 2000 Cadillac and 1992 Jeep, with an aggregate value of $18,500.00. (No lien


      holder was uncovered in a 2004 investigation conducted at the request of Defendant.)


      (Financial Affidavit.)


93.   Plaintiff’s financial affidavit did not discuss his regular income from his business buying


      and selling music recordings and audio equipment, nor did it disclose Plaintiff’s



DEFENDANT’S AFFIDAVIT IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT
23
      employment with his landlord, W. Malcolm Knarr of Overland Park, Kansas, for which he


      received the use of his home at 11929 W. 66th Terrace in Shawnee, Kansas.


94.   Plaintiff’s sworn affidavit declared a monthly rental expense of $1,025.00 per month.


95.   Despite his averment of indigence in the federal prosecution, only twenty-two days later—


      October 1, 2003—Plaintiff hired the law firm of Nelson & Booth to represent him in his


      duplicative litigation in Kansas to establish judgment and determine payment schedule,.


      (JCDC Docket, p.3.)


96.   On January 22, 2004, three days following his pleading guilty in the federal proceedings,


      Plaintiff hired the law firm of Ronald K. Barker to represent him in a petition to the


      Missouri Supreme Court for readmission to the bar, and Mr. Barker’s representation was


      continuous through August 3, 2006, two months before the filing of the instant case.


97.   In late 2004 or early 2005, Plaintiff received a substantial inheritance from his mother’s


      estate.


98.   In January 2005, Plaintiff hired the law firm of J. Charles Droege to oppose Defendant’s


      registration of the Washington judgment.




DEFENDANT’S AFFIDAVIT IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT
24
99.   On May 19, 2005, Plaintiff again hired the law firm of Nelson & Booth and filed motions


      to dismiss the registration and to “recognize that all child support orders are satisfied”.


      This representation continued through January 2006.


100. In October of 2006, Plaintiff filed in this Court his motion to proceed in forma pauperis.


      I hereby declare under penalty of perjury that the foregoing is true and correct to the


best of my knowledge and ability.


      Executed this __________ day of ________________ 2007




                                                     ___________________________________
                                                     Kimbra Martin, Pro Se
                                                     8707 123rd Lane NE
                                                     Kirkland, WA 98033
                                                     (425) 822-5383




DEFENDANT’S AFFIDAVIT IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT
25
                                  CERTIFICATE OF SERVICE



The undersigned hereby certifies that a copy of Defendant Kimbra Martin’s Affidavit in Support

of Motion for Summary Judgment was served upon the following via USPS Priority mail,

postage prepaid, this 7th day of May, 2007:



Daniel D. Phillips
11912 W. 66th Terrace
Shawnee, KS 66216




                                                        _______________________________Kimb
                                                        ra Martin
                                                        Pro Se
                                                        8707 123rd Lane NE
                                                        Kirkland, WA 98033
                                                        (425) 822-5383




DEFENDANT’S AFFIDAVIT IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT
26

				
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