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DCR
WHEREFORE, the Petitioner moves the court to:
1. Conduct a hearing within twenty (20) days of filing said cause;
2. Direct the Allen County Sheriff to serve notice of this petition to the parties in said cause;
3. After a Hearing by the court, find that a violation has occurred, Pursuant to Indiana Code 3-12-8-17, and further order the Allen County Election Board to conduct a special election, pursuant to
Indiana Code 3-12-8-17.5
4. Order that the special election be paid pursuant to Indiana Code 3-12-8-22.
5. And for all other just and proper relief.
I affirm , under the penalty of Perjury, that the foregoing representations are true.
(signed) David Christopher Roach
DAVID CHRISTOPHER ROACH
4936 Innsbruck Drive
Fort Wayne, Indiana, 46835
260-485-3681
dcroach60@gmail.com
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ADAM M HENRY ATTY
RESPONDENT
THOMAS C "CHARLES"/ "CHRISTOPHER"/ HENRY
( a/k/a"COBBLEPOTT" )
AFFIRMATIVE DEFENSES
COMES NOW Respondent , Thomas C. Henry ("Henry"), by counsel, and for his Affirmative Defenses, states as follows:
1. Petitioner's Verified Petition for election Contestment fails to state a claim upon which any relief may be granted and, as such, it should be dismissed in its entirety.
2. Petitioner's claims against Henry are frivolous, unreasonable, and groundless and, therefore, Henry is entitled to have petitioner pay his attorney's fees and costs pursuant to Indiana code s/s34-52-1-1.
3. Petitioner is litigating these claims against Henry in bad faith.
Wherefore, Respondent, Thomas C. Henry , by counsel, prays that this court dismiss the Petitioner's Verified Petition for Election Contestment
in its entirety; that this court award Thomas C. Henry's attorney's fees
pursuant to Indiana code s/s 34-52-1-1 after finding that Petitioner brought this action on a claim that is frivolous, unreasonable, and groundless and, further, that petitioner litigated this action in bad faith; and for all other just and proper relief in the premises.
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Carrie Hawk Gutman ATTY
ALLEN COUNTY ELECTION BOARD
AFFIRMATIVE DEFENSES
1) Petitioner fails to state a claim upon which relief may be granted pursuant to TR 12-b-6
2) Petitioners claims are barred by statute of limitations under Indiana Code 3-8-2-14
3) Petitioners claims are barred by the doctrine of RES JUDICATA.
4) Petitioners claims are barred by the doctrine of COLLATERAL ESTOPPEL.
5) Petitioner's claims are barred because he has failed to exhaust his administrative remedies.
6) Petitioners claims are barred by the EQUITABLE DOCTRINE OF LACHES
7) Petitioner's claims are frivolous, unreasonable or groundless, and Allen county election board is entitled to costs, including reasonable attorney fees, pursuant to Indiana Code 34-52-1-1
8) Petitioner is litigating these claims in bad faith.
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WHEREFORE, Respondent, Allen county election Board, prays that this Court:
1)- dismiss the petitioners claims in the entirety;
2) award Allen County election Board attorney fees pursuant to Indiana code 34-52-1-1(b)(1) and (3) and find
a) Petitioner brought this action on a claim that is frivolous, unreasonable or groundless, or
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b) Petitioner litigated the action in bad faith; and
3) for all other just and proper relief in the premises
Respectfully submitted:
HAWK, HAYNIE, KAMMEYER & SMITH LLP
(SIGNED)
Carrie Hawk Gutman
Carrie Hawk Gutman #18689-02
Attorneys for the Respondent,
Allen County Election Board
116 East Berry Street
Lincoln Tower, STE 302
Fort Wayne Indiana 46802
260-422-1515
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http://www.in.gov/judiciary/opinions/pdf/06160901bd.pdf
BURKE VS BENNETT-
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SEE post below.. scroll down..
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What Is Required To Avoid Liability
For Asserting A Frivolous Or Groundless Claim Or Defense
For Asserting A Frivolous Or Groundless Claim Or Defense
In its opinion in the case of Whittington v. Ohio River Company(27), the United States District Court for the Eastern District of Kentucky set out a list of seven (7) factors to be considered in determining whether attorney fees should be awarded for a violation of Rule 11 of the Federal Rules of Civil Procedure.(28) Trial Rule 11 of the Indiana Rules of Trial Procedure tracks Federal Rule 11 in stating that an attorney's signature on a pleading or motion "constitutes a certificate by him that he has read the pleadings; that to the best of his knowledge, information, and belief, there is good ground to support it; and that it is not interposed for delay"; and, that "[f]or a willful violation of this rule an attorney may be subjected to appropriate disciplinary action".(29)
The factors set out by the court in Whittington are as follows:
1. Reading The Document. If an attorney signs a document, he must have read it.(30)
2. Factual Inquiry. An attorney must make an investigation of the facts before filing a claim or defense. [citations omitted] An attorney has not made a "reasonable inquiry" concerning the facts, if he has not made any inquiry, or if he has relied only on his client, [citations omitted] when time permitted him to make a further investigation. A defendant must not be joined, or claim asserted against a defendant merely in the hope that discovery will turn up something against the defendant. [citations omitted] The cost of determining whether a defendant should be named in the action must be borne by the plaintiff and his attorney before suit is filed. [citations omitted] The burden cannot be shifted to a defendant to prove himself out of the case after filing. Thus, naming all of the manufacturers of a certain kind of drug, when a reasonable inquiry would have disclosed that the plaintiff took only the products of a few members of the industry, will result in mandatory sanctions. [citation omitted](31)
Before a defendant is named or a claim (such as a RICO claim) is asserted against a defendant, the attorney's file should contain facts admissible in evidence, or at least facts indicating the probable existence of evidence, implicating that defendant or supporting that claim. The shotgun complaint is out. ...(32)
3. Legal Inquiry. An attorney must perform reasonably sufficient legal research before filing a claim or defense. [citation omitted] An attorney has not made a reasonable inquiry as to whether a claim or defense is warranted by existing law if he or she hasn't done any research. An attorney cannot have a reasonable belief that a claim or defense is warranted by a good faith argument for the "extension, modification or reversal of existing law," unless he or she knows what the existing law is. [citations omitted]Counsel's interpretation of the law, formulated after sufficient research, must be non-frivolous, that is, reasonable as evaluated by a competent attorney. [citations omitted](33)
Flights of legal fancy and optimistic speculation in complaints and answers are improper under the amended rule. ... Some defendants are clearly immune from suit. [citation omitted] Some defenses have no application to the case. A shotgun answer is as improper as a shotgun complaint.(34)
If a recent controlling court decision is fatal to a claim, sanctions will be imposed, whether the attorney actually found the case or not, if a reasonably competent attorney would have found it. [citations omitted](35)
Although Rule 11 does not literally require it, it would be my advice to all attorneys to be sure that the file contains at least a skeleton memo outlining concretely, not just abstractly, the legal basis for every claim or defense. It should apply the law disclosed by reasonably extensive legal research to the facts disclosed by a reasonably adequate factual investigation. The analysis should be that of a reasonably competent attorney admitted to federal practice.(36)
4. Objective Standard. Whether or not a "reasonable inquiry" into the facts or law has been made is to be determined by the court objectively. An attorney's subjective good faith is irrelevant.(37) ...
The ultimate test is: "If judged by an objective standard, a reasonable basis for the position exists in both law and fact at the time that the position is adopted, then sanctions should not be imposed." The standard imposed is that of a competent attorney admitted to the bar of the federal court.(38)
5. Improper Purpose. Some courts have held that, if there is a proper factual and legal basis for asserting a claim or defense, the "improper purpose" requirement of Rule 11 is not violated. Other authorities are to the effect that the "improper purpose" provision is a subjective requirement and that even meritorious litigation positions, if taken for purposes of harassment or other improper reason can violate Rule 11. This court holds that the latter is the better view. Indeed, it seems required by the plain meaning of Rule 11. Therefore, whether or not a pleading was interposed for an improper purpose involves a subjective standard of bad faith.(39)
6. Continuing Obligation. An attorney must not only conduct a reasonable investigation into the facts and law before filing butmust also continually review and reevaluate his position as the case develops. He must abandon claims or defenses as soon as it becomes apparent that it is unreasonable to pursue them.(40)
7. Mandatory Sanctions. If Rule 11 has been violated, sanctions are mandatory, although the nature and amount of the sanctions are within the discretion of the trial court.(41)
The Court in Whittington summarized the requirements of Rule 11 as follows:
1. An attorney must READ every paper before signing it.
2. He must make a reasonable pre-filing investigation of the FACTS.
3. He must research the LAW, unless he is certain he knows it.
4. The law as applied to the facts must REASONABLY WARRANT the legal positions and steps he takes. If existing law does not warrant these positions, a plausible argument for the extension of the law to the facts of the case is required.
5. It must be demonstrated, as the basis of pre-filing investigation and research, that there is a REASONABLE BASIS to name each defendant named, and to support each claim asserted. The shotgun complaint or answer, filed in the hope that discovery will produce the justification for it, is improper.
6. The adequacy of an attorney's investigation, research and legal analysis will be evaluated by the court under an OBJECTIVE STANDARD, namely, whether the attorney acted as a reasonably competent attorney admitted to federal practice. Except as to improper purpose, subjective good faith is not a defense to Rule 11 sanctions. A pure heart but an empty head is of no avail.
7. The attorney must CONTINUALLY RE-EVALUATE his positions and abandon them if they are no longer reasonably warranted.
8. An attorney must not have an IMPROPER PURPOSE, such as harassment or intimidation, in naming any defendant, asserting any legal position or taking any legal step.
9. If an attorney violates Rule 11 the imposition of some sanction is MANDATORY, although the nature and extent of the sanction is discretionary with the district court.(42)
xditto: click on this link:
http://www.allencounty.us/index.php?option=com_content&view=article&id=171&Itemid=819&jsmallfib=1&dir=JSROOT/election_board/election_results/2015
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Respectfully submitted:
HAWK, HAYNIE, KAMMEYER & SMITH LLP
(SIGNED)
Carrie Hawk Gutman
Carrie Hawk Gutman #18689-02
Attorneys for the Respondent,
Allen County Election Board
116 East Berry Street
Lincoln Tower, STE 302
Fort Wayne Indiana 46802
260-422-1515
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CERTIFICATE OF SERVICE
I hereby certify that on the ( field left blank) day of June , 2015, a true and correct copy of the above and foregoing was served on all parties and counsel of record by depositing a copy of same in the United States mail or by Courthouse Mail to:
David Christopher Roach
4936 Inn sbruck Drive
Fort Wayne Indiana 46835
Adam M. Henry Esq.
Beers Mallers Backs & Salin , LLP
Courthouse Mail #90
(atty for Thomas C. Henry)
Tom Cook
3112 Lafayette St.
Fort Wayne IN 46806
Richard Stevenson
4100 Abbott St.
Fort Wayne IN 46806
(signed)
Carrie Hawk Gutman
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Respectfully submitted.
Beers, Mallers, Backs and Salin LLP.
by Adam M Henry (27871-02)
110 West Berry St ste 1100
Fort Wayne Indiana 46802
260-426-9706
Attorneys for Thomas C. Henry
CERTIFICATE OF SERVICE
the undersigned hereby certifies that a true and correct copyof the above and foregoing was served this 5th day of June , 2015, by deposoiting the same in the United States mail, first class postage pre-paid, and addressed to:
David Christopher Roach
4936 Innsbruck Drive
fort Wayne Indiana 46835
Carrie Hawk Gutman
Hawk Haynie Kammeyer&Smith
116 East Berry street Ste 302
Fort Wayne Indiana 46802
Richard Stevenson
4100 Abbott Street
Fort Wayne Indiana 46806
Tom Cook
3112 Lafayette Street
Fort Wayne , Indiana 46806
(signed) ADAM M. HENRY
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