100115 Motion to Strike City's Reply to Petitioner's Reply to Motion to Dismiss

8/3/2019 100115 Motion to Strike City's Reply to Petitioner's Reply to Motion to Dismiss

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ST -T E OF N E W ~~EXI 0S E V E N T H J U D I C IA LD ISTR iCT C O U R T

F ILeD

STATE OF NEW MEXICOIN THE SEVENTH JUDICIAL DISTRICT COURTCOUNTY OF SIERRA

2 0 1 0 J A N 15 P r l 3 . 9

C O U T C l ~ P .K8 Y L.ia.Fltiiot _ D E P T Y

STATE OF NEW MEXICO ex reI.DEBORAH TOOMEY, an individual,

Petitioner,NO. D-072l-CV2009-98

vs.JUDGE: WILLIAM SANCHEZ

CITY OF TRUTH OR CONSEQUENCES, et al.Respondents. )

PETITIONER'S MOTION TO STRIKE CITY'S REPLY TOPETITIONER'S REPLY TO RESPONDENT'S MOTION TO DISMISS

COMES NOW pro se petitioner, Deborah Toomey, to submit this Motion tStrike City's Reply to Petitioner's Reply to Respondent's Motion to Dismiss andthe attached Exhibit of an unsigned letter from Mr. Jost dated January 4,2010("ADG letter"). As discussed more fully herein, City's Reply should be strickenbecause it raises new arguments that have never before been aired. Furthermore,the January 4,2010, letter is unsigned and is not an affidavit, deposition ordocumentary evidence. Instead, the January 4, 2010, unsigned letter from ADG isbest described as new testimony which Petitioner is denied a response.Additionally, the majority of the responses are redundant.

PETITIONER'S MOTION TO STRIKE- Page 1- D-0721-CV2009-98


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MEMORANDUM INSUPPORT

1. Respondents introduce in ~3 an unsigned January 4, 2010, letter froMr. Jost of ADO and attach it as an exhibit. The unsigned letter is not the requiraffidavit per SCRA 1-043(C). In addition, the unsigned ADO letter is newtestimony which Petitioner is denied an opportunity to respond.

2. City and the unsigned ADG letter discuss a "system log" in ~4 andpage 2, ~2, respectively. The "system log" has never been discussed in anyprevious pleadings, including City's Motion to Dismiss and Petitioner's Replythereto. The "system log" is a separate file from the "audit log."

3. The unsigned ADO letter also introduces network security issues.Network security has never been raised as an issue in any pleading, including theMotion to Dismiss and Petitioner's Reply thereto. Petitioner's argument and thefunction of the audit log are for "information theft from the inside job" whichexcludes network security issues.

4. City's ~5 that "any discussion of an audit log would need to bereferenced to the IT person" is a new argument, which Petitioner is denied anopportunity to respond.

5. City's ~6 that they are in "full compliance with all State" regulationsis a new argument which Petitioner is denied an opportunity to respond. No

PETITIONER'S MOTION TO STRIKE- Page 2 - D-0721-CV2009-98


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6. Much of City's Reply is redundant, including ~~7-10, which are wor -

mention of State regulations on the protection of SSN has been addressed in any

prior pleadings, including the Motion to Dismiss and Petitioner's Reply thereto.

for-word duplications of,-r,-r5-8of City's Motion to Dismiss.7. City's ,-rll asks the Court to take judicial notice that "Petitioner

improperly uses the Courts to request non-existent information." This is a newargument which Petitioner is denied an opportunity to respond. In fact, what Sie aCounty Cause No. CV-2009-159 State of New Mexico ex ref. Audette and Toomev. City of Truth or Consequences demonstrates is City once again defends an IPenforcement action with ridiculous arguments, including a public access channel inot a public entity and video recordings of governmental meetings currently beingbroadcasted on television don't exist.

WHEREFORE, for all the reasons enumerated herein, Petitioner Toomeyrespectfully requests this Court to strike City's Reply to Petitioner's Reply toRespondent's Motion to Dismiss and its Exhibit of the January 4,2010 letter fromADG.

Deborah L. Toomey, pro s415 W. Riverside DriveTruth or Consequences NM 87901(575) 740-1091

DATED: January 15,2010.



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CERTIFICATE OF HAND DELIVERY

The undersigned hereby certifies that a copy of the PETITIONER'SMOTION TO STRIKE CITY'S REPLY TO PETITIONER'S REPLY TORESPONDENT'S MOTION TO DISMISS was hand delivered to the Attorney foRespondents, Law Office of Jaime F. Rubin, 314 Main Street, Truth orConsequences, NM, 87901, on the is" day of January, 010 .

. o f !Deborah L. Toom415 W. Riverside riveTruth or Consequences NM 87901(575) 740-1091


Documents

100115 Motion to Strike City's Reply to Petitioner's Reply to Motion to Dismiss