IN THE CIRCUIT
COURT OF
POCAHONTAS COUNTY
SOLID WASTE
AUTHORITY,
Plaintiff,
DEFENDANT
STRATTON:
v. Civil Action No. 13-C-28 ANSWER TO COMPLAINT,
MOTION
TO DISMISS &
MOTION TO VACATE JUDGMENT
LARRY W. ALDERMAN, et
al.,
Defendants.
DEFENDANT STRATTON: ANSWER TO COMPLAINT
MOTION TO DISMISS & MOTION TO VACATE JUDGMENT
COMES NOW, your
Defendant, Thomas G. Stratton, pro se,
and files this responsive answer, on a timely basis, to the allegations made in
the complaint, including a respective motion to dismiss and a motion to vacate
judgment, for reasons set forth herein, reserving the right amend if or as
needed, and for the record says as follows:
ANSWER TO COMPLAINT
1. Your Defendant makes no response to paragraph
#1 for the reason that same contains
conclusions of law or opinions not
an averment of fact and no answer is therefore required.
2.
Your Defendant neither admits nor denies the allegation
in paragraph #2 being without
sufficient information to formulate
a response, and demands the strictest of proofs.
3. Your Defendant neither admits nor denies the
allegation in paragraph #3 being without
sufficient information to formulate
a response, and demands the strictest of proofs; further your Defendant denies
the allegations in paragraph #3 for the reason they are based on incorrect statements
of fact and/or law, therefore, are not true since Plaintiff has not shown that
your Defendant has failed to dispose of solid waste in an otherwise lawful
manner.
4. Your Defendant neither admits nor denies the
allegation in paragraph #4 being without
sufficient information to formulate
a response, and demands the strictest of proofs; further your Defendant denies
the allegations in paragraph #4 for the reason they are based on incorrect
statements of fact and/or law, therefore, are not true since Plaintiff has not
shown that your Defendant has failed to dispose of solid waste in an otherwise
lawful manner.
5.
Your Defendant makes no response to paragraph #5 for
the reason that same constitutes a
conclusion of law to which no
response is required.
6.
Your Defendant makes no response to paragraph #6 for
the reason that same constitutes
conclusion of law to which no
response is required.
MOTION TO DISMISS
a. Pursuant to W. Va. R. Civ. P. 12(b)
7. Pursuant to W. Va.
R. Civ. P. 12(b)(1),(2) and (6), the complaint fails to state a claim
against your Defendant upon which relief can be granted for
the following reasons:
a.
Rule 12(b)(1) – Lack of jurisdiction over
subject matter since plaintiff is not a taxing authority pursuant to W. Va. Code § 22C-4-23, et seq., nor is there any contractually incurred debt subject to collection via
a civil action, since plaintiff only enforces hours of operation, and must refer
violations to the Division of Environmental Protection (DEP) or other
appropriate law-enforcement. See Hinkle v. Bauer Lumber & Home Bldg.
Ctr, Inc., 158 W.Va.
492, 211 S.E.2d 705 (1975);
b.
Rule
12(b)(2) – Lack of jurisdiction over the person since plaintiff consists of a
board of five (5) members, all appointed, and all required to take an oath of
office and be bonded, pursuant to W. Va. Code § 6-1-3, yet the
public record is clear that during the first eighteen (18) years of existence
of the plaintiff there was never a majority in compliance with state law. Further the Complaint fails to identify
exactly what alleged ‘mandatory garbage
disposal’ regulations, if any, that your Defendant is accused of failing to
comply. Therefore as a matter of law and
fact none of the actions taken by the plaintiff have been lawful, including the
filing of this lawsuit. See Article
IV, Section 5, Constitution of West
Virginia Va. 1020, 216 S.E.2d 889
(1975); and Ohio County Tavern and Restaurant Association v. Wheeling- Ohio
County Board of Health, Civil Action No. 05-C-198, May 2005; and,
c.
Rule
12(b)(6) – failure to state a claim upon which relief can be granted since
while plaintiff alleges it has issued invoices there is no claim or legal
foundation for such invoices since no contractual relationship or taxing power
resides with the plaintiff and no debt(s) exist unless or until plaintiff shows
that it has provided a specific service for each defendant in full compliance
with all aspects and elements of the respective sections of the West Virginia
Code. See Collia v. McJunkin, 178 W.Va.
158, 358 S.E.2d 242 (1987); Harrison
v. Davis, 198 W.Va. 651, 478
S.E.2d 104 (1996); and Dimon v.
Mansy, 198 W.Va.
40, 479 S.E. 2d 339 (1996).
b. Pursuant to Conflict of Interest
8. Your Defendant requests that the current
attorneys of record for the plaintiff show, by the
strictest of proof, any and all documents authorizing them
to represent the plaintiff at any time in the
past and in the present for purposes of this lawsuit.
c. Plaintiff Lacks Jurisdiction
9. In 1996, when Dolan Irvine was the County
Assessor, and chairman of the Pocahontas County Solid Waste Authority, he was
informed that according to the WV Department of Tax & Revenue Property Tax
Division, using the 7.5 minute USGS Topographic Map, which is the official
boundary between West Virginia and Virginia, the residence in question in this
lawsuit is actually in Virginia, not in West Virginia, and that this can be
confirmed by any official survey to that effect. See Exhibit
1, attached.
MOTION TO VACATE JUDGMENT
10.
The failure on the part of the Plaintiff to recognize the proper
boundaries of the property in question, lead the Plaintiff without following
any due process or equal protection of the laws, to place a default judgment against
your Defendant, with no admissible evidence, with no type of hearing, and with
no trial; therefore as a matter of law and fact, any and all judgments against
your Defendant should be vacated immediately.
See Exhibit 2,
attached.
WHEREFORE, your Defendant respectfully
requests this Honorable Court to dismiss this
action for the reasons set forth
herein; to issue an order to vacate any and all judgments heretofore entered in
violation of due process and the equal protection of the laws; and grant such
other and further relief, equitable and otherwise, as this case and social
justice may require.
Respectfully Submitted By:
____________________________
Thomas G. Stratton,
Defendant Pro Se
1.540.679.9670 (no
reception in Pocahontas
County
CERTIFICATION OF SERVICE
I, THOMAS G. STRATTON, Defendant pro se, do hereby certify that I have
provided a copy
of
the foregoing via first-class mail, U.S. Postal Service; or in the alternative,
via facsimile to Counsel
for
Plaintiff, at their last known address listed below; on this the 12th day of February, 2014.
Mailed to:
LAW OFFICES OF DAVID
A. SIMS, PLLC
Attorneys at Law /
Counsel for Plaintiff
Fax: 1.304.636.8001
Well done, Tom!
ReplyDelete