Defendant's Motion to Recuse

Beginning of Legal Text

No. 199-00596-97

DEFENDANT'S MOTION TO RECUSE

Defendant asks the judge of the court to recuse himself.

A. Introduction

1. Plaintiff is DSC Communications Corporation n/k/a Alcatel Marketing USA, Inc.; defendant is Evan Brown.

2. Plaintiff sued defendant for Breach of Contract, Promissory Estoppel, Misappropriation of Trade Secrets, Unfair Competition, Breach of Fiduciary Duty or Confidential Relationship and for a Declaratory Judgement

B. Facts

3. Defendant files this motion at least ten days before this case is set for trial.

4. On May 16, 2002, Judge Henderson issued a MEMORANDUM (Exhibit 11) which states in part:
   "The Court has also sustained Plaintiff's objection to granting a hearing on Defendant's Motion for Summary Judgement, as a consequence of sanctions imposed earlier in this litigation."

   TRCP Rule 166a(b) states:

   "For Defending Party. A party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory judgement is sought may, at any time, move with or without supporting affidavits for a summary judgement in his favor as to all or any part thereof."

   Defendant filed his first Motion for Summary Judgement on July 3, 1997 and Plaintiff amended their pleadings. On September 29, 1997, Defendant filed his second Motion for Summary Judgement and Plaintiff brought a Motion for Continuance before the court on Oct 7, 1997 which was granted. The continuance delayed the hearing on Defendant's Motion for Summary Judgement until Defendant disclosed his "idea." Defendant disclosed his "idea" under seal to the court on January 22,1999. Plaintiff complained that the disclosure was not detailed enough and the court order Defendant to make another disclosure describing in detail the Defendant's "idea." The court ordered Defendant to disclose his "idea" showing how to convert Zilog Z8000 machine executable code into the K&R C programming language using the BSDI/486 UNIX platform (Exhibits 2,3). Defendant has made a full and complete disclosure of his "idea" in the form of ANSI C programs, Makefile, test data and Z8000 instruction set details (Exhibit 4 on CD-ROM under seal).

   The transcripts of the hearing regarding Defendant's Motion for Summary Judgement from December 21, 2001 do not mention sanctions and clearly state the court agreed to hear Defendant's Motion for Summary Judgement (Exhibit 8, pg 37).

   Judge Curt Henderson violated Defendant's right to a fair and impartial trial by personally judging facts in dispute and denying Defendant a hearing on his Motion for Summary Judgement.

5. Defendant filed his second request for production to Plaintiff (Exhibit 5) on August 17, 2001 and Plaintiff's response was due by September 17, 2001. Plaintiff did not respond to Request 1 until December 20, 2001. Defendant specifically stated in (REQUEST 1) that Plaintiff:
   "Produce computer files representing all the files contained in the home directory and sub-directories of the Defendant Evan Brown that existed at the time Defendant's termination. At the time of his termination, the Defendant had home directories on the Switching Products Division network, the Motorola Cellular testbed network and the VAX development cluster network. Defendant requests that these computer files be copied to CD-ROM disk in such a way as to preserve the original time and date of all these computer files."

   On December 21, 2001, Judge Curt Henderson heard Defendant's Motion to Compel and for Sanctions. Contained in the transcript of the hearing (Exhibit 8), the witness Kevin Fisher stated under oath that on page 16 lines 14-18 that he had received the request to Defendant's home directory "Probably three to four weeks ago." That would have been no earlier than November 16, 2001, almost two months after the response was due to Defendant. Plaintiff did not produce the files from the VAX system until well after the December 21 hearing. Plaintiff clearly violated TRCP Rule 196.2(a)(Response to Request for Production and Inspection).

   Judge Henderson denied Defendant's Motion to Compel and for Sanctions. Judge Henderson has demonstrated his personal interest and bias of the court. Judge Henderson will deprive Defendant of a fair trial in violation of the due process clauses of both the Texas and the United States Constitutions and in violation of Texas Rule of Civil Procedure 18b because the judge's impartiality might reasonably be questioned.

6. Judge Henderson requested Plaintiff to produce a Scheduling Order in this case even though scheduling order are only required for cases filed after Jan 1, 1999. Defendant objected to having a scheduling order because as a Pro Se Defendant, the scheduling order is extremely detrimental as Defendant has no prior legal experience. At the hearing of Plaintiff's Motion for Scheduling Order, Judge Henderson stated that the scheduling order would be used as a guide. Defendant was severely damaged when Judge Henderson granted Plaintiff's April 29, 2002 Motion for Protective Order, denying Defendant discovery of the following evidence (Exhibit 10):
   
   1. Plaintiff's written policies
      
   2. DSC's Employee Handbook
      
   3. DSC's Business and Ethics Handbook
      
   4. Defendant's payroll records
      
   5. Defendant's time sheets
      
   6. All non-disclosure agreements signed by Defendant
      
   7. Defendant's complete personnel file
      
   8. DSC's publication "DSC Today" for August 1997
      
   9. identify all computer systems and computer networks which individuals of DSC's Disclosure Team or any other person acting on DSC's behalf, used to load, copy, read, modify, compile, test, evaluate or alter in any way, Defendant's court order disclosures.
      
   10. Identify all trade secrets provided to Defendant while employed at DSC.
       
   11. Identify all persons responsible for backing up the computers used by members of DSC's Disclosure Team members or any other person having access to Defendant's disclosure material.
       
   12. Identify all persons having administrative privilege or "root" access to the computers or networks.
       
   13. Identify the procedures that members of DSC's Disclosure Team used to secure the Defendant's disclosures.

   "TRCP 190.5 Modification of Discovery Control Plan" states that the court MUST modify the discovery control plan when the interest of justice requires.

   Judge Henderson violated Defendant's rights to due process.

7. On Mar 18, 2002, Defendant filed his Counterclaims. On April 8, Defendant filed his discovery requests (Exhibit 9). On April 18, Plaintiff filed their Motion for Protective Order. On April 29, 2002, parties appeared at hearing (Exhibit 10, transcript of hearings) where DSC's Motion for Protective Order was granted despite the fact that "TRCP 190.5 Modification of Discovery Control Plan" states that the court MUST modify the discovery control plan when the interest of justice requires. "The court must allow additional discovery: (a) related to new, amended or supplemental pleadings, or in an amended or supplemental response, if: (1) the pleadings or responses were made after the deadline for completion of discovery or so nearly before that deadline that an adverse party does not have an adequate opportunity to conduct discovery related to the new matters, and (2) the adverse party would be unfairly prejudiced without such additional discovery;"
   Judge Henderson violated Defendant's rights to due process.

8. On June 30, 1997, Judge Henderson issued a Temporary Injunction Order which violated Status Quo (Exhibit 1). The Defendant had an "idea" that only existed in his mind and Judge Henderson violated Status Quo by ordering Defendant to disclose his "idea" to Plaintiff.

9. On June 30, 1997, Judge Henderson's Temporary Injunction again violated Status Quo when he granted Plaintiff rights to patent Defendant's "idea" before ownership of the "idea" was determined at trial. Judge Henderson denied Defendant his right keep his "idea" a secret until ownership is determined at trial.

10. Judge Henderson's Temporary Injunction violated Defendant's right to due process by granting Plaintiff ownership rights in Defendant's "idea" before ownership is determined at trial.

11. Judge Henderson's Temporary Injunction violated Defendant's Civil Rights when he issued the Temporary Injunction ordering Defendant to be at Plaintiff's place of business from 9am to 5pm every business day. The United States Bill of Rights (13th Amendment) abolished servitude except in the case imprisonment for punishment for a crime.

12. On June 19, 2002, Defendant received a FAX from Plaintiff's counsel (Exhibit 12) where it appears Plaintiff's counsel requested Ms Brenda Shepperd, Court Coordinator for the 219th District Court, remove Defendant's Motion for Summary Judgement set for hearing on June 21, 2002. The FAX communicates that Ms Shepperd has removed Defendant's MSJ from the docket.

    Counsel for Plaintiff is working with Judge Henderson's staff to deny Defendant due process.

13. Defendant attaches affidavits to this motion to establish facts not apparent from the record and incorporates them by reference.

C. Argument & Authorities

14. The due process clauses of both the Texas and the United States Constitutions guarantees a party an impartial and disinterested tribunal in civil cases. Marshall v. Jerrico, Inc., 446 U.S. 238, 242, 100 S.Ct. 1610, 1613 (1980); Metzger v. Sebek, 892 S.W.2d 20, 37 (Tex. App. Houston [1st Dist.] 1994, writ denied).

15. In this case, the personal interest and bias of the judge of the court will deprive Defendant of a fair trial in violation of the due process clauses of both the Texas and the United States Constitutions and in violation of Texas Rule of Civil Procedure 18b because the judge's impartiality might reasonably be questioned. Tex. R. Civ. P. 18b(2)(a); Dunn v. County of Dallas, 794 S.W.2d 560, 562 (Tex. App. Dallas 1990, no writ). In this case, it is reasonable to question the impartiality of Judge Curt Henderson because Judge Henderson has ruled on issues of fact on a trial by jury case, denied Defendant due process by granting Plaintiff ownership rights in "idea" before trial, failed to preserve Status Quo of Defendant's "idea", ordered Defendant to be at Plaintiff's place of business from 9am to 5pm every business day, refused to abide by "TRCP 190.5 Modification of Discovery Control Plan".

D. Notice to Other Parties

16. A copy of this motion is served on the other parties on the same day this motion is filed. Defendant expects this motion to be presented to Judge Curt Henderson three days after it is filed, unless the Administrative Judge for the judicial district orders otherwise. Tex. R. Civ. P. 18a(b).

E. Conclusion

17. Judge Curt Henderson has demonstrated prejudice against Defendant and must be removed from this case. Judge Henderson's orders must be ruled void and a new trial ordered, otherwise the court will deprive Defendant of a fair trial in violation of the due process clauses of both the Texas and the United States Constitutions and in violation of Texas Rule of Civil Procedure 18b.

F. Prayer

18. For these reasons, Defendant asks the judge of the court to recuse himself and request that the presiding judge of this administrative judicial district assign another judge to this case or refer this motion to the presiding judge of this administrative district for a hearing on this motion.
Respectfully submitted,

By:_______________________________
Evan Brown
PO Box 31
Cranfills Gap, Texas 76637
Tel. (254) 796-2416

EXHIBITS

1. June 30, 1997 Judge Henderson's Temporary Injunction Order
2. Jan 19, 2000 Judge Henderson's ORDER specifying sanctions
3. July 11, 2000 Agreed Order (reset date for Defendant's disclosure)
4. Sept 25, 2000 Defendant's disclosure (on CD-ROM under seal)
5. Aug 17, 2001 Defendant's 2nd Request for Production
6. Mar 12, 2001 Transcript of "Defendant's Hearing on Motion for Compensation"
7. Mar 18, 2001 Plaintiff's Second Amended Original Petition and Application for Injunctive Relief
8. Dec 21, 2001 Transcript of hearings (MSJ, Motion to Compel)
9. Apr 8, 2002 Defendant's 3rd Request for Production, 2nd Request for Interrogatories
10. Apr 29, 2002 Transcript of hearings (Special Exceptions, Protective Order)
11. May 16, 2002 Judge Henderson's MEMORANDUM
12. June 19, 2002 FAX from Plaintiff's counsel (removal of Defendant's MSJ)

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