January 28, 2018

Office of Disciplinary Administrator

1st Floor

701 Jackson street

Topeka Ks66603

Case Number: 2017CV72P Kasey King vs. Lori Fleming

Greetings Disciplinary Administrator:

Thisis a complaint against Bernard Rhodes of Lathrop and Gage at the address of 2345
Grand Blvd., ste. 2400 K.C. MO 64108 along with assistant attorney generals Dennis
Depew and Stephen Phillips at the address of 120 SW 10th Avenue, 2nd Floor in Topeka Ks
66612.

Attorney Bernard Rhodes should be reprimanded for talking about a general motors
case his law firm is involved in where his law firm Lathrop and Gage received sanctions
and Bernard Rhodes was talking to Dennis Depew and Stephen Phillips about a female
who was previously an attorney at his law firm of Lathrop and Gage who was disbarred
and he stated he testified at her disbarment hearing.

Bernard Rhodes said she now works at a place and I couldn't hear what he said, but he
said that her employment doesn't require her to be an attorney to represent their
employees. Dennis Depew and Stephen Phillips knew who the female attorney that Mr.
Rhodes was talking about that had been disbarred because Stephen Phillips said he
had looked into her mortgage case and she had not made a payment in 10 years
because she had filed 3 frivolous lawsuits and she needed to be disbarred. Bernard
Rhodes shook his head again and said "you know when I had to deal with her she had
times when she could be a real pleasant human being to deal with and she wasn't so
mean, sneaky, and nasty all the time and they all three started laughing with Mr.
Rhodes shaking his head like he was totally annoyed with her."

Bernard Rhodes then said "yeah if you notice her emails will start off real nice in the
mornings and they get worse and worse as the day goes on." Stephen Phillips then said
"oh I guess I wasn't observant enough and didn't notice that".
 stephen Phillips also said "it sounds to me like she has an alcohol problem or perhaps
she has alzeimers because that's what that sounds like to me if she gets more rude and
nasty in her em ails as the day goes on" and they all three started laughing again like it
was a BIG JOKE that this lady lost her career as an attorney. Bernard Rhodes also asked
Dennis Depew if his son could vote in the New York election like he did last year even
though his son lives in Kansas City and has for the past six (6) years. Dennis Depew
asked if his son was a student and he replied no and then he said no he can't and then
Mr. Depew, Phillips, and Rhodes all started laughing.

Bernard Rhodes also insulted attorney Prince Ogenmeno by using demeaning

nicknames about fruit and comparing his court filings as taking bites at apples and
oranges instead of the proper courtroom decorum instead of his words to make fun of
such as "bites at apples". Bernard Rhodes also turned and (STAREDDOWN) attorney
Prince Ogenmeno when Mr. Ogenmeno was speaking to the court and the (COURT
VIDEO) will show how Mr. Rhodes turned with his legs open and faced Prince
Ogenmeno with a glare while Mr. Ogenmeno was speaking and addressing the court
and Mr. Rhodes was not facing the court. I feel that this violated (SUPREMECOURT RULE
161 COURTROOM DECORUM).

Attorney Bernard Rhodes starts on page 12 lines 13-14 when he says "they took that bite
of the apple, they lost at that bit of the apple". Attorney Dennis Depew thought that
he would join and participate in the name calling, bullying, and disrespect that Bernard
Rhodes was giving to attorney Prince Ogenmeno and the court by stating on the court
transcript on page 19 lines 14-19 "He's just trying to do hisjob. And yet he is constantly
under attack, and this case isjust yet another example of somebody that now basically
had three bites at the apple at the Federal Court level with the initial ruling, the motion
to Clarify, and then the motion to alter or amend". Dennis Depew not only shows
disrespect to attorney Mr. Ogenmeno by talking about biting apples but he actually
refers to Mr. Ogenmeno as "SOMEBODY" when he says another example of somebody
that now had three bites at the apple. Dennis Depew is giving insults and continues by
acting like a member of the BAR isjust a somebody and that Mr. Ogenmeno is not an
attorney and does not have a name. Dennis Depew continues his unethical statements
by saying on page 19 lines 20-21 "now with the filing of this case, they want a fourth.
bite, and my client deserves to be left alone".
Mr. Rhodes also compared Mr. Ogenmeno's court answers to "MIXING APPLES AND
ORANGES" on page 27 line 10 of the court transcript. Bernard Rhodes also insults
attorney Ogenmeno again on page 27 tines 21 to 25 and page 28 lines 1-2 of the court
transcript when Mr. Rhodes says "so he's mixing apples and oranges. I know we keep
talking about bites at the apples. I had two bites, somebody over here had four bites
and now /' m talking about oranges. But unfortunately with the opposition we are
dealing with, that is the level we have to go to, is talking about fruit because that's
what we are dealing here with, your Honor"!
The comment about dealing with fruit could also be considered a fGA Y RACIAL SLURJl!!

On page 30 line 20 Mr. Ogemeno says "I don't want to be passionate here but Mr.
Rhodes is just being abusive here". Mr. Ogenmeno acknowledges on the record that
Mr. Rhodes is being abusive to him.

I don't know why Mr. Rhodes said we are dealing with fruit because the only two (2)
people mentioning anything about mixing and eating fruit is Mr. Rhodes and Mr.
Depew.

Why is that Mr. Rhodes and Mr. Depew are eating fruit in court? Mr. Rhodes states right
on the record that "he had two bites at an apple and Mr. Depew had four bites at an
apple and then Mr. Rhodes was talking about oranges"!!! I can't believe that an
attorney is talking about fruit in a court case!!!

Dennis Depew and Stephen Phillips also violated Kansas Rules of Professional Conduct
the Preamble and the following list shows the violations:

PREAMBLE:A LAWYER'SRESPONSIBILITIES

A lawyer is a representative of clients, an officer of the legal system and a pubic citizen
having special responsibility for the quality of justice.

In all professional functions a lawyer should be competent, prompt and diligent. How
was Mr. Rhodes, Depew, and Phillips competent when they are not taking a criminal
act seriously such as illegal voting and they are not acting professional in a professional
function by eating fruit and taking bites at apples?

A lawyer's conduct should conform to the requirements of the law, both in professional
service to clients and in the lawyer's business and personal affairs. A lawyer should use
the law's procedures only for legitimate purposes and not to harass or intimidate others.

A lawyer should demonstrate respect for the legal system and for those who serve it,
including judges, other lawyers and public officials. While it is a lawyer's duty, when
necessary, to challenge the rectitude of official action, it is also a lawyer's duty to
uphold legal process.

Bernard Rhodes also insulted attorney Prince Ogenmeno by using demeaning

nicknames about fruit and comparing his court filings as taking bites at apples and
oranges instead of the proper words of (filing a lawsuit) instead of his words to make fun
of such as "bites at apples". Bernard Rhodes, Dennis Depew, and Stephen Phillips have
also not upheld the legal process because they did not report to the BARthat Mr.
Rhodes son committed a crime according to Dennis Depew by illegally voting in New
York at the last presidential election.
I feel that Dennis Depew and Stephen Phillips have violated the PREAMBLE:A LAWYER'S
RESPONSIBILITIES where it says the following:

In the nature of law practice, however, conflicting responsibilities are encountered.

Virtually all difficult ethical problems arise from conflict between a lawyer's
responsibilities to clients, to the legal system and to the lawyer's own interest in
remaining an upright person while earning a satisfactory living.

Stephen Phillips and Dennis Depew have no right to represent judges when they do not
have immunity and we complain to their office about the same judges in buster
complaints. I feel Mr. Depew and Mr. Phillips have also violated KRPC Rule
5.1(a)(b)(c)(l )(2) Responsibilities of a partner or supervisory lawyer by not reporting
each other for not reporting Bernard Rhodes for misconduct when his son commits a
crime under KRPC Rule 8.3(a).

I also don't think it is the attorney generals duties to go snoop in mortgage cases of
private people instead of doing there own job description under duties of their office
and they then have to sub-contracting out legal work to other law firms because they
aren't doing the job duties of their office and bill the state tax payers.

It shows how (GUILTY)both Stephen Phillips and Dennis Depew were in SMALL CLAIMS

COURT,case number 15SC70PNoah Day vs. My Town Media when they represented

My Town Media because if they weren't wrong then why didn't they represent My Town

Media in this case instead of Bernard Rhodes?

ANSWERBECAUSETHEYDID NOT HAVE SUBJECT-MAnERJURISDICTIONUNDERK.S.A.61-

2707{a) to represent My Town Media in small claims court but they did it anyway which

was extremely unethical and extremely incompetent. I feel the attorney generals office

has violated Supreme Court Rule 162 CONFLICTSIN TRIALSEnlNGS IN DISTRICTCOURT)

since Stephen Phillips should have been disqualified since he needed to be a witness in

this case under:

(Rule 226 Kansas Rules of Professional Conduct.) KRPC Rule l.7{b) Conflict of Interest

General Rule, KRPC Rule 1.1O(a) Imputed Disqualification, and KRPC Rule 3.7(a) Lawyer

as Witness and states as follows:

Defendant Lori Fleming's counsel Assistant Attorney General Stephen Phillips was listed

as the last modifier in the attached evidence of computer forensics expert Jeffry

Johnson the Principal Consultant of Quantum which shows that the email sent by Judge

Lori Fleming to BillWachter of My Town Media on February 19,2015 was "MODIFIED"

and that her attorney "STEPHENPHILLIPS"is in the code which shows that the original

email that Lori Fleming sent was "MODIFIED". Stephen Phillips is listed as the "LAST

MODIFIER"which means the original email according to the computer expert has been

altered and the evidence of the email has now been "TAINTEDEVIDENCE"because of

her attorney Stephen Phillips altering the email.

Mr. Phillips testimony and the ability to view his computer will give evidence that is
material to the determination of the issuesbeing litigated in this case. The evidence of
what Mr. Phillips altered in the ernoil that Defendant Lori Fleming sent to Bill Wachter on
February 19, 2015 cannot be obtained elsewhere other than the testimony of Mr. Phillips
and the ability to view his computer at discovery. The testimony of Mr. Phillips may be
potentially prejudicial to Defendant Fleming which according to the Kansas Court of
Appeals and the following case law Mr. Phillips should be disqualified as an attorney in
this case.

The Kansas Court of Appeals has adopted the following factors that must be
considered when weighing a motion to disqualify an attorney based upon the
opposing party asserting the attorney is a material witness: "(1) Whether it had been
shown that the attorney will give evidence material to the determination of the issues
being litigated: (2) whether the evidence could not be obtained elsewhere: and, (3L
whether the testimony would have been prejudicial or potentially prejudicial to the
testifying attorney's client." National Bank of Andover, N.A., 30 Kan.App.2d at 792.

Cottonwood Estates v. Paradise Builders, 128 Ariz 99, 105,624 P2d 296, 302 (1981), in
which the court stated that •[when an attorney is to be called as a witness other than
on behalf of his client, a motion for disqualification must be supported by a showing
that the attorney will give evidence material to the determination of the issues being
litigated, that the evidence is unobtainable elsewhere, and that the testimony is or may
be prejudicial to the testifying attorney's client. 'See also J.P. Foley & Co. v. Vanderbilt,
523 F2d 1357 (CA2 1975); Freeman v. Kulicke & Satta Industries, 449 fSupp. 974 (EDPa
1978); Connell v. Claire/, 440 FSupp 17, 18 n. 1 (NDGa 1977); Miller Electrical Construction
v. Devine Lighting Co.. 421 FSupp 1020 (WDPa 1976); Brown v. DeRugeris, 92 CalApp3d
895, 155 CalRptr 301 (1979}."

Stephen Phillips and Dennis Depew have also violated Supreme Court Rule 117
WITHDRAWALOF ATIORNEY) because they represented My Town Media in 15SC70Pin
Small Claims Court but they are not representing My Town Media in this case and it is
Mr. Rhodes who is their counsel. According to Supreme Court Rule 117 Dennis Depew
and Stephen Phillips needed to file a (WITHDRAWALOF ATIORNEY)since they both
spoke for My Town Media and Dennis Depew prepared the court order in the case.

Sincerely,
~~~
;{t·~ttf.~
/ / ILJ-.
Thomas Wal rs '

213 E. Carlton

Pittsburg Ks66762
 1

1 IN THE DISTRICT COURT OF CRAWFORD COUNTY, KANSAS

-------..;
2 KASEY KING, )
)
3 Plaintiff, )
)
4 vs. ) CASE NO. 17CV72P
)
5 MY TOWN MEDIA, INC., )
LORI BOLTON FLEMING, and )
6 KURTIS LOY, )
)
7 Defendants. )

9 TRANSCRIPT OF SUMMARY JUDGMENT

HEARING
10
PROCEEDINGS had before the Honorable
11
EDWARD E. BOUKER, Assigned Judge of the District Court
12
of Crawford County, Kansas, at Pittsburg, Kansas, on
13
the 16th day of January, 2018.
14

15
APPEARANCES:
16
The Plaintiff appearing in person and by and
17
through his counsel, Prince Adebayo Ogunrneno, Attorney
18
at Law, 155 S. 18th Street, Suite 250, Kansas City, KS
19
66102-5654.
20

21 The Defendant My Town Media appearing by and

22 through its counsel, Mr. Bernard J. Rhodes of Lathrop

23 Gage, LLP, 2345 Grand Blvd., Suite 2400, Kansas City,

24 MO 64108.

.- '.
25

COpy
 2

2 APPEARANCES cont.

4 The Defendant Lori Bolton Fleming appearing by

5 and through her counsel, Mr. Stephen Phillips,

6 Assistant Attorney General, 120 SW 10th Avenue, 2nd

7 Floor, Topeka, KS 66612-1597.

9 The Defendant Kurtis Loy appearing by and

10 through his counsel, Mr. Dennis Depew, Deputy Attorney

11 General, 120 SW 10th Avenue, 2nd Floor, Topeka, KS

12 66612-1597.

13

14

15

16

17

18

19

20

21

22

23

24

25
 3

1 THE COURT: Before we get started, I guess I will

2 say I apologize for my voice. I am suffering from the

3 maladies of the season right now. So this is case

4 would somebody read the caption into the record,

5 please.

6 MR. RHODES: Yes, Your Honor, this is Kasey King

7 vs. My Town Media, Inc., Lori Bolton Fleming and

8 Kurtis Loy, Case No. 17CV72P, Your Honor.

9 THE COURT: And would you announce your

10 appearances, please.

11 MR. OGUNMENO: Yes. May it please the Court, the

12 plaintiff Kasey King appears in person and with

13 counsel, Adebayo Ogunmeno.

14 THE COURT: Thanks. All right.

15 MR. RHODES: And for the defendant My Town Media,

16 Inc., Your Honor, Bernard Rhodes.

17 MR. DEPEW: And for the defendant Kurtis Loy,

18 Deputy Attorney General, Dennis Depew.

19 MR. PHILLIPS: Defendant Lori Fleming, Assistant

20 Attorney General, Stephen Phillips, S-T-E-P-H-E-N.

21 THE COURT: Thank you. All right. Counsel, what

22 is it that you understand we need to be doing?

23 I'm in this case after this hearing was actually

24 set and I have looked at the files but if you would

25 give me briefly what you believe we are doing here

 4

1 today, I would appreciate it.

2 MR. RHODES: Yes, Your Honor, this is again

3 Bernard Rhodes for defendant My Town Media.

4 The first thing I think we need to do, Your

5 Honor, is you should formally grant the third -- the

6 motion for the third extension of time that the

7 plaintiff filed to file a response to my summary

8 judgment motion.

9 Those have never been formally ordered, yet the

10 response has been filed and I've gone ahead and filed

11 a reply. So just to clear up the record, I would

12 suggest Your Honor do that.

13 Then you are here to hear argument as to the

14 motion of my client My Town Media for summary

15 judgment; and the separate motion of the

16 co-defendants, Judges Fleming and Lay, for summary

17 judgment. Both of those motions are very similar and

18 are both based upon the res judicata effect of the

19 Federal District Court decision dismissing the

20 plaintiff's case prior to the filing of this case in

21 this Court, Your Honor.

22 THE COURT: All right. Do you agree with that

23 and I've got a name that is somewhat like yours, it is

24 hard to pronounce, so if you would help me, it is

25 Ogunmeno.
 5

1 MR. OGUNMENO: Yes, you did good.

2 THE COURT: All right.

3 MR. OGUNMENO: Ogunmeno, that is "no", not "new"

4 so Ogunmeno.

5 THE COURT: Ogunmeno.

6 MR. OGUNMENO: Yes.

7 THE COURT: Okay. Is that what you understand we

8 are doing here today?

9 MR. OGUNMENO: Yes. That would be an accurate

10 description of what we are here for.

11 THE COURT: Okay. And I am looking for a yellow

12 pad so I can take some notes. Would you happen to

13 know where --

14 THE REPORTER: I will go grab one.

15 THE COURT: Okay.

16 (Pause in proceedings.)

17 THE COURT: All right. Counsel, whenever you are

18 ready.

19 MR. RHODES: Thank you, Your Honor. I will go

20 first, Bernard Rhodes for the defendant My Town Media.

21 Your Honor, we have moved for summary judgment to

22 dismiss MD. King's two-count petition in this Court.

23 The first count alleges a breach of contract claim

24 against my client My Town Media.

25 In summary, My Town Media owns a local radio

 6

1 station. The allegation in the complaint -- of the

2 petition is that Mr. King entered into a contract with

3 My Town Media for a series of radio advertisements

4 that he anticipated would be run on my client's

5 station for a group he belongs to called the Summary

6 Judgment Group.

7 That's the essence of his breach of contract

8 claim. He alleges consideration was paid and that my

9 client breached the contract by refusing to air the

10 entire series of commercials.

11 In addition, Count 2 is a claim for tortious

12 interference with that very contract by the

13 co-defendants, Judges Fleming and Lay, both of whom

14 are judges here in Crawford County, state court judges

15 in Crawford County.

16 The allegation is that those judges interfered

17 with Mr. King's contract with my client, because they

18 believe that the advertisement my client was

19 contracted to air was disparaging to the judges, the

20 judges didn't like that and so they called up the

21 owner of the radio station and convinced him to pull

22 the ad.

23 That's the essence of the complaint -- of the

24 petition that was filed ln this Court in June of 2017.

25 Those claims, Your Honor, are identical, both

 7

1 factually and legally, to claims Mr. King asserted in

2 2016 in the Federal Court in the United States Court

3 for the District of Kansas.

4 There Mr. King, represented by the same counsel,

5 sued My Town Media, sued Judges Fleming and Loy, and

6 also sued Bill Wachter who was a member of the radio

7 station, and Joe Manns, another member of the radio

8 station. But they are not parties here so we don't

9 really need to concern ourselves with them.

10 But in the Federal Court action Mr. King, again

11 represented by the same counsel, asserted a breach of

12 contract claim against My Town media for falling to

13 run the entire series of ads, sued the two Judges for

14 tortious interference, the identical claims brought in

15 the state court suit.

16 He also joined with those claims in Federal Court

17 a federal civil rights claim claiming that the judges,

18 as state actors, that their role in inducing the

19 breach of the contract interfered with their civil

20 rights. That's how we got in Federal Court. Because,

21 obviously, everybody here is a Kansas resident.

22 So that suit was dismissed by United States

23 District Judge Robinson as a sanction under Rule 11

24 for what the -- for what Judge Robinson found was the

25 plaintiff's submission to the Court of a pleading

 8

1 which contained intentionally false and misleading

2 information, in particular, an altered e-mail.

3 According to the plaintiffs, who supported their

4 case in Federal Court by attaching an e-mail which

5 they asserted to the Court, the Federal Court, was a

6 true and accurate actual e-mail, was an e-mail from

7 one of the two judges to the radio station directing

8 the radio station to take the ad off the air.

9 In fact, the e-mail says no such thing.

10 Literally what the e-mail said is to the owner of the

11 radio station "I hear you're running an ad that

12 mentions me, is that true? Let me know, because my

13 child listens to high school sports on that radio

14 station, and I need to know whether or not I should be

15 concerned about that." It said absolutely nothing

16 about taking it off the air.

17 The Federal Court found that was a violation of

18 Rule 11, that plaintiff's counsel failed to adequately

19 investigate whether the e-mail was accurate, whether

20 the characterization of the e-mail by the plaintiff

21 was accurate, whether the inclusion of the e-mail

22 verbatim in the body of the pleading was a violation

23 of Rule 11.

24 The Court found it was a violation of Rule 11,

25 and, therefore, dismissed the entire case, the federal

 9

1 claims and the state law claims with prejudice as a

2 violation of Rule 11.

3 Mr. King then filed a motion for clarification

4 with the Federal District Court to clarify, are you

5 just dismissing the federal claims or are you

6 dismissing the state claims as well. The state claims

7 where they are under what we now call an ancillary

8 jurisdiction, what we used to call pendent

9 jurisdiction.

10 And so that was, you know, the plaintiff said, I

11 just want to be clear, did you dismiss -- I understand

12 you dismissed the federal claims with prejudice, did

13 you dismiss the state level claims with prejudice as a

14 sanction or did you just decide not to exercise

15 ancillary jurisdiction?

16 Judge Robinson issued an order clarifying her

17 ruling that without doubt yes, she dismissed the state

18 law claims with prejudice as a sanction as well. She

19 found that the same violation of Rule 11, the

20 intentional submission of an altered fake e-mail

21 infected the state law claims as well, and she

22 dismissed those with prejudice in a separate order

23 clarifying that was her intent.

24 Judgment was subsequently entered, that's a final

25 judgment. Mr. King has appealed that. That case is

 10

1 now pending in the 10th Circuit, there has been

2 briefings, no argument set on it.

3 While that appeal was depending, Mr. King refiled

4 his state law claims here in this Court. Again, the

5 identical breach of contract claim that was dismissed

6 with prejudice by the Federal Court, the identical

7 tortious interference claim against Judges Fleming and

8 Loy that was dismissed by the Federal Court.

9 We, My Town Media, as well as the two judges have

10 separately moved for summary judgment but the

11 arguments are identical. Under Kansas Supreme Court

12 precedent, in particular the -- I call it the Rhoten,

13 it is R-H-O-T-E-N, I may be mispronouncing it. Under

14 the Rhoten case, decided I believe as recently as

15 2010, virtually identical facts. There the plaintiff

16 filed a federal civil rights claim in Federal Court in

17 Kansas, appended to it ancillary state law claims.

18 There the Court granted summary judgment as to

19 the federal civil rights claims, and dismissed the

20 state law claims without prejudice on the grounds the

21 Court was deciding not to exercise,ancillary

22 jurisdiction. Plaintiff Rhoten refiled the state law

23 claims in state Court, summary judgment was granted on

24 the grounds of res judicata. You sued on those state

25 law claims in Federal Court and lost.

 11

1 Summary judgment was granted, appealed to the

2 Kansas Supreme Court who affirmed. Finding that even

3 though the dismissal in that case of the state law

4 claims was without prejudice, it was nevertheless a

5 final judgment against the plaintiff in Federal Court

6 on those claims.

7 And, therefore, under the principals of res

8 judicata, those claims having been finally determined

9 by a Federal Court, the state Court was bound by that.

10 There was an appeal by Ms. Rhoten in that case, and

11 the Kansas Supreme Court said that doesn't matter. An

12 appeal does not affect the finality of a Federal Court

13 judgment.

14 So, Your Honor, we submit that those facts are

15 not only on all fours, if it can be, they are on all

16 fives. Because here the state law claim was dismissed

17 with prejudice. In Rhoten it was dismissed without

18 prejudice and the Kansas Supreme Court said it didn't

19 matter.

20 The only thing that mattered was were the state

21 law claims part of the same nucleus of common facts

22 that the Federal Court claims were. And there is no

23 question that that -- that that test is met here. All

24 of these claims, the federal civil rights claims, the

25 state law claims, all arise out of Mr. King's contract

 12

1 with my client to broadcast a series of television

2 advertisements that we did not do. That was the basis

3 of the entire claim.

4 It is not as if his current state law claim is

5 that he was driving down the road in Pittsburg and got

6 rear ended by a salesman for the radio station. That

7 would be a different claim and that I would not be

8 arguing is res judicata. But here it is unquestioned

9 this is all the same common core set of facts; and,

10 therefore, under the binding Kansas Supreme Court

11 precedent, summary judgment is clearly demanded

12 because res judicata. You get one bite at the apple.

13 They took that bite of the apple, they lost at

14 that bite of the apple because, according to the

15 Federal Court Judge who has issued a final judgment,

16 they violated Rule 11.

17 Now, Mr. King in his response to the motion says

18 well, Rhoten is different because there it was summary

19 judgment. Where here we never got to the merits,

20 quote, unquote, because there was a dismissal for

21 violation of Rule 11.

22 Your Honor, that simply doesn't fly, because it

23 is clear, as the Kansas Supreme Court said in Rhoten,

24 that when a state Court looks at the preclusive effect

25 of a federal judgment, you must apply federal law.

 13

1 And federal law could not be more clear.

2 Federal Rule of Civil Procedure 41(b) expressly

3 states quote: "If the plaintiff fails to comply with

4 these rules", stop, i.e., violate Rule 11 -- Rule 11,

5 "a defendant may move to dismiss the action or any

6 claim against it. Unless the dismissal order states

7 otherwise, a dismissal under this subdivision operates

8 as an adjudication on the merits."

9 It is a merits determination. Black and white in

10 the federal rules of civil procedure.

11 Moreover, the case law that we cited in our reply

12 states, and here is a 2012 federal case, "as a matter

13 of federal law, dismissal of a plaintiff's claim with

14 prejudice for failure to comply with Federal Court

15 orders operates as an adjudication on the merits for

16 preclusion purposes. This is the uniform view of the

17 federal Courts".

18 So we have an adjudication on the merits. Due to

19 the plaintiffs and the plaintiffs counsel's own

20 violation of Rule 11.

21 Accordingly, Your Honor, the argument that

22 because I violated the rules, therefore, I got a

23 second chance, simply doesn't fly under the law, nor

24 should it. The 10th Circuit Court of Appeals in a

25 case that we cited, In Re: Corey, a 2009 decision, the

 14

1 Court specifically talks about the preclusive effect

2 of what it calls penalty dismissals, a dismissal for

3 violating a rule for not prosecuting, for doing

4 something against the rules.

5 And the Court says "it would really stand

6 preclusive effect on its head if you allow people to

7 get a second chance when they violated the rules the

8 first time". You shouldn't get a second chance

9 because you violated the rules. Once you violate the

10 rules, there are consequences and there are sanctions

11 to that and one of those sanctions is you have a

12 dismissal on the merits.

13 So, therefore, we believe, Your Honor, a

14 dismissal on the merits has occurred. We believe

15 under the Rhoten decision of the Kansas Supreme Court,

16 which this Court is, of course, bound to, summary

17 judgment is required because the plaintiffs had their

18 bite at the apple, they lost, there is preclusive

19 effect. Summary judgment demand -- is demanded based

20 upon res judicata, Your Honor. Thank you.

21 MR. DEPEW: Your Honor, again, my name is Dennis

22 Depew. I represent the Honorable Kurtis Loy. The

23 motion that we have filed -- I have filed along with

24 counsel for Judge Fleming deals with Count 2 of the

25 petition, which is the tortious interference with

 15

1 contract claim.

2 Our motion is an alternative motion. We have

3 asked first that the Court dismiss the case with

4 prejudice for failure to state a claim. In the

5 alternative, we have asked that the Court award

6 summary judgment to our clients.

7 The pure and basic reason for this is simply the

8 doctrine of res judicata. This is a classic case for

9 the application of that doctrine.

10 If you look at Exhibit No. 3 to the defendant

11 Judge's motion, that is the plaintiff's amended

12 federal complaint, you will note that Count 3 in that

13 amended federal complaint is virtually identical to

14 Count 2 in this complaint, in the present petition.

15 The facts that are relevant to our motion are

16 uncontroverted. It is uncontroverted that the

17 Honorable Julie Robinson dismissed with prejudice all

18 claims of the plaintiff pursuant to Federal Rule of

19 Civil Procedure 11 as a sanction. And that order is

20 Exhibit 4 to our motion.

21 The plaintiff sought to'clarify the scope of that

22 ruling because they weren't sure whether it included

23 the state Court claims, as well as the federal claims

24 or what. Judge Robinson issued an order and clarified

25 and specifically included the state Court claims. She

 16

1 thought that her first order was sufficiently clear,

2 but to just clear anything up, she basically said I

3 absolutely intended to include the state Court claims,

4 and they are dismissed with prejudice.

5 And that order is Exhibit 5 to our motion. At

6 that point, the plaintiffs filed a motion to alter or

7 amend, to ask the Court again about that dismissal.

8 And Judge Robinson denied that motion, and, again,

9 stated that the original order dismissing all claims,

10 including the state law claims with prejudice, would

11 stand. And that order is Exhibit 6 to our motion.

12 After all of that took place, the plaintiffs then

I
13 filed the state Court petition that we are here for

14 today. They filed that action and also simultaneously

15 they have filed an appeal to the 10th Circuit Court of

16 Appeals on the federal decision. But as we will

17 discuss in a moment, that appeal is of no consequence

18 to the finality of the judgment for purposes of our

19 motion and for purposes of this case.

20 Both with our motion to dismiss and our motion

21 for summary judgment, the pertinent relevant facts are

22 not contested. They are uncontroverted.

23 With regard to the motion to dismiss with

24 prejudice, we believe that because of the res

25 judicata, the plaintiff has no legal basis for their

 17

1 claim because it has already been judicially

2 determined by the Federal Court.

3 And with regard to the motion for summary

4 judgment, we believe that our clients are entitled to

5 judgment as a matter of law, because, again, the facts

6 are undisputed and the law is, in fact, undisputed.

7 Under either one of our theories in our motion,

8 this case should end today.

9 As I stated earlier, regarding res judicata, if

10 there was ever a case for that doctrine to apply, this

11 one is it. Federal law controls the preclusive effect

12 of a federal decision, and in the case law that is

13 cited in our motion and also in our reply, there are

14 three issues that the Court takes a look at.

15 No.1, is it the same parties; No.2, is it the

16 same claim; and, No.3, is the prior decision final.

17 In this case it is uncontroverted that it is the

18 same parties. It is uncontroverted that it is the

19 same claim and we believe legally it is uncontroverted

20 that the prior decision is final.

21 Mr. Rhodes cited the Rhoten case from the Kansas

22 Supreme Court. We believe also that that case is

23 applicable and when you stop and think about it, the

24 whole purpose of res judicata is intended to protect

25 parties from the costs and the vexation of continually

 18

1 having to relitigate the same claims. That is the

2 Grimmett case in the Kansas Supreme Court that is

3 cited in our materials.

4 Now the plaintiff is going to stand here and it

5 is going to claim that the dismissal is not, in fact,

6 on the merits because it was a penalty dismissal.

7 However, the case law clearly says that it is.

8 As Mr. Rhodes mentioned, the Corey case, which is

9 a 10th Circuit Court of Appeals case binding in our

10 jurisdiction, has held that a penalty dismissal is a

11 ruling on the merits.

12 And as Mr. Rhodes stated, the logic behind that

13 lS if you deny the preclusion effect then that was --

14 that was the purpose for the sanction. The sanction

15 was to stop and to punish the improper behavior which

16 took place in this case. And in this case the

17 egregious conduct of the plaintiff and his counsel

18 that led to the penalty of dismissal certainly

19 justified the entry of that order.

20 If this case is allowed to proceed, that ruling

21 would, in effect, eviscerate the ruling of the Federal

22 Court, because the whole purpose of the Federal Court

23 ruling was to stop any further adjudication of these

24 matters.

25 The plaintiff himself has repeatedly and has a

 19

1 history of filing frivolous and vexatious actions in

2 Kansas Court and, in fact, is under an order from the

3 Kansas Courts that precludes him from being able to

4 file any new cases in state Courts without prior

5 approval of a Judge.

6 And that's because there is a rather lengthy

7 pattern here that this particular plaintiff has been

8 involved with with filing frivolous lawsuits. And

9 then also in this case, it is important to note that

10 in the Federal Court sanction order, it not only

11 involved the plaintiff but also his counsel in the

12 awarding of those sanctions.

13 My client is a state Court Judge here in the 11th

14 Judicial District. He's just trying to do his job.

15 And yet he is constantly under attack, and this case

16 is just yet another example of somebody that now

17 basically had three bites at the apple at the Federal

18 Court level with the initial ruling, the motion to

19 clarify, and then the motion to alter or amend.

20 Now with the filing of this case, they want a

21 fourth bite, and my client deserves to be left alone.

22 He deserves to be able to carryon as a District Court

23 Judge and not be subject to these harassing and

24 vexatious claims.

25 And for all of those reasons, on behalf of Judge

 20

1 Loy, I would respectfully ask the Court to either

2 dismiss this matter with prejudice or grant summary

3 judgment in his favor to end this matter today. Thank

4 you.

5 THE COURT: Thank you.

6 MR. PHILLIPS: Stephen Phillips on behalf of Judge

7 Fleming. I will not repeat what has already been well

8 said by Mr. Rhodes and Mr. Depew. I would simply add

9 this case should have never been filed in state Court.

10 The law that we cite in our motions to dismiss is

11 clear, and plaintiff offers no good faith argument why

12 it should be reversed. Plaintiff says in his response

13 to our motion that while there is an appeal pending,

14 judgment is not on the merits. Plaintiff cites no

15 case law for that proposition.

16 Although plaintiff mentions Rhoten elsewhere in

17 his response, he does not discuss the holding of

18 Rhoten and does not offer any good faith argument why

19 it should be changed.

20 Just like plaintiff goes on to state that the

21 sanction of dismissal is not on the merits, plaintiff

22 offers no authority for that proposition, fails to

23 cite In Re: Corey, which is a published 10th Circuit

24 case controlling precedent directly on point, fails to

25 mention it in his brief.

 21

1 The wisdom of what Judge Robinson did is for the

2 10th Circuit to decide, the legality of what Judge

3 Robinson did in her dismissal. But I think there is

4 wisdom in what she did. There were abuses in that

5 case, and plaintiff's response in this case is just

6 unacceptable and I ask that this case be dismissed

7 with prejudice.

8 Thank you, Judge.

9 THE COURT: Mr. Ogunmeno.

10 MR. OGUNMENO: Yes, Your Honor. May it please

11 the Court, my name again is Prince Adebayo Ogunmeno.

12 We filed a brief or a response in this case. First I

13 need to correct one of -- the impression that either

14 one or two of the defendant attorneys has created that

15 in the old case or the federal case that there was an

16 assertion that the e-mail was actually true but that

17 was not a true statement, because there was not such

18 an assertion. There was a representation that there

19 was an e-mail and a statement suggesting that that is

20 what was in the e-mail.

21 The other one is that presently in this case, the

22 federal decision is pending in the 10th Circuit of

23 Appeals, and our argument has been set for March 21,

24 2018, on the basis or the merit of Judge Robinson's

25 decision in the case before the Federal Court.

 22

1 Actually this case was filed to protect the

2 statute of limitation basis. The issue -- the reason

3 for that is the case was appealed. It wasn't decided

4 yet.

5 And the other point is we are making that there

6 is an exemption from the cases that were cited that if

7 the cases are not decided upon appeal, there is an

8 exemption. Because the original case is still

9 pending, we have confidence that Judge Robinson's

10 decision will be reversed. And if it is reversed

11 either on all the claims that we made or that the

12 state claim should not have been included in her

13 dismissal.

14 So we filed this claim just to preserve the

15 statute of limitations. We did not request for

16 service, but the defendants, I guess that is part of

17 their job or one of the attorneys, the statutory cases

18 and they are the ones who we didn't even serve them,

19 they filled an entry and filed a motion to dismiss.

20 One, on their basis for motion to dismiss, there

21 is no question that that motion to dismiss should be

22 denied. But on the -- because the petition actually

23 stated a fact upon which relief can be obtained.

24 Because the breach of contract, and they didn't argue

25 that there was no breach, they actually admit that.

 23

1 The tortious interference, they didn't argue that

2 there was no interference, but just I think the real

3 motion is the res judicata issue.

4 And as we have explained in my response, simply

5 because the motion is dismissed with prejudice doesn't

6 really mean dependent on whether it was dismissed on

7 the merits. And I've cited some cases and even the

8 United States Supreme Court cases showing that there

9 is an exemption if it doesn't go to merits.

10 We are saying that our case didn't go to merits

11 because we didn't have enough opportunity and we also

12 explained that most of the cases that they were citing

13 are the cases that have already been decided on appeal

14 before the case was filed.

15 And in our case we -- our case has not been

16 decided on appeal, and with the confidence that we

17 have, the brief that we filed with the 10th Circuit,

18 we believe that the Federal District Court Judge will

19 be reversed on this issue and if it is reversed and

20 the case is remanded back to the District Court, is

21 that the District Court would handle it if the federal

22 claim is not accepted, then there would be left with

23 the state claim which the plaintiff we ought to have

24 the right to go back to the state claim and reassert.

25 So the issue here is is the statute of

 24

1 limitations going to expire or has it expired? And if

2 there is no case pending, because even if this case is

3 dismissed, then the mandate came from the 10th Circuit

4 that the trial Court was wrong in dismissing the state

5 claim and if the Federal Court is not going to deal

6 with the state claim then we would be back in the same

7 state law.

8 So that's where we are right now. So what we are

9 suggesting to the Court is that the Court, looking at

10 the information that was provided, the cases that we

11 cited in our response, why they should not -- the

12 preclusion effect is not applicable with this case, is

13 that this case, since they are filing a motion to stay

14 answer, we didn't object to it because we want this

15 case to be stayed anyway until the appeal is decided.

16 If the appeal is decided and we are back in

17 Court, then we believe that nothing has happened, and

18 we just pick up from where we are and then they would

19 be required to file the answer.

20 So they haven't filed any answers in the case,

21 they just filed the motion to dismiss. And we are

22 suggesting that the Court stay his decision, take it

23 under advisement until the decision is rendered on the

24 appeal from the 10th Circuit Court of Appeals.

25 I have nothing further, Your Honor.

 25

1 THE COURT: All right. May I ask you a quick

2 question, please.

3 MR. OGUNMENO: Yes.

4 THE COURT: What about the Corey case that has

5 been cited by the movants?

6 MR. OGUNMENO: Well, the Corey case from what I

7 know about it or from what we have decided here is

8 yes, our issue is that even the Corey case was decided

9 not when the appeal was pending. It was decided after

10 the appeal has -- a mandate has been received from the

11 Court of Appeals. So that's when I believe the case

12 was refiled. It wasn't when the appeal was pending.

13 THE COURT: Okay. Thank you.

14 MR. RHODES: Your Honor, may I?

15 THE COURT: Yes.

16 MR. RHODES: Your Honor, I regret to inform that

17 you Mr. Ogunmeno has made downright false statements

18 to this Court. He, first of all, claimed that the

19 defendants filed a preemptive motion and never even

20 answered the case and he never served them.

21 That is false, your Honor. If you look at the

22 docket in this case, Mr. Ogunmeno filed his case back

23 on June 26. He claims he never even obtained summons.

24 That is false, your Honor.

25 If you look at the docket, summons were issued on

 26

1 August 8, including a summons to my client, My Town

2 Media. He then affected service on my client, and I

3 entered an appearance, filed an answer, and at the

4 same time filed a motion for summary judgment on

5 September 8, Your Honor.

6 So Mr. Ogunmeno's claim that he just filed this

7 to somehow toll the statute of limitations and never

8 intended to go forward with the case is an outright

9 fabrication, Your Honor. He served my client. My

10 client filed an answer to this lawsuit. He has never

11 to this day filed what he now says is he wants a

12 motion to stay the case during the pendency of the

13 10th Circuit appeal, those are all outright false

14 statements to this Court, Your Honor.

15 I've answered this case. He didn't call me up

16 and say would you agree to stay? He never filed a

17 motion to stay. I filed a motion for summary

18 judgment. He filed three separate motions for an

19 extension of time to respond to my motion for summary

20 judgment.

21 If he didn't want to go forward with the case, he

22 had three opportunities he could have asked for what

23 he now says is this request to stay the entire

24 lawsuit, because he never intended to proceed with

25 this lawsuit. He now claims he was simply attempting

 27

1 to toll the statute of limitations, Your Honor.

2 I think you are now beginning to see why he and

3 his client were sanctioned in the Federal District

4 Court, Your Honor. This is a lawyer, who I regret to

5 say, simply cannot be trusted. He stands right up

6 here and makes downright false representations to this

7 Court.

8 Your Honor, you asked the question about the

9 Corey case and he gave you an answer about the pending

10 appeal. He's mixing apples and oranges. The

11 relevance of the Corey case has nothing to do with the

12 appeal. The relevance of the Corey case is that a

13 sanctions dismissal is a dismissal on the merits.

14 He ignores that in response to Your Honor's

15 question. He ignores the Rhoten case, that the

16 pendency of an appeal is irrelevant to a summary

17 judgment. Again, completely ignores the fact that the

18 Kansas Supreme Court in Rhoten where Ms. Rhoten had an

19 appeal then pending in Federal Court, the Kansas

20 Supreme Court said was irrelevant.

21 So he's mixing apples and oranges. I know we

22 keep talking about bites at the apples. I had two

23 bites, somebody over here had four bites and now I'm

24 talking about oranges. But unfortunately with the

25 opposition we are dealing with, that is the level we

 28

1 have to go to, is talking about fruit, because that's

2 what we are dealing here with, Your Honor.

3 So with that correction to the record, Your

4 Honor, there has been no opposition to the substance

5 of the motion so I have nothing further to add unless

6 this Court has any questions.

7 THE COURT: I really don't

8 MR. RHODES: Thank you.

9 THE COURT: -- at this point. Except that you

10 brought up, when you first addressed the Court, that I

11 needed to enter a formal order allowing their third

12 request to file their response out of time.

13 MR. RHODES: Yes, Your Honor, I have no

14 opposition to that. I want the record to be clear

15 that you've granted that and their opposition is on

16 file.

17 THE COURT: Is that true of all counsel?

18 MR. PHILLIPS: Correct, Judge.

19 MR. DEPEW: Yes, Your Honor.

20 THE COURT: All right. It is granted then, thank

21 you.

22 MR. OGUNMENO: Your Honor, if I may.

23 THE COURT: Go ahead. Mr. Ogunmeno, let's let

24 Mr. -- I will let these two gentlemen address and that

25 way you can handle it all at one time.

 29

1 MR. DEPEW: Your Honor, I just have four quick

2 points to make. No.1, obviously, under the Kansas

3 rules a motion to dismiss serves as a response or a

4 responsive pleading to a petition.

5 Second point is that for the plaintiffs to have

6 any sort of success at the 10th Circuit Court of

7 Appeals, that is going to require the 10th Circuit to

8 overrule its well-established precedent in the Corey

9 case because that case answers that question.

10 With regard to the -- to today's springing

11 mention of the statute of limitations as being a

12 reason for filing this case, I can't find anywhere in

13 the original petition or in the response that was

14 filed to any of the motions to dismiss or motions for

15 summary judgment that the statute of limitation

16 preservation was a justification. So that's just come

17 out of left field.

18 And finally, my fourth and most important point

19 is the plaintiffs have stated that they are confident

20 that the 10th Circuit is going to reverse Judge

21 Robinson's order. And if they are correct, then that

22 serves essentially as an admission that this case

23 isn't needed. Because if they are successful in the

24 10th Circuit reversing Judge Robinson's order, then

25 the federal case is back on. As we've pointed out

 30

1 before, the exact same claims that are raised in this

2 case are pending, will be adjudicated there, and we

3 are done.

4 But the bottom line is there is still -- if their

5 assertion of confidence in a reversal by the 10th

6 Circuit is going to be given any sort of credence at

7 all, all it does is support our motions and point out

8 the obvious, that this case should never have been

9 filed. Thank you.

10 MR. PHILLIPS: Plaintiff's counsel in his argument

11 failed to address why Rhoten does not -- why Rhoten

12 should be changed. There was no good faith argument

13 for reversal of existing precedent. He failed to even

14 mention In Re: Corey again until you, Judge, asked

15 him.

16 This is not appropriate litigation tactics. This

17 is why he was sanctioned in Federal Court.

18 MR. OGUNMENO: Yes, Your Honor. Let me just -- I

19 don't want to be passionate here but Mr. Rhodes is

20 just being abusive here.

21 Let me make some corrections here. When I said

22 defendant, I'm referring to defendant Loy and -- Loy

23 and Fleming as the ones that enter appearance without

24 being served or are filing a motion without being

25 served.
 31

1 So, yes, his claim is well -- his correction is

2 well taken that, yes, we did, after the filing of

3 motions to dismiss, we did serve them in case they

4 were going to claim that they didn't get service.

5 That's the reason that they were served.

6 But my original statement that the defendant

7 that I should have declared that the Defendant Loy and

8 Fleming were the ones who were not served and they

9 just entered their appearance and that's how this case

10 has started moving and we have to respond to some of

11 the motions that they filed. Thank you.

12 THE COURT: Okay. Anything else from anybody?

13 MR. RHODES: No, Your Honor.

14 MR. DEPEW: No, Your Honor.

15 MR. PHILLIPS: (Shook head. )

16 THE COURT: Thank you. I would like to put this

17 in writing, and I will get something to you as quickly

18 as I can.

19 MR. RHODES: Thank you, Your Honor.

20 MR. DEPEW: Thank you, Your Honor.

21 MR. OGUNMENO: Thank you.

22 (Whereupon the proceedings concluded at 2:28

23 p.m., January 16, 2018.)

24

25
 32

1 STATE OF KANSAS)
) SS.
-" 2 CRAWFORD COUNTY)

3 CERTIFICATE

4 I, Shaun J. Higgins, a Certified Shorthand

5 Reporter, by virtue of the laws of the State of

6 Kansas, and the regularly appointed, qualified and

7 acting official Reporter for the Eleventh Judicial

8 District of the State of Kansas do hereby certify

9 that as such official reporter, I was present at and

10 reported in machine shorthand the above and

11 foregoing proceedings had on the date above set out

12 before the Honorable EDWARD E. BOUKER, Assigned Judge

13 of the Eleventh Judicial District of the State of

14 Kansas, Sitting in and for the County of Crawford.

15 I further certify that pursuant to law my

16 shorthand notes were transcribed under my supervision

17 and that the foregoing is a true and correct

18 transcript of my notes in said case.

19 Signed and dated in my office this 22nd day

20 of January, 2018.

21
/s/ Shaun J. Higgins
22 SHAUN J. HIGGINS, RMR
KS CSR #0904
23 OFFICIAL COURT REPORTER

24

25