Preview
IN THE DISTRICT COURT
Plaintiff,
410TH JUDICIAL DISTRICT
MARIA T. EARLE,
Defendant.
MUM NEN
MONTGOMERY COUNTY, TEXAS
PLAINTIFF'S RESPONSE TO DEFENDANT’S MOTION FOR LEAVE TO
WITHDRAW ADMISSION OF FACT, AND, REPLY TO DEFENDANT’S
ANSWER TO SUMMARY JUDGMENT
TO THE HONORABLE JUDGE OF SAID COURT:
NOW COME Plaintiff, George Earle, Plaintiff in the aforementioned cause and
Movant herein, and bring this, his Plaintiff's Response to Defendant’s Motion for Leave to
Withdraw Admission of Fact, and, Reply to Defendant’s Answer to Summary Judgment, and
shows this Court the following.
On December 4, 2018, Plaintiff filed his Motion for Partial Summary Judgment based on
Deemed Admissions.
On December 13, 2018, Defendant filed her Defendant's Motion for Leave to Withdraw
Admission of Fact.
On December 21, 2018, Defendant filed her Defendant's Answer to Motion for Summary
Judgment.
Now, Plaintiff submits his (1) Response to Defendant’s Motion for Leave to Withdraw
Admission of Fact, and, (2) Reply to Defendant’s Answer to [Plaintiff's] Motion for
ofSummary Judgment [Based on Deemed Admissions]. For the sake of brevity, Plaintiff has
combined said responses into one filing.
FOR LEAVE TO WITHDRAW ADMISSION OF FACT
Under T ULES OF , withdrawal of admissions can only allow a
party to withdraw admissions if “(a) the party shows good cause for the withdrawal or
amendment; and (b) the court finds that the parties relying upon the responses and deemed
admissions will not be unduly prejudiced and that the presentation of the merits of the
action will be subserved by permitting the party to amend or withdraw the admission.”
In essence, the statute creates a three-prong defense which must be proven. The party must
good cause, no undue prejudice unto the other party, and presentation of
merits will suffer if motion is denied. It should be noted that all three prongs of said test
must be satisfied and not just one or two of the prongs; this is an “all or nothing” legal
doctrine.
The admissions in question are merits-preclusive admissions. As such, Plaintiff must and
will show that Defendant acted in bad faith or with callous disregard for the rules of civil
procedure.
Defendant Cannot Demonstrate Good Cause for Withdrawal of Deemed Admissions
The first prong is “good cause.” Defendant must show good cause for withdrawal of
deemed admissions. In her motion, Defendant argues that good cause exists because
“Defendant was never served with the Request for Admissions and was unaware of the
TRCP 198.3
ofrequirement to answer the Requests for Admissions even if they ] had been served.”
This argument is disingenuous. First of all, Defendant has been served with the request for
admissions in question under Texas law. Under TRCP R 21a(b), “Service by mail or
commercial delivery service shall be complete upon deposit of the document, post-paid
and properly addressed, in the mail or with a commercial delivery service.” Plaintiff served
Defendant with his Request for Admissions as part of his discovery packet which sent to
Defendant both via certified mail envelope, and, uncertified mail envelope. The envelopes
were prepaid and the address for Defendant on both was correct. The certified mail
envelope was returned after being unclaimed. These facts are not disputed by Defendant.
The uncertified mail envelope was never returned to sender; it is presumed to have been
received by Defendant. Defendant never makes any assertion that the uncertified mail
envelope was not received and Plaintiff puts forth that Defendant received the uncertified
mail envelope. As such, Defendant er TRCP.
Defendant argues in addition that “she was unaware of the requirement to answer the
Requests for Admissions even if they [ ] had been served.” This argument is
disingenuous. Addressing Defendant’s dubious theory of not receiving the admissions, the
true adage of “ignorance is not an excuse” is relevant herein. Defendant was served with
both a certified and uncertified mail envelope containing discovery packet of which a
Plaintiff's Request for Admissions was a part. Defendant willfully ignored the uncertified
mail envelope, and, willfully failed to pick up the certified mail envelope after multiple
notices by USPS.
Now, Defendant makes claim that she was “unaware” of the requirements to answer the
Defendant’s Motion to Withdraw Admission of Fact 4 4
ofrequests for admissions. Willful ignorance is not a defense under either Texas when it
comes to deemed admissions. This is well established in Texas law — see Goss v. Bobby
D. Associates, 94 SW 3d 65, 69 - Tex: Court of Appeals, 12th Dist. 2002 (“Appellants
impliedly request that we disregard their deemed admissions and argue that due to their
ignorance of the law, their failure to file responses to the requests for admissions should be
excused. Ignorance of the law is no excuse” ... “The effect of Appellants' failure to file
responses is that the matters admitted were conclusively established unless, on motion, the
court permitted the withdrawal or amendment of the admissions.
In addition, the Requests for Admissions had clear instructions as to how to respond. In
sum, the “good cause” prong herein is not satisfied by Defendant.
Undue prejudice depends on whether withdrawing an admission will delay trial or
significantly hamper the opposing party’s ability to prepare for [trial]. Wheeler v. Green
157 S.W.3d 439, 442 (Tex.2005); see also Marino v. King, 335 S.W.3d 629, 663
, 968 S.W.2d 354, 356 (Tex.1998).
Defendant makes no argument as to how or why undue prejudice would occur in her
Motion to Withdraw Admissions of Fact. She simply states in her motion that it would.
This is not an argument; it is a mere statement. However, in he Answer to Motion for
Summary Judgment, Defendant argues that “there is no evidence that allowing the
admissions to be withdrawn will delay the trial or significantly hamper the requestor's
Internal citations omitted; see also Weaver v. EZ Mart Stores, Inc., 942 SW 2d 167 - Tex: Court of Appeals, 6th
Dist. 1997 (ignorance of the law does not constitute an excuse in being barred by statute of limitations); Osterberg v.
, 12 SW 3d 31 - Tex: Supreme Court 2000 (ignorance or mistake of law is not a defense to prosecution)
See Plaintiff's Exhibit P-1 in his Plaintiff's Motion for Partial Summary Judgment Based on Deemed
Admissions
Defendant’s Motion to Withdraw Admission of Fact 45
ofability to prepare for trial.” This is incorrect. By allowing the admissions to be withdrawn,
the Court will indeed delay the trial in the sense that the deemed admissions — as they are
now — will end the case on summary judgment. As such, the “no undue prejudice” prong
Defendant Cannot Prove That Presentation of Merits Will Suffer if Motion is Denied
This prong basically states that if admissions are not struck, the case could be decided on
deemed — but possibly untrue — facts. As before, Defendant merely makes this statement
but offers no argument to prove it. Plaintiff disagrees with Defendant’s assertion. As such,
no argument has been presented to this Court by Defendant for this prong of the controlling
ith Callous Disregard for the Rules of Civil
of civil procedure. Marino v. King, 335 S.W.3d 629, 634 (Tex.2011); Wheeler v. Green
157 S.W.3d 439, 443-44 (Tex.2005); In re Sewell, 472 S.W.3d at 455-56; Time Warner,
As stated before, Defendant was served with both an uncertified mail envelope and
certified mail envelope containing the discovery packet, of which the Request for
Admissions was a part of. Bad faith applies in cases in which a party knew of pending
deadlines and either consciously or flagrantly did not comply with them. Ramirez v. Noble
Energy, Inc. 521, S.W3d 851, 860 (Tex.App. — Houston [1st Dist.] 2017, no pet.).
UNCERTIFIED MAIL ENVELOPE
Defendant’s
» 157 S.W.3d at 443 n.2.
Defendant’s Motion to Withdraw Admission of Fact 45
ofIt is telling that Defendant conveniently forgets to make an argument against (or even
mention) the uncertified mail envelope in her pleadings addressing the deemed admissions,
despite Plaintiff's clear mention of this in his Plaintiff's Motion for Summary Judgment
Based on Deemed Admissions 4 8. While Plaintiff has nothing but the claim itself that an
uncertified mail envelope was sent to Defendant, Defendant’s lack of response and
complete silence about said uncertified mail envelope speaks volumes.
The uncertified mail envelope aside, Defendant acted callously and without regard to rules
of civil procedure as to the certified mail envelope as well. Aside from the returned certified
mail envelope, Defendant has refused to pick up three other certified mail envelopes from
Plaintiff's attorney. With the discovery packet certified mail envelope, that makes ____
unclaimed certified mail enve
August 2, 2018: Cease & Desist Letter (returned unclaimed);
med);
November 1, 2018: Plaintiffs Response to Defendant's Motion to Seal Records
(returned unclaimed);
December 6, 2018: Notice of Submission on Plaintiffs Motion for Summary
Judgment (remains unclaimed and is still with United States Post Office).
It is important to note as to what great lengths the United States Post Office (“USPS”) will
go to in its attempts to deliver a certified mail envelope. If no one is available to sign for
the letter, the letter carrier will leave a delivery slip with instructions on how to claim one’s
certified mail at one’s nearest post office location. If no one picks up the letter after five to
seven days of the delivery, USPS attempts a second delivery. If no one is available again
See Plaintiff's Exhibit P-1 with this pleading
See Plaintiff's Motion for Summary Judgment Based on Deemed Admissions Exhibit P-2 and P-3
See Plaintiff's Exhibits P-3 and P-4with this pleading
See Plaintiff's Exhibit P-5 and P-6 with this pleading
ofto sign, the letter carrier will leave behind a second delivery slip. Another attempt is made
to the delivery address in 10 to 12 days, with a third delivery slip being left. The letter is
then held by the local post office location for an additional five to seven days in case the
recipient comes by to pick up the letter. Finally, if the recip e by within 5
to 7 days, USPS marks the letter "unclaimed" and returns it to
Defendant is a highly-educated individual with multiple advanced degrees to her name.
She cannot claim ignorance of not knowing how the United States Postal System works.
Even after she knew that she was being sued, Defendant still continued to multiple certified
mail envelopes. Defendant did so with clear bad faith and callous disregard to rules of
procedure, to the point which meets and exceeds the burden established by the Courts in
Time Warner, Inc.
III. PLAINTIFF’S RESPONSE TO DEFENDANT’S
ANSWER TO MOTION FOR SUMMARY JUDGMENT
In her Answer to Motion for Summary Judgment, Defendant falls back on stare decisis
that even a slight excuse will suffice withdrawing the deemed admissions, especially when
delay or prejudice to the opposing party will not result. However, that stare decisis is not
absolute and has to be coupled with the bad faith or with callous disregard for the rules of
Defendant has clearly acted with bad faith and with callous disregard for the rules of civil
procedure herein. As outlined above, Defendant received both an uncertified and certified
mail envelopes of discovery requests. She chose to ignore the former, and despite numerous
to pick up the latter from her cl
Defendant’s Answer to Motion for Summary Judgment, § 1
ofOnce Plaintiff filed his motion for summary judgment based on the deemed admissions,
only then did Defendant react by seeking to withdraw deemed admissions. However, she
still wholly failed to address her receipt of the uncertified mail envelope, and, made generic
claims of “mistake” and “ignorance” as to the certified mail envelope (while having a
history of failing to accept multiple other certified mail envelopes from the same attorney).
Defendant goes on to hint that a higher standard to show good cause might apply for
attorneys as opposed to pro se parties. However, that again has to be coupled with bad
faith and with callous disregard for the rules of civil procedure precedent. Being pro se is
not a free pass, as clearly established by Plaintiff in 4 9 of this pleading. Even if Defendant
was provided with some leeway, how much leeway is too much? Defendant has ignored a
total of four certified letters from Plaintiff's attorney in as many months; three after being
served with process of the suit. Defendant has also ignored an uncertified mail envelope
containing the request for admissions which she is presumed to have received. At what
point is the “line crossed” into bad faith and with callous disregard for the rules of civil
procedure precedent? Defendant herself echoes Wheeler stating that the m
on an actor's state of mind.” If that is so, then surely the Defendant’s state of mind has
been proven: clear disregard for the uncertified mail envelope containing Requests for
Admissions; failure to pick up certified mail envelope containing Requests for Admissions;
and failure to pick up a total of four certified letters, three of which were after Defendant
was served with process and knew that she was being sued. Only when Plaintiff has moved
for summary judgment based on the deemed admissions did Defenda
Defendant’s Answer to Motion for Summary Judgment, § 1
Defendant’s Answer to Motion for Summary Judgment, § 1
ofDefendant’s behavior in this case has been the embodiment of bad faith and with callous
disregard for the rules of civil
IV. DEFENDANT’S AFFIRMATIVE DEFENSES
In Defendant’s Answer to Summary Judgment §§| 2-3 Defendant mentions several
affirmative defenses to Plaintiff's causes of action of defamation, and Plaintiff will respond
to these herein in case the Court takes these into its general consideration in regards to
mmary judgment.
Defendant’s claim of “good faith” and “opinion” does not stand scrutiny. First, if the Court
is inclined to disallow the admissions to be withdrawn, the deemed admissions pierce both
the “good faith” and “opinion” defenses. Second, Defendant’s “good faith” affirmative
defense is almost comical. Given the recipient parties (Plaintiffs closest family and
friends), the timing, (right after the divorce between Plaintiff and Defendant was finalized),
and, the sheer ludicrousness of the letter (Defendant invoking Hitler, claiming that Plaintiff
was a homosexual because he liked certain types of cars and held his telescope upright,
and other absurd claims about Plaintiffs sexuality coupled with other nonsensical claims),
the “good faith” defense simply
Likewise, the “opinion” affirmative defense also does not stand scrutiny. Defendant does
not state her opinion in the defamatory letter; she clearly and unequivocally alleges (false)
facts in her letter that Plaintiff is a homosexual, and, has had numerous adulterous affairs
While a generous interpretation can create a gray area between opinion and fact, Defendant
has unequivocally crossed it with her defamatory letter.
ofbove, Defendant makes mention that she “would show [the
aforementioned affirmative defenses] by her First Amended Answe however, no such
pleading has been filed with the Court or served unto Plaintiff's attorney, nor do they exist
in Defendant’s Original Answer. As such, Defendant is estopped from arguing these
affirmative defenses under TRCP 94. Ergo, Defendant’s attempts at introducing
affirmative defenses herein should not apply to the Court’s decision on whether or not to
grant Plaintiff's Motion for Summary Judgment Based on Deemed Admissions.
WHEREAS, Plaintiffs therefore respectfully request that this Honorable Court deny Defendant
leave to withdraw admission of fact, grant Plaintiff's motion for partial summary judgment, and
render judgment in favor of Plaintiff against Defendant for costs, attorney's fees, set the matter for
a hearing for unliquidated damages, and, grant Plaintiff such other and further relief to which he
may show itself to be justly entitled.
Respectfully submitted,
Ilionsky Law, PLLC
Tel. (713) 482-1974
/s/ E. Z. llionsky
Texas Bar No. 24059992
George Earle
Id.
ofCERTIFICATE OF SERVICE
I certify that a true and correct copy of the above was served unto all parties as required
ROCEDURE. Namely:
/s/ E. Z. Ilionsky
E-mail: attorney@ilionsky.com
ofUNSWORN DECLARATION IN LIEU
My name is Eli Zev “E.Z.” Ilionsky. I am over th dIam fully competent
to testify to the following facts, which are based on my personal knowledge and are true and
correct.
Attached to this pleading is Exhibit P-1, which is a true and correct copy of Plaintiff's
cease and desist letter, sent to Defendant at 541 FM 1488 Rd #1630, Conroe, Texas 77384 on
August 2, 2018.
Attached to this pleading is Exhibits P-3 and P-4, which are a true and correct copies
of front and back of envelope of Plaintiff's Response to Defendant's Motion to Seal Records,
, Texas 77384 on November 1,
2018.
Attached to this pleading is Exhibits P-5 and P-6, which are a true and correct copies
of the green card and online tracking information, respectively, from the certified mailing of
Plaintiffs Notice of Submission on Plaintiff's Motion for Summary Judgment within this case,
on December 6, 2018.
Lier
My name is E. Z. Ilionsky. My address is 2011 Leeland St., Hous
Texas 77003. I am the attorney for Plaintiff in this case. I de
under penalty of perjury that the foregoing is true and correct
Executed in Harris County, State of Texas, on the 31st day of
December, 2018.
Lier
ofEXHIBIT
+e:
$7.41
R2306M147670-11
‘ |
” a | ll
Ok? WO WN 0503 o757 y
O ves
Ms MARA CARE
BAL EM SBE ROAD 4 oso
CON RO , tt BAS FIaRy
717384
757
Domestic Ratum Riceipt
4. Restncted Delivery? (Extra Fee)
2M
os03 0
ete
232
xEXHIBIT
ZETSpmUpse 4
https://tools.usps.co go/TrackConfir _ ction ?tLabels=70170530000108254096 3/3
Preview
IN THE DISTRICT COURT Plaintiff, 410TH JUDICIAL DISTRICT MARIA T. EARLE, Defendant. MUM NEN MONTGOMERY COUNTY, TEXAS PLAINTIFF'S RESPONSE TO DEFENDANT’S MOTION FOR LEAVE TO WITHDRAW ADMISSION OF FACT, AND, REPLY TO DEFENDANT’S ANSWER TO SUMMARY JUDGMENT TO THE HONORABLE JUDGE OF SAID COURT: NOW COME Plaintiff, George Earle, Plaintiff in the aforementioned cause and Movant herein, and bring this, his Plaintiff's Response to Defendant’s Motion for Leave to Withdraw Admission of Fact, and, Reply to Defendant’s Answer to Summary Judgment, and shows this Court the following. On December 4, 2018, Plaintiff filed his Motion for Partial Summary Judgment based on Deemed Admissions. On December 13, 2018, Defendant filed her Defendant's Motion for Leave to Withdraw Admission of Fact. On December 21, 2018, Defendant filed her Defendant's Answer to Motion for Summary Judgment. Now, Plaintiff submits his (1) Response to Defendant’s Motion for Leave to Withdraw Admission of Fact, and, (2) Reply to Defendant’s Answer to [Plaintiff's] Motion for ofSummary Judgment [Based on Deemed Admissions]. For the sake of brevity, Plaintiff has combined said responses into one filing. FOR LEAVE TO WITHDRAW ADMISSION OF FACT Under T ULES OF , withdrawal of admissions can only allow a party to withdraw admissions if “(a) the party shows good cause for the withdrawal or amendment; and (b) the court finds that the parties relying upon the responses and deemed admissions will not be unduly prejudiced and that the presentation of the merits of the action will be subserved by permitting the party to amend or withdraw the admission.” In essence, the statute creates a three-prong defense which must be proven. The party must good cause, no undue prejudice unto the other party, and presentation of merits will suffer if motion is denied. It should be noted that all three prongs of said test must be satisfied and not just one or two of the prongs; this is an “all or nothing” legal doctrine. The admissions in question are merits-preclusive admissions. As such, Plaintiff must and will show that Defendant acted in bad faith or with callous disregard for the rules of civil procedure. Defendant Cannot Demonstrate Good Cause for Withdrawal of Deemed Admissions The first prong is “good cause.” Defendant must show good cause for withdrawal of deemed admissions. In her motion, Defendant argues that good cause exists because “Defendant was never served with the Request for Admissions and was unaware of the TRCP 198.3 ofrequirement to answer the Requests for Admissions even if they ] had been served.” This argument is disingenuous. First of all, Defendant has been served with the request for admissions in question under Texas law. Under TRCP R 21a(b), “Service by mail or commercial delivery service shall be complete upon deposit of the document, post-paid and properly addressed, in the mail or with a commercial delivery service.” Plaintiff served Defendant with his Request for Admissions as part of his discovery packet which sent to Defendant both via certified mail envelope, and, uncertified mail envelope. The envelopes were prepaid and the address for Defendant on both was correct. The certified mail envelope was returned after being unclaimed. These facts are not disputed by Defendant. The uncertified mail envelope was never returned to sender; it is presumed to have been received by Defendant. Defendant never makes any assertion that the uncertified mail envelope was not received and Plaintiff puts forth that Defendant received the uncertified mail envelope. As such, Defendant er TRCP. Defendant argues in addition that “she was unaware of the requirement to answer the Requests for Admissions even if they [ ] had been served.” This argument is disingenuous. Addressing Defendant’s dubious theory of not receiving the admissions, the true adage of “ignorance is not an excuse” is relevant herein. Defendant was served with both a certified and uncertified mail envelope containing discovery packet of which a Plaintiff's Request for Admissions was a part. Defendant willfully ignored the uncertified mail envelope, and, willfully failed to pick up the certified mail envelope after multiple notices by USPS. Now, Defendant makes claim that she was “unaware” of the requirements to answer the Defendant’s Motion to Withdraw Admission of Fact 4 4 ofrequests for admissions. Willful ignorance is not a defense under either Texas when it comes to deemed admissions. This is well established in Texas law — see Goss v. Bobby D. Associates, 94 SW 3d 65, 69 - Tex: Court of Appeals, 12th Dist. 2002 (“Appellants impliedly request that we disregard their deemed admissions and argue that due to their ignorance of the law, their failure to file responses to the requests for admissions should be excused. Ignorance of the law is no excuse” ... “The effect of Appellants' failure to file responses is that the matters admitted were conclusively established unless, on motion, the court permitted the withdrawal or amendment of the admissions. In addition, the Requests for Admissions had clear instructions as to how to respond. In sum, the “good cause” prong herein is not satisfied by Defendant. Undue prejudice depends on whether withdrawing an admission will delay trial or significantly hamper the opposing party’s ability to prepare for [trial]. Wheeler v. Green 157 S.W.3d 439, 442 (Tex.2005); see also Marino v. King, 335 S.W.3d 629, 663 , 968 S.W.2d 354, 356 (Tex.1998). Defendant makes no argument as to how or why undue prejudice would occur in her Motion to Withdraw Admissions of Fact. She simply states in her motion that it would. This is not an argument; it is a mere statement. However, in he Answer to Motion for Summary Judgment, Defendant argues that “there is no evidence that allowing the admissions to be withdrawn will delay the trial or significantly hamper the requestor's Internal citations omitted; see also Weaver v. EZ Mart Stores, Inc., 942 SW 2d 167 - Tex: Court of Appeals, 6th Dist. 1997 (ignorance of the law does not constitute an excuse in being barred by statute of limitations); Osterberg v. , 12 SW 3d 31 - Tex: Supreme Court 2000 (ignorance or mistake of law is not a defense to prosecution) See Plaintiff's Exhibit P-1 in his Plaintiff's Motion for Partial Summary Judgment Based on Deemed Admissions Defendant’s Motion to Withdraw Admission of Fact 45 ofability to prepare for trial.” This is incorrect. By allowing the admissions to be withdrawn, the Court will indeed delay the trial in the sense that the deemed admissions — as they are now — will end the case on summary judgment. As such, the “no undue prejudice” prong Defendant Cannot Prove That Presentation of Merits Will Suffer if Motion is Denied This prong basically states that if admissions are not struck, the case could be decided on deemed — but possibly untrue — facts. As before, Defendant merely makes this statement but offers no argument to prove it. Plaintiff disagrees with Defendant’s assertion. As such, no argument has been presented to this Court by Defendant for this prong of the controlling ith Callous Disregard for the Rules of Civil of civil procedure. Marino v. King, 335 S.W.3d 629, 634 (Tex.2011); Wheeler v. Green 157 S.W.3d 439, 443-44 (Tex.2005); In re Sewell, 472 S.W.3d at 455-56; Time Warner, As stated before, Defendant was served with both an uncertified mail envelope and certified mail envelope containing the discovery packet, of which the Request for Admissions was a part of. Bad faith applies in cases in which a party knew of pending deadlines and either consciously or flagrantly did not comply with them. Ramirez v. Noble Energy, Inc. 521, S.W3d 851, 860 (Tex.App. — Houston [1st Dist.] 2017, no pet.). UNCERTIFIED MAIL ENVELOPE Defendant’s » 157 S.W.3d at 443 n.2. Defendant’s Motion to Withdraw Admission of Fact 45 ofIt is telling that Defendant conveniently forgets to make an argument against (or even mention) the uncertified mail envelope in her pleadings addressing the deemed admissions, despite Plaintiff's clear mention of this in his Plaintiff's Motion for Summary Judgment Based on Deemed Admissions 4 8. While Plaintiff has nothing but the claim itself that an uncertified mail envelope was sent to Defendant, Defendant’s lack of response and complete silence about said uncertified mail envelope speaks volumes. The uncertified mail envelope aside, Defendant acted callously and without regard to rules of civil procedure as to the certified mail envelope as well. Aside from the returned certified mail envelope, Defendant has refused to pick up three other certified mail envelopes from Plaintiff's attorney. With the discovery packet certified mail envelope, that makes ____ unclaimed certified mail enve August 2, 2018: Cease & Desist Letter (returned unclaimed); med); November 1, 2018: Plaintiffs Response to Defendant's Motion to Seal Records (returned unclaimed); December 6, 2018: Notice of Submission on Plaintiffs Motion for Summary Judgment (remains unclaimed and is still with United States Post Office). It is important to note as to what great lengths the United States Post Office (“USPS”) will go to in its attempts to deliver a certified mail envelope. If no one is available to sign for the letter, the letter carrier will leave a delivery slip with instructions on how to claim one’s certified mail at one’s nearest post office location. If no one picks up the letter after five to seven days of the delivery, USPS attempts a second delivery. If no one is available again See Plaintiff's Exhibit P-1 with this pleading See Plaintiff's Motion for Summary Judgment Based on Deemed Admissions Exhibit P-2 and P-3 See Plaintiff's Exhibits P-3 and P-4with this pleading See Plaintiff's Exhibit P-5 and P-6 with this pleading ofto sign, the letter carrier will leave behind a second delivery slip. Another attempt is made to the delivery address in 10 to 12 days, with a third delivery slip being left. The letter is then held by the local post office location for an additional five to seven days in case the recipient comes by to pick up the letter. Finally, if the recip e by within 5 to 7 days, USPS marks the letter "unclaimed" and returns it to Defendant is a highly-educated individual with multiple advanced degrees to her name. She cannot claim ignorance of not knowing how the United States Postal System works. Even after she knew that she was being sued, Defendant still continued to multiple certified mail envelopes. Defendant did so with clear bad faith and callous disregard to rules of procedure, to the point which meets and exceeds the burden established by the Courts in Time Warner, Inc. III. PLAINTIFF’S RESPONSE TO DEFENDANT’S ANSWER TO MOTION FOR SUMMARY JUDGMENT In her Answer to Motion for Summary Judgment, Defendant falls back on stare decisis that even a slight excuse will suffice withdrawing the deemed admissions, especially when delay or prejudice to the opposing party will not result. However, that stare decisis is not absolute and has to be coupled with the bad faith or with callous disregard for the rules of Defendant has clearly acted with bad faith and with callous disregard for the rules of civil procedure herein. As outlined above, Defendant received both an uncertified and certified mail envelopes of discovery requests. She chose to ignore the former, and despite numerous to pick up the latter from her cl Defendant’s Answer to Motion for Summary Judgment, § 1 ofOnce Plaintiff filed his motion for summary judgment based on the deemed admissions, only then did Defendant react by seeking to withdraw deemed admissions. However, she still wholly failed to address her receipt of the uncertified mail envelope, and, made generic claims of “mistake” and “ignorance” as to the certified mail envelope (while having a history of failing to accept multiple other certified mail envelopes from the same attorney). Defendant goes on to hint that a higher standard to show good cause might apply for attorneys as opposed to pro se parties. However, that again has to be coupled with bad faith and with callous disregard for the rules of civil procedure precedent. Being pro se is not a free pass, as clearly established by Plaintiff in 4 9 of this pleading. Even if Defendant was provided with some leeway, how much leeway is too much? Defendant has ignored a total of four certified letters from Plaintiff's attorney in as many months; three after being served with process of the suit. Defendant has also ignored an uncertified mail envelope containing the request for admissions which she is presumed to have received. At what point is the “line crossed” into bad faith and with callous disregard for the rules of civil procedure precedent? Defendant herself echoes Wheeler stating that the m on an actor's state of mind.” If that is so, then surely the Defendant’s state of mind has been proven: clear disregard for the uncertified mail envelope containing Requests for Admissions; failure to pick up certified mail envelope containing Requests for Admissions; and failure to pick up a total of four certified letters, three of which were after Defendant was served with process and knew that she was being sued. Only when Plaintiff has moved for summary judgment based on the deemed admissions did Defenda Defendant’s Answer to Motion for Summary Judgment, § 1 Defendant’s Answer to Motion for Summary Judgment, § 1 ofDefendant’s behavior in this case has been the embodiment of bad faith and with callous disregard for the rules of civil IV. DEFENDANT’S AFFIRMATIVE DEFENSES In Defendant’s Answer to Summary Judgment §§| 2-3 Defendant mentions several affirmative defenses to Plaintiff's causes of action of defamation, and Plaintiff will respond to these herein in case the Court takes these into its general consideration in regards to mmary judgment. Defendant’s claim of “good faith” and “opinion” does not stand scrutiny. First, if the Court is inclined to disallow the admissions to be withdrawn, the deemed admissions pierce both the “good faith” and “opinion” defenses. Second, Defendant’s “good faith” affirmative defense is almost comical. Given the recipient parties (Plaintiffs closest family and friends), the timing, (right after the divorce between Plaintiff and Defendant was finalized), and, the sheer ludicrousness of the letter (Defendant invoking Hitler, claiming that Plaintiff was a homosexual because he liked certain types of cars and held his telescope upright, and other absurd claims about Plaintiffs sexuality coupled with other nonsensical claims), the “good faith” defense simply Likewise, the “opinion” affirmative defense also does not stand scrutiny. Defendant does not state her opinion in the defamatory letter; she clearly and unequivocally alleges (false) facts in her letter that Plaintiff is a homosexual, and, has had numerous adulterous affairs While a generous interpretation can create a gray area between opinion and fact, Defendant has unequivocally crossed it with her defamatory letter. ofbove, Defendant makes mention that she “would show [the aforementioned affirmative defenses] by her First Amended Answe however, no such pleading has been filed with the Court or served unto Plaintiff's attorney, nor do they exist in Defendant’s Original Answer. As such, Defendant is estopped from arguing these affirmative defenses under TRCP 94. Ergo, Defendant’s attempts at introducing affirmative defenses herein should not apply to the Court’s decision on whether or not to grant Plaintiff's Motion for Summary Judgment Based on Deemed Admissions. WHEREAS, Plaintiffs therefore respectfully request that this Honorable Court deny Defendant leave to withdraw admission of fact, grant Plaintiff's motion for partial summary judgment, and render judgment in favor of Plaintiff against Defendant for costs, attorney's fees, set the matter for a hearing for unliquidated damages, and, grant Plaintiff such other and further relief to which he may show itself to be justly entitled. Respectfully submitted, Ilionsky Law, PLLC Tel. (713) 482-1974 /s/ E. Z. llionsky Texas Bar No. 24059992 George Earle Id. ofCERTIFICATE OF SERVICE I certify that a true and correct copy of the above was served unto all parties as required ROCEDURE. Namely: /s/ E. Z. Ilionsky E-mail: attorney@ilionsky.com ofUNSWORN DECLARATION IN LIEU My name is Eli Zev “E.Z.” Ilionsky. I am over th dIam fully competent to testify to the following facts, which are based on my personal knowledge and are true and correct. Attached to this pleading is Exhibit P-1, which is a true and correct copy of Plaintiff's cease and desist letter, sent to Defendant at 541 FM 1488 Rd #1630, Conroe, Texas 77384 on August 2, 2018. Attached to this pleading is Exhibits P-3 and P-4, which are a true and correct copies of front and back of envelope of Plaintiff's Response to Defendant's Motion to Seal Records, , Texas 77384 on November 1, 2018. Attached to this pleading is Exhibits P-5 and P-6, which are a true and correct copies of the green card and online tracking information, respectively, from the certified mailing of Plaintiffs Notice of Submission on Plaintiff's Motion for Summary Judgment within this case, on December 6, 2018. Lier My name is E. Z. Ilionsky. My address is 2011 Leeland St., Hous Texas 77003. I am the attorney for Plaintiff in this case. I de under penalty of perjury that the foregoing is true and correct Executed in Harris County, State of Texas, on the 31st day of December, 2018. Lier ofEXHIBIT +e: $7.41 R2306M147670-11 ‘ | ” a | ll Ok? WO WN 0503 o757 y O ves Ms MARA CARE BAL EM SBE ROAD 4 oso CON RO , tt BAS FIaRy 717384 757 Domestic Ratum Riceipt 4. Restncted Delivery? (Extra Fee) 2M os03 0 ete 232 xEXHIBIT ZETSpmUpse 4 https://tools.usps.co go/TrackConfir _ ction ?tLabels=70170530000108254096 3/3