UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF THE STATE OF TEXAS

ABILENE DIVISION

TSEPHANYAH Y. HAWKINS,

YAHCHANAN Y. HAWKINS

Plaintiffs

v.

WHITTEN & YOUNG, P.C.,

CLAUDIA M. HUTCHISON, in her

personal capacity and in her capacities with

StenoScribe, Incorporated, Vocedit,

Inc., NORMAN M. OSTER, in his personal

Capacity and in his capacities with

StenoScribe, lncorporated, Vocedit, Inc.,

STENOSCRIBE. INCORPORATED

THE NATIOML INSTITUTE OF

REALTIME REPORTERS, INC.,

VOCEDIT, INC., CHARLES C. SELF, III,

DONALD L. ANDERSON, JR.

Defendants

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g CivilAction No. 1-05CV-1&4-C

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IIRST AMENDED AI\ISWER OT DEFEI\DA}IT

TIIE NATIONAL INSTITUTE OF REALTIME COURT REPORTERS, INC.

and DEMAIIID X'OR JURY TRIAL

TO TI{E HONORABLE JUDGE OF SAID COURT:

Comes now your Defendant,he Nationalostitut€ of Realtime Coud Reporters, Inc., and

answers the numbered paragraphs inthe Plaintiffs' Second Amended Complaint ('Complaint') as

follows:

1 . Defendant denies that this Cor:rt possesses subj ect matter jurisdiction under I 8

U.S.C. $1595 under the allegationset forth in the Complaint.

2. Defendant denies thatthis Courtpossesses subjectmatterjurisdictionunder28

U.S.C. $ 1331 under the allegationset forth in the Complaint.

3. Defendant denies that this Court possesses subject matterjurisdiction under 28

U.S.C. $1343 under the allegationset forth in the Complaint.

Case 1:05-cv-00184-C Document 117 Filed 03/15/06 Page 1 of 15 PageID 1705
4.

5.

6.

Defendant denies that this Court possesses subject matterjurisdiction under 18

U.S.C. $1961 under the allegationset forth in the Complaint.

Defendant denies that this Court possesses subject matter jurisdiction under 28

U.S.C. $1367 under the allegationset forth in the Complaint.

Defendant denies that venue is proper in this District and Division.

Defendant neither admits nor denies the allegations of the following paragraphs of

the Complaint because they lack sufficient knowledge or information to form a

belief as to their truth:

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Case 1:05-cv-00184-C Document 117 Filed 03/15/06 Page 2 of 15 PageID 1706
Defendant denies the allegations in the following paragaphs of the Complaint:

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9. Pleading with particularity, Defendant answers the remaining paragraphs of the

Complaint as follows:

7 . Defendant admir that Chistolini & DeSimone, P.C. is a Massachusetts

professional corporation engaged in the practice of law whose office is located at

20 McGrath Highway, Quincy, Massachusetts.

Case 1:05-cv-00184-C Document 117 Filed 03/15/06 Page 3 of 15 PageID 1707
9.

10.

15.

t9.

Defendant admits Chistolini resides in Massachusetts and has represented NIRR

as its attorney, Defendant admits that Chistiolini only acted in his representative

capacity as an officer and attomey for NIRR in all dealings on behalf of NIRR

Defendant denies the remaining allegations contained in paragmph 9.

Defendant admits Marilyn Gardner resides in Massachusetts, that she is the

President ofNIRR and tlat she is an attorney. Defendant admits ihat at all

times she only acted in her representative capacity as hesident of NIRR in any

dealings with Claudia Hutchinson and Tsephanyah Hawkins as purported

representatives of StenoScribe, lnc. Defendant denies the remaining allegatiols

contained in paragraph 10.

Defendant neither admits nor denies tle allegations because they lack sufficient

knowledge to form a beliefas to their truth. Defendant denies it criminally

conspired with the Defendant Cafter.

Defendant neitler adrnits nor denies the allegations because they lack

sufficient knowledge to form a belief as to their tnrth. Defendant denies

it criminally conspired with the Defendant Hutchinson.

23. Defendant neither admits nor denies the allegations because they lack

sufficient knowledge to form a belief as to their tnrth. Defendant

denies it criminally coospired with the Defendant Oster.

24. Defendant admits the allegations contained in the first tbree sentences

of paragraph 20, but denies the allegations contained in the fourth sentence.

33. Defendant admits NIRR agreed to purchase computer court reporting systems

from StenoScribe, lnc. at a price of $3,500 per system and denies ths lg6aining

allegations contained in paragraph 33.

M. Defendant neither admits nor denies the allegations because it lacks sufficient

knowledge to form a beliefas to their trutl, but denies that the issuance of the

Temporary lnjunction constitutes action under color ofstate law.

107. Defendant admits that $7,000 was sent to Defendant Carter to be held in escrow

for the benefit of StenoScribe, Inc. pending tho resolution of claims betwe€n the

Plaintiffs and Hutchinson, Defendant neither admits nor denies the remaining

allegations because they lack sufficient knowledge to form a belief as to their

truth.

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Case 1:05-cv-00184-C Document 117 Filed 03/15/06 Page 4 of 15 PageID 1708
108. Defendant admits that the quoted portion ofthe October 13, 2003 letter from

Defendant Cafi€r is conectly stated.

109. Defendant admits that the quoted portion ofthe October 15, 2003 letter from

Defendant Chistolini is conectly stated.

110. Defendant admits tbat the Octob€r 15, 2003 letter from Chistolini to Defendant

Carter was sent solely in his capacity as attorney for NIRR and deny the remaining

allegations contained in paragraphs 109.

ll2. Defendant denies the allegations contained in paragraphs I 12 because a full

accounting was provided to the Plfitiffs through their counsel, Defendaat Self,

on numerous occasions.

138. Defendant admits that Chistolini infonned Defendant Selfthat $84,000 was being

held in escrow, but that $4,080 was to be deducted from that amount for palm.ents

made to third party vendors who provided goods that were supposed to be

provided by StenoScribe, lnc,, but for which StenoScribe/CDS failed to pay.

Defendant denies that a full accounting was not provided to CDS. Such

accounling was provided on multiple occasions to its attomey, Defendant Self.

First Claim for Relief

Deprivation of Property Without l)ue Process

17 5. Defendant realleges and incorporates its answers to paragraphs 1-174 as if set

forth separately herein.

177 , Paragraph 177 states a conslusion of law to which no answer is required. To the

extent that an answer is required, tle allegations are denied.

Second Claim for Relief

Deprivation of Liberty Withouf Due Process

183. Defendant realleges and incorporates its answers to paragraphs 1-182 as if set

forth separately herein.

188. Paragraph 188 states a conclusion of law to which no alswer is required. To the

extent that an answer is required" the allegations are denied.

Case 1:05-cv-00184-C Document 117 Filed 03/15/06 Page 5 of 15 PageID 1709
Third Claim for Relief

Deprivation of 136 Amendment Right to be Free From Enslavenent

1 9 I . Defendant realleges and incorporates its answers to paragraphs I- I 90 as if set

forth separately herein.

193. Paragraph 193 states a conclusion of law to which no answer is required. To the

extent that an answer is required, the allegations are denied.

Fourth Claim for Relief

Deprivation of Freedom of Expression

199. Defendant realleges and incorporates its answers to paragraphs l-198 as if set

forth separately herein.

201. Paragraph 201 states a conclusion oflaw to which no answo is required. To the

extent that an answer is required the allegations are denied.

Fifth Claim forRelief

Deprivation of Privacy

207. Defendalt realleges and incorporates its answers to paragraphs l-206 as if set

forth separately herein.

209. Paragraph 209 states a conclusion oflaw to which no answer is required. To the

extent that ar arswer is required the allegations are denied.

Sixth Claim for Relief

Ileprivation of Property Without Due Process

215. Defendant realleges and incorporates its affv/ers to paragraphs l-214 as if set

forth separately herein.

217 . Paragnph 217 states a conclusion of law to which no answer is required. To the

extent that an answer is requird the allegations are denied.

Case 1:05-cv-00184-C Document 117 Filed 03/15/06 Page 6 of 15 PageID 1710
Seventh Claim for Relief

Deprivation of 13tr Amendment Right to be Free From Enslavement

223. Defendant realleges and incorporates its answers to paragraphs 7-222 x tf set

forth separately herein.

225. Paragaph225 states a conclusion of law to which no answer is required. To the

extent that an answer is required, the allegations are denied.

Eighth Claim for Relief

Deprivation of Freedom of Expression

233. Defendant realleges and incorporates ic answers to paragraphs 1-232 as if set

forth separately herein.

235. Paragraph 235 states a conclusion of law to which no answer is required. To ttre

extent that an answer is required the allegations are denied.

Ninth Claim for Relief

Deprivation of Privacy

241. Defendant realleges and incorporates its answers to paragraphs l-240 as if set

forth separately herein.

243. Pamgnph?43 states a conclusion of law to which no auswer is required. To the

extent that an answer is required the allegations are denied.

Tenth Claim for Relief

Deprlvation of Property Without Due Process

249 . Defendant realleges and incorporates its answers to paragraphs 1 -248 as if set

forth separately herein.

251 . Paragraph 251 states a sonclusion of law to which no answer is required. To the

extent that an answer is required, the allegations are denied.

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Case 1:05-cv-00184-C Document 117 Filed 03/15/06 Page 7 of 15 PageID 1711
Eleventh Claim for Relief

Deprivation of 13e Amendment Right to be Free tr'ron Enslavenenf

257 . Defendant realleges and incorporates its answers to paragraphs I-256 as if set

fortl separately herein.

259, Pragraph259 states a conclusion of law to which no answer is required. To the

extent that an arswer is require4 the allegations are denied.

Twelfth Claim for Relief

Deprivation of Freedom of Expression

267 . Defendant realleges and incorporates its answers to paragraphs I-266 as if set

fodh separately herein.

269. Paragraph 269 states a mnclusion oflaw to which no answer is required. To the

extent that an answer is required the allegations are denied.

Thirteenth Claim for Relief

Deprivation of Pnvacy

275. Defendant realleges and incorporates its answers to paragraphs 1-274 as if set

forth separately herein.

277 . Pwagnph2TT states a conclusion of law to which no answer is required' To the

extent that an a:rswer is required, the allogations are denied.

Fourteenth Claim for Relief

Deprivation of Property Without Due Process

283. The Defendant realleges and incorporates its answers to paragraphs l'282 as tf

set forth separately herein.

285. Paragmph 285 states a conclusion of law to which no answer is required. To the

extent tlat an answer is required, the allegations are denied.

Case 1:05-cv-00184-C Document 117 Filed 03/15/06 Page 8 of 15 PageID 1712
Fifteenth Claim for Relief

Deprivation of 13tr Amendment Right to Be Free from Enslavement

291. Defendant realleges and incorporates its answers to paragraphs l-290 as ifset

forth separately herein.

293. Pangnph293 states a conclusion oflaw to which no answer is required. To the

extetrt that an answer is required" the allegations are denied.

Sixteenth Claim for Relief

Depriration of Freedom of Expression

299. Defendant realleges and incorporaGs its answers to pmagraphs 1-298 as if set

forth separately herein.

301. Paragraph 301 states a conclusion of law to which no answer is required. To the

extent that an arswer is required the allegations are denied.

Seventeenth Claim for Relief

Deprivation of Privacy

307. Defendant realleges and incorporates its answers to paragraphs l-306 as if set

forth separately herein.

309. Paragraph 309 states a conclusion of law to which no answer is required. To the

extent that an answer is requird the allegations are denied.

Eighteenth Claim for Relief

RICO

315. Defenda:rt realleges and incorporates its answers to paragraphs l-3l4asifset

forth separately herein.

3 18. Paragraph 3 I 8 states a conclusion of law to which no answer is required. To the

extent tlat an answer is required, the allegations are denied.

Case 1:05-cv-00184-C Document 117 Filed 03/15/06 Page 9 of 15 PageID 1713
Nineteenfh Claim for Relief

RICO Conspiracy

327 . Defendant realleges and incorporates its answers to paragrapbs 1 -326 if set forth

separately herein.

329. Puagraph 329 states a conclusion of law to which no answer is required. To the

extent that an arswer is required, the allegations are denied.

Twentieth Claim for Rellef

RICO

338. Defendant realleges and incorporates its answers to paragraphs l-337 if set forth

separately herein.

341. Paragraph 341 states a conclusion of law to which no answer is required. To the

extenthat an answer is required, the allegations are denied.

Twen8-Flrst Claim for Relief

tr'orced Labor

349. Defendant rcalleges and incorporates its answers to paragraphs 1-348 as if set

forth separately herein.

Twenty-Second Claim for Relief

Legal Malpractice

360-366. This Count relates to parties other than the Defendant to which no aoswer

is required. To tle extent an answer is required the allegations are denied.

T\rventv-Third Claim for Relief

Unjust Enrichment

367 .Defendant realleges and incorporates its answers to paragrapbs 1-366 as if set

forth separately herein.

l0

Case 1:05-cv-00184-C Document 117 Filed 03/15/06 Page 10 of 15 PageID 1714
Twenfy-Fourth Claim for Relief

Intentional Infliction of Emotional Distress

371. Defendant realleges and incorporates its answers to paragraphs 1-370 as if set

forth separately herein.

372-374. This Count relates to parties other than tfis psfsadanl to which no answer

is required. To tle extent an a:rswer is required the allegations are denied.

Twenty-Fifth Claim for Relief

Breach of Fiduciary Duty

375, Defendant realleges and incorporates iG answers to paragraphs 1-374 as if set

forth separately herein.

376-382 This Count relates to parties other than Defendant to which no answer

is required. To the extent that an answer is required the allegations are

denied.

Twenty-Sixth Claim for Relief

Conspiracy to Deprive Rights

383. Defendant realleges and incorporates its answers to paragaphs 1-382 as if set

forth separately herein.

385. Paragraph 385 states a conclusion oflaw to which no answer is required. To the

extent that an answer is required, the allegations are deded.

386-392 This Count relates to parties other than Defendant to which no answer

is required. To the extent that an answer is required the allegations are

denied.

Twenty-Seventh Claim for Relief

Neglect to Prevent Conspiracy

393. Defendants reallege and incorporate their answers to paragraphs l-392 as if

set forth separately herein.

394-400 This Count relates to parties other than Defendaut to which no answer

is required. To the extent that an answer is required the allegations are

denied.

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Case 1:05-cv-00184-C Document 117 Filed 03/15/06 Page 11 of 15 PageID 1715
AFFIRMATIVE DEFENSES

First Afrtmative Defense

This Court lacks personal jurisdiction over Defendant The National Institute of Realtime

Reporten, Inc.

Second Affrmative Defense

This Court lacks subject matter jurisdiction over tle claims asserted rmder 42 U.S.C. $

1983 as the complaint does not allege cognizabls stals action upon which such claims

must be based.

Third Affrmative l)efense

Plaintitrs' Second Ameuded Complaint fails to state a claim upon which rclief can be

granted against Defendant, The National Lrstitute of Realtime Reporters, Inc.

Fourth Affirmative Defense

The Second Amended Complaint fails to plead its allegations of fraud with

particularity as required by Fed. R. Civ. P. 9(b).

Fifth Affirmative Defense

The Second Amended Complaint fails to plead its allegation of special damages with

particularity as required by Fed. R. Civ. P. 9(g).

Sixth Afr rmative Defense

The Second Amended Complaint fails to plead with particularity the required predicate

acts necessary to set forth a claim under 18 U.S.C. $$ 1961 and 1962.

Seventh Alfr rmative Defense

Payment for all software and technical services has been made.

Eighth Afrirmative Defense

Plaintiffs' claims were satisfied before the filing ofthis lawsuit; there has been an accord

and satisfaction,

t2

Case 1:05-cv-00184-C Document 117 Filed 03/15/06 Page 12 of 15 PageID 1716
Ninth Affirmative Defense

Plaintiffs are esiopped from asserting causes ofaction against Defendant based upon

actions of Defenda:rt in following and in relying upon instructions gtven to it by counsel

for the Plaintiffs.

Tenth Affi rmative Defense

Plaintiffs are in material breach of the oral software purchase contract, have not

performed the conditions of the contrac! and therefore, are barred from any recovery

under the contract or in quantum meruit.

Eleventh Afrirmative Irefense

Defendant acted in regard to the oral agreement to purchase court reporting software and

services from StenoScribe, h. based upon the apparent authority of Claudia Hutchison to

act for Steno Scribe, Inc.

WHEREFORE, having fully answered, Defendant The National Institute of Realtime

Reporters, lnc. respectfi.rlly prays judgment of the Court that the Plaintiffs claims against

Defendant be dismissed, that Plaintiffs take nothing, that Defendant recover its msts and

reasonable attomeys' fees, and for such other and further relief, general or special, at large or in

equity, to which they may be entitled

Defendant demands a jury trial on all counts.

l3

Case 1:05-cv-00184-C Document 117 Filed 03/15/06 Page 13 of 15 PageID 1717
Respectfirlly submitted"

McMahon, Surovik, Suttle, Buhrmann, Hicks,

Gill & Cannon, P.C.

400 Pine Streel Suite 800

PO BOX 3679

Abilene, Texas 79604

325 -67 6-9 t83 | 325 676-8836 FAX

Stphen H. Suttle

State BarNo. 19526000

KenyDiGioia

State BarNo. 24045781

/S/ Stephen H. Suule

BY:

Stephen H. Suttle

StateBarNo. 19526000

ATTORNEYS FOR T}IE NATIONAL

INSTITUTE OF REALTIME REPORTERS, INC.

CERTIfICATE OF SERVICE

This is to certif that on this 156 day ofMarch, 2006n a true and mrrect copy ofthe foregoing

was served on the Plaintiffs uia g€rtjifigd mail, retum receipt requested and all other parties will be

served electronically via e-mail.

Tsephanyah Y. Hawkins

3706BivatsRoad2547

Clyde, Texas 79510

Yahehanan Y. Hawkins

3471hivaf,eRoaA254l

Clyde, Texas 79510

l4

Case 1:05-cv-00184-C Document 117 Filed 03/15/06 Page 14 of 15 PageID 1718
Gary Brown

Law Office of Gary Brown

3041 SouthTu

Abilene, Texas 79605

Attorney for Defendants

The South Carolina School of Court Reporting, Inc.

Claudia Hutchison

Norman Oster

Vocedit, Inc.

Steno Scribe, lnc.

Jill A. Malouf

Mark J. Zimmermann

Tom C. Clark

Dealy Zimmermann Clark Collie & Malouf

3131 Turtle Creek Blvd., Suite 1201

Dallas, Texas 75219

Attomeys for Defendants

Charles C. Self, Itr, Donald L. Andenon, Jr., Whitten & Yormg, P. C.

/S/ Stephen H. Suttle

Stephen H. Suttle

l5

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