ST -TE OF NEW ~~EXI 0

S EVE NTH JUDI CIAL DISTRiCT COURT

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STATE OF NEW MEXICO IN THE SEVENTH JUDICIAL DISTRICT COURT COUNTY OF SIERRA

2010 JAN 15 Prl 3 .9

COU T Cl ~P.K 8 Y L.ia.Fltiiot _ DE P T Y

STATE OF NEW MEXICO ex reI. DEBORAH TOOMEY, an individual, Petitioner, NO. D-072l-CV2009-98 vs. JUDGE: WILLIAM SANCHEZ CITY OF TRUTH OR CONSEQUENCES, et al. Respondents.
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PETITIONER'S MOTION TO STRIKE CITY'S REPLY TO PETITIONER'S REPLY TO RESPONDENT'S MOTION TO DISMISS COMES NOW pro se petitioner, Deborah Toomey, to submit this Motion t Strike City's Reply to Petitioner's Reply to Respondent's Motion to Dismiss and the attached Exhibit of an unsigned letter from Mr. Jost dated January 4,2010 ("ADG letter"). As discussed more fully herein, City's Reply should be stricken because it raises new arguments that have never before been aired. Furthermore, the January 4,2010, letter is unsigned and is not an affidavit, deposition or documentary evidence. Instead, the January 4, 2010, unsigned letter from ADG is best described as new testimony which Petitioner is denied a response. Additionally, the majority of the responses are redundant.

PETITIONER'S MOTION TO STRIKE- Page 1 - D-0721-CV2009-98

MEMORANDUM
1.

INSUPPORT

Respondents introduce in ~3 an unsigned January 4, 2010, letter fro

Mr. Jost of ADO and attach it as an exhibit. The unsigned letter is not the requir affidavit per SCRA 1-043(C). In addition, the unsigned ADO letter is new testimony which Petitioner is denied an opportunity to respond. 2. City and the unsigned ADG letter discuss a "system log" in ~4 and

page 2, ~2, respectively. The "system log" has never been discussed in any previous pleadings, including City's Motion to Dismiss and Petitioner's Reply thereto. The "system log" is a separate file from the "audit log." 3. The unsigned ADO letter also introduces network security issues.

Network security has never been raised as an issue in any pleading, including the Motion to Dismiss and Petitioner's Reply thereto. Petitioner's argument and the function of the audit log are for "information theft from the inside job" which excludes network security issues. 4. City's ~5 that "any discussion of an audit log would need to be

referenced to the IT person" is a new argument, which Petitioner is denied an opportunity to respond. 5. City's ~6 that they are in "full compliance with all State" regulations

is a new argument which Petitioner is denied an opportunity to respond. No

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mention of State regulations on the protection of SSN has been addressed in any

prior pleadings, including the Motion to Dismiss and Petitioner's Reply thereto. 6. Much of City's Reply is redundant, including ~~7-10, which are wor -

for-word duplications of,-r,-r5-8of City's Motion to Dismiss. 7. City's ,-rll asks the Court to take judicial notice that "Petitioner

improperly uses the Courts to request non-existent information." This is a new argument which Petitioner is denied an opportunity to respond. In fact, what Sie a County Cause No. CV-2009-159 State of New Mexico ex ref. Audette and Toome v. City of Truth or Consequences demonstrates is City once again defends an IP enforcement action with ridiculous arguments, including a public access channel i not a public entity and video recordings of governmental meetings currently being broadcasted on television don't exist. WHEREFORE, for all the reasons enumerated herein, Petitioner Toomey respectfully requests this Court to strike City's Reply to Petitioner's Reply to
Respondent's Motion to Dismiss and its Exhibit of the January 4,2010 letter from

ADG. DATED: January 15,2010. Deborah L. Toomey, pro s 415 W. Riverside Drive Truth or Consequences NM 87901 (575) 740-1091

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CERTIFICATE OF HAND DELIVERY The undersigned hereby certifies that a copy of the PETITIONER'S MOTION TO STRIKE CITY'S REPLY TO PETITIONER'S REPLY TO RESPONDENT'S MOTION TO DISMISS was hand delivered to the Attorney fo Respondents, Law Office of Jaime F. Rubin, 314 Main Street, Truth or Consequences, NM, 87901, on the is" day of January, 010 .

.of!
Deborah L. Toom 415 W. Riverside rive Truth or Consequences NM 87901 (575) 740-1091

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