Telemarketer in the process of ruining his life with idiotic motions
- Peter Schneider
- Nov 18, 2024
- 4 min read
Updated: Feb 4
I've been following the telemarketing lawsuit case Barton v. Delfgauw, 3:21-cv-05610 in the Western District of Washington for a while. Last week I wrote about how it is setting up for a dramatic ending. Last Friday the defense filed one of the most idiotic motion's I've ever seen, and over the weekend the plaintiff filed a crushing response.
First some back story. Barton sued telemarketer Joe Delfgauw and two of his companies for unwanted solicitations.
They countersued Barton for fraud saying he asked for the calls. The case dragged on for 3 years and over 400 docket entries but recently the counterclaims were dismissed in part because Delfgauw stipulated facts that showed Delfgauw was a villain of his own stupidity. You can see a previous article on it here.
Even Troutman piled on. Well, buried in those stipulated facts was this #30: "The Dialer data was deleted to deprive Barton of the evidence." Barton contends and apparently Joe Delfgauw agrees that after getting wind of the lawsuit, the defendants deleted their call records to keep them from Barton's hands. That's typically frowned on in court but Barton's initial motion to sanction them over it fell flat. But he filed a motion to reconsider and on 11/13/2024 the judge ordered the defendants to address the situation.
This panicked the defendants and two days later they filed one of the craziest motions I've ever seen, an ex parte motion to stay the case. In isolation it is hard to understand the significance of what they said so I am also quickly showing Barton's response.
Their motion to stay is out-of-the-gate crazy because they asked for a 5 week delay ex-parte! The motion itself had two points. In the first point the defendants' attorney Donna Gibson blamed Barton for this stipulation #30 The Dialer data was deleted to deprive Barton of the evidence.
In the weeks leading up to July 23, 2024, counsel and Mr. Barton were preparing documents for trial. One of which was a documenta that Mr. Barton insisted be filed, entitled “Stipulations”. Documents were exchanged between counsel Various version of this document were created by Mr. Barton and edited by Ms. Gibson and reviewed by Mr. Delfgauw. There was a statement on that, on the document that was ultimately filed with an item 30 stating that items were deleted to keep them from Mr. Barton. That was crossed off by Mr. Delfgauw and not to be included in the situation. At some point Mr. Barton included that statement or it was not removed and the document was filed with that statement.
Sounds bad, right? Barton snuck an item past us that we didn't realize was in there and it isn't our fault! Oh, oh no. Barton's response points out that this is deception on Gibson's part and her own documents attached to the motion (one of which waived attorney-client privilege) show Joe Delfgauw affirmatively made this deleted data stipulation.
Read Barton's response for the full explanation but he exposes their attempt to deceive the court with slight of hand and shows their own formerly privileged documents confirm Delfgauw fully embraced the stipulation. What a foolish motion because her getting caught trying to deceive the court comes on the heels of another order commanding Gibson to show cause why she should not be sanctioned for trying to deceive the court in another filing, on top of a pending sanctions motion for frivolously pursing the fraud counterclaims in bad faith.
There are few things more satisfying then watching a telemarketer get their comeuppance in court for abusing a plaintiff with a frivolous counterclaim in bad faith. It is even more stratifying when they hang themselves.
This was just the first part of the crazy though. Their second justification for the 5 week stay was to force Barton to negotiate.
Barton didn't see things quite that way and I have to agree. Asking the court for a five week stay of the case to negotiate without even asking the other side, and after telling the other side more negotiation is pointless isn't a good look in court.
Stay tuned, it seems that we are only in the early stage of their self destruction. They have two responses to Barton's multiple motions for sanctions due shortly, and now they have to account for the fact that Delfgauw himself personally authorized the stipulation. Plus a response to Barton's pending motion for summary judgement on his TCPA and CEMA telemarketing claims.
Would you like a free case review? Do you have a question or a telemarketing, debt collection, or bankruptcy case that would make a great blog article? We might even review your pro-se complaint or motion in a blog post. Email peter@nwdebtresolution.com and/or nathen@nwdebtresolution.com and we may answer it for everyone!
Are telemarketers harassing you in Washington, Oregon, or Montana? My Washington State TCPA plaintiff law practice can help, just give us a call at 206-800-6000 or email peter@nwdebtresolution.com.
The thoughts, opinions and musings of this blog are those of Peter Schneider, a consumer advocate and Washington State plaintiff's TCPA attorney at Northwest Debt Resolution, LLC. They are just that, his thoughts, opinions and musings and should be treated as such. They are not legal advice. If you are looking to file a lawsuit for TCPA violations and unwanted calls please contact me for a consultation.
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