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Correction: William Rice Lummis is a cousin to Howard Hughes - not a former employee, as a Friday story stated. Also, Frank William Gay, a former Hughes employee, was not a beneficiary in the Hughes will, as Melvin Dummar's attorney was quoted as saying.
It's strike three again for Melvin Dummar - the man who claims to have picked up Howard Hughes on a remote Nevada highway in 1967 and later was named in a handwritten will purported to be that of the billionaire.
On Thursday, U.S. District Judge Bruce Jenkins denied Dummar's motion to take testimony from aging witnesses central to Dummar's fraud suit, which argues he was cheated out of a portion of the Hughes estate.
In January, Jenkins tossed Dummar's suit, which seeks $468 million from former Hughes' cousin William Rice Lummis and Hughes employee Frank William Gay, who died earlier this year. Dummar alleges the pair perpetrated a fraud on the Nevada court that found the "Mormon Will" - so called because it left a chunk of Hughes' estate to the LDS Church - not to be authentic.
Dummar, 61, appealed Jenkins' January ruling to the 10th U.S. Circuit Court of Appeals in Denver, where it remains pending.
The fraud suit is based largely on new evidence turned up by former FBI agent Gary Magnesen, who interviewed Hughes' pilot several years ago. Outlined in Magnesen's 2005 book, The Investigation, are statements from G. Robert Diero, who said he flew Hughes to a brothel near Nevada's remote Lida Junction. It was during the same period - over the Christmas holiday in 1967 - that Dummar says he picked up the reclusive billionaire in the same area.
Outside the courtroom Thursday, Dummar sighed in frustration.
"I don't know what to say," he said. "They asked why didn't we appeal 30 years ago. We were bankrupt, and we didn't have any new evidence. Now we do have new evidence."
Stuart Stein, Dummar's Albuquerque-based attorney, argued Thursday that he needs to question 18 witnesses before they die. Two are said to be gravely ill and the rest are over 70.
In denying the motion, Jenkins said the fundamental fault with Dummar's action is that three decades ago a Nevada jury found the Mormon Will to be a fake.
"That was a process that produced a result that some people would call justice," Jenkins said. "Others would disagree."
Jenkins admonished Stein and Dummar to push the appeal in Nevada.
"The place to restart is to have that probate court reverse that judgment," he said. "The next step is that the disputed document be admitted to probate [court]. Then the alleged will can be carried out."
After Thursday's hearing, Stein said Jenkins' proposed solution would not work. Thirty years after the probate proceedings, there is no more Hughes estate to be divided up.
In the appeal before the 10th Circuit, Stein asks the panel to direct Jenkins to rule against Lummis and Gay's estates.
"Our position from the beginning is that this court has the power to relieve the beneficiary [Lummis] of the judgment he received."
Dummar also sued in Nevada state court. That action has been kicked up to a federal court there.
Arguing for Lummis, Salt Lake City attorney Randy Dryer told Jenkins that the continued litigation is "burdensome" for his client.
"We had a three-ring circus. Now we have a four-ring circus," Dryer said of Dummar's actions in four different courts. "It's time to put an end to these proceedings. Unless the Mormon Will is found to be valid, Mr. Dummar has no claim."