Free Response in Opposition to Motion - District Court of Arizona - Arizona

1 Timothy A. Shimko (PRO HAC VICE) (OSBN 0006736)
David A. Welling (PRO HAC VICE) (OSBN 0075934)
2 TIMOTHY A. SHIMKO & ASSOCIATES
2010 Huntington Building
3 925 Euclid Ave.
Cleveland, Ohio 44115
4 Tel. (216) 241-8300
Fax (216) 241-2702
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Attorneys for Plaintiff
[
IN THE UNITED STATES DISTRICT COURT
7 FOR THE DISTRICT OF ARIZONA
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) Case No. CV-04-78-FJ M
9 TIMOTHY A. SHIMKO, ) V
) Judge Frederick J. Martone
10 Piamurr, )
) PLAINTIFF’S DECLARATION IN
H v. ) SUPPORT OF PLAINTIFF’S MOTION
) TO STRIKE DEFENDANT WOODCOCK’S
12 DAVID GOLDFARB and RICHARD ) AMENDED MOTION TO DISMISS
ROSS, et al., ) CLAIMS AND MOTION FOR SUMMARY
13 ) JUDGMENT AND MOTION Fon
14 Defendants. ) SAN CTIONS
15 NOW COMES Timothy A. Shimko, and under the penalties of perjury declares the
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following to be true to the best of his knowledge.
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1. I am a Plaintiff in the within action, and I have personal knowledge of the facts contained in this
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declaration.
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20 2. I am aware of no new production revealing that I received hundreds of thousands of dollars more
2] from the defendant than I have previously testified to under oath.
22 3. The records upon which Defendant Woodcock relies are copies of checks issued and made
23 payable to Plaintiff to cover a loan made by Plaintiff to Defendants, but these checks not paid due to
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insufficient funds in the account to cover the checks.
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4. Counsel for Woodcock well knows these circumstances, because they have been vetted from
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the time this case was initially filed. Plaintiff initially in his original complaint claimed that
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1 Defendants issued hundreds of thousands of dollars in bad checks to the Plaintiff It is these
2 uncovered checks that Defendant now claims represents additional payment to me.
3 5. I did not fail to make himself available for his deposition. True, I initially did agree to appear in
4 Arizona for my deposition at a time agreed upon by counsel. However, Ross’ counsel unilaterally
; cancelled that deposition and rescheduled it for a time when my schedule did not permit me to spend
7 three days traveling for my deposition. Counsel for Defendants agreed to take my deposition
8 telephonically, and I arranged my calendar for the deposition.
9 6. Again, Defendant’s counsel unilaterally cancelled that deposition and waited until the end of
10 the discovery period drew nigh, and then rescheduled my deposition for a time when I was
11 scheduled to be out of the country.
12 7. Nevertheless, I offered to and did make himself available for deposition, when Defendants
li finally decided to take it.
15 8. As for Mr. Piscitelli avoiding his deposition, it appears from the evidence in the record that
15 Defendants failed to attempt to serve Mr. Piscitelli, at any place where he was likely to be present or
17 receive service. In fact, it appears that Defendants attempted to serve l\/Ir. Piscitell at a location
18 where he does not live and where he would not be likely to receive service.
19 9. I have had no direct or indirect contact with Mr. Piscitelli in at least four years.
ig) 10. I have produced all of the records relating to Aztec Medical in my possession. There were not a
22 lot of records generated at the time of the investment and my part in it was simply as an investor. I
23 performed no legal services for Aztec and Aztec was not a client of the firm.
24 ll. Aztec was simply an investment opportunity that was highly speculative, but that had promise
25 at one time, but that went bad and in which I did not recover my $200,000 investment.
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1 12. I performed no legal work for the investment other than tiling incorporation papers in Florida,
2 and billed neither Aztec or any other entity for anything related to Aztec.
3 13. Defense counsel alleges that I had not previously disclosed records of payments my tirm
4 received from CORF entities until after April 7, 2008. Although, I did provide records of payments
; in response to Woodcock’s discovery request, other records of payments had been produced to
7 Defendants when the case was iirst tiled.
8 14. VVhat additional records that were produced in April of this years, were not requested until this
9 year. And, in that request Defendants requested copies of the bad checks previously discussed. Upon
10 request, they were provided.
H 15. There has been no change in my position. My firm and I have been paid only $129,000 to date
12 for the services provided to Defendants. I am unaware of any records that would demonstrate that
ii my firm or I received $603,000 from the CORF entities.
15 I certify under penalty of perjury that the foregoing is true and correct.
16 Dated this Sth day of May, 2008.
1; """“‘“"'“"'Tm/· yi ...= J/fi
By: “—`‘ V if ~ V
19 Timothy A. mko (OSBN 0006736)
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