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

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Timothy A. Shimko (PRO HAC VICE) (OSBN 0006736) David A. Welling (PRO HAC VICE) (OSBN 0075934) TIMOTHY A. SHIMKO & ASSOCIATES 2010 Huntington Building 925 Euclid Ave. Cleveland, Ohio 44115 Tel. (216) 241-8300 Fax (216) 241-2702 Attorneys for Plaintiff IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV-04-78-FJM Judge Frederick J. Martone PLAINTIFF'S REPLY TO DEFENDANT WOODCOCK'S RESPONSE IN OPPOSITION TO PLAINTIFF'S MOTION TO STRIKE DEFENDANT WOODCOCKS AMENDED MOTION TO DISMISS CLAIMS AND MOTION FOR SUMMARY JUDGMENT; AND MOTION FOR SANCTIONS"

TIMOTHY A. SHIMKO, Plaintiff, v. DAVID GOLDFARB and RICHARD ROSS, et al., Defendants.

The response filed by the Defendant Woodcock relies upon statements and representations that are untrue and unfounded. In the first instance, there has been no new production revealing that Shimko received hundreds of thousands of dollars from the defendant than he has previously testified to under oath. The records upon which Woodcock relies are copies of checks made payable to Plaintiff, but that were not paid because there was insufficient funds in the account to cover the checks. Counsel for Woodcock well knows these circumstances, because they have been vetted from the time this case was initially filed. Plaintiff initially in his original complaint claimed that Defendants issued hundreds of thousands of dollars in bad checks to the Plaintiff. It is these uncovered checks that Defendant now claims represents payment to Shimko.

Case 2:04-cv-00078-FJM

Document 206

Filed 05/05/2008

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Second, Shimko did not fail to make himself available for his deposition. True, Shimko did agree to appear in Arizona for his deposition at a time agreed to by counsel. However, Ross' counsel unilaterally cancelled that deposition and rescheduled it for a time when Shimko was not available to spend three days traveling for his deposition. The second deposition that was secheduled was scheduled as a telephone deposition and Shimko arranged his calendar for the deposition. Again, Defendant's counsel unilaterally cancelled that deposition and rescheduled it for a time when Shimko was scheduled to be out of the country. Nevertheless, Mr. Shimko offered to and did make himself available for deposition, when Defendants finally decided to take it. As for Mr. Piscitelli avoiding his deposition, it appears from the evidence in the record that Defendants failed to attempt to serve Mr. Piscitelli, either at his home or at his place of business. In fact, it appears that they attempted to serve him at a location where he did not live and where he

13 14 15 16 17 18 19 20 Shimko still maintains that his firm has been paid only $129,000 to date. And he is unaware 21 22 23 24 25 26 of any records that would demonstrate that he received $603,000 from the CORF entities. As for Shimko's other dealing with the Defendants, Plaintiff has fully disclosed that he invested $200,000 along with the Defendants in a project called Aztec Medical. That investment went bad, and everybody's investment was lost. Shimko makes no claim for his losses in that investment opportunit. However, Shimko has no records of this transaction. The investment was would not be likely to receive service. Defense counsel argues that Shimko had not previously disclosed records of payments his firm received from CORF entities until after April 7, 2008. Although, Shimko did provide records of payments in response to Woodcock's discovery request, records of payments had been produced to Defendants when the case was first filed. What additional records that were produced in April of this years, were not requested until this year.

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made through a bank with which Shimko no longer has an account. There are no other records relating to the transaction, except for articles of incorporation of an LLC in Florida, which Defendants already have in their possession. Other than creating the Fla. LLC, which never became operable, no other legal work was done by Shimko relating to the investment. As Shimko performed no legal work, other than setting up a Florida LLC, there was no legal work for which to bill CORF or anyone else; and Defendants were billed only for those services listed on Plaintiff's invoices. Defendant Woodcock's response is filled with inflammatory and unsubstantiated rhetoric. This Court has already tried this case as to the Defendant Guenther. The Defendant Woodcock testified at that trial. The issues raised in Woodcock's Response were all testified to and established in the Guenther trial. To circumvent this Court's rules, Defendant Woodcock has resorted to misstating the record and creating issues that are nothing more than red herrings.

13 14 15 16 17 18 19 20 21 22 23 24 25 26 RESPECTFULLY SUBMITTED on this 5th day of May, 2008. TIMOTHY A. SHIMKO & ASSOCIATES By: /s/ Timothy A. Shimko Timothy A. Shimko (OSBN 0006736) David A. Welling (OSBN 0075934) 2010 Huntington Building 925 Euclid Ave. Cleveland, Ohio 44115 Tel. (216) 241-8300 Fax (216) 241-2702 Attorneys for Plaintiff

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COPY of the foregoing electronically filed and served this 5th day of May, 2008 upon: Roger L. Cohen, Esq. Jaburg & Wilk, P.C. 3200 North Central Avenue, Ste. 2000 Phoenix, Arizona 85012 [email protected] Counsel for Defendant Ross Richard J. McDaniel, Esq. 11811 N. Tatum Blvd., Ste. 1051 Phoenix, Arizona 84208 Counsel for Defendants Woodcock Mr. and Mrs. David Goldfarb 11437 N. 53rd Place Phoenix, Arizona 85254 Defendants Milton and Kathi Guenther 3642 E. Rockwood Phoenix, Arizona 84032 Defendants in pro per

/s/ Mildred Pacheco

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