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

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RICHARD J. MCDANIEL, P.C. ATTORNEY AT LAW 11811 N. TATUM BLVD., SUITE 1051 PHOENIX, ARIZONA 85028 Telephone (602) 953-8721 FAX (602) 953-8731 Richard J. McDaniel #013329 Attorney for Defendants Woodcock IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Case No. CIV 04-78-FJM SHIMKO & PISCITELLI, Plaintiff, v. PAUL and BOBBI WOODCOCK, et. al. Defendants. DEFENDANT WOODCOCKS' RESPONSE TO PLAINTIFF'S MOTION TO STRIKE DEFENDANT WOODCOCKS' AMENDED MOTION TO DISMISS CLAIMS AND MOTION FOR SUMMARY JUDGMENT

Shimko's motion to strike Defendant Woodcocks' Amended Motion for Summary Judgment should be denied. The original motion was filed in a timely manner. The amended motion was filed soon after Shimko's deposition transcript became available and soon after Shimko finally disclosed documents showing that his firm received hundreds of thousands of dollars more than Shimko has testified to under oath. Shimko's motion to strike should be denied for the following reasons. First, Shimko and Piscitelli failed to make themselves available for deposition. Piscitelli repeatedly dodged service and was never deposed. Although Shimko told
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defense counsel he would travel to Phoenix to be deposed in January 2008, Shimko repeatedly refused to make himself available for deposition in January or February. Defense counsel had to seek an emergency order from this Court compelling Shimko to testify. He did so only through a telephonic deposition from the Cayman Islands on March 24, 2008. Thus, a transcript of the deposition was not available until approximately April 8, 2008. Second, although this litigation has been pending almost five years, Shimko did not disclose records of the payments his firm received from the CORF entities until after April 7, 2008. (A copy of Shimko's response to Woodcocks' discovery request is attached as Ex. G to Defendant Woodcocks' Amended Statement of Facts.) The newly disclosed records show that Shimko and his attorney, David Welling, have repeatedly misled the federal courts and defendants about the amount paid to Shimko's firm. At Guenther's trial, Shimko testified to this Court that his firm had been paid only $129,000. However, the records show Shimko's firm received more than $603,000 from the CORF entities. Third, Shimko's deposition testimony confirmed that he has known since the summer of 2003 that his claim for $359,000 in unpaid legal fees includes more than $78,000 he overbilled for David Welling's time as a law clerk through April 2003. Nevertheless, Shimko and Welling have repeatedly misrepresented
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to this Court, Judge Sedgwick's Court, and the Ninth Circuit that Shimko is owed the full $359,000 in his final April 2003 bill. As recently as March 3, 2008, Shimko and Welling averred to this Court, in their memorandum of the Guenther trial remand, that Shimko's firm was owed the full $359,000. Fourth, to date, the Woodcock defendants do not have a full picture of Shimko's business transactions with his CORF clients. Shimko continues to obfuscate the circumstances and details of his business transactions. Shimko and Welling have failed to disclose and refused to produce records in response to Woodcock's discovery requests concerning Shimko's involvement in Aztec Medical. The details of Shimko's business transactions with his clients are directly relevant to whether Shimko complied with E.R. 1.8. For example, Jeff Finley, one of the plaintiffs' lawyers in the underlying CORF litigations sent Shimko a letter on March 3, 2003 seeking information about Aztec Medical; relaying his understanding that Shimko was CEO of Aztec Medical; and expressing his concern that Shimko & Piscitelli were using Aztec Medical to fraudulently transfer funds out of the CORF entities and to Mexico. Shimko has refused to disclose documents and details of what work he did for Aztec Medical; his role and position with the company; how he came to acquire an ownership interest in it; what happened to money invested in the company; whether he set up the company; and whether any legal work he did for the
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company was billed to the CORP defendants. Woodcock's counsel has again demanded copies of these documents, and if they are not immediately produced, the Woodcocks will move this Court to compel production. For the reasons described above it was not unreasonable for the Woodcocks to amend or supplement their motion and statement of facts. Shimko should not be allowed to gain advantage from his misrepresentations and failure to disclose material evidence. Dated this 26th day of April 2008. RICHARD J. MCDANIEL ATTORNEY AT LAW By /s/ Rich McDaniel Richard J. McDaniel 11811 N. Tatum, #1051 Phoenix, AZ 85028 Attorney for Defendants Woodcock Electronically filed and copied this 26th day of April 2008: David Welling Timothy Shimko & Associates Roger Cohen JABURG & WILK Copy mailed to: David and Rhona Goldfarb 11437 N. 53 rd Place Scottsdale, AZ 85254 Pro Per /s/ Rich McDaniel

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