Free Memorandum in Opposition to Motion - District Court of Connecticut - Connecticut

Case 3:00-cv-00835-CFD

Document 475

Filed 08/30/2006

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UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT : : : Plaintiff, : v. : : MOSTAFA REYAD and WAFA REYAD, : : Defendants. : : INDYMAC BANK, F.S.B.,

CIVIL ACTION NO. 3:00CV835(CFD)

AUGUST 30, 2006

PLAINTIFF'S CONSOLIDATED MEMORANDUM IN OPPOSITION TO DEFENDANT'S MOTION TO DISMISS AND DEFENDANT'S MOTION TO SET ASIDE COURT DECISION
Plaintiff IndyMac Bank, F.S.B. ("Plaintiff" or "IndyMac") submits the instant consolidated memorandum in opposition to Defendant Mostafa Reyad's "Motion to Dismiss Pursuant to FRCP 12(b)(1)" dated August 4, 2006 (doc. # 471), and "Defendant's Motion to Set Aside the Court Decision Dated July 26, 2006" dated August 28, 2006 (doc. # 474). In both of these frivolous motions, Defendant Mostafa Reyad ("Defendant") argues that the Court in its Memorandum of Decision dated July 26, 2006 (doc. # 466) (the "Decision") incorrectly found that IndyMac Mortgage Holdings, Inc. (one of the two original named plaintiffs in this action, and the predecessor in interest to the current plaintiff, IndyMac Bank, F.S.B.) properly was doing business as Warehouse Lending Corporation of America at the time it filed the instant action. Defendant's argument in this regard is both factually and legally incorrect, has been rejected by this Court on numerous prior occasions, and should be rejected summarily at this time. Defendant's argument ignores that the parties stipulated, in their Joint Trial Memorandum dated November 18, 2003 and again at the outset of the bench trial of

ORAL ARGUMENT IS NOT REQUESTED

Case 3:00-cv-00835-CFD

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this action on April 6, 2004, to the exact facts that Defendant now wishes to dispute. See 11/18/03 Joint Trial Memorandum (doc. # 306), Section 5, ¶¶ 7-16; 4/6/04 Trial Transcript, at 22-23.1 Moreover, Defendants' Exhibits 14 and 15 are consistent with the parties' stipulations in this regard. Having stipulated to the facts regarding Plaintiff's corporate structure found by the Court,2 Defendant may not now dispute these facts in a belated effort to avoid liability following the issuance of the Court's Decision. Additionally, Defendant has raised these very arguments on numerous previous occasions, and the Court consistently has rejected same. See, e.g., Defs.' Post-Trial Brief dated June 16, 2005 (doc. # 458), at 5-133; 3/31/04 Endorsement Order (doc. # 351) denying Mostafa Reyad's Second Motion in Limine (doc. # 308); 3/31/04 Endorsement Order (doc. # 352) denying Defendant Mostafa Reyad's Motion to Dismiss (doc. # 311); 3/31/04 Endorsement Order (doc. # 353) denying Defendant Wafa
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At the outset of the bench trial of this action, the Court confirmed that the parties stipulated to the facts set forth in the Joint Trial Memorandum: THE COURT: It's the Joint Trial Memorandum, November 2003. And I'm looking at section five which has Stipulations of Fact and Law. MR. REYAD: Yes, your Honor, I agree. THE COURT: I'm sorry. ME. REYAD: Yes, I agree, because I signed it. THE COURT: So you agree those are to be considered by me as true, right? ME. REYAD: Yes, your Honor. (4/6/04 Tr., at 23.)

Because the parties stipulated to the facts surrounding Plaintiff's corporate structure, Plaintiff did not offer into evidence at trial its exhibits documenting same, as such would have been duplicative. Defendant's outrageous suggestion that Plaintiff's counsel failed to offer these exhibits in an effort to commit fraud upon the Court is unwarranted and personally offensive. 3 Indeed, the legal argument contained in the discussion section of Defendant's Memorandum of Law in support of his instant Motion to Dismiss is identical, word for word, to the cited pages of Defendants' Post-Trial Brief, which this Court already has considered and rejected.
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Reyad's Motion to Dismiss (doc. # 313); 3/31/04 Endorsement Order (doc. # 354) denying Defendant Mostafa Reyad's Motion to Grant Motion to Dismiss and Second Motion in Limine (doc. # 318); 3/31/04 Endorsement Order (doc. # 355) denying Defendant Wafa Reyad's Motion to Grant Motion to Dismiss (doc. # 320). There is no reason for the Court to revisit this issue yet again, much less reverse its prior decisions in this regard. Finally, Plaintiff respectfully notes that Defendant has now filed three post-trial motions seeking to reverse the Court's Decision, in each of which Defendant maintains arguments that have been presented to and rejected by this Court on numerous occasions. Defendants' dilatory motion practice has unreasonably extended the pendency of this matter and has resulted in Plaintiff incurring over $400,000 in legal fees to date. Indeed, Defendants' post-trial motions have had the intended effect of delaying Plaintiff's submission of its brief concerning the amount of punitive damages and attorney's fees to be awarded in this case. Defendants' continued attempts to delay entry of final judgment should not be countenanced. Plaintiff requests that the Court summarily deny Defendant's "Motion to Dismiss Pursuant to FRCP 12(b)(1)" (doc. # 471) and "Defendant's Motion to Set Aside the Court Decision Dated July 26, 2006" (doc. # 474). Further, Plaintiff requests that the Court direct that Defendants' continued submission of meritless motions will subject Defendants to the entry of sanctions, and that Plaintiff need not incur the additional expense of responding to future motions without first being directed to do so by the Court.

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PLAINTIFF INDYMAC BANK, F.S.B. By:

/s/ Rowena A. Moffett
David R. Schaefer (ct04334) Rowena A. Moffett (ct19811) BRENNER, SALTZMAN & WALLMAN LLP Its Attorneys 271 Whitney Avenue P.O. Box 1746 New Haven, CT 06507-1746 Tel. (203) 772-2600 Fax. (203) 772-4008 Email: [email protected]

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CERTIFICATE OF SERVICE I hereby certify that on August 30, 2006, a copy of the foregoing was filed electronically [and served by mail on anyone unable to accept electronic filing]. Notice of this filing will be sent by e-mail to all parties by operation of the Court's electronic filing system [or by mail to anyone unable to accept electronic filing].

/s/ Rowena A. Moffett
Rowena A. Moffett (ct19811)

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