Free Memorandum in Opposition - District Court of California - California

Case 3:07-cv-06169-BZ

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David Hicks, APLC David Hicks, State Bar Nos. Calif., 053750; New York, 2051266 2200 Powell Street, Suite 990 Emeryville CA 94608 [510] 595-2000; Fax [510] 594-9555 Counsel for Plaintiff E & M Trust

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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA E&M TRUST, Plaintiff,
v.

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] Case No. C07-06169 BZ ] ]

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INTERNATIONAL HOLDING CORPORATION OF NEVADA, and Joseph Mathew Kelaidis, James Mathew Kelaidis, Individually and Officers of International Holding Corporation of Nevada; Gregory S. Soter, and Alan L. Rossi; PB TRADING S.A. and Jaime S. Dreyfus Zamokevich, Individually and as Director of PB Trading; ABN AMRO BANK, N.A., PB Trading, And Rudy Beckman, Grip Verkin, J. Richter, Jamie S. Dreyfus Zamokevich, Individually and Officers and Directors of Said Corporation; John Doe 1-20; Defendants.

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DECLARATION OF PLAINTIFF'S COUNSEL DAVID HICKS IN SUPPORT OF PLAINTIFF E&M TRUST'S OPPOSITION TO DEFENDANTS' MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION AND FORFAILURETOSTATEA CLAIM OR IN THE ALTERNATIVE MOTION FOR MORE DEFINITE STATEMENT.
Assigned to: Hon. Bernard Zimmerman Date Action Filed: December 5, 2007 Trial Date: Not yet set Hearing: March 19, 2008 Time: 10:a.m. Place: Courtroom G, 15 th Floor

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OPPOSITION TO DEFENDANTS' MOTION TO DISMISS CASE NO. C07-06169 BZ
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Case 3:07-cv-06169-BZ

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DECLARATION OF DAVID HICKS IN SUPPORT OF
OPPOSITION TO MOTION TO DISMISS


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I, David Hicks, declare as follows: Your declarant is a duly licensed attorney at law, admitted to practice before all courts in the States of California and New York, the United States Supreme Court and the United States District Courts for Maine, and the Northern, Central and Eastern Districts of California. Your declarant is attorney of record for plaintiff herein. Your declarant makes this declaration in support of the Opposition to Motion to Dismiss. Your declarant has personal knowledge of the matters stated in this declaration. The source of his information given herein is derived from personal knowledge, investigation and discussions conducted in the ordinary course of this case. If called upon to testify as to the truth of the matters contained herein, because your declarant has seen, observed, witnessed or heard each of said matters, your declarant would be competent to and would testify as follows:

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1. The following efforts were made to avoid the necessity of this motion: your
declarant sought but was refused a stipulation from movants to enlarge time; your declarant considered waiting for a ruling on the application to enlarge time until your declarant was contacted by the Court and advised by the Court's staff that your declarant should file an opposition and just do his best to advise the Court of the opposition. For this latter reason your declarant discarded his pending thought of seeking enlargement from the Presiding Judge. Your declarant's paralegal (at his direction) and your declarant sought as much information as they could obtain within immediately available parameters of time and space to determine whether it would be better to not oppose the motion, but was not able to come to that conclusion consistent with his duties to Court, counsel and client.
OPPOSITION TO DEFENDANTS' MOTION TO DISMISS CASE NO. C07-06169 BZ
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Case 3:07-cv-06169-BZ

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2. Your declarant is informed and believes that until such time as counsel may
properly evaluate this case and determine whether to advise to support or oppose, plaintiff wishes to oppose the pending motion to dismiss. Your declarant remains unable for now to prepare a direct, plenary and appropriate opposition to the motion to dismiss for all of those reasons set forth in the previous application to enlarge time (pending). Your declarant is reluctant to advance grounds about which it is unsure due to the lack of any exchanged information between parties, and the refusal of movants to identify themselves by residency and citizenship in the face of his direct request to their counsel for that information. 3. Your declarant is attempting to determine whether the case should be dismissed. 4. Your declarant has been diligent in attempting to move toward the preparation of an apt Opposition but has been impeded by circumstances beyond his control. Your declarant has been fully occupied until the date of this affidavit in state court proceedings culminating on the day before signing with multiple motion hearings including two summary judgment proceedings. 5. Your declarant is informed and believes that the key witness for purposes of developing the factual information is Dr. William Spencer who is in federal custody in North Carolina. More details about that are in the application to enlarge time. After a second attempted telephone call placed in the morning of the date signed below, we were able to contact Dr. Spencer at the federal facility. The resulting conversation he had with my paralegal assistant gave some additional information as to named defendants Soter and Rossi, and clarified potential causes of action against them individually in connection with an alleged fraudulent wire transfer of $72,500 from Dr. Spencer in California to a bank account in Nevada believed to be under their control under the name of
OPPOSITION TO DEFENDANTS' MOTION TO DISMISS CASE NO. C07-06169 HZ
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Vista Development LLC. Evidence of such transfer has been received on the date signed below and will be found attached to the Declaration of Elizabeth
Altieri.
6. Your declarant was retained at a difficult time, but has managed to obtain information by which he is informed and is given to understand that plaintiff filed a federal complaint due to an impending statute of limitations, and failed to preserve it by filing a concurrent state action for lack of legal knowledge. Your declarant is attempting to determine whether there is a federal question, and federal jurisdiction, and has found some prima facie evidence of a merited claim. 7. Your declarant is beginning to believe that the bank defendant is likely to prove to be a defendant that should be dismissed, but believes to the contrary as to moving defendants. Without more information, your declarant is unable to make that decision immediately.

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I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct, except for those matters stated on information and belief, which your declarant believe to be true and correct.
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Done this 12 day of February 2008 at Emeryville, California.

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7J;r~
David Hicks

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OPPOSITION TO DEFENDANTS' MOTION TO DISMISS CASE NO. C07-06169 BZ
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