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

1 2 3 40 North Center, Suite 200 4 Mesa, Arizona 85201 (480) 464-1111 5 Attorneys for Plaintiff By: Bradley D. Weech, Bar No. 011135 6 Jeremy S. Geigle, Bar No. 021786 7 8 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA No. CIV-04-595 PHX MHM

9 ESTATE OF JOSEPH J. STUDNEK, by and through its PERSONAL REPRESENTATIVE, 10 JOSEPH M. STUDNEK, 11 12 v. 13 AMBASSADOR OF GLOBAL MISSIONS UN LIMITED AND HIS SUCCESSORS, A 14 CORPORATION SOLE, a Nevada corporation; EL SHADDAI MINISTRIES 15 AND HIS SUCCESSORS, A CORPORATION SOLE, a Nevada 16 Corporation; SECOND CHANCE CHRISTIAN EVANGELISTIC MINISTRIES, 17 a California corporation; BISHOP OF FAITH VISION NOBLE HOUSE AND HIS 18 SUCCESSORS, A CORPORATION SOLE, a California corporation; JOSEPH L. 19 WILLIAMS and MONICA C. CISNEROS, as husband and wife; WILLIAM JOE LITTLE, 20 JR.; MICHAEL CAMBRA and GLORIA CAMBRA, as husband and wife; JOEL 21 DAVID and CINDY DAVID, as husband and wife; KEITH AARON VANN and TRISHA 22 VANN, as husband and wife, 23 24 25 26 Defendants/Counterclaimant. Plaintiff/Counterdefendant,

PLAINTIFF'S RESPONSE IN OPPOSITION TO: DEFENDANT JOEL DAVID'S MOTION TO DISMISS SECOND AMENDED COMPLAINT Assigned to the Honorable: Mary H. Murguia Oral Argument Requested

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Defendant Joel David's Motion to Dismiss ("Motion to Dismiss") must be denied because: (1) This Court has personal jurisdiction over Joel David; and (2) Plaintiff's Second Amended Complaint properly states claims for relief.

4 Plaintiff's Response is supported by the following Memorandum of Points and Authorities. 5 6 7 8 9 This Court has personal jurisdiction over Joel David. The events complained of against Mr. 10 David occurred in Arizona. Joseph Williams and Ambassador of Global Missions UN Limited and His 11 Successor, a Corporation Sole ("Global"), traveled to Arizona and met with Plaintiff and its 12 representative. Upon information and belief, Joel David actively participated in the fraud which directed 13 this meeting to occur in Arizona. See Exhibit "A". Upon information and belief, Joel David received 14 proceeds from the fraud. This meeting establishes the minimum contacts as required by International 15 Shoe Co. v. State of Wash., Office of Unemployment Compensation and Placement, 326 U.S. 310, 66 16 S.Ct. 154, 90 L.Ed. 95, 161 A.L.R. 1057 (U.S.Wash. Dec 03, 1945) and its progeny. Therefore, this 17 Court has personal jurisdiction over Joel David. 18 2. 19 Relief. 20 Plaintiff's Second Amended Complaint states proper claims for relief. 21 In analyzing Joel David's Motion to Dismiss, all material allegations in the Plaintiff's Complaint 22 must be accepted as true and construed in the light most favorable to Plaintiff. North Star International 23 v. Arizona Corporation Commission, 720 F.2d 578, 580 (9th Cir.1983). Dismissal is warranted only if it 24 appears to a certainty that Plaintiff would be entitled to no relief under any state of facts that could be 25 proved. Halet v. Wend Investment Co., 672 F.2d 1305, 1309 (9th Cir.1982). 26 The Complaint States Proper Causes of Action; It Does Not Fail to State Claims for 1. This Court has personal jurisdiction over Joel David. MEMORANDUM OF POINTS AND AUTHORITIES

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Plaintiff has properly alleged facts to support Breach of Contract, Fraud, Unjust Enrichment,

2 Punitive Damages, Rescission of Gift (based upon Misrepresentation, Unilateral Mistake and Failure of 3 Condition Precedent), and Replevin. Therefore, assuming all allegations as true, Plaintiff would be 4 entitled to the relief requested in the Second Amended Complaint. Therefore, Joel David's Motion to 5 Dismiss must be denied. 6 7 3. Rule 56 governs motions for summary judgment.

In the unlikely event the Exhibits attached to the Motion to Dismiss are not excluded by the

8 Court, then Rule 12(b)(6) FRCP allows the Motion to Dismiss to be treated as a motion for summary 9 judgment. However, the motion will proceed pursuant to Rule 56 FRCP. In that case Plaintiff requests 10 that this Court not only consider the evidence attached to this response, but also allow sufficient time for 11 Plaintiff to obtain affidavits, take depositions and pursue additional discovery pursuant to Rule 56(f) 12 FRCP. 13 14 15 16 Joel David is an alter ego of Global and Williams and did participate in a common fraud scheme. Plaintiff is confident that the discovery extension granted by this Court will provide sufficient 4. Joel David is an alter ego of the other named defendants and did participate in a common scheme as alleged in Plaintiff's Second Amended Complaint.

17 time to further demonstrate Joel David's role in the fraud schemes. 18 19 5. Conclusion and Request for Relief.

Plaintiff requests that Joel David' Motion to Dismiss be denied and that the Court award Plaintiff

20 its attorneys' fees and costs incurred herein. 21 22 23 24 25 26 By: /s/ Jeremy S. Geigle Bradley D. Weech, Esq. Jeremy S. Geigle, Esq. Attorneys for Plaintiff Dated this 20th day of June, 2006. JACKSON WHITE, P.C.

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1 2 ORIGINAL of the foregoing electronically 3 filed with the Clerk of the United States District Court this 20th day of June, 4 2006 5 Judge Mary H. Murguia 401 W. Washington 6 Phoenix, AZ 85003 7 8 COPY of the foregoing emailed this same date to: 9 Debra A. Hill 10 OSBORN, MALEDON, P.A. 2929 North Central Avenue, Suite 2100 11 Phoenix, Arizona 85012-2794 Attorney for Defendants 12 13 By: 14 15 16 17 18 19 20 21 22 23 24 25 26 /s/ Catherine R. Magurany

F:\STU\Studnek, Joe\Global Missions\Pldgs\response in opp to Joel David MTD.wpd

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