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 CINDY DAVID'S MOTION TO DISMISS SECOND AMENDED COMPLAINT Assigned to the Honorable: Mary H. Murguia Oral Argument Requested

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Defendant Cindy David's Motion to Dismiss ("Motion to Dismiss") must be denied because: (1) This Court has personal jurisdiction over Cindy 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 Cindy 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, Cindy David actively participated in the fraud which 13 directed this meeting to occur in Arizona. See Exhibit "A". Upon information and belief, Cindy David 14 received proceeds from the fraud. This meeting establishes the minimum contacts as required by 15 International Shoe Co. v. State of Wash., Office of Unemployment Compensation and Placement, 326 16 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95, 161 A.L.R. 1057 (U.S.Wash. Dec 03, 1945) and its progeny. 17 Therefore, this Court has personal jurisdiction over Cindy David. 18 2. 19 Relief. 20 Plaintiff's Second Amended Complaint states proper claims for relief. 21 In analyzing Cindy David's Motion to Dismiss, all material allegations in the Plaintiff's 22 Complaint must be accepted as true and construed in the light most favorable to Plaintiff. North Star 23 International v. Arizona Corporation Commission, 720 F.2d 578, 580 (9th Cir.1983). Dismissal is 24 warranted only if it appears to a certainty that Plaintiff would be entitled to no relief under any state of 25 facts that could be 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 Cindy 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, Cindy 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 Cindy David is an alter ego of Global and Williams and did participate in a common fraud Plaintiff is confident that the discovery extension granted by this Court will provide 4. Cindy 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.

16 scheme.

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

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

20 Plaintiff 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 ORIGINAL of the foregoing electronically filed with the Clerk of the United States 2 District Court this 20th day of June, 2006 3 Judge Mary H. Murguia 4 401 W. Washington Phoenix, AZ 85003 5 6 COPY of the foregoing 7 emailed this same date to: 8 Debra A. Hill OSBORN, MALEDON, P.A. 9 2929 North Central Avenue, Suite 2100 Phoenix, Arizona 85012-2794 10 Attorney for Defendants 11 By: 12
F:\STU\Studnek, Joe\Global Missions\Pldgs\response in opp to Cindy David MTD.wpd

/s/ Catherine R. Magurany

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