Free Motion to Quash - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Debra A. Hill, 012186 Ronda R. Fisk, 022100 OSBORN MALEDON, P.A. 2929 North Central Avenue Suite 2100 Phoenix, Arizona 85012-2793 (602) 640-9000 Attorneys for Defendant/Counterclaimant Global Missions, and Defendants El Shaddai Ministries, Second Chance Ministries, and Michael Cambra

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Estate of Joseph J. Studnek, Plaintiff, v. Ambassador of Global Missions UN Limited His Successors, et al., Defendants. Ambassador of Global Missions UN Limited His Successors, Counterclaimant, v. Estate of Joseph J. Studnek, Counterdefendant. Pursuant to Federal Rules of Civil Procedure 26(c) and 45(c), Defendants El Shaddai Ministries, Second Chance Ministries and Michael Cambra move for issuance of a protective order and/or order quashing the document discovery requested in the subpoena apparently served on Wells Fargo, N.A. ("Wells Fargo") on April 17, 2006, to the extent that the subpoena requests documents relating to the bank accounts of El Shaddai, Second Chance and Mr. Cambra. Each of these defendants has a motion to dismiss based on failure to state a claim for relief pending
Case 2:04-cv-00595-MHM Document 112 Filed 05/01/2006 Page 1 of 6

No. CIV-04-595-PHX-MHM MOTION TO QUASH OR FOR PROTECTIVE ORDER RE DOCUMENT SUBPOENA TO WELLS FARGO, N.A.

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

before the Court, and, as outlined in those motions, plaintiff simply has no claim against these defendants. 1 Accordingly, the requested documents are neither relevant nor reasonably calculated to lead to the discovery of admissible evidence. In addition, these defendants have never participated in a scheduling conference and therefore, pursuant to Fed. R. Civ. P. 26(d), it is premature for plaintiffs to seek discovery regarding these defendants. The defendants also seek to have this motion heard on an expedited basis and have filed simultaneously with this motion a Motion for Expedited Consideration. Defendants did not receive a copy of the Notice of Deposition until April 24, and did not receive a copy of the subpoena until Friday, April 28. The records deposition is scheduled for May 3 and plaintiff's counsel have refused to continue the deposition until this motion can be resolved. Accordingly, defendants have no alternative but to have this matter heard on an expedited basis. This motion is supported by the following Memorandum of Points and Authorities. MEMORANDUM OF POINTS AND AUTHORITIES Plaintiff originally filed this action in Maricopa County Superior Court in February 2004, alleging breach of contract, fraud and unjust enrichment against Larry Williams and Global Missions. In November 2005, plaintiff filed its Second Amended Complaint (without conducting any discovery in the case) and added nine additional defendants. Newly-added defendants El Shaddai, Second Chance and Mr. Cambra have all filed motions to dismiss in this matter based on lack of personal jurisdiction and failure to state a claim against them. (Dkt. 97 and 104). Those motions have now been fully briefed and are pending before the Court.

The plaintiffs also seek records relating to Gloria Cambra, Michael Cambra's wife. Mrs. Cambra has never even been served in this case, and the deadline for service has long since passed.
Case 2:04-cv-00595-MHM -2Document 112 Filed 05/01/2006 Page 2 of 6

1

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

As outlined in the motions, Second Chance is a community church in San Lorenzo, California, incorporated in 1993. Pastor Mike Cambra is the church's spiritual leader. Cambra incorporated El Shaddai Ministries in 2003 and it has now assumed the operation of the day-to-day ministry and community outreach from Second Chance. Joseph Williams is a congregant at El Shaddai, the church at which Pastor Cambra is the Senior Minister. These three defendants were not involved in any way with any of the claims alleged in the Complaint and accordingly the motions to dismiss were filed. On Monday, April 24, Osborn Maledon, counsel for these defendants, received a copy of a deposition notice for records for Wells Fargo. (A copy of that notice is attached as Ex. A). There was no subpoena included in the envelope. The next day, Debra Hill sent an email to Jeremy Geigle, plaintiff's attorney, asking if plaintiff had served Wells Fargo with a subpoena and advising him of defendants' position that the request for documents attached to the deposition notice was overbroad and not relevant to the extent that it requested documents related to El Shaddai, Second Chance and Mr. Cambra, each of whom had a motion to dismiss pending. On Wednesday, Mr. Geigle replied to the email and said he would look at the issues and that he was busy with other filings. Hearing nothing further, Ms. Hill then spoke to Mr. Geigle on Friday, April 28. Ms. Hill advised Mr. Geigle that, although the notice of deposition indicated that it had been mailed to Ms. Hill on April 13, Osborn Maledon did not receive the notice of deposition until April 24, 11 days later, and we suspected that the notice had not actually been sent on April 13 as reflected by the mailing certificate.2 Mr. Geigle also determined during the conversation that the deposition notices had never been A cover letter was sent with the deposition notices that was dated April 27, four days after Osborn Maledon received the notices, so clearly that date was in error. Ms. Hill requested that Mr. Geigle advise her when the deposition notices were actually mailed, but as of the time of filing this motion, Mr. Geigle had not provided this information.
Case 2:04-cv-00595-MHM -3Document 112 Filed 05/01/2006 Page 3 of 6
2

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

filed with the Court as required by the rules. Given the fact that Ms. Hill did not receive the deposition notice until April 24, Ms. Hill requested that plaintiffs postpone the May 3 deposition until this motion could be resolved. After conferring with Mr. Weech at the Jackson White firm, Mr. Geigle refused to do so. Mr. Geigle then faxed to Ms. Hill a copy of the subpoena served on Wells Fargo, as well as the affidavit of service of the subpoena and deposition notice, none of which has been filed with the Court. (Those documents are attached as Ex. B). The subpoena and Ex. A to the deposition notice request that Wells Fargo provide copies of all bank statements, cancelled checks and deposits, certificates of deposit, loans, notes, contracts, negotiations instruments, accounts receivable, financial statements, expense records, balance sheets, profit and loss statements, documents reflecting interests in partnerships and businesses, and corporate resolutions and minutes for all checking and savings accounts of, among others, El Shaddai, Second Chance and Michael Cambra3 from January 2001 through the present, a period of more than five years. The pending motions to dismiss are dispositive and are clearly meritorious. McCabe v. Goley, 233 F.R.D. 683, 685 (D.C. Fla. 2006) (in deciding whether to stay discovery pending a resolution of a motion, the Court must take a "preliminary peek" to see if the motion is clearly meritorious and truly case dispositive). As stated in the motions to dismiss, Mr. Williams and Global Missions has no control over Second Chance or El Shaddai. For instance, Mr. Williams is not an officer, director or employee of these defendants. Moreover, Global Missions and Second Chance/El Shaddai do not have any common staff, officers and directors, and do not share the
3

The plaintiffs also seek these records with respect to accounts of Gloria Cambra, Michael Cambra's wife. As stated previously, Mrs. Cambra has never even been served, and the date for serving all defendants has passed. Mrs. Cambra also had no involvement with the plaintiffs or the alleged wrongdoing, and therefore the requested documents as to her accounts are also not relevant and not reasonably calculated to lead to the discovery of admissible evidence.
Case 2:04-cv-00595-MHM -4Document 112 Filed 05/01/2006 Page 4 of 6

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

same physical facility. More importantly for purposes of this motion, neither Second Chance, El Shaddai or Mr. Cambra played any part in the negotiation or execution of the contract at issue in this case, nor did they ever make any representations to plaintiff, let alone representations that were knowingly false. Plaintiff's response to the motions to dismiss provided no additional details in support of its claims, and we believe that the deposition notice is nothing more than a fishing expedition. Without some basis, the Court should not permit plaintiff to delve into church and personal bank accounts for the last five years without some explanation about how these documents are relevant and how plaintiff believes that these documents could lead to the discovery of admissible evidence. There is simply nothing in the record now that would permit the discovery of these documents. Accordingly, the Court should quash the subpoena and issue a protective order as it pertains to El Shaddai, Second Chance and Mr. Cambra, at least until the Court rules on the pending motions to dismiss. If the motions to dismiss are granted, this discovery may no longer be necessary. In addition, under Fed. R. Civ. P. 26(d), parties are required to meet and confer as required by Rule 26(f) before seeking discovery from any source. Here, neither El Shaddai, Second Chance nor Mike Cambra have met and conferred as contemplated by Rule 26(f), nor would they be required to do so until the Court has ruled on their pending motions to dismiss. Accordingly, for the reasons set forth above, plaintiff's subpoena for records from Wells Fargo should be quashed and/or a protective order entered to the extent plaintiff requests bank records pertaining to El Shaddai, Second Chance and Michael Cambra. 4 Finally, El Shaddai, Second Chance and Mike Cambra request that the Court hear this motion on an expedited basis because the records deposition of Wells Fargo is scheduled for this Wednesday, May 3, and plaintiff has refused to postpone the Debra Hill's certification as required by Local Rule 7.2(j) is attached to this motion as Ex. C.
Case 2:04-cv-00595-MHM -5Document 112 Filed 05/01/2006 Page 5 of 6
4

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

deposition until this motion is resolved. A motion for expedited consideration has been filed as of this date as well. DATED this 1st day of May, 2006. OSBORN MALEDON, P.A.

By s/Debra A. Hill Debra A. Hill Ronda R. Fisk 2929 North Central, Suite 2100 Phoenix, Arizona 85012-2793 Attorneys for Defendants El Shaddai Ministries, Second Chance Ministries, and Michael Cambra CERTIFICATE OF SERVICE I hereby certify that on May 1, 2006, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: · Bradley D. Weech · Jeremy S. Geigle I hereby certify that on May 1, 2006, I served the attached document by hand-delivery on the Honorable Mary H. Murguia, United States District Court, Sandra Day O'Connor U.S. Courthouse, Suite 525, 401 West Washington Street, SPC 53, Phoenix, Arizona 85003-2154.

s/Karen L. McClain
1246217_1

Case 2:04-cv-00595-MHM

-6Document 112 Filed 05/01/2006

Page 6 of 6