Free Reply to Response to Motion - District Court of Arizona - Arizona

O SBORN MALEDON
A P ROF E SS IO NA L A S S OC IA T I O N A T T OR NEY S A T LA W

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The Phoenix Plaza 21st Floor 2929 North Central Avenue Phoenix, Arizona 85012-2794 P.O. Box 36379 Phoenix, Arizona 85067-6379 Telephone Facsimile 602.640.9000 602.640.9050

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Debra A. Hill, 012186 Ronda R. Fisk, 022100 OSBORN MALEDON, P.A. 2929 North Central Avenue, Suite 2100 Phoenix, Arizona 85012-2793 [email protected] [email protected] (602) 640-9000 Attorneys for Global Missions and El Shaddai Ministries

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA ESTATE OF JOSEPH J. STUDNEK, by and through its PERSONAL REPRESENTATIVE, JOSEPH M. STUDNEK, Plaintiff/Counterdefendant v. No. CIV-04-595-PHX-MHM DEFENDANTS EL SHADDAI MINISTRIES, SECOND CHANCE CHRISTIAN EVANGELICAL MINISTRIES, AND MICHAEL CAMBRA'S COMBINED REPLY IN SUPPORT OF MOTION TO DISMISS SECOND AMENDED COMPLAINT

AMBASSADOR OF GLOBAL MISSIONS UN LIMITED HIS SUCCESSORS, A CORPORATION SOLE, a Nevada corporation sole; EL SHADDAI MINISTRIES AND HIS (Oral Argument Requested) SUCCESSORS, A CORPORATION SOLE, a Nevada Corporation; SECOND CHANCE CHRISTIAN EVANGELISTIC MINISTRIES, a California corporation; BISHOP OF FAITH VISION NOBLE HOUSE AND HIS SUCCESSORS, A CORPORATION SOLE, a California corporation; JOSEPH L. WILLIAMS and MONICA C. CISNEROS, as husband and wife; WILLIAM JOE LITTLE, MICHAEL CAMBRA and GLORIA CAMBRA, as husband and wife; JOEL DAVID and CINDY DAVID, as husband and wife; KEITH AARON VANN and TRISHA VANN, as husband and wife, Defendants/Counterclaimants.

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Plaintiff's meager response to Defendants El Shaddai Ministries and His Successors, a Corporation Sole, Second Chance Christian Evangelistic Ministries, and Michael Cambra's ("Defendants") Motions to Dismiss1 further support Defendants' contention that this Court should dismiss Plaintiff's Second Amended Complaint ("Complaint") for lack of jurisdiction or, in the alternative, failure to state a claim upon which relief can be granted. Plaintiff Has Failed to State a Prima Facie Case Showing That This Court Has Jurisdiction Under an Alter-Ego Theory. Plaintiff does not dispute that Defendants have not had sufficient contacts with Arizona to establish either general or specific personal jurisdiction over them. Instead, he claims that Arizona has personal jurisdiction over Defendants with an unsubstantiated, single-sentence conclusion that Defendants, through their "alter ego," Joseph Williams and Global Missions, "traveled to Arizona and met with Plaintiff and its representative." (Dkt. 103 & 106.) In support of this conclusory statement,

Plaintiff attaches a laundry list of exhibits ­ with descriptions that misrepresent their contents ­ and concludes that Defendants are "an alter ego of Global and Williams and did participate in a common fraud scheme." (Id.) Plaintiff provides no affidavits or analysis explaining the relevance of these documents. Plaintiff's conclusory statement does not satisfy his burden of asserting a prima facie case for an alter-ego relationship. Flynt Distrib. Co. v. Harvey, 734 F.2d 1389, 1393 (9th Cir. 1984); Gatecliff v. Great Republic Life Ins. Co, 170 Ariz. 34, 37, 821 P.2d 725, 728 (1991). At a minimum, Plaintiff is "obligated to come forward with facts, by affidavit or otherwise," Scott v. Breeland, 792 F.2d 925, 297 (9th Cir. 1986), alleging (1) "such a unity of interest and ownership that the separate personalities" of the Defendants no longer exist and (2) failure to disregard Defendants as distinct Pursuant to the Order dated April 20, 2006 (Dkt. 110), Defendants file a combined reply in support of their Motions to Dismiss (Dkt. 97 & 104) hereafter referred to as "Defendants' Motions."
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entities would result in fraud or injustice. Flynt, 734 F.2d at 1393; Gatecliff, 170 Ariz. at 37, 821 P.2d at 728. Under the Arizona law, factors supporting an allegation of "unity of interest" include: "stock ownership"; "common officers or directors"; "financing" of the other entity; "payment of salaries and other expenses of" the other entity; failure of the entities "to maintain formalities of separate corporate existence"; "similarity of logo"; and "plaintiff's lack of knowledge of [the entity's] separate corporate existence." Gatecliff, 170 Ariz. at 37, 821 P.2d at 728. Plaintiff's Complaint makes no factual assertions supporting an alleged alterego relationship, and in his Response he has presented no affidavits or other facts to counter Defendants' affidavits.2 Indeed, all Plaintiff has provided are a collection of irrelevant (and inadmissible) exhibits,3 none of which show a unity of interest. Despite his gross mischaracterization of Plaintiff's Exhibits,4 all that his exhibits show is that (1) third parties have filed UCC Financing Statements naming various people (including Defendants) as debtors (Plaintiff's Exhibits A and B); (2) Defendants Plaintiff's request that the exhibits to Defendants' Motions be stricken is without basis. It is common practice within this circuit for a court to decide a Rule 12(b)(2) motion to dismiss on the basis of written materials, including affidavits from both parties. See, e.g., Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 800 (9th Cir. 2004). Furthermore, given that Plaintiff's Complaint does not meet the minimal pleading requirements to establish a prima facie case for an alter-ego relationship, this is not a case for which additional jurisdictional discovery is appropriate. See, e.g. Butcher's Union Local No. 498 v. SDC Investment, Inc., 788 F.2d 535 (9th Cir. 1986). In his Responses to Defendants' Motions (Dkt. 103 and 106), Plaintiff used identical descriptions for his exhibits and the exhibits themselves are almost identical. All references to "Plaintiff's Exhibits" refer to the exhibits for both Dkt 103 and 106. Plaintiff asserts that Exhibits A & B demonstrate that Williams has filed UCC statements on behalf of Defendants and that Defendant Monica Cisneros has filed UCC statements on behalf of various Defendants. A sample of the relevant UCC Financing Statements (Instrument Nos. 200561608, 200561610, 2005061612, 2005122462, 2005122463, 2005122464, 2005122465), attached hereto as Exhibit 1, shows that these statements were filed by third parties against Defendants. Plaintiff further misstates the nature of Exhibits E, F, G, and H as representing "another `fraud' involving Cambra and Williams."
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either share or have shared a mailing address with Global Missions and Williams (Plaintiff's Exhibits C and D); and (3) Global Missions and Williams filed a lawsuit against a third party, which Defendant Cambra served (Plaintiff's Exhibits E, F, G, and H). These are neither indicia that Defendants "no longer have separate

identities," nor accepted indicia of the existence of an alter-ego relationship. Plaintiff's Complaint should be dismissed because he has failed to meet his burden of showing that Arizona has jurisdiction over Defendants. II. Plaintiff Fails to State a Claim for Which Relief Can Be Granted. If the Court chooses not to dismiss the Complaint on jurisdictional grounds, Plaintiff's responses still fails to establish that he has stated claims against Defendants for which relief can be granted and should be dismissed pursuant to Rule 12(b)(6). As the Plaintiff points out, if the Court decides this case on the grounds of Rule 12(b)(6) (rather than Rule 12(b)(2)), "the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56." Fed. R. Civ. P. 12(b). Nevertheless, Plaintiff's request to pursue additional discovery pursuant to Rule 56(f) should be denied because he failed to follow the minimum requirements of the rule, which only allow a request for additional discovery "should it appear from the affidavits of a party opposing the motion that the party cannot for reasons stated present by affidavit facts essential to justify the party's opposition." Fed. R. Civ. P. 56(f). Plaintiff submitted no such affidavit in support of his request. In fact, Plaintiff presented no explanation whatsoever as to why he cannot properly oppose the motion to dismiss. Despite the fact that his original complaint was filed over two years ago, Plaintiff has pursued no discovery against the defendants who have answered (as evidenced by the lack of notices of discovery on the docket). Given Plaintiff's

complete lack of effort to pursue his case, he should not be allowed more time to go on a fishing expedition to keep the Defendants ­ who are disinterested and uninvolved parties ­ tied to this case.

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Plaintiff has failed to show that Defendants were involved in any way with any of the claims in the Complaint. Again, a mere conclusory assertion of the existence of an "alter ego" in pleadings is not sufficient to survive a Rule 12(b)(6) motion to dismiss; Plaintiff must allege facts ­ not legal conclusions ­ that support his alter-ego theory. No such facts were alleged in the Complaint. Thus, there are no facts alleged in Counts I-VII that support the claims brought against Defendants. Furthermore, the Court may summarily dismiss Count VIII (replevin) because Plaintiff does not contest that a replevin action may only be brought for the retaking of personal property, not real property or the proceeds from a sale of real property. In sum, all counts should be dismissed against Defendants because Plaintiff has failed to state a single claim upon which relief can be granted. CONCLUSION For the foregoing reasons, Defendants respectfully request that the Court grant their motions to dismiss the Complaint for lack of personal jurisdiction. In the

alternative, Defendants respectfully request that the Court grant their motions to dismiss the Complaint for failure to state a claim upon which relief may be granted. Furthermore, given that Plaintiff brought an unjustified suit against Defendants, they further request that the court award its costs and attorneys' fees pursuant to A.R.S. §§ 12-341, -341.01, and -349. DATED this 28th day of April, 2006. OSBORN MALEDON, P.A.

By s/ Ronda R. Fisk Debra A. Hill Ronda R. Fisk 2929 North Central, Suite 2100 Phoenix, Arizona 85012-2793 Attorneys for Global Missions and El Shaddai Ministries

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CERTIFICATE OF SERVICE I hereby certify that on April 28, 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: · Jeremy Scott Geigle, [email protected] · Bradley D. Weech, [email protected] I hereby certify that on April 28, 2006, I served the attached document by first-class mail 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.

I hereby certify that on April 28, 2006, I served the attached document by first-class mail on the following, who are not registered participants of the CM/ECF System: Joseph L. Williams 15934 Hesperian Blvd. P.M.B. 311 San Lorenzo, CA 94580

s/ Lindsay B. Jensen

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