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 Defendants/Counterclaimant. Plaintiff/Counterdefendant,

PLAINTIFF'S RESPONSE TO: DEFENDANT JOSEPH L. WILLIAMS' REFILING AMENDED MOTION TO DISMISS, PRESENTING DEFENSE OF RULE 12: LACK JURISDICTION OVER SUBJECT MATTER; LACK OF JURISDICTION OVER PERSON; IMPROPER VENUE; FAILURE TO STATE A CLAIM; FAILURE TO JOIN A PARTY UNDER RULE 19 AND PLAINTIFF'S MOTION FOR SANCTIONS Assigned to the Honorable: Mary H. Murguia Oral Argument Requested

Defendant Joseph L. Williams' Refiling Amended Motion to Dismiss, Presenting Defense of

26 Rule 12: Lack of Jurisdiction Over Subject Matter; Lack of Jurisdiction Over Person; Improper Venue; Case 2:04-cv-00595-MHM Document 101 Filed 02/13/2006 Page 1 of 6

1 Failure to State a Claim; Failure to Join a Party Under Rule 19 ("Motion to Dismiss") must be denied 2 based on the following summary reasons: 3 4 5 6 7 8 9 10 11 12 13 14 15 16 1. 17 18 As a preliminary matter, Plaintiff asks the Court to disregard Williams' repeated claims that he Williams' Motion Is a Motion to Dismiss, Not a Motion for Summary Judgment; No Admissible Evidence Is Even Proffered MEMORANDUM OF POINTS AND AUTHORITIES 3. 4. 1. 2. The motion is a Motion to Dismiss and not a Motion for Summary Judgment. This Court has subject matter jurisdiction. Further, on September 16, 2004, Williams filed a Rule 12 Motion to Dismiss, did not assert personal jurisdiction or venue objection and, thus waived these personal defenses. And, on June 22, 2004, Williams answered Plaintiff's First Amended Complaint and unequivocally consented to jurisdiction and venue. Plaintiff's Second Amended Complaint properly states claims for relief; and Plaintiff has not failed to join an indispensable party under Rule 19, FRCP; nor does Williams allege such. Plaintiff's Response is supported by the following Memorandum of Points and Authorities.

19 has not been "presented with any evidence, of the admissible kind . . .." His motion is a Motion to 20 Dismiss, not a Motion for Summary Judgment. The Court must confine its review to the allegations of 21 the complaint, giving every inference to Plaintiff. On the face of Plaintiff's allegations, Defendant's 22 motion fails and must be denied. 23 Further, Williams' motion does not even attempt to have the Court consider any admissible

24 evidence outside of Plaintiff's Second Amended Complaint. Williams' motion does not even attach his 25 sworn affidavit or any other evidence for the Court to consider. The Second Amended Complaint is not 26 a verified complaint, nor is it required to be. Defendant Williams is simply wrong on th is issue. Case 2:04-cv-00595-MHM Document 101 2 Filed 02/13/2006 Page 2 of 6

1 2. 2 3 4

This Court has Subject Matter Jurisdiction; Williams Has Waived Any Objection to Personal Jurisdiction and Venue; and Williams has Even Unequivocally Consented to Jurisdiction and Venue. Williams' Jurisdiction arguments fail for multiple reasons. First, this Court has subject matter jurisdiction to hear Plaintiff's claims for Breach of Contract,

5 Fraud, Unjust Enrichment, Punitive Damages, Rescission of Gift (based upon Misrepresentation, 6 Unilateral Mistake and Failure of Condition Precedent), and Replevin. None of these claims is outside 7 of the Court's subject matter jurisdiction, and there is no salient argument to the contrary. 8 Further, this issue is already part of the record against Williams. This is a diversity of citizenship

9 case, properly pled as such. And, thus, this Court is empowered with subject matter jurisdiction to hear 10 and decide Plaintiff's claims. Williams makes no sound argument to the contrary. In fact, on August 11, 11 2005, Williams even stipulated as such in the joint Proposed Case Management Plan submitted to this 12 Court. At Page 4, Paragraph IV, Williams agreed that: "Defendant Global Missions removed this action 13 to federal court. There is complete diversity among the parties, and the amount in controversy exceeds 14 $75,000; this Court has jurisdiction pursuant to 28 U.S.C. § 1332." 15 Second, Williams waived any defense of personal jurisdiction or venue. On September 16, 2004,

16 Williams filed a motion to dismiss this case pursuant to Rule 12(b)(5) which was eventually denied. He 17 did not assert the Rule 12 defenses of personal jurisdiction or venue in that motion. And, by failing to 18 assert them, he waived them. Benny v. Pipes, 799 F.2d 489, 492, C.A.9, 1986 (Arizona)(A general 19 appearance or responsive pleading by a defendant that fails to dispute personal jurisdiction will waive 20 any defect in service or personal jurisdiction.) See also American Ass'n of Naturopathic Physicians v. 21 Hayhurst, 227 F.3d 1104 (9th Cir. 2000) (A pro se litigant is not excused from knowing the most basic 22 pleading requirements; if a party raises any Rule 12 defenses in his first filing to the court, he was 23 obliged to raise all of those specified in Rule 12(h) including personal jurisdiction, improper venue, 24 insufficient process, or insufficient service). 25 Third, if the above is not sufficient for the Court to deny Williams' Motion to Dismiss, certainly,

26 Williams' unequivocally consent to personal jurisdiction and venue should nail the coffin shut. In his Case 2:04-cv-00595-MHM Document 101 3 Filed 02/13/2006 Page 3 of 6

1 June 22, 2004 Answer to Plaintiff's First Amended Complaint, William admitted personal jurisdiction 2 and venue. Paragraph 2 of Plaintiff's First Amended Complaint alleged: 3 4 5 6 2. Upon information and belief, Ambassador of Global Missions UN Limited, and his successors, a corporation sole ("Global") is a Nevada corporation sole. The acts and events giving rise to this cause of action occurred in Maricopa County, Arizona. Jurisdiction and venue are proper. (Emphasis added.)

On June 22, 2004, Williams answered Plaintiff's First Amended Complaint and admitted personal

7 jurisdiction and venue as follows: 8 9 10 11 2. Answering paragraph 2 of the Complaint, Williams alleges that Global Missions' true corporate name is "Ambassador of Global Missions UN Limited, and His Successors, a Corporation Sole,"and that it is a Nevada corporation sole. Williams admits the remaining allegations in Paragraph 2. (Emphasis added.)

Williams has admitted personal jurisdiction and venue are proper and therefore has

12 unequivocally consented to personal jurisdiction and venue. His arguments to the contrary are baseless 13 and sanctionable. See Benny and Hayhurst, supra. (Interestingly, Hayhurst involved a pro per defendant 14 who was found to be incredible in his claim of not being served and/or having no knowledge.) 15 3. 16 17 The Complaint States Proper Causes of Action; It Does Not Fail to State Claims for Relief. Plaintiff's Second Amended Complaint states proper claims for relief. In analyzing Mr. Williams Motion to Dismiss, all material allegations in the Plaintiff's

18 Complaint must be accepted as true and construed in the light most favorable to Plaintiff. North Star 19 International v. Arizona Corporation Commission, 720 F.2d 578, 580 (9th Cir.1983). Dismissal is 20 warranted only if it appears to a certainty that Plaintiff would be entitled to no relief under any state of 21 facts that could be proved. Halet v. Wend Investment Co., 672 F.2d 1305, 1309 (9th Cir.1982). 22 It is undisputed that Mr. Williams took possession of one of Plaintiff's buildings, sold it, and Plaintiff has properly alleged facts to

23 kept proceeds from the sale in the amount of $3,377,089.64.

24 support Breach of Contract, Fraud, Unjust Enrichment, Punitive Damages, Rescission of Gift (based 25 upon Misrepresentation, Unilateral Mistake and Failure of Condition Precedent), and Replevin. 26 Therefore, assuming all allegations as true, Plaintiff would be entitled to the relief requested in the Case 2:04-cv-00595-MHM Document 101 4 Filed 02/13/2006 Page 4 of 6

1 Second Amended Complaint. Therefore, Williams' argument to the contrary is completely baseless, 2 frivolous, completely lacking in merit and sanctionable under Rule 11, FRCP. 3 4. 4 Rule 19, FRCP allows for dismissal for failure to join indispensable party. But, neither Mr. 5 Hall, nor the IRS, (as randomly asserted in Williams' motion) are indispensable parties to this action. 6 Nor, does Williams, at any point in his motion, state facts, or include admissible evidence (such as by 7 affidavit or otherwise) showing, or even suggesting such. Williams simply complains that he has been 8 included in this suit and they have not. 9 5. 10 Plaintiff requests that Williams' Motion to Dismiss be denied and that the Court award Plaintiff 11 its attorneys' fees and costs incurred herein pursuant to Rule 11, FRCP, ARS 12-341(c) and ARS 1212 349. 13 Dated this 13th day of February, 2006. 14 JACKSON WHITE, P.C. 15 16 17 18 19 ORIGINAL of the foregoing electronically filed with the Clerk of the United States 20 District Court this 13th day of February, 2006 21 Judge Mary H. Murguia 22 401 W. Washington Phoenix, AZ 85003 23 24 25 26 Case 2:04-cv-00595-MHM Document 101 5 Filed 02/13/2006 Page 5 of 6 By: /s/ Jeremy S. Geigle Bradley D. Weech, Esq. Jeremy S. Geigle, Esq. Attorneys for Plaintiff Conclusion and Request for Relief. Plaintiff has not failed to join an indispensable party under Rule 19, FRCP; nor does Williams allege such.

1 COPY of the foregoing emailed this same date to: 2 Debra A. Hill 3 OSBORN, MALEDON, P.A. 2929 North Central Avenue, Suite 2100 4 Phoenix, Arizona 85012-2794 Attorney for Defendants 5 6 By: 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Case 2:04-cv-00595-MHM Document 101 6 Filed 02/13/2006 Page 6 of 6 /s/ Catherine R. Magurany

F:\STU\Studnek, Joe\Global Missions\Pldgs\Response to Refiled Motion to Dismiss.wpd