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

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Timothy A. Shimko (PRO HAC VICE) (OSBN 0006736) David A. Welling (PRO HAC VICE) (OSBN 0075934) TIMOTHY A. SHIMKO & ASSOCIATES 2010 Huntington Building 925 Euclid Ave. Cleveland, Ohio 44115 Tel. (216) 241-8300 Fax (216) 241-2702 Attorneys for Plaintiff IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV-04-78-FJM Judge Frederick J. Martone PLAINTIFF'S RESPONSE IN OPPOSITION TO THE ROSS DEFENDANTS' "EMERGENCY MOTION TO COMPEL APPEARANCE OF PLAINTIFF TIMOTHY SHIMKO AND FRANK PISCITELLI AT DEPOSITIONS ON MARCH 19, 2008"

TIMOTHY A. SHIMKO, Plaintiff, v. DAVID GOLDFARB and RICHARD ROSS, et al., Defendants.

NOW COMES the Plaintiff, Timothy A. Shimko, and hereby submits his response in opposition to the Ross Defendants' emergency motion to compel appearance of Plaintiff Timothy Shimko and Frank Piscitelli at depositions on March 19, 2008. This opposition is supported by the

19 20 21 22 23 24 25 26 deposition. And, with respect to non-party, Frank Piscitelli, Plaintiff Shimko has no control over herein below memorandum, and by the certificate of counsel and exhibits thereto filed contemporaneously herewith. The Defendants' motion to compel should be denied because Plaintiff Shimko agreed to be available for telephonic deposition on March 19, 2008. The fact that the Defendants want Shimko to be on a telephone in Cleveland, Ohio instead of being on a telephone in the Cayman Islands is nonsense. Additionally, the March 19, 2008 date was unilaterally chosen by the Defendants' counsel, and was done so after the Defendants already had twice cancelled Shimko's

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him as they are no longer associated in any way. If the Defendants are having trouble serving a subpoena on Piscitelli then their remedy is with the US District Court for the Northern District of Ohio, because that is the Court with which the Defendants must utilize to subpoena Piscitelli in Cleveland, Ohio. The subpoena to Piscitelli is a matter not for the jurisdiction of this Court. I. Introduction In their motion to compel, the Ross Defendants argue that Shimko and Piscitelli should be compelled to sit for their depositions on March 19, 2008. To properly understand the current

posture of these depositions, the history of setting these depositions must be examined: · On or about January 2, 2008, Shimko wrote to the Ross Defendants and provided numerous deposition dates upon which Mr. Shimko was available for a telephonic deposition. (See the Certificate of Counsel of David A. Welling filed contemporaneously herewith at paragraph 1, and "Exhibit 1.") On or about January 21, 2008, Shimko wrote to the Ross Defendants and confirmed that Shimko had received the Ross Defendants' Notice of Deposition setting Mr. Shimko's deposition for February 11, 2008, and that Shimko agreed to participate via telephone or videoconference. (See the Certificate of Counsel of David A. Welling filed contemporaneously herewith at paragraph 2, and "Exhibit 2.") On or about February 5, 2008, the Ross Defendants (through defense counsel's secretary, Ms. Rima M. LaMont) wrote to Shimko and unilaterally cancelled the February 11, 2008 deposition. (See the Certificate of Counsel of David A. Welling filed contemporaneously herewith at paragraph 3, and "Exhibit 3.") The Ross Defendants then noticed the deposition of Shimko to occur on February 26, 2008. On or about February 22, 2008, the Ross Defendants (through defense counsel's secretary, Ms. Rima M. LaMont) again wrote to Shimko and again unilaterally cancelled the February 26, 2008 deposition. (See the Certificate of Counsel of David A. Welling filed contemporaneously herewith at paragraph 4, and "Exhibit 4.") On or about March 7, 2008, the Ross Defendants unilaterally scheduled the telephonic deposition of Shimko to occur on March 19, 2008 at 3:30 EDT. (See the Certificate of Counsel of David A. Welling filed contemporaneously herewith at paragraph 5, and "Exhibit 5.")

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On or about March 13, 2008, Shimko wrote to the Ross Defendants and advised that he agreed to participate in the March 19, 2008 telephonic deposition, except that he was going to be on vacation in the Cayman Islands at that time, and therefore, he would participate from a telephone in the Cayman Islands. (See the Certificate of Counsel of David A. Welling filed contemporaneously herewith at paragraph 6, and "Exhibit 6.") On or about March 13, 2008, the Ross Defendants wrote to Shimko and agreed to conduct the telephonic deposition with Shimko on March 19, 2008, except, they demanded that Shimko pay the costs for the telephone call and the court reporter. (See the Certificate of Counsel of David A. Welling filed contemporaneously herewith at paragraph 7, and "Exhibit 7.") On or about March 13, 2008, Shimko wrote to the Ross Defendants and again stated that he agreed to participate in the March 19th deposition, but that he would not pay for the telephone charges or court reporter. (See the Certificate of Counsel of David A. Welling filed contemporaneously herewith at paragraph 8, and "Exhibit 8.") The Ross Defendants then filed their instant motion to compel. Law & Analysis As is illustrated by the above timeline and exhibits evidencing the same (Exhibit Nos. 1 ­ 8

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attached to the Certificate of Counsel of David A. Welling), the Ross Defendants noticed Shimko's telephonic deposition to occur on two (2) separate occasions during the month of February.

16 17 18 19 20 21 22 23 at paragraph 4, and "Exhibit 4.") 24 25 26 Admittedly, the deposition was then scheduled to March 3, 2008. Unfortunately, however, Shimko had to cancel that deposition because of other matters. It was then on March 7th that the Ross Defendants unilaterally chose March 19, 2008 as the date for the telephonic deposition. (See Shimko's deposition was first set to occur on February 11th. However, on February 5, 2008, the Ross Defendants unilaterally cancelled the February 11th deposition. (See the Certificate of Counsel of David A. Welling filed contemporaneously herewith at paragraph 3, and "Exhibit 3.") The Ross Defendants then scheduled to have the deposition take place on February 26th. However, on February 22nd, the Ross Defendants again unilaterally cancelled the February 26th deposition. (See the Certificate of Counsel of David A. Welling filed contemporaneously herewith

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the Certificate of Counsel of David A. Welling filed contemporaneously herewith at paragraph 5, and "Exhibit 5.") Importantly, Shimko has at all points in time agreed to make himself available for telephonic deposition on March 19th, except, he indicated that he will be in the Cayman Islands on vacation at that time and thus requires to take the call from the Cayman Islands. (See the Certificate of Counsel of David A. Welling filed contemporaneously herewith at paragraph 6, and "Exhibit 6.") The Ross Defendants then demanded that Shimko pay for the telephone call and the court reporter since he wanted to take the call from the Cayman Islands instead of from Cleveland, Ohio. Shimko refused to pay for these expenses because the Ross Defendants are the ones taking his deposition and they should have to pay for the deposition. Furthermore, the fact that Shimko would be in the Cayman Islands on March 19th is not his fault. It was the Ross Defendants that unilaterally chose March 19th, and did so after twice themselves canceling Shimko's deposition. Certainly, there are court reporters in the Cayman Islands that are capable of handling the telephonic deposition just as there are court reporters in Cleveland, Ohio. The Ross Defendants' instant motion to compel should be denied because Shimko has agreed to make himself available for telephonic deposition. Furthermore, he will agree to do so in the future. The only reason March 19th was chosen was because the Ross Defendants had already cancelled Shimko's deposition twice. Shimko should not be penalized for this, especially when he agrees to sit for his deposition ­ he just doesn't agree that he should have to pay for it.

21 22 23 24 25 26 (With respect to Frank Piscitelli's deposition, Shimko has no control over Mr. Piscitelli. Mr. Piscitelli is not a party to this case. He has no interest in this case. Apparently, the Ross Defendants have unsuccessfully attempted to issue subpoenas to Piscitelli through the US District Court for the Northern District of Ohio. It is Shimko's position that if the Ross Defendants are having trouble issuing a subpoena to Piscitelli, then their remedy lies with the Court that issued that subpoena (the

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Northern District of Ohio). At any rate, Shimko has no control over Piscitelli and cannot be made answerable for non-party Piscitelli. III. Conclusion The Ross Defendants unilaterally cancelled Shimko's deposition on two (2) prior occasions: they cancelled the Feb. 11, and then the Feb. 26 depositions. The Ross Defendant then unilaterally chose March 19th as the date for Shimko's deposition. Shimko agreed to participate even though he was going to be on vacation. Shimko advised Ross that he would be in the

Cayman Islands and would participate from the Cayman Islands. The Ross Defendants then filed their motion to compel because they didn't want to pay for the deposition they were taking. The Ross' instant motion should be denied. Shimko agrees to sit for his telephonic deposition but just doesn't agree that he should have to pay for it.

13 14 15 16 17 18 19 20 21 22 23 24 25 26 RESPECTFULLY SUBMITTED on this 17th day of March, 2008. TIMOTHY A. SHIMKO & ASSOCIATES By: /s/ Timothy A. Shimko Timothy A. Shimko (OSBN 0006736) David A. Welling (OSBN 0075934) 2010 Huntington Building 925 Euclid Ave. Cleveland, Ohio 44115 Tel. (216) 241-8300 Fax (216) 241-2702 Attorneys for Plaintiff

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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 /s/ Mildred Pacheco Mr. and Mrs. David Goldfarb 11437 N. 53rd Place Phoenix, Arizona 85254 Defendants Milton and Kathi Guenther 3642 E. Rockwood Phoenix, Arizona 84032 Defendants in pro per Roger L. Cohen, Esq. Jaburg & Wilk, P.C. 3200 North Central Avenue, Ste. 2000 Phoenix, Arizona 85012 [email protected] Counsel for Defendant Ross Richard J. McDaniel, Esq. 11811 N. Tatum Blvd., Ste. 1051 Phoenix, Arizona 84208 Counsel for Defendants Woodcock COPY of the foregoing electronically filed and served this 17th day of March 2008 upon:

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