Free Motion to Consolidate Cases - 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 Plaintiffs IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA SHIMKO & PISCITELLI, et al., Plaintiffs, v. PAUL WOODCOCK, et al., Defendants. ) ) ) ) ) ) ) ) ) ) Case No. CV-04-00078-FJM Judge Frederick J. Martone PLAINTIFFS' LOCAL RULE 42.1(a)(1) MOTION TO TRANSFER CASE NO. CV-05-1387-JWS TO THIS COURT FOR CONSOLIDATION WITH THIS CASE

NOW COME Plaintiffs, and pursuant to LRCiv 42.1(a)(1), hereby move this Court to transfer Case No. CV-05-1387-JWS (pending before Judge John Sedwick) to this court for consolidation with this case.

17 18 19 20 21 22 23 24 business interests in a number of lawsuits each expected to be shortly filed against them in various 25 26 jurisdictions across the country. The Plaintiffs agreed to and did represent the Defendants, PLAINTIFFS' MOTION TO TRANSFER CASE NO. CV-05-1387-JWS TO THIS COURT FOR CONSOLIDATION WITH THIS CASE PURSUANT TO LOCAL RULE 42.1(a)(1) - 1 I. Statement of Facts

The Plaintiff Timothy A. Shimko is a resident of the State of Ohio and is a practicing attorney in that state and at all times relevant maintained his sole place of business in the State of Ohio under the name Shimko & Piscitelli. The Defendants in this action are residents of Arizona. The Plaintiffs were asked by the Defendants and their partners in their CORF venture to represent the Defendants and their wives, personally, and to represent several of the Defendants'

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personally, and their partnerships in approximately (40) fraud actions that were filed across the country, although by far the vast majority of the cases were filed in Arizona. The Plaintiffs immediately associated with local counsel and proceeded to represent the Defendants and their partners and their business interests. However, in April of 2003, the Plaintiffs pressed for payment of their outstanding attorney's fees, which at the time were delinquent in the amount of approximately $359,668. At that time, the Plaintiffs' services were terminated by the Defendants and their partners without any provision being made for paying the Plaintiffs' past due fees. Shortly thereafter the Plaintiffs brought this action to collect their fees. II. Law & Analysis

The basis for this motion is that Case No. CV-05-1387-JWS is a re-filed action (hereinafter referred to as "the re-filed action"). The re-filed action was originally part of this lawsuit. Earlier in

13 14 15 16 17 18 19 20 remaining Defendants in this case were Dr. and Mrs. Guenther, and the Plaintiffs proceeded on their 21 22 23 24 25 26 PLAINTIFFS' MOTION TO TRANSFER CASE NO. CV-05-1387-JWS TO THIS COURT FOR CONSOLIDATION WITH THIS CASE PURSUANT TO LOCAL RULE 42.1(a)(1) - 2 claims against the Guenthers and successfully tried this case in a bench trial before this Court on May 17, 2005. On May 24, 2005, this Court issued its findings of fact and conclusions of law and entered judgment for the Plaintiffs and against the Guenthers in the amount of $359,668. The Plaintiffs appealed the summary judgments granted to Ross and Goldfarb to the Ninth Circuit. this case, the Woodcocks were dismissed without prejudice because they had filed for bankruptcy. The Plaintiffs, however, re-filed their claims against the Woodcocks when the Woodcocks' bankruptcy was dismissed. The re-filed case against the Woodcocks was assigned to Judge

Sedwick, and that is Case No. CV-05-1387-JWS. In this case, after the Woodcocks were dismissed because of their bankruptcy filing, this Court granted summary judgment to some of the Defendants (Ross and Goldfarb). The only

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Recently, on August 31, 2007, the Ninth Circuit reversed this Court's summary judgment rulings for Ross and Goldfarb and remanded this case back to this Court for trial. (See the Ninth Circuit's Opinion attached as "Exhibit 1.") Dr. and Mrs. Guenther separately appealed this Court's bench trial verdict; however, that appeal has not yet been decided. At this point, since this case against Ross and Goldfarb has been remanded to this Court for trial, the re-filed case against the Woodcocks should be transferred and consolidated with this case. The reason for consolidation is that the claims, allegations, witnesses, and exhibits are exactly the same in this case as in the re-filed case against the Woodcocks. Quite simply, the debt that forms the basis of this lawsuit against Ross and Goldfarb is the same debt that the Plaintiffs are attempting to collect in the re-filed case against the Woodcocks (and it is the same debt upon which the Plaintiffs obtained a judgment against the Guenthers in the bench trial).

13 14 15 16 17 18 19 20 21 22 23 24 25 26 PLAINTIFFS' MOTION TO TRANSFER CASE NO. CV-05-1387-JWS TO THIS COURT FOR CONSOLIDATION WITH THIS CASE PURSUANT TO LOCAL RULE 42.1(a)(1) - 3 Local Civil Rule 42.1 states: "(a) Related Cases. (1) Whenever two or more cases are pending before different Judges and any party believes that such cases (A) arise from substantially the same transaction or event; (B) involve substantially the same parties or property; (C) involve the same, patent, trademark, or copyright; (D) calls for determination of substantially the same questions of law; or (E) for any other reason would entail substantial duplication of labor if heard by different Judges, any party may file a motion to transfer the case or cases involved to a single Judge. The motion shall be filed in the case with the lowest case number and shall be heard by the Judge assigned to that case. The caption of the motion to transfer shall list the case number of that case, followed by a complete listing of the case numbers of all the cases to be considered for reassignment. In addition, a notice of filing motion to transfer, with a copy of the motion attached, shall be filed in each case to be considered for reassignment." (Emphasis added.) In this case, pursuant to Local Rule 42.1(a)(1), since this case has the lowest case number, the Plaintiffs have filed this motion before this Court. And, based upon Rule 42.1(a)(1), the re-filed case against the Woodcocks should now be transferred and consolidated before this court because if

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the two cases are not consolidated, then two trials before two separate judges will occur in this district court.1 If the two cases were not consolidated this would waste judicial resources, attorney's time, and witnesses' time. It would also create the risk of rendering inconsistent judgments on the same set of facts, circumstances, and claims. The two cases arise from the same transaction or event. The two cases involve the same parties and property, and the two cases call for a

determination of the same questions of law. III. Conclusion

Based on the above, judicial economy favors transferring the re-filed case (Case No. CV-051387-JWS) to this Court for consolidation with this case. The cases are exactly the same and the matter should be consolidated. RESPECTFULLY SUBMITTED on this 14th day of September, 2007. 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 Plaintiffs

Notably, Case No. CV-05-1387-JWS is now ripe for trial. All dispositive motion deadlines have passed and all dispositive motions have already been ruled upon, and the Plaintiffs' claims remain ripe for trial. However, Judge Sedwick has not yet set the trial date. PLAINTIFFS' MOTION TO TRANSFER CASE NO. CV-05-1387-JWS TO THIS COURT FOR CONSOLIDATION WITH THIS CASE PURSUANT TO LOCAL RULE 42.1(a)(1) - 4

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COPY of the foregoing electronically filed and served this 14th day of September, 2007 upon: Richard J. McDaniel Counsel for Guenther and Woodcock 7321 North Sixteenth Street Phoenix Arizona 85020 Counsel for Defendants

/s/ Mildred Pacheco

PLAINTIFFS' MOTION TO TRANSFER CASE NO. CV-05-1387-JWS TO THIS COURT FOR CONSOLIDATION WITH THIS CASE PURSUANT TO LOCAL RULE 42.1(a)(1) - 5

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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 PLAINTIFFS' MOTION TO TRANSFER CASE NO. CV-05-1387-JWS TO THIS COURT FOR CONSOLIDATION WITH THIS CASE PURSUANT TO LOCAL RULE 42.1(a)(1) - 6

EXHIBIT 1

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