Free Response to Motion - District Court of Arizona - Arizona

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Burton M. Bentley, Esq. (Bar No. 00980) BURTON M. BENTLEY, P.C. 5343 North 16th Street, Suite 480 Phoenix, Arizona 85016 (602) 861-3055 (602) 861-3230 fax Attorney for Defendants Rada

IN THE UNITED STATES DISTRICT COURT IN THE DISTRICT OF ARIZONA LAWRENCE J. WARFIELD, RECEIVER, Plaintiff, vs. MICHAEL ALANIZ, et al. RADA DEFENDANTS' RESPONSE TO EMERGENCY MOTION TO COMPEL COMPLIANCE (Assigned to Hon. James A. Teilborg) Defendants. CAUSE NO. CIV'03 2390 PHX JAT

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The Rada Defendants: Leonard & Betty Bestgen Robert Carroll Rudy & Mary Crosswell Charles Davis Richard Derk Orville Dale Frazier Dwight Lankford John & Candes Rada Paul Richard Patrick & Andrea Wehrly

hereby file their Response to Plaintiff's Emergency Motion To Compel Defendants' Compliance With Court's Order Setting Final Pretrial Conference, and respectfully ask that the Court deny the Motion for the reason that the filing of

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the timely Notice of Appeal divested this Court of Jurisdiction pursuant to Griggs v. Provident Consumer Discount Company, 459 U.S. 56, 103 S.Ct.400.

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Factual Issues The Rada Defendants, representing 10 separate persons and some of their spouses that have been joined, range from Maine to Texas and Arizona. It is timeconsuming and sometimes a tedious task to locate and communicate with all of the Rada Defendants upon short notice; and a telephone conversation sometimes needs to be repeated. Prior to the filing of the Notice of Appeal, undersigned counsel for the Rada Defendants utilized all of their energies and visited total concentration upon the demands of complying with the Court's Order Setting Final Pretrial Conference, and preparing the joint proposed final pretrial order for presentation to the Court as required. Counsel for Plaintiff was informed that the Rada Defendants were contemplating the filing of a Notice of Appeal during the meeting in which drafts of the Joint Proposed Pretrial Order had been exchanged and debated in a lengthy 4-hour session at the offices of Plaintiff's counsel. Of course, prior to that, undersigned counsel and his staff had set about drafting proposed jury instructions, proposed voir dire questions, proposed deposition testimony, the list of exhibits, and the list of witnesses, all in accordance with the Court's Order. The confusion came about because it was not until September 21, 2006 that all of the Rada Defendants had authorized the filing of a Notice of Appeal. The filing of the Notice of Appeal followed by days the September 18, 2006 conference at Guttilla & Murphy. Present were two attorneys and one legal assistant representing the Receiver, including Mr. Anderson, at which time the Receiver's counsel inquired, in substance: "Why are we doing this if you are going to appeal?" But at that time, the filing of a Notice of Appeal was not

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imminent, and we all applied ourselves to the task at hand ­ our Joint Proposed Pretrial Order. The Rada Defendants ask that the Court consider the following sequence of events: a) From September 21, 2006, the date of filing the Notice of Appeal, the

Receiver was put on notice that it was not the intention of the Rada Defendants to continue with trial preparation; b) The Rada Defendants would not thereafter file a Proposed Joint Final

Pretrial Order, one that must surely confuse the Receiver as to the intentions of the Rada Defendants; c) Preparing to go to trial by joining in the preparation of a Proposed

Joint Final Pretrial Order is inconsistent with the filing of a Notice of Appeal; d) Lest the actions of the Rada Defendants suggest to Attorney Ryan

Anderson or the Court that the Rada Defendants had withdrawn their Notice of Appeal, the Rada Defendants abruptly ceased to continue with the preparation of the Proposed Joint Final Pretrial Order, even though practically all of the preparation on the part of the Rada Defendants had been completed by September 21, 2006; e) It would be totally inconsistent for Defendants to file a Proposed

Joint Final Pretrial Order on the heels of filing a Notice of Appeal, which inconsistency might be construed as a withdrawal of the Notice of Appeal; f) The Rada Defendants were fully engaged in the process of complet-

ing the Proposed Joint Final Pretrial Order until filing the Notice of Appeal, and the reluctance to complete the process reflects Defendants' apprehensiveness in proceeding in opposite directions at the same time.

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The Rada Defendants are prepared to proceed in any manner that the Court may prescribe, as compliance with a Court Order cannot be perceived as a withdrawal of the Notice of Appeal. Jurisdiction Plaintiff has cited a 1996 case, Ruby v. Secretary of United States Navy, 365 F.2d 385 (9th Cir.1966) for the pre-1979 proposition that a notice of appeal did not divest the District Court of jurisdiction . That is not the law today under the directives of the Supreme Court in Griggs v. Provident Consumer Discount Company, 459 U.S. 56, 103 S.Ct. 400 (1982). The Griggs court ruled as follows: "In 1979, the Rules were amended to clarify both the litigants' timetable and the courts' respective jurisdictions. The new requirement that a district court `transmit forthwith' any valid notice of appeal to the court of appeals advanced the time when the court could begin processing an appeal." (at page 57) "Even before 1979, it was generally understood that a federal district court and a federal court of appeals should not attempt to assert jurisdiction over a case simultaneously. The filing of a notice of appeal is an event of jurisdiction significance -- it confers jurisdiction on the court of appeals and divests the district court of its control over those aspects of the case involved in the appeal." (at page 57). Under the authority of Griggs, the Rada Defendants informed Plaintiff Receiver that the filing of a Notice of Appeal removed jurisdiction to the Court of Appeals. Pursuant to the foregoing, the Rada Defendants respectfully ask the Court to declare that the Rada Defendants need not proceed to complete the filing of the

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Proposed Joint Final Pretrial Order, except upon further Order of the Court.
Dated at Phoenix, Arizona this 27th day of September, 2006. BURTON M. BENTLEY, P.C.

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_s/ Burton M. Bentley _________ Burton M. Bentley Attorney for Defendants Rada

PROOF OF SERVICE This is to certify that a true copy of the foregoing Response has been filed electronically with the Court and that the persons on the attached service list designated as "CM/ECF Registered" will be served with same by the Court's CM/ECF system; that the other persons on the attached service list have been served with a copy of the Response by first class mail this 27th day of September, 2006. _/s/___Burton M. Bentley Burton M. Bentley Ryan W. Anderson, Esq. Guttilla & Murphy, PC Attorneys for the Receiver CM/ECF Registered Ren Bidwell 3430 Pacific Avenue SE Olympia, WA 98501 Defendant Pro Se Steve A. Bryant 3618 Mt. Vernon, # A Houston, TX 77006-4238 Co-Counsel for Rada Defendants ____

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