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

1 James M. McGee, Esq. 2 Attorney at Law State Bar No. 011931 3 P.O. Box 460 Cottonwood, Arizona 86326 4 Telephone: 928.639.4747 FAX: 928.639.2190 5 6 Attorney for Defendants Home Mortgage, Inc., Carl Brown, Molly Brown 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Defendants, by and through Counsel undersigned, hereby responds to the Plaintiff's vs. HOME MORTGAGE, INC., an Arizona corporation conducting business in Arizona; CARL BROWN; MOLLY BROWN; GREG BROWN; JANE DOE BROWN; DOES 1-10; XYZ CORPORATIONS; BLACK PARTNERSHIPS; DEFENDANTS. IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA CATHLEEN CHANNEL; THERESA WHARRY; STACIE HANSON; MONIQUE NICHOLS; PLAINTIFFS, NO.: CIV2003-100PHXROS RESPONSE TO MOTION FOR: 1. ORDER COMPELLING DISCOVERY; 2. DISCOVERY SANCTIONS; 3. PERMISSION TO SUBMIT SUPPLEMENTAL BRIEF RE PENDING MOTIONS FOR SUMMARY JUDGMENT. MOTION FOR SANCTIONS FOR ABUSE OF DISCOVERY.

21 Motions 1), 2) and 3) as follows. Defendants also make Motion for Sanctions for Abuse of 22 23 24 25 26 to place or participate in a conference call with the Court to resolve a "discovery dispute". First, Counsel undersigned was out of town when Mr. Shields left a veritable undecipherable Discovery, discussion to follow, as well. Counsel undersigned takes great exception with Mr. Shields' comments in recent pleadings that he has not "received no cooperation whatsoever"

27 voice mail to the undersigned's office regarding some sort of "call", and, by the time we, my 28 paralegal (MY WIFE) and I returned to Cottonwood, retrieved our messages and regular mail Case 2:03-cv-00100-ROS-MEA Document 130 Filed 05/21/2007 Page 1 of 4

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including that from Mr. Shields, the time had come and gone for any "joint conference call"

2 timeframes dictated by Mr. Shields. 3 Second, it is important for the Court to note from the outset that Mr. Shields acted

4 completely out of line after the second Settlement Conference in Flagstaff with Judge Aspey to 5 6 7 8 9 representative (a stalwart individual licensed to practice law in New York but from New Jersey), and my paralegal (MY WIFE, a feisty Hispanic lady who normally doesn't take any the point that he (Shields) physically and verbally threatened me (a Retired Marine Corps Officer of 26 years), my clients (an elderly couple, quiet and dignified), their corporate

10 gruff from anyone), to the extent that we all had to turn away and walk away, lest Mr. Shields 11 continue his tirade. 12 13 14 no doubt included as an attempt to prejudice this Court for his or his clients' position(s). He 15 16 can attempt to prove whatever he thinks he can at trial but until then, all of it is mere vapor and INTRODUCTION Mr. Shields' assertions in his latest Motion are just that, assertions in an "Introduction",

17 hyperbole. 18 19 20 21 22 23 24 a change in representation over the course of this litigation but the advice to them has remained the same: "if the Plaintiffs make a demand offer, consider it, accept it or reject it." RESPONSE TO MOTION FOR ORDER COMPELLING DISCOVERY AND REQUEST FOR SANCTIONS Plaintiffs' assertions that the Browns' have failed to meaningfully participate in settlement discussions are ludicrous, and quite frankly, frivolous. True, the Browns' have had

25 The Browns' traveled to Flagstaff TWICE for a settlement conference. The Plaintiffs' position 26 obviously did not change from the first settlement conference. So then, why didn't THEY take 27 Case 2:03-cv-00100-ROS-MEA Document 130 2 Filed 05/21/2007 Page 2 of 4

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the initiative to inform Judge Aspey and Judge Silver that settlement discussions would not be

2 "productive?" 3 Mr. Shields makes much ado about taking the depositions of the Browns' for the THIRD

4 time over bank records he has been provided TWICE before, and records for which Mr. 5 6 7 8 9 10 11 continues in his attempt to harass an elderly couple about information he has been provided TWICE. Enough is enough! MOTION FOR SANCTIONS FOR ABUSE OF DISCOVERY Talk about incurring "substantial and unnecessary attorneys' fees and costs" (Mr. Shields has had TWO opportunities in the past to ask the Browns' any question he wanted to, under oath. He didn't do it; he failed in his due diligence in the first place on this case and

12 Shields' words), the latest evolution for a SECOND Settlement Conference, perpetuated no 13 14 their position and neither would the Plaintiffs', he (Shields) didn't even pick up the phone to 15 16 return calls from Counsel undersigned to discuss the case or the need for the second doubt by Mr. Shields, when he knew or should have known that the Browns' had not changed

17 Settlement Conference. If anybody or anything has delayed these proceedings and otherwise 18 obfuscated facts and circumstances it is the Plaintiffs' and their attorney. For Mr. Shields to 19 state that the Browns' have failed "to even communicate with [Mr. Shields] in order to place a 20 joint call to the Court, is outrageous and sanctionable," is outrageous and sanctionable in and 21 22 23 24 25 First, the Browns' have never had any contact with Mr. Shields regarding any "joint call" to the Court. Second, Counsel-undersigned never received notice of any "joint call" until after of itself.

26 returning to the office when voice and regular mail was retrieved. The time for such had come 27 and gone by then. Had Mr. Shields returned my calls in the first place when I was retained as Case 2:03-cv-00100-ROS-MEA Document 130 3 Filed 05/21/2007 Page 3 of 4

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new Counsel, all of this unnecessary, fee generating nonsense should not have occurred at

2 all. 3 Third, even if all of the above occurred as Mr. Shields concocts, THERE WAS NEVER

4 A "DISCOVERY DISPUTE" AFTER THE SECOND SETTLEMENT CONFERENCE, UNTIL 5 6 Deposition for the Browns' to dispute over, ergo, no objection was filed. Mr. Shields can try his 7 8 best to do an "end-run" on the normal course of events, but he has cost me, and my clients, a MR. SHIELDS CREATED ONE. There was not in place at the time, and since, any Notice of

9 lot of money to avert this latest tactic of his, statement of fees and costs to follow. 10 11 12 13 14 15 16 thus reserve the right to respond to whatever they are, whenever they might be filed, and whatever merit they might have. In all likelihood, it probably is going to be just regurgitation of PERMISSION TO SUBMIT SUPPLEMENT BRIEF RE PENDING MOTIONS FOR SUMMARY JUDGMENT Defendants have no idea what a wild-eyed "Supplemental Brief" to any "Pending Motions for Summary Judgment" might entail in lieu of recent developments in this case, and

17 assertions made previously, or more obfuscation. 18 19 20 21 James M. McGee 22 23 Copy of the foregoing: 24 mailed this 20th day of May, 2007 to: 25 The Honorable Roslyn O. Silver The Honorable Mark E. Aspey 26 James Burr Shields, II 27 E-filed this 20th day of May 2007. Case 2:03-cv-00100-ROS-MEA Document 130 4 Filed 05/21/2007 Page 4 of 4 DATED this 20th day of May 2007.

James M. McGee

Digitally signed by James M. McGee DN: cn=James M. McGee, o=Law Office, ou, [email protected], c=US Date: 2007.05.21 11:39:19 -07'00'