Free Motion for Ruling - District Court of Arizona - Arizona

Christopher R. Kaup, Esq.
1 State Bar No. 0148 0
J effrey A. Sandell, Esq.
2 State Bar No. 020658
TIFFAN`X;_A& BO SCO
3 THIRD FLOOR CAMELEAOK ESPLANADE II
2525 EAST CAMELBACK ROAD
4 PHOENIX, ARIZONA 850l6B4237
TELEPHONE: (602) 255-6000
5 FACSIMILE: (602) 255-0103
Attorneys for Biltmore Associates, Trustee
6 of the Visitalk.com Creditors’ Trust
7
8 IN THE UNITED STATES DISTRICT COURT
9 FOR THE DISTRICT OF ARIZONA
In re:
10 Case No. CV 02-2405 PHX HRH
BILTMORE ASSOCLATES, as Trustee for
11 the Visitalk Creditors’ Trust, MOTION FOR SUMMARY
_ DISPOSTION GRANTING
12 Plaintiff PLAINTIFF’S MOTION FOR
_ SUMMARY JUDGMENT AS TO ALL
13 vs. CLAIMS AGAINST PETER
THIMMESCH
14 PETER THIMMESCH and CYNTH·ILA
15 THIMMESCH, husband and wife; MICHAEL
O’DONNELL and MARSHA O’DONNELL,
16 husband and wife, et al.,
1 7 Defendants.
1 8
BILTMORE ASSOCLATES, AS TRUSTEE FOR THE VISITALK CREDITORS’
l 9
TRUST, Plaintiff in the above-captioned case, hereby moves this Court to summarily grant its
20
21 Motion for Summary Judgment on its Claims Against Peter Thimmesch ("Thimmesch") because
22 Thimmesch has failed to file a Response, otheiwise oppose the Motion or request an extension of
23 time to respond, and the due date for him to do so passed weeks ago.
24 In an Order on March 6, 2007, the Court set June 4, 2007, as the deadline for
25 dispositive motions, and July 5, 2007, as the deadline for responses to said motions. This court
26
ase 2:02-cv-02405-HRH Document 391 Filed O8/O1/2007 Page 1 of 4
11400-002/344929.1 -1-

1 later granted Plaintiff an extension of three days, until June 7, 2007, to file its Motion for
2 Summary Judgment on its Claims Against Peter Thimmesch.
3 The Motion was filed by the Plaintiff via the ECF system on June 7, 2007, and served
4 via regular mail to Thimmesch on June 8, 2007, to the address for Mr. Thimmesch on record
5 with the Court and a second street address for Mr. Thimmesch in the records of the Plaintiffs
6 counsel. See Declaration of Sara Lovato, attached hereto as Exhibit "1." Even extending the
7 deadline for Thimmesch to respond by three business days, to coincide with the extension
8 granted the Plaintiff] and three calendar days because the Motion was served by mail,
9 Thimmesch’s Response was due no later than July 12, 2007. Thimmesch has filed no Response,
10 no Controverting Statement of Facts and no Request for an Extension of time to respond.
1 1 . . . .
Thimmesch’s failure to file a timely Response 1S properly deemed a consent to the granting of
12
the Motion. Local District Rule 7.2(i). Therefore, it is appropriate for the Court to summarily
13
grant the Motion.
14
WHEREFORE, the Plaintiff respectfully requests that the Court grant the Motion for
15
16 Surmnary Judgment on its Claims Against Peter Thimmesch without further hearing
17 RESPECTFULLY SUBMITTED this lst day of August, 2007.
18 . TIFFANY & BOSCO, P.A.
19
20 By: /s/ Christopher R. Kang. g#014820)
Christopher R. Kaup, Esq.
21 Jeffrey A. Sandell, Esq.
Third Floor Camelback Esplanade II
22 2525 East Camelback Road
Phoenix, Arizona 85016-4237
23 Attorneys for Plaintiff
24
25
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se 2:O2—cv-O2405—HRH Document 391 Filed 08/O1/2007 Page 2 of 4
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EXHIBIT "1"
Case 2:02-cv-02405-HRH Document 391 Filed O8/O1/2007 Page 3 of 4

1 DECLARATION OF
2 SARA LOVATO
3 I, Sara Lovato, do, hereby, state and declare as follows:
4 1. I am over the age of 18 years, and competent to testify to the facts
5 contained in this Declaration upon my own personal knowledge; I
6 2. I am a legal assistant employed by the firm of Tiffany & Bosco, P.A.;
7 3. In the course of my duties as legal assistant, I mailed a copy of the Motion
8 for Summary Judgment on its Claims Against Peter Thimmesch (the "Motion") and
Statement of Facts in Support of the Motion on June 8, 2007, to the address for Mr.
9 Thimmesch on record with the Court (11329 Stonehouse Pl, Potomac Falls, VA 20165)
10 and a second street address for Mr. Thimmesch in the records of Tiffany & Bosco (11337
H Stonehouse Place, Potomac Falls, VA 20165).
12 4. Neither mailing was returned to the firm as undeliverable or for any other
13 reason.
14 I declare under penalty and perjury of the laws of the State of Arizona that the
15 foregoing is true and correct and that this Declaration is executed by me on the lst day of
16 August, 2007.
17
18 /s/ Sara Lovato
. Sara A. Lovato
19
20 t
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22
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