Free Response - District Court of Arizona - Arizona

I I LAW OFFICES J
RONAN & FIRESTONE, PLC
2 9300 E. RAINTREE DRIVE. SUITE 120 .
SCOTTSDALE, ARIZONA 85260 —
3 (480) 222-9100 E
Merrick B. Firestone, SB #012138
4 Veronica L. Manolio, SB #020230
Attorneys for the Nelcela Defendants t »
5 .
6 UNITED STATES DISTRICT COURT
7 IN AND FOR THE DISTRICT OF ARIZONA I
8 Merchant Transaction Systems, Inc., No. 02-CV—1954 - PHX-MHM
9 Plaintiff, N ELCELA, INC., LEN CAMPAGNA
10 v. AND ALEC DOLLARHIDE’S Q
RESPONSE TO MTSI’S REQUEST {
11 Nelcela, Inc., an Arizona corporation; FOR THIS COURT TO TAKE
Len Campagna, an Arizona resident; JUDICIAL NOTICE 1
12 Alec Dollarhide, an Arizona resident; (
Ebocom, Inc., a Delaware Corporation;
13 POST Integrations, Inc., an Illinois Corp., ;
I (The Honorable Mary H. Murgia) 1
14 1 Defendants.
15 I
And Related Counterclaims and Cross—C1aims.
16
17 Nelcela, Inc., Len Campagna and Alec Dollarhide (collectively "Nelce1a") hereby respond
18 to Merchant Transaction System, Inc.’s ("MTSI") recent request that this Court take judicial notice
19 of the Arizona Court of Appeals decision in Merchant Transaction Systems, Inc. v. Nelcela, Inc.,
20 Case No. 1CA-CV 05-0487. ;
21 MTSI is correct that this Court may properly take judicial notice of the appellate decision.
22 See, Fed.R.Evid. 201; see also, Papai v. Harbor T ug and Barge Co. 67 F.3d 203, 207 (9* Cir. 1995), S
23 reversed on other grounds, 520 U.S. 548, 117 S.Ct. 1535 (1997). However, MTSI failed to inform
24 the Court of these very essential issues of which judicial notice should be taken:
25 1. Nelcela has argued here that MTSI sold all of its assets and liabilities to EPX in 2001. I
26 The Court of Appeals relied on the sworn deposition testimony of Gene Clothier and both the sworn i
Case 2:O2—cv—O1954-IVIHIVI Document 375 Filed O9/O7/2006 Page 1 of 4

ljj deposition and affidavit of Danielle Huffman to find: j
2 a. CCS Ltd. merged into CCS Inc.;
3 b. There is no proof that MTSI purchased any assets or liabilities from CCS Ltd.
4 or CCS Inc. (including the software that is at issue in this case); and
5 c. That when CCS Inc. sold to EPX in 200l, only the collection of fees was to
6 be, "held back" by counsel in the sale. There was no arrangement that MTSI
7 would retain rights to own software or to claim ownership of anything as it
8 sold all assets to EPX.
9 See, decision attached to MTSI’s request as Exhibit A at p. 3.
l0 Based on the sworn testimony of MTSI’s principals, and using the Court of Appeals’
ll interpretation of that testimony, MTSI could never own the software it claims to own in this ease.
l2 2. The Court of Appeals remanded the case because it agreed (as MTSI argued) that A
l 3 there may have been an agency relationship exists between Nelcela and Post and/ or between Nelcela I
l4 and MTSI. See, decision attached to MTSI’s request as Exhibit A at pp. 7-8. This Court should take .
l5 judicial notice ofthe "agency" relationship because all three parties -— Lexcel, MTSI and Post- have
l 6 released all, "former othcers, directors, shareholders, employees, attorneys, agents, and all of the[ . . .]
l7 other representatives” of MTSI, CCS Ltd./CCS Inc., Lexcel Solutions, Inc./Lexcel, Inc., Post and
l 8 Eboeom from any liability in this case. See, Neleela’ s Motion for Summary Judgment against MTSI
19 at p. 5 (N elcela acted as an agent of MTSI/CCS Inc. and arranged for Post and MTSI/CCS Inc. to
20 work together.), p. 15 (MTSI released any and all of its agents in the Settlement Agreement here.);
2l see also, Nelcela’s Motion for Summary Judgment against Post at p. l6 (Nelcela acted as an agent `
22 for Post, and Post has now released any and all of its agents in the present Settlement Agreement.) i
23 lf this Court takes judicial notice or relies on the Court of Appeals decision, it must also
24 detennine that Nelcela was indeed an agent of MTSI, contrary to what MTSI argues in this forum.
25 Based on its agency status, Nelcela has been released from any and all liability in this case and is
26 released under the Settlement Agreement and Release that MTSI entered in J anuaiy of this year.
Case 2:O2—cv—O1954-IVIHIVI Document 375 Filed O9/O7/2006 Page 2 of 4

lll 3. The Court of Appeals did not reverse the sanctions that Nelcela had been awarded
2 in the underlying collection case due to MTSI’s game-playing and/or withholding evidence.
3
4 Nelcela agrees that this Court may take judicial notice of the appellate decision and asks the
5 Court to consider that MTSl’ s arguments in the appeal actually eviscerate its arguments in this Court.
6
7 RESPECTFULLY SUBMITTED this 7*h day of September, 2006.
8 RONA;,?J & FIRESTO , PLC ;
9 i· ’ r A 1 1 ”/M;) T
10 r » “ I ’» g .
Merrick B. Fires one S
1 1 Veronica L. Manolio
9300 E. Raintree Drive, Suite 120 j
12 Scottsdale, Arizona 85260 i
Attorneys for the Nelcela Defendants ,
13 i
14
15 ORIGINAL filed electronically with the Clerk’s Office
and COPIES electronically transmitted to the following
16 CM/ECF registrants this same date to: 1
17 Nicholas J. DiCarlo t
ndicarlo{qg»;thedcpti.nn.com i
18 Local Counsel for Merchant Transaction Systems
19 William McKinnon
mail a>wi11iamrnckimi.on.com §
20 Attorney for Merchant Transaction Systems _
21 Peter D. Baird I
pbairg1(a;1r`lant.c<>ni
22 Robert H. Mcliirgan
[email protected] y
23 Richard A. Halloran 1
Rha1loi*a.n(ctQ.1tlayg.com f
24 Kimberly Demarchi >
K.dernarchi.ggg>lrlaw,com
25 Attorneysfor POST and Ebocom
26 xxx
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1 George C. Chen 1
gCC1}€H@bQ&HC3V6.COH1 OI`
2 george.e11e11gaQ,bryaneave.com I
3 Attorizeysfor Lexcel, [nc.
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