Xcentric Ventures, LLC, et al., v. Richeson

Filing 18

RESPONSE in Opposition re 17 MOTION for Leave to Appear Telephonic filed by Jaburg & Wilk, P.C., Xcentric Ventures LLC. (Speth, Maria)

Xcentric Ventures, LLC, et al., v. Richeson

Doc. 18

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Jaburg & Wilk, P.C. Attorneys At Law 3200 N. Central Avenue, Suite 2000 Phoenix, Arizona 85012 [phone]

Maria Crimi Speth (012574) JABURG & WILK, P.C. 3200 N. Central Avenue, Suite 2000 Phoenix, Arizona 85012 [e-mail] [phone] David S. Gingras (021097) Gingras Law Office, PLLC 4072 E Mountain Vista Dr. Phoenix, AZ 85048 Tel.: [phone] [e-mail] Attorneys for Plaintiffs

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA XCENTRIC VENTURES, LLC, an Arizona limited liability corporation, and JABURG & WILK, P.C., a professional corporation, Plaintiffs, v. SHAWN RICHESON, Defendant. Plaintiffs Xcentric Ventures, LLC and Jaburg & Wilk, P.C. (collectively, "Plaintiffs") hereby respond to the Motion for Leave to Appear Telephonically filed by Defendant Shawn Richeson and request that the Motion be denied. Defendant Richeson has articulated no hardship or other basis upon which the Court may grant his Motion. Merely residing in another state does not justify a carte blanche order of telephonic appearance in this litigation. Plaintiffs do not wish to appear unreasonable, and therefore, to the extent that the Court sets hearings or other appearance dates that do not require the presentation of
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Case No.: 2:10-cv-1931-PHX-NVW RESPONSE TO DEFENDANT'S MOTION FOR LEAVE TO APPEAR TELEPHONICALLY

Dockets.Justia.com

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Jaburg & Wilk, P.C. Attorneys At Law 3200 N. Central Avenue, Suite 2000 Phoenix, Arizona 85012 [phone]

witnesses or evidence, Plaintiffs understand that there may be circumstances where it would be appropriate for Defendant Richeson to appear telephonically. However, the upcoming Order to Show Cause hearing is not one of those situations. Given that the upcoming hearing on Plaintiffs' Application for Preliminary Injunction will require the examination of witnesses and the presentation of numerous exhibits, it would not be prudent to allow Defendant Richeson to participate in such a hearing telephonically. In fact, the personal appearance of Defendant Richeson is crucial at this hearing, because it is his conduct which gave rise to the basis for the issuance of the Temporary Restraining Order, and it is his conduct that will give rise to the issuance of the Preliminary Injunction. Defendant Richeson is expected to testify to his role in creating the

threatening and harassing emails, which will be difficult, if not impossible, to do efficiently without his physical presence and the utilization of the emails themselves as exhibits. Plaintiffs also anticipate utilizing various other documentary exhibits consisting of the websites which Defendant Richeson published the statements at issue on, which will need to be verified by Defendant Richeson as containing information authored by him. Again, to conduct this type of examination without Defendant Richeson being present in the courtroom will be difficult and inefficient. Defendant Richeson's personal appearance is also necessary for the Court to weigh his credibility. It is presumed, based on the statements made by Defendant Richeson in his recently filed Answer, that Defendant Richeson will defend his actions based on his supposed "belief" that the statements authored and published by him are true and that he did not act improperly. See Doc. No. 15. Credibility determinations are based on not just the tone of voice, but also on other important physical actions such as eye contact, body language, and many other signals that just can't be interpreted through a phone call. In fact, the Ninth Circuit specifically identifies a "witness's manner while testifying" as one of the factors to take into consideration when determining credibility of that witness. See Ninth Circuit Model Civil Jury Instructions 1.11. 2
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The Court must be able to see

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Jaburg & Wilk, P.C. Attorneys At Law 3200 N. Central Avenue, Suite 2000 Phoenix, Arizona 85012 [phone]

Defendant Richeson as he provides his testimony so that it may adequately weigh his credibility. Based on the foregoing, Plaintiffs request that the Court deny Defendant Richeson's Motion to Appear Telephonically. DATED this 17th day of September, 2010. JABURG & WILK, P.C.

s/Maria Crimi Speth Maria Crimi Speth David S. Gingras Attorneys for Plaintiffs Certificate of Service I hereby certify that on the 17th day of September, 2010, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing. I have also caused to be delivered to Defendant, who is not registered with the CM/ECF System, a copy of the attached document by First Class Mail and E-Mail: Shawn Richeson 1906 Twilight Drive Killeen, Texas 76543 [e-mail] Defendant Pro Per I have also caused to be delivered a courtesy copy of the foregoing to: Honorable Neil V. Wake United States District Court Sandra Day O'Connor Courthouse, Suite 524 401 W. Washington St., SPC 52 Phoenix, Arizona 85003

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s/Debra Gower

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