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

Filing 61

RESPONSE to Motion re 60 MOTION for Summary Judgment filed by Xcentric Ventures LLC. (Speth, Maria)

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Xcentric Ventures, LLC, et al., v. Richeson Doc. 61 1 2 3 4 5 6 7 8 9 10 11 12 13 Jaburg & Wilk, P.C. Attorneys At Law 3200 N. Central Avenue, Suite 2000 Phoenix, Arizona 85012 (602) 248-1000 Maria Crimi Speth (012574) JABURG & WILK, P.C. 3200 N. Central Avenue, Suite 2000 Phoenix, Arizona 85012 mcs@jaburgwilk.com (602) 248-1000 David S. Gingras (021097) Gingras Law Office, PLLC 4072 E Mountain Vista Dr. Phoenix, AZ 85048 Tel.: (480) 668-3623 David.Gingras@webmail.azbar.org 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. Plaintiff Xcentric Ventures, LLC requests that the Court deny the Motion for Summary Judgment because it seeks judgment on a counterclaim that is subject to dismissal under Rule 12(b)(6) and because there are no facts deemed admitted. Case No.: 2:10-cv-1931-PHX-NVW RESPONSE TO MOTION FOR SUMMARY JUDGMENT 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES I. THERE ARE NO FACTS THAT ARE DEEMED ADMITTED Richeson bases his motion entirely upon twenty-six requests for admissions to which Xcentric did not respond. Rule 36(a)(3), which provides that a failure to respond to a request for admission is deemed an admission, is inapplicable because the requests for admissions were not properly served. 10297-73/MCS/MCS/848339_v1 Dockets.Justia.com 1 2 3 4 5 6 7 8 9 10 11 12 13 Jaburg & Wilk, P.C. Attorneys At Law 3200 N. Central Avenue, Suite 2000 Phoenix, Arizona 85012 (602) 248-1000 Fed.R.Civ.P. 26(d)(1) provides that a party may not seek discovery from any source before the parties have conferred as required by Rule 26(f). Shawn Richeson has repeatedly flouted that rule and served discovery requests, deposition notices and thirdparty subpoenas. (Declaration of Maria Crimi Speth, Exhibit "A"). On October 22, 2010, Mr. Richeson emailed the Requests for Admissions to undersigned counsel along with his acknowledgment of this rule. (Exhibit "B"). His email stated, "I understand some of my discovery requests may be premature and obviously we have not concluded our 26F hearing." Based upon the Court's Order of that same day striking an earlier set of requests for admissions (Document 44), Mr. Richeson fully expected that the Court would sua sponte strike his requests for admissions. (Exhibit "B"). Mr. Richeson requested that undersigned stipulate to allowing him to file discovery (Exhibit "B"). In response, undersigned reminded him that the rules do not permit the filing of discovery and reminded him, "we still have to wait until discovery opens." (Exhibit "B"). On October 27, 2010, the clerk filed the Request for Admissions that Mr. Richeson had mailed to the Court on October 22, 2010. (Document 50). The Court has not stricken them as was anticipated. The October 22, 2010 Request for Admissions, filed on October 27, 2010 contains a certificate of service that states that a true and correct copy of the document "was served upon Maria Crimi Speth via US Mail and by electronic mail mcs@jaburgwilk.com on Friday the 22nd day of October 2010." The mailing address is listed as 3105 E. Claire Dr., Phoenix Arizona 85032. It is true that Mr. Richeson emailed a copy of the document to the above stated email address. However, undersigned never received a mailed copy. (Exhibit "A") It is important to point out that the only mailing address that undersigned counsel has ever used in connection with this case is 3200 North Central Ave., Suite 2000, Phoenix, AZ 85012. (Exhibit "A"). Nevertheless, Mr. Richeson insists on referring to Ms. Speth's home address in his pleadings. On one occasion, Mr. Richeson actually mailed a pleading to that home address. (Exhibit "A"). On October 12, 2010 undersigned 2 10297-73/MCS/MCS/848339_v1 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 2 3 4 5 6 7 8 9 10 11 12 13 Jaburg & Wilk, P.C. Attorneys At Law 3200 N. Central Avenue, Suite 2000 Phoenix, Arizona 85012 (602) 248-1000 received a "Cross Claim Against Ed Magedson and Maria Crimi Speth" at her home address via United States Priority mail. (Exhibit "A"). The Request for Admissions were not received by regular mail, only by email. (Exhibit "A"). Mr. Richeson claims in his Affidavit in support of his Motion for Summary Judgment that he sent an identical copy via US mail to an address in Fountain Hills, Arizona. First, the certificate of service contained on the Request for Admissions, does not include a reference to that Fountain Hills address. Nor is the Fountain Hills address a proper address for service of discovery in this case. The only proper mailing address for service of discovery in this case is 3200 North Central Ave., Suite 2000, Phoenix, AZ 85012. Fed.R.Civ.P. 5(a)(1)(C) provides that all discovery must be served. Fed.R.Civ.P. 5 provides that if a party is represented by an attorney, service under this rule must be made on the attorney. Fed.R.Civ.P.5(b)(2) provides that service must be made by handing it to the person, leaving it at the person's office, or mailing it to the person's last known address. Read together, the only proper service of a discovery request in this matter is to mail it to the law offices of Jaburg & Wilk or the law offices of David Gingras. That was never done. (Exhibit "A"). The Request for Admissions was, therefore, never served. Moreover, the Request for Admissions was premature and sent in violation of Fed.R.Civ.P. 26(d)(1). It was these defects that caused undersigned counsel to decide that no response was necessary. In the unlikely event that the Court determines that the Request for Admissions were proper and the facts are deemed admitted, Xcentric requests that the Court permit Xcentric to withdraw any such admission pursuant to Fed.R.Civ.P.36(b) since it would promote the presentation of the merits of the action and would not prejudice Defendant Richeson. .... .... .... 3 10297-73/MCS/MCS/848339_v1 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 2 3 4 5 6 7 8 9 10 11 12 13 Jaburg & Wilk, P.C. Attorneys At Law 3200 N. Central Avenue, Suite 2000 Phoenix, Arizona 85012 (602) 248-1000 II. THE COUNTERCLAIM IS FATALLY FLAWED As set forth in detail in the Motion to Dismiss Counterclaim (Document 55), which is incorporated herein by reference, the Counterclaim is fatally flawed because it fails to plead the elements of RICO. The Summary Judgment motion suffers the same defect. Even if all of the requests contained in the Request for Admissions were admitted, summary judgment still would not be warranted. None of the Request for Admissions addresses the lack of a RICO injury. A showing of "injury" under RICO requires proof of concrete financial loss. Oscar v. University Students Co-operative Ass'n, 965 F.2d 783, 785 (9th Cir.1992) (en banc), cert. denied, 506 U.S. 1020. Richeson has offered no evidence that he was harmed in his business or property Only a person injured in his "business or property" can sue under 18 U.S.C 1964(c). III. CONCLUSION For all of the foregoing reasons, Xcentric requests that the Court deny Richeson's Motion for Summary Judgment on his Counterclaim. DATED this 2nd day of December, 2010. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 JABURG & WILK, P.C. s/Maria Crimi Speth Maria Crimi Speth Attorneys for Plaintiff Certificate of Service I hereby certify that on the 2nd day of December, 2010, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing. 4 10297-73/MCS/MCS/848339_v1 1 2 3 4 5 6 7 8 9 10 11 12 13 Jaburg & Wilk, P.C. Attorneys At Law 3200 N. Central Avenue, Suite 2000 Phoenix, Arizona 85012 (602) 248-1000 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 Shawn@ClickaNerd.com Defendant Pro Per s/Debra Gower 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 10297-73/MCS/MCS/848339_v1 EXHIBIT A 1 2 3 4 5 6 7 8 9 10 11 12 13 Jaburg & Wilk, P.C. Attorneys At Law 3200 N. Central Avenue, Suite 2000 Phoenix, Arizona 85012 (602) 248-1000 Maria Crimi Speth (012574) JABURG & WILK, P.C. 3200 N. Central Avenue, Suite 2000 Phoenix, Arizona 85012 mcs@jaburgwilk.com (602) 248-1000 David S. Gingras (021097) Gingras Law Office, PLLC 4072 E Mountain Vista Dr. Phoenix, AZ 85048 Tel.: (480) 668-3623 David.Gingras@webmail.azbar.org 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. I, Maria Crimi Speth, declare as follows: 1. My name is Maria Crimi Speth. I am a resident of the State of Arizona, am Case No.: 2:10-cv-1931-PHX-NVW DECLARATION OF MARIA CRIMI SPETH 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 over the age of 18 years, and if called to testify in court or other proceeding I could and would give the following testimony which is based upon my own personal knowledge. 2. 3. I am an attorney at Jaburg & Wilk, P.C. Even though there has been no Rule 26f conference, Shawn Richeson has repeatedly served discovery requests, deposition notices and third-party subpoenas in this matter. 10297-73/MCS/DAG/848870_v1 1 2 3 4 5 6 7 8 9 10 11 12 13 Jaburg & Wilk, P.C. Attorneys At Law 3200 N. Central Avenue, Suite 2000 Phoenix, Arizona 85012 (602) 248-1000 4. I received a copy of Request for Admissions from Shawn Richeson by email on October 22, 2010. 5. 6. I did not receive a copy of the Request for Admissions via mail. The only mailing address that undersigned counsel has ever used in connection with this case is 3200 North Central Avenue, Suite 2000, Phoenix, Arizona, 85012. 7. 8. 9. Mr. Richeson regularly refers to my home address in his pleadings. I have received one document from Mr. Richeson at my home address. On October 12, 2010 I received a "Cross Claim Against Ed Magedson and Maria Crimi Speth" at my home address via United States Priority mail. 10. If I had received any other documents from Shawn Richeson at my home address, I would have recalled receiving it since it is highly unusual to receive papers from opposing parties at my home. I declare under penalty of perjury that the foregoing is true and correct. DATED this 2nd day of December, 2010. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 s/Maria Crimi Speth Maria Crimi Speth 2 10297-73/MCS/DAG/848870_v1 EXHIBIT B Maria Crimi Speth From: Sent: To: Subject: Maria Crimi Speth Friday, October 22, 20104:00 PM 'Shawn - Field Manager' RE: Emailing: 1-RFA-XCENTRIC I doubt that the court will let us file discovery requests. It is against the rules. Look at Rule 5(d) (1), which says you "must not" file discovery. However, there is Local Rule 5.2 that provides for you to file a notice of service of discovery requests. That will help track it. But we still have to wait until discovery opens. Maria Crimi Speth, Esq. Jaburg & Wilk, P.C. 3200 N. Central Ave., Suite Phoenix, AZ 85012 602-248-1089 602 -248 - 0522 (fax ) 2000 This communication is intended only for the individual or entity to whom it is directed. It may contain information that is privileged, confidential, or otherwise exempt from disclosure under applicable law. Dissemination, distribution, or copying of this communication by anyone other than the intended recipient, or a duly designated employee or agent of such recipient, is prohibited. If you have received this communication in error, please notify us immediately by telephone at (602) 248-1000, or via e-mail, and delete this message and all attachments thereto. -----Original Message----From: Shawn - Field Manager [mailto:Shawn@ClickaNerd.com] Sent: Friday, October 22, 2010 3:17 PM To: Maria Crimi Speth Subject: Emailing: l-RFA-XCENTRIC I understand some of my discovery requests may be premature and obviously we have not concluded our 26F hearing. I am a bit proactive and wish to get some of the work out of the way now. If you would please forgive what appears to be an over zeleous approch and understand it just my attempt at efficiency. Attached is the Counter Plaintiff's request for admissions from Xcentric ventures LLC. It appears that the Court will most like sua sponte strike my filing of this discovery request. The date time stamp of the Court provides for an easy to track system of discovery deadlines and with your stipulation and upon order of the Court, I would like to motiton the Court to file all discovery requests with this Court this issues between any party. Please let me know your Take Care Shawn thoughts?

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