Asia Economic Institute et al v. Xcentric Ventures LLC et al

Filing 80

OBJECTIONS to Declaration (Motion related), Declaration (Motion related) 65 filed by Defendants Edward Magedson, Xcentric Ventures LLC. (Gingras, David)

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1 2 3 4 5 6 7 8 9 10 11 David S. Gingras, CSB #218793 Gingras Law Office, PLLC 4072 E Mountain Vista Dr. Phoenix, AZ 85048 Tel.: (480) 668-3623 Fax: (480) 248-3196 David.Gingras@webmail.azbar.org Maria Crimi Speth, (Admitted Pro Hac Vice) Jaburg & Wilk, P.C. 3200 N. Central Ave., Suite 2000 Phoenix, AZ 85012 Tel: (602) 248-1000 Fax: (602) 248-0522 mcs@jaburgwilk.com Attorneys for Defendants Xcentric Ventures, LLC and Edward Magedson UNITED STATES DISTRICT COURT 12 CENTRAL DISTRICT OF CALIFORNIA 13 GINGRAS LAW OFFICE, PLLC 4072 EAST MOUNTAIN VISTA DRIVE PHOENIX, ARIZONA 85048 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Defendants Xcentric Ventures, LLC and Edward Magedson respectfully submit the following objection to the Declaration of Daniel F. Blackert, Esq. (Doc. #65) filed in this matter on June 14, 2010 in support of Plaintiffs' Opposition to Defendants' Motion for Summary Judgment. In his declaration, Mr. Blackert offers routine foundational testimony supporting the admissibility of various pages from the uncertified, non-final deposition transcripts of both Xcentric Ventures and Ed Magedson. Defendants do not object to such foundational testimony. 1 OBJECTION TO DECLARATION OF DANIEL F. BLACKERT XCENTRIC VENTURES, LLC, et al. Defendants. vs. ASIA ECONOMIC INSTITUTE, LLC, et al., Plaintiffs, Case No: 2:10-cv-01360-RSWL-PJW DEFENDANTS' OBJECTION TO DECLARATION OF DANIEL F. BLACKERT Hearing Date: June 28, 2010 Time: 1:30 PM Courtroom: 6 (Hon. Stephen Wilson) 1 2 3 4 5 6 7 8 9 10 11 12 13 GINGRAS LAW OFFICE, PLLC 4072 EAST MOUNTAIN VISTA DRIVE PHOENIX, ARIZONA 85048 However, Mr. Blackert's declaration goes much, much further. Specifically, nearly every paragraph of Mr. Blackert's declaration is permeated by inappropriate and sometimes emotional editorializing and testimony given from the perspective of a percipient witness rather than an advocate. For instance, in 7 of his declaration, Mr. Blackert offers foundational testimony as to two pages from the rough copy of the Mr. Magedson's deposition along with a short summary of certain testimony. Beyond this and without citing any evidence to support his statements, Mr. Blackert interjects his own argument and factual testimony in an effort to rebut and contradict Mr. Magedson's statements; "However, Mr. Magedson has quoted fees over the phone if he is speaking with a person of importance, such as an attorney." Blackert Decl. 7 at 4:1415. The severity of this inappropriate editorializing and testimony grows with each passing page. For instance, 9 of Mr. Blackert's declaration begins with a foundational reference to two pages from Mr. Magedson's deposition followed by a lengthy diatribe attacking Mr. Magedson and the Ripoff Report's rebuttal process; "However, a rebuttal is not even remotely as effective as an investigation members of the CAP receive." Blackert Decl. 9 at 5:89 (emphasis in original). This form of inappropriate testimony and argument is even worse later in Mr. Blackert's declaration. For instance, in 3941, Mr. Blackert essentially abandons his role as advocate and offers nothing but page after page of testimony personally attacking Mr. Magedson. Again, Mr. Blackert offers no evidence whatsoever to support this attack. It goes without saying that Mr. Blackert is not a witness in this matter and even if he was, he has failed to demonstrate any personal knowledge of any of the facts he purports to testify about as required by Fed. R. Evid. 602. Moreover, as is true in every case, "[A]rguments and statements of counsel are not evidence and do not create issues of material fact capable of defeating an otherwise valid motion for summary judgment." In Re Ahaza Systems, Inc., 482 F.3d 1118, 1122 n. 1 (9th Cir. 2007) (quoting Barcamerica Int'l USA Trust v. Tyfield Importers, Inc., 289 F.3d 589, 593 n. 4 (9th Cir. 2002)). 2 OBJECTION TO DECLARATION OF DANIEL F. BLACKERT 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 GINGRAS LAW OFFICE, PLLC 4072 EAST MOUNTAIN VISTA DRIVE PHOENIX, ARIZONA 85048 For this reason, although Defendants have no objection to the deposition excerpts offered by Mr. Blackert, it is clear that Mr. Blackert's self-serving and unsupported testimony spanning 24 pages is improper and is entitled to no weight when determining the existence or absence of factual disputes for the purposes of summary judgment. Dated: June 23, 2010. /S/David S. Gingras David S. Gingras 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 OBJECTION TO DECLARATION OF DANIEL F. BLACKERT 1 2 3 4 5 6 7 8 9 10 11 12 13 GINGRAS LAW OFFICE, PLLC 4072 EAST MOUNTAIN VISTA DRIVE PHOENIX, ARIZONA 85048 CERTIFICATE OF SERVICE I hereby certify that on June 24, 2010 I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing, and for transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Ms. Lisa Borodkin, Esq. Mr. Daniel F. Blackert, Esq. Asia Economic Institute 11766 Wilshire Blvd., Suite 260 Los Angeles, CA 90025 Attorneys for Plaintiffs And a courtesy copy of the foregoing delivered to: Honorable Stephen V. Wilson U.S. District Judge /s/David S. Gingras 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 OBJECTION TO DECLARATION OF DANIEL F. BLACKERT

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