Free Response in Opposition to Motion - District Court of Arizona - Arizona

1 2 3 40 North Center, Suite 200 4 Mesa, Arizona 85201 (480) 464-1111 5 Attorneys for Plaintiff By: Bradley D. Weech, Bar No. 011135 6 Jeremy S. Geigle, Bar No. 021786 7 8 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA No. CIV-04-595 PHX MHM

9 ESTATE OF JOSEPH J. STUDNEK, by and through its PERSONAL REPRESENTATIVE, 10 JOSEPH M. STUDNEK, 11 12 v. 13 AMBASSADOR OF GLOBAL MISSIONS UN LIMITED AND HIS SUCCESSORS, A 14 CORPORATION SOLE, a Nevada corporation; EL SHADDAI MINISTRIES 15 AND HIS SUCCESSORS, A CORPORATION SOLE, a Nevada 16 Corporation; SECOND CHANCE CHRISTIAN EVANGELISTIC MINISTRIES, 17 a California corporation; BISHOP OF FAITH VISION NOBLE HOUSE AND HIS 18 SUCCESSORS, A CORPORATION SOLE, a California corporation; JOSEPH L. 19 WILLIAMS and MONICA C. CISNEROS, as husband and wife; WILLIAM JOE LITTLE, 20 JR.; MICHAEL CAMBRA and GLORIA CAMBRA, as husband and wife; JOEL 21 DAVID and CINDY DAVID, as husband and wife; KEITH AARON VANN and TRISHA 22 VANN, as husband and wife, 23 24 25 Defendants/Counterclaimant. Plaintiff/Counterdefendant,

PLAINTIFF'S RESPONSE TO: DEFENDANT JOSEPH L. WILLIAMS' MOTION TO DISMISS, PRESENTING DEFENSE OF RULE 12: LACK JURISDICTION OVER SUBJECT MATTER; LACK OF JURISDICTION OVER PERSON; IMPROPER VENUE; FAILURE TO STATE A CLAIM; FAILURE TO JOIN A PARTY UNDER RULE 19 AND PLAINTIFF'S MOTION FOR SANCTIONS Assigned to the Honorable: Mary H. Murguia Oral Argument Requested

On January 5, 2006, Plaintiff filed a Motion to Strike Defendant, Joseph L. Williams'

26 ("Williams"), December 16, 2005 Motion to Dismiss because Williams is represented by counsel and, Case 2:04-cv-00595-MHM Document 82 Filed 01/10/2006 Page 1 of 6

1 pursuant to Rule 83.3(c)(1)&(2), Williams is prohibited from filing and "cannot ... appear or act in [his] 2 own behalf in the cause, or take any steps therein, unless an order of substitution shall first have been 3 made by the Court after such notice to the attorney of each such party, and to the opposite party." There 4 has been no substitution order, and, therefore, Williams' motion must be struck. 5 However, in the unlikely event that Williams' motion is not struck by this Court, Plaintiff

6 responds to William's Motion to show that it is without basis and must be denied. 7 8 1. 9 2. 10 11 12 13 3. 14 4. 15 16 Williams' Motion to Dismiss must be denied because: The motion is a Motion to Dismiss and not a Motion for Summary Judgment. This Court has subject matter jurisdiction. Further, on September 16, 2004, Williams filed a Rule 12 Motion to Dismiss, did not assert personal jurisdiction or venue objection and, thus waived these personal defenses. And, on June 22, 2004, Williams answered Plaintiff's First Amended Complaint and unequivocally consented to jurisdiction and venue. Plaintiff's Second Amended Complaint properly states claims for relief; and Plaintiff has not failed to join an indispensable party under Rule 19, FRCP; nor does Williams allege such. As noted below, Plaintiff also requests sanctions against Mr. Williams for filing such a frivolous

17 and meritless motion, even if the sanction is just sufficient to reimburse Plaintiff for the attorney fees 18 incurred to respond. 19 20 21 22 23 1. 24 25 As a preliminary matter, Plaintiff asks the Court to disregard Williams' repeated claims that he Williams' Motion Is a Motion to Dismiss, Not a Motion for Summary Judgment; No Admissible Evidence Is Even Proffered MEMORANDUM OF POINTS AND AUTHORITIES Plaintiff's Response is supported by the following Memorandum of Points and Authorities.

26 has not been "presented with any evidence, of the admissible kind . . .." His motion is a Motion to Case 2:04-cv-00595-MHM Document 82 2 Filed 01/10/2006 Page 2 of 6

1 Dismiss, not a Motion for Summary Judgment. And, the Court must confine its review to the allegations 2 of the complaint, giving every inference to Plaintiff (see below). 3 Further, Williams' motion does not even attempt to have the Court consider any admissible

4 evidence outside of Plaintiff's Second Amended Complaint. Williams' motion does not even attach his 5 sworn affidavit or any other evidence for the Court to consider. (Also, the Second Amended Complaint 6 is not a verified complaint, nor is it required to be. Williams is just wrong.) 7 8 2. 9 10 11 This Court has Subject Matter Jurisdiction; Williams Has Waived Any Objection to Personal Jurisdiction and Venue; and Williams has Even Unequivocally Consented to Jurisdiction and Venue. Williams' Jurisdiction arguments fail. First, this Court has subject matter jurisdiction to hear Plaintiff's claims for Breach of Contract,

12 Fraud, Unjust Enrichment, Punitive Damages, Rescission of Gift (based upon Misrepresentation, 13 Unilateral Mistake and Failure of Condition Precedent), and Replevin. This is a diversity of citizenship 14 case, properly pled as such. And, thus, this Court is empowered with subject matter jurisdiction to hear 15 and decide Plaintiff's claims. Williams makes no sound argument to the contrary. In fact, on August 11, 16 2005, Williams even stipulated as such in the joint Proposed Case Management Plan submitted to this 17 Court. At Page 4, Paragraph IV, Williams agreed that: "Defendant Global Missions removed this action 18 to federal court. There is complete diversity among the parties, and the amount in controversy exceeds 19 $75,000; this Court has jurisdiction pursuant to 28 U.S.C. § 1332." 20 Second, Williams waived any defense of personal jurisdiction or venue. On September 16, 2004,

21 Williams filed a motion to dismiss this case pursuant to Rule 12(b)(5) which was eventually denied. He 22 did not assert the Rule 12 defenses of personal jurisdiction or venue in that motion. And, by failing to 23 assert them, he waived them. Benny v. Pipes, 799 F.2d 489, 492, C.A.9, 1986 (Arizona)(A general 24 appearance or responsive pleading by a defendant that fails to dispute personal jurisdiction will waive 25 any defect in service or personal jurisdiction.) See also American Ass'n of Naturopathic Physicians v. 26 Hayhurst, 227 F.3d 1104, C.A.9 (Wash.), 2000 (A pro se litigant is not excused from knowing the most Case 2:04-cv-00595-MHM Document 82 3 Filed 01/10/2006 Page 3 of 6

1 basic pleading requirements; if a party raises any Rule 12 defenses in his first filing to the court, he was 2 obliged to raise all of those specified in Rule 12(h) including personal jurisdiction, improper venue, 3 insufficient process, or insufficient service). 4 Third, if the above is not sufficient for the Court to deny Williams' Motion to Dismiss, certainly,

5 Williams' unequivocally consent to personal jurisdiction and venue should nail the coffin shut. In his 6 June 22, 2004 Answer to Plaintiff's First Amended Complaint, William admitted personal jurisdiction 7 and venue. Paragraph 2 of Plaintiff's First Amended Complaint alleged: 8 9 10 11 2. Upon information and belief, Ambassador of Global Missions UN Limited, and his successors, a corporation sole ("Global") is a Nevada corporation sole. The acts and events giving rise to this cause of action occurred in Maricopa County, Arizona. Jurisdiction and venue are proper. (Emphasis added.)

On June 22, 2004, Williams answered Plaintiff's First Amended Complaint and admitted personal

12 jurisdiction and venue as follows: 13 14 15 16 2. Answering paragraph 2 of the Complaint, Williams alleges that Global Missions' true corporate name is "Ambassador of Global Missions UN Limited, and His Successors, a Corporation Sole,"and that it is a Nevada corporation sole. Williams admits the remaining allegations in Paragraph 2. (Emphasis added.)

Williams has admitted personal jurisdiction and venue are proper and therefore has

17 unequivocally consented to personal jurisdiction and venue. His arguments to the contrary are baseless 18 and sanctionable. See Benny and Hayhurst, supra. (Interestingly, Hayhurst involved a pro per defendant 19 who was found to be incredible in his claim of not being served and/or having no knowledge.) 20 21 3. 22 23 The Complaint States Proper Causes of Action; It Does Not Fail to State Claims for Relief. Plaintiff's Second Amended Complaint states proper claims for relief. In analyzing Mr. Williams Motion to Dismiss, all material allegations in the Plaintiff's

24 Complaint must be accepted as true and construed in the light most favorable to Plaintiff. North Star 25 International v. Arizona Corporation Commission, 720 F.2d 578, 580 (9th Cir.1983). Dismissal is 26 Case 2:04-cv-00595-MHM Document 82 4 Filed 01/10/2006 Page 4 of 6

1 warranted only if it appears to a certainty that Plaintiff would be entitled to no relief under any state of 2 facts that could be proved. Halet v. Wend Investment Co., 672 F.2d 1305, 1309 (9th Cir.1982). 3 It is undisputed that Mr. Williams took possession of one of Plaintiff's buildings, sold it, and Plaintiff has properly alleged facts to

4 kept proceeds from the sale in the amount of $3,377,089.64.

5 support Breach of Contract, Fraud, Unjust Enrichment, Punitive Damages, Rescission of Gift (based 6 upon Misrepresentation, Unilateral Mistake and Failure of Condition Precedent), and Replevin. 7 Therefore, assuming all allegations as true, Plaintiff would be entitled to the relief requested in the 8 Second Amended Complaint. So, Williams' argument to the contrary is completely baseless, frivolous, 9 completely lacking in merit and sanctionable under Rule 11, FRCP. 10 11 4. 12 13 Rule 19, FRCP allows for dismissal for failure to join indispensable party. But, neither Mr. Plaintiff has not failed to join an indispensable party under Rule 19, FRCP; nor does Williams allege such.

14 Hall, nor the IRS, (as randomly asserted in Williams' motion) are indispensable parties to this action. 15 Nor, does Williams, at any point in his motion, state facts, or include admissible evidence (such as by 16 affidavit or otherwise) showing, or even suggesting such. Williams simply complains that he has been 17 included in this suit and they have not. 18 19 5. 20 Conclusion and Request for Relief. Plaintiff requests that Williams' Motion to Dismiss be denied and that the Court award Plaintiff

21 its attorneys' fees and costs incurred herein pursuant to Rule 11, FRCP, ARS 12-341(c) and ARS 1222 349. 23 / / / / / 24 / / / / / 25 / / / / / 26 / / / / / Case 2:04-cv-00595-MHM Document 82 5 Filed 01/10/2006 Page 5 of 6

1 2 3 4 5 6

Dated this 10th day of January, 2006. JACKSON WHITE, P.C.

By: /s/ Jeremy S. Geigle Bradley D. Weech, Esq. Jeremy S. Geigle, Esq. Attorneys for Plaintiff

7 ORIGINAL of the foregoing filed with the Clerk of the United States 8 District Court this 10th day of January, 2006 9 Judge Mary H. Murguia 10 401 W. Washington Phoenix, AZ 85003 11 COPY of the foregoing 12 mailed this same date to: 13 Debra A. Hill OSBORN, MALEDON, P.A. 14 2929 North Central Avenue, Suite 2100 Phoenix, Arizona 85012-2794 15 Attorney for Defendants 16 By: 17
F:\STU\Studnek, Joe\Global Missions\Pldgs\Response to Motion to Dismiss.wpd

/s/ Catherine R. Magurany

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