Free Report re: Rule 26(f) Planning Meeting - 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: Brad Weech, Bar No. 011135 6 Jeremy S. Geigle, Bar No. 021786 7 Attorneys for Plaintiff 8 Debra A. Hill, 012186 Ronda R. Fisk, 022100 9 OSBORN MALEDON, P.A. 2929 North Central Avenue, Ste. 2100 10 Phoenix, Arizona 85012-2794 (602) 640-9000 11 [email protected] [email protected] 12 Attorneys for Defendant Joseph L. Williams 13 and Defendant/Counterclaimant Amabassador of Global Missions UN Limited 14 15 16 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA No. CIV-04-595-PHX-MHM

17 ESTATE OF JOSEPH J. STUDNEK, by and through its PERSONAL REPRESENTATIVE, 18 JOSEPH M. STUDNEK, 19 20 v. Plaintiff/Counterdefendant

PROPOSED CASE MANAGEMENT PLAN

AMBASSADOR OF GLOBAL MISSIONS 21 UN LIMITED, and HIS SUCCESSOR, a corporation sole, a Nevada corporation sole; 22 JOSEPH L. WILLIAMS and JANE DOE WILLIAMS, husband and wife; WILLIAM 23 JOE LITTLE, JR. and JANE DOE LITTLE, husband and wife, 24 Defendants/Counterplaintiff 25 26 Case 2:04-cv-00595-MHM Document 59

Assigned to the Honorable: Judge Mary H. Murguia

Filed 08/11/2005

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1 I. 2 A. 3 Plaintiff claims that Defendants made fraudulent misrepresentations to it; specifically that 4 5 6 7 8 9 10 11 12 13 14 if the Estate transferred ownership of a large asset of the Estate to Defendants, the Estate would receive a dollar-for-dollar tax credit from the I.R.S. for the value transferred. Defendants also promised that if the tax credit were denied Defendants would return the proceeds from the building sale to Plaintiff. Plaintiff transferred ownership of a building worth over $7 million to Defendants. Defendants sold the building and kept the proceeds, even though the Estate received no tax credit. B. PLAINTIFF'S LEGAL BASIS: Breach of Contract, Fraud, Unjust Enrichment, Punitive Damages, Rescission of Gift Based Upon Misrepresentation, Rescission of Gift Based Upon Unilateral Mistake, Rescission of Gift Based Upon Failure of Condition Precedent. C. DEFENDANTS' FACTUAL BASIS: Plaintiff agreed to convey to Global Missions the remainder of the assets of the Estate of PLAINTIFF'S FACTUAL BASIS: NATURE OF THE CASE:

15 Joseph J. Studnek. In exchange, Global Missions agreed only to provide Plaintiff with a letter 16 documenting what was given to Global Missions. Plaintiff had his own attorney, who apparently 17 investigated Global Missions and advised Mr. Studnek about whether such a donation would solve 18 whatever tax problems were faced by the Estate. Global Missions has provided Plaintiff with the 19 promised letter, but Plaintiff has refused to convey the remaining assets in the Estate to Global Missions. 20 (Plaintiff did convey one piece of property, a building). 21 22 D. DEFENDANTS' LEGAL BASIS: Defendants Joseph L. Williams and Global Missions dispute that Plaintiff can show the

23 required elements for breach of contract, fraud, unjust enrichment, punitive damages, rescission of gift 24 based upon misrepresentation, rescission of gift based upon unilateral mistake, or rescission of gift based 25 upon failure of a condition precedent. In addition, Defendants have asserted an affirmative defense of 26 unclean hands with respect to the claims of the First Amended Complaint. Case 2:04-cv-00595-MHM Document 59 2 Filed 08/11/2005 Page 2 of 8

1 2 II. 3 4 5

Defendant Global Missions' legal basis for its counterclaim is breach of contract. ELEMENTS OF PROOF: A. PLAINTIFF MUST PROVE: COUNT I BREACH OF CONTRACT: Plaintiff must prove the "existence of a contract, breach of the contract, and resulting damages."

6 Chartone, Inc. v. Bernini, 207 Ariz. 162, 170, 83 P.3d 1103, 1111, 418 Ariz. Adv. Rep. 60 (Ariz.App. 7 Div. 2 Feb 06, 2004) (NO. 2 CA-SA 2003-0107, 2 CA-SA 2003-0108), reconsideration denied (Apr 14, 8 2004), review denied (Jan 04, 2005). 9 10 COUNT II FRAUD: Plaintiff must prove "a false material representation made with the speaker's knowledge of its

11 falsity or ignorance of its truth and with the intent that it be acted upon by the listener; the listener's 12 ignorance of its falsity, reliance on its truth, and right to rely on its truth; and consequent and proximate 13 injury." Dillon v. Zeneca Corp., 202 Ariz. 167, 172, 42 P.3d 598, 603, Prod.Liab.Rep. (CCH) P 16,301, 14 15 16 17 18 19 20 21 22 23 24 COUNT V RESCISSION OF GIFT BASED UPON MISREPRESENTATION 25 "Misrepresentation and mistake can provide a basis for rescission." Long v. City of Glendale, 26 208 Ariz. 319, 331, 93 P.3d 519, 531, 429 Ariz. Adv. Rep. 24 (Ariz.App. Div. 1 Jun 29, 2004) (NO. 1 Case 2:04-cv-00595-MHM Document 59 3 Filed 08/11/2005 Page 3 of 8 368 Ariz. Adv. Rep. 18 (Ariz.App. Div. 2 Feb 26, 2002) (NO. 2 CA-CV 2000-0207). COUNT III UNJUST ENRICHMENT: "In Arizona, five elements must be proved to make a case of unjust enrichment: (1) an enrichment; (2) an impoverishment; (3) a connection between the enrichment and the impoverishment; (4) absence of justification for the enrichment and the impoverishment and (5) an absence of a remedy provided by law." Community Guardian Bank v. Hamlin, 182 Ariz. 627, 630, 898 P.2d 1005, 1008, (Ariz.App. Div. 1 Jun 29, 1995) (NO. 1CA-CV91-0379), corrected (Jul 10, 1995). COUNT IV PUNITIVE DAMAGES: [F]raud and deliberate, overt, dishonest dealings will suffice to sustain punitive damages. Rhue v. Dawson, 173 Ariz. 220, 232, 841 P.2d 215, 227, (Ariz.App. Div. 1 Sep 22, 1992) (NO. 1 CA-CV 89-543).

1 CA-CV 03-0051), review denied (Nov 30, 2004). 2 3 COUNT VI RESCISSION OF GIFT BASED UPON UNILATERAL MISTAKE: "Misrepresentation and mistake can provide a basis for rescission." Long v. City of Glendale,

4 208 Ariz. 319, 331, 93 P.3d 519, 531, 429 Ariz. Adv. Rep. 24 (Ariz.App. Div. 1 Jun 29, 2004) (NO. 1 5 CA-CV 03-0051), review denied (Nov 30, 2004). 6 7 8 COUNT VII RESCISSION OF GIFT BASED UPON FAILURE OF CONDITION PRECEDENT: "If an agreement is made subject to the consent of an additional party, it must be viewed as

9 conditional and if the consent is not given, the agreement is not binding." Watts v. Hogan, 111 Ariz. 10 536, 534 P.2d 741 (Ariz. May 07, 1975) (NO. 11713). 11 12 B. DEFENDANT GLOBAL MISSIONS:

For its counterclaim, Defendant Global Missions must prove the existence of a contract, that

13 Plaintiff breached the contract, and that Global Missions was damaged as a result. See Chartone, Inc. v. 14 15 16 17 18 19 20 21 22 23 24 Studnek to Global Missions in exchange for a letter documenting what was given 25 to Global Missions. 26 2. Global Missions disputes Plaintiff's contention that "[w]hether Defendants legal Document 59 4 Filed 08/11/2005 Page 4 of 8 Case 2:04-cv-00595-MHM B. 1. 3. 2. Bernini, 207 Ariz. 162, ¶ 30, 83 P.3d 1103, 1111 (Ct. App. 2004). III. FACTUAL AND LEGAL ISSUES GENUINELY IN DISPUTE: A. PLAINTIFF: 1. Whether the promise was made to Plaintiff by Defendants that it would receive a tax credit in exchange for transferring of Estate assets. Whether Defendants legal entity enjoys any status that would allow them to offer a tax credit in exchange for assets. Whether Defendants promised to return the sale proceeds to Plaintiff if tax credit was denied. DEFENDANTS: Whether Plaintiff promised to give the remainder of the Estate of Joseph J.

1 2 3 4 IV. 5

entity enjoys any status that would allow them to offer tax credit in exchange for assets" is an issue genuinely in dispute; Global Missions asserts that this "issue" is irrelevant to this lawsuit. JURISDICTIONAL BASIS: Defendant Global Missions removed this action to federal court. There is complete diversity

6 among the parties, and the amount in controversy exceeds $75,000; therefore, this Court has jurisdiction 7 pursuant to 28 U.S.C. § 1332. 8 V. 9 PARTIES NOT YET SERVED: All of the parties have been served and it is anticipated that all parties will have answered prior to

10 the scheduling conference set for August 18, 2005. 11 VI. 12 13 VII. 14 15 16 17 18 19 20 21 22 23 24 Williams v. Vann, Case No. HG05198134 25 Vann v. David, Case No. HS05225494 26 Williams v. Reese, Case No. HG04173023 Case 2:04-cv-00595-MHM Document 59 5 Filed 08/11/2005 Page 5 of 8 FURTHER DISPOSITIVE ISSUES: Plaintiff anticipate filing a motion for summary judgment. REFERENCE TO ARBITRATION: The parties agree that the case may be referred to a U.S. Magistrate for further proceedings. Defendant Global Missions does not believe that it would serve any useful purpose to refer the case to arbitration at this time. VIII. RELATED CASES: Plaintiff believes that the following cases are related to the above captioned case (the Studnek case is pending in the Superior Court for the State of Alaska, Third Judicial District at Anchorage; the remainder of the cases are pending in the Superior Court of the State of California, Alameda County): In the Matter of the Estate of Joseph J. Studnek Deceased, Case No. 3AN-96-01367 Williams vs. Hall, Case No. HG05195512 Global Missions Unlimited vs. Bishop of Faith Vision Noble House, Case No. RG04169835 Williams v. Vann, Hall, Case No. HG05199244

1

Defendants Joseph Williams and Global Missions dispute that the above listed cases are related

2 to the case at bar and note that Plaintiff includes them in the Proposed Case Management Plan over the 3 Defendants' objection. Despite requests from the Defendants, Plaintiff has failed to establish a 4 relationship between the listed cases and this case. Furthermore, Plaintiff has failed to explain to the 5 Court the "status" of these allegedly related cases, as required by the Court's July 14, 2005 Scheduling 6 Order. 7 IX. 8 SUGGESTED CHANGES IN TIMING: The parties do not anticipate changes in timing, form or requirement for disclosure under Fed. R.

9 Civ. P. Rule 26(a). 10 X. 11 PROPOSED DEADLINES: The parties have submitted a proposed Rule 16 Scheduling Conference Order containing relevant

12 proposed dates, attached hereto as Exhibit A. 13 XI. 14 15 16 17 18 19 20 21 22 23 24 Failure of a party to serve and file a demand as required by Rule 38 constitutes a waiver by the party of 25 trial by jury. Fed. R. Civ. P. 38(d). When a party has waived the right to a jury trial with respect to the 26 original complaint and answer by failing to make a timely demand, that party cannot revive the right to a Case 2:04-cv-00595-MHM Document 59 6 Filed 08/11/2005 Page 6 of 8 XII. SCOPE OF DISCOVERY: The parties do not see a need to limit or focus discovery at this time. ESTIMATED LENGTH OF TRIAL: The parties estimate that a trial will require seven (7) judicial days. There is no readily apparent way to shorten the trial. XIII. JURY TRIAL: Plaintiff hereby requests a jury trial in this matter. Defendants contend that this is the first written notice that Plaintiff has given of its demand for a jury trial. In fact, in the first Proposed Case Management Plan with this Court on June 7, 2004, [Dkt. # 8] both parties agreed that no jury trial had been requested. Defendants further contend that Plaintiff has waived the right to a jury trial by failing to serve Defendants with a demand for a jury trial in writing within ten days of serving the Complaint, pursuant to Rule 38(b) of the Federal Rules of Civil Procedure.

1 jury trial by simply filing an amendment to the pleadings, especially where the issues in the amended 2 complaint turn on the same matrix of facts as the original complaint. See Lutz v. Glendale Union High 3 School, 403 F.3d 1061, 1066 (9th Cir. 2005). The original Complaint and the First Amended Complaint 4 ­ which was just served on Defendant Global Missions on August 3, 2005 ­ are based on identical facts. 5 Thus, even if Plaintiff makes belated a written request for a jury trial within 10 days of serving Global 6 Missions with the First Amended Complaint, such a request must be denied. Id. 7 XIV. PROSPECTS OF SETTLEMENT: 8 9 A. PLAINTIFF: Plaintiff have transferred over $3 million to Defendant and has received nothing in return.

10 It is not likely that Plaintiff will settle for anything less than return of their money except as collectability 11 may persuade otherwise. Defendants have declined to make settlement offers at this time. Plaintiff does 12 request a settlement conference before another Magistrate Judge. 13 14 15 16 17 18 19 20 21 22 23 24 25 DATED this _______ day of August, 2005. 26 OSBORN MALEDON, P.A. Case 2:04-cv-00595-MHM JACKSON WHITE, P.C. Document 59 7 Filed 08/11/2005 Page 7 of 8 B. DEFENDANTS: Although settlement discussions have occurred, it is doubtful that this case will settle prior to the completion of discovery. Defendants, therefore, believe that a settlement conference will not be useful until additional discovery is obtained. XV. CLASS ACTIONS: Not applicable. XVI. PLACEMENT ON COMPLEX TRACK: The parties do not believe the case is sufficiently complex to warrant placing it on the complex track for case management purposes. XVII. OTHER MATTERS: The parties have no other matters to bring up at this time to aid the court in resolving the dispute in a just, speedy, inexpensive manner.

1 2 __/s/ Ronda R. Fisk___________________ Debra A. Hill, Esq. 3 Ronda R. Fisk, Esq. 4 ORIGINAL of the foregoing filed 5 with the Clerk of the United States District Court this ________ day of 6 August, 2005 7 Judge Mary H. Murguia 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Case 2:04-cv-00595-MHM Document 59 8 Filed 08/11/2005 Page 8 of 8 By:
C:\Documents and Settings\catherine\Local Settings\Temporary Internet Files\OLK7A\Proposed Case Management Plan (4) (2).wpd

_________________________________________ Bradley D. Weech, Esq. Jeremy S. Geigle, Esq.