Free Objection - District Court of Arizona - Arizona

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JABURG & WILK, P.C. ATTORNEYS AT LAW 3200 NORTH CENTRAL AVENUE SUITE 2000 PHOENIX, ARIZONA 85012

Roger L. Cohen, #004409 Kathi Mann Sandweiss, #011078 JABURG & WILK, P.C. 3200 North Central Avenue, Suite 2000 Phoenix, Arizona 85012 (602) 248-1000 Attorneys for Ross Defendants

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA SHIMKO & PISCITELLI, et al., Case No: CIV-04-78-PHX-FJM Plaintiffs, v. DAVID GOLDFARB; RICHARD ROSS, et al. Defendants. Defendants Richard and Marcia Ross, without waiver of any other defenses, submit the following objections to Plaintiff's (Corrected) Statement of Claim filed August 20, 2008: 1. Omitted Piscitelli Fees. Plaintiff, in accordance with the Court's Order of ROSS DEFENDANTS' OBJECTIONS TO PLAINTIFFS' (CORRECTED) STATEMENT OF CLAIM

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March 20, 2008, and as directed at the final pretrial conference on August 18, 2008, undertook to reduce his claim by an amount equal to the fees billed by Frank Piscitelli. However, Plaintiffs' computation omits to include the following billing entries for Mr. Piscitelli, as set forth on Plaintiffs' February 6, 2003, billing statement. (See Exhibit 1 to these Objections.) (The omission appears to have been caused by a page of the February 6 billing statement being omitted from the copy of the billing statements previously marked and used as an exhibit): Date 1/31/2003 2/3/2003
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Hours 5 3

Amount $1,750.00 $1,050.00

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JABURG & WILK, P.C. ATTORNEYS AT LAW 3200 NORTH CENTRAL AVENUE SUITE 2000 PHOENIX, ARIZONA 85012

2/4/2003 Totals

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$1,400.00 $4,200.00

Plaintiff's claim must therefore be reduced by an additional $4,200.00. 2. Non-Recoverable Expenses. Plaintiff's analysis, consistently with his prior

filings, entirely omits to recognize that a portion of the claim, in the amount of $29,169.33, represents purported expenses. (See Exhibit 2.) Those expenses, in turn, are objectionable, at least in part, in two respects: First, as indicated on Exhibit 2, the total expense amount includes $6,935.42 in amounts pertaining to services of Frank Piscitelli. Given the Court's prior ruling

excluding Mr. Piscitelli's fees, these expense items must likewise be excluded. Second, while some of the expenses are specifically itemized, many are charges in the form of block entries without breakdown or supporting documentation, and often billed months after they were allegedly incurred. For example, on Plaintiff's December 4, 2002, billing statement (Exhibit 3), the following entry appears: "8/06/02 Tas (sic) travel expenses to and from Phoenix $2866.12." Entries of this sort are not proper business

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records, as they do not purport to have been created contemporaneously with the underlying events and, in any event, do not provide sufficient detail to permit the Ross Defendants, or the Court, to draw a conclusion as to whether the expenses are being legitimately charged. A review of the billing statements reveals at least $18,377.18 in such improper cost charges. Once again, that amount should be excluded from the base amount of Plaintiff's claim. 3. Alleged NSF Checks. By his Statement of Claim, Plaintiff seeks to

increase the base amount of his claim from $359,949.00 to $415,829.31, an increase of $55,880.31. In so doing, Plaintiff contradicts both his prior sworn testimony and his recent filings in this case, including his Joint Proposed Pretrial Order filed August 12, 2008, and Proposed Findings of Fact and Conclusions of Law filed August 13, 2008. 2
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JABURG & WILK, P.C. ATTORNEYS AT LAW 3200 NORTH CENTRAL AVENUE SUITE 2000 PHOENIX, ARIZONA 85012

In an effort to justify this increase, Plaintiff asserts that he was induced to review his firm's bank records following the Woodcock Defendants' request for such records in February 2008, and that he then discovered, for the first time, that he had received a series of NSF checks. This explanation, however, fails to withstand scrutiny. If, indeed, Mr. Shimko first realized that he had received NSF checks following the Woodcock Defendants' request, whose fault is that? At best, Plaintiff's explanation amounts to an admission that he never bothered to review his bank records before he filed his lawsuit, and before he repeatedly testified under oath as to the amount allegedly due. Plaintiff's cavalier indifference to the facts provides no justification for his later disclosure. Beyond that, it would be grossly unfair, at this point, to permit Mr. Shimko to increase the amount of his claim, as discovery has long-since closed, and the Ross Defendants are unable, as a practical matter, to rebut Plaintiff's new factual assertions without having access to additional bank records, including Plaintiff's bank statements for periods after January 2003 (which have not been produced). Plaintiff's Statement of Claim should therefore be disregarded to the extent it seeks to increase the base amount of his claim beyond the amount set forth in the Complaint and his prior testimony and court filings in this matter. 4. Summary. A chart showing the proper computation of Plaintiff's claim is

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attached as Exhibit 4. As indicated in that chart, the maximum amount at issue is $118,530.33. Plaintiff's claims are subject, moreover, to avoidance or reduction on the basis of the matters summarized in the Ross Defendants' Trial Memorandum of Law filed August 11, 2008, and such other matters as may appear at trial. RESPECTFULLY SUBMITTED this 20th day of August, 2008. JABURG & WILK, P.C. s/ Roger L. Cohen Roger L. Cohen Kathi Mann Sandweiss Attorneys for Ross Defendants 3
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JABURG & WILK, P.C. ATTORNEYS AT LAW 3200 NORTH CENTRAL AVENUE SUITE 2000 PHOENIX, ARIZONA 85012

CERTIFICATE OF SERVICE I hereby certify that on August 20, 2008, 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: Timothy Shimko, Esq. TIMOTHY SHIMKO & ASSOCIATES 2010 Huntington Building 925 Euclid Avenue Cleveland, Ohio 44115 Attorneys for Plaintiffs Richard J. McDaniel, Esq. 11811 N. Tatum Blvd., Suite 1051 Phoenix, Arizona 85208 Attorney for Woodcock Defendants David and Rhona Goldfarb 11437 N. 53rd Place Scottsdale, Arizona 8525 Pro Per Defendants Goldfarb Richard Hricik, Esq. Law Offices Richard A. Hricik, PA 941 Houston Northcutt Mt. Pleasant, SC 29464 Attorney for Plaintiff

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s/ Julie Sullivan

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