Free Other Notice - District Court of Arizona - Arizona

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Timothy A. Shimko (PRO HAC VICE) (OSBN 0006736) TIMOTHY A. SHIMKO & ASSOCIATES 2010 Huntington Building 925 Euclid Ave. Cleveland, Ohio 44115 Tel. (216) 241-8300 Fax (216) 241-2702 Counsel for Plaintiffs IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA ) ) ) ) ) ) ) ) ) ) Case No. CV-04-00078-FJM Judge Frederick J. Martone PLAINTIFFS' STATEMENT OF CLAIM

SHIMKO & PISCITELLI, et al., Plaintiffs, v. PAUL WOODCOCK, et al., Defendants.

In light of the rulings previously entered by this Court, Plaintiff was directed to prepare and file a final statement of Plaintiffs' damages. As part of the Court's direction, Plaintiff was to calculate all unpaid fees and deduct from that amount all unpaid fees billed for services provided by

17 18 19 20 21 22 23 24 However, in February of 2008, Defendant Woodcock requested, for the first time, copies of 25 26 bank records reflecting all payments to the firm. Having gone through the steps to procure these Frank E. Piscitelli, Jr. Plaintiff was further directed to reduce Mr. Welling's hourly rate for the services he provided and did so to $150/hr. Finally, Plaintiff was directed to reduce the firm's hourly rate by one-third from $350/hr. to $233.32/hr. Previously, Plaintiff has testified and represented to the Court and Defendants that the amount of the firm's unpaid billings totaled $359,949.00. This amount was determined solely by looking at the firm's billings, attached to Exhibit 2.

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records for Defendants, Plaintiff reviewed these records, which are attached as Exhibit 3, and discovered that Plaintiff billed the Defendants a total of $862,476.11 and that Defendants made a total of $644,146.80 in payments to Plaintiff. However, what Plaintiff had not known until having gone through the exercise was that of the $644,146.80 paid by Defendants, $197,500.00 in payments were returned for nonsufficient funds, leaving the firm's actual unpaid balance at $415,829.31. (Exhibit 1). Frank Piscitelli, Jr.'s time for the unpaid work totaled 347.80 hours (Exhibit 2). David Wellings unpaid time totaled 341.1 hours (Exhibit 2A). Timothy A. Shimko's unpaid time totaled 203.32 (Exhibit 2B). Reducing the unpaid fees of $415,829.31 by $121,730.00 for Mr. Piscitelli's services and by further reducing that amount by $68,220.00 based on Mr. Welling's reduced rate, and further reducing the balance by one-third ($75,293.10) leaves an unpaid balance of $150,586.21

13 14 15 16 17 18 19 20 Guenther until the completion of this litigation. 21 22 23 24 25 26 (Exhibit 1). As Dr. Guenther is still subject to this Court's jurisdiction under Rule 54, these calculations would also bear application there. Plaintiff's previous failure to reduce his claim, though having consistently acknowledged that Mr. Welling's rates had been billed in error and should have been reduced, was the result of inadvertence and on the understanding that the Court was not going to enter a final order against Dr.

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RESPECTFULLY SUBMITTED on this 19th day of August, 2008. TIMOTHY A. SHIMKO & ASSOCIATES By: /s/ Timothy A. Shimko Timothy A. Shimko (OSBN 0006736) 2010 Huntington Building 925 Euclid Ave. Cleveland, Ohio 44115 Tel. (216) 241-8300 Fax (216) 241-2702 Counsel for Plaintiffs

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COPY of the foregoing electronically filed and served this 19th day of August, 2008 upon: Roger L. Cohen, Esq. Jaburg & Wilk, P.C. 3200 North Central Avenue, Ste. 2000 Phoenix, Arizona 85012 [email protected] Counsel for Defendant Ross Richard J. McDaniel, Esq. 11811 N. Tatum Blvd., Ste. 1051 Phoenix, Arizona 84208 Counsel for Defendants Woodcock Served via regular U.S. Mail upon the following: Mr. and Mrs. David Goldfarb 11437 N. 53rd Place Phoenix, Arizona 85254 Defendants Milton and Kathi Guenther 3642 E. Rockwood Phoenix, Arizona 84032 Defendants in pro per

/s/ Mildred Pacheco

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