Free Motion to Compel - District Court of Arizona - Arizona

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RICHARD J. MCDANIEL, P.C. ATTORNEY AT LAW 11811 N. TATUM BLVD., SUITE 1051 PHOENIX, ARIZONA 85028 Telephone (602) 953-8721 FAX (602) 953-8731 Richard J. McDaniel #013329 Attorney for Defendants Woodcock IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Case No. CIV 04-78-FJM SHIMKO & PISCITELLI, Plaintiff, v. PAUL and BOBBI WOODCOCK, et. al. Defendants. DEFENDANT WOODCOCKS' NOTICE OF NON-OPPOSITION TO MOTION TO CONTINUE; MOTION TO COMPEL PRODUCTION; AND MOTION FOR SANCTIONS UNDER RULE 11.

Defendants Paul and Bobbi Woodcock do not oppose Shimko's motion to continue trial date. Defendants require a continuance to learn which version of four or more stories, Shimko plans to tell at this trial about Defendants' payments to his firm. Shimko has failed to make complete and adequate disclosures about amounts paid to his firm and has failed to respond to interrogatories requesting the information. He has given conflicting testimony and conflicting written statements regarding the amount paid to his firm. To avoid being unfairly surprised, Defendants have the right to know which version of his story Shimko intends to tell at the upcoming trial.

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Lastly, Defendants move the Court to strike Shimko's claims for his repeated failures to correct false statements of material fact in violation of his duties under Rule 11, Fed. R. Civ. P., and Ethical Rule 3.3. A. Motion to Compel Disclosure and Response to Discovery. Shimko has told at least four differing stories about how much Defendants paid his firm. In Story #1, given at Guenther's trial, Shimko prepared exhibits showing that Defendants had paid his firm $123,277 and that the firm was still owed an unpaid balance of $359,668. (Ex. A) Shimko testified at the Guenther trial and again at his March 2008 deposition that his firm had been paid approximately $135,000. ("We have been paid a total amount of $135,572..." Shimko testimony, Guenther trial transcript, p 91; "I think we had $350,000 that remained unpaid, and we were paid 135,000." Shimko deposition, p. 6.) Story #2 came about in response to Defendants' discovery requests. Defendants' non-uniform interrogatory served on Shimko on 2/15/08 demanded: 1. Itemize in detail all payments received from any of the Defendants or CORE related entities including date, amount, and manner of payment (check, wire, etc.) Defendants' requests for production also served on 2/15/08 demanded: 1. Copies of all checks, wire transaction records, or other documents showing all payments, retainers, deposits, or other monies received from any of the Defendants or CORF related entities.

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2. Copies of all internal accounting and bookkeeping records regarding all payments received in #1 above.
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3. Copies of all bank account statements for the relevant periods showing any payments or wire transfers or other monies received from Defendants or CORF related entities. (Ex. D) In response to these discovery requests, Shimko did not provide an itemization, but simply attached some bank statements

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and checks. (Ex. E) These checks show that Shimko's firm was
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paid approximately $603,816.80. (Ex. B, listing prepared by
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defense counsel) Shimko offered Story #3 in his May 12, 2008 Response to Woodcocks' Motion for Summary Judgment. At page 17 of his response, Shimko states: "deducting the $272,500 in bad checks from the total record of payments leaves a balance of $321,326.80, which is just about what Plaintiff's invoices show Plaintiff was paid." There are several problems with Story #3. First, no mention is made of the false testimony Shimko gave at Guenther's trial or in his deposition or the exhibits prepared for Guenther's trial. Second, he did not provide, as had been specifically demanded by Defendants in their interrogatories and requests for production, an itemization, copies of the bounced checks, bank statements showing the returned checks, or any other accounting. Third, there are not five checks that add up to $272,500. The five checks Shimko produced total 187,500. So even if Shimko
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were accurate that the five check bounced, his firm has been paid $416,316. ($603,816-$187,500). Shimko offered Story #4 in a March 4, 2003 letter to Defendants. (Ex. C) This was almost one month after the last CORE check was written on 2/11/03 and deposited on 2/13/03 into Shimko's account. Shimko wrote in his letter: "as you know you have sent me five checks, for which there were insufficient funds, totaling $112,500." This means that Defendants paid Shimko's firm $490,500 ($603,000-$112,500). Defendants seek this Court's order compelling Shimko to fully respond to Defendants' earlier interrogatories and requests for production and to provide a complete and accurate accounting of all billings and statements, including a complete and accurate account of all payments received and all supporting documentation. Defendants are entitled to know which story Shimko plans to tell at trial. B. Motion for Sanctions Under Rule 11 and ER 3.3. Shimko's claims should be dismissed. Shimko has repeatedly violated Rule 11 and ER 3.3. Rule 11, requires an attorney to make a reasonable review and analysis before asserting claims and before signing pleadings. ER 3.3 requires that an attorney use candor toward the court and not misrepresent material facts or legal precedent. Both rules impose a continuing duty upon attorneys to have a good faith basis to sustain claims and impose a duty to correct any material misrepresentations.
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The four or more differing versions of how much Shimko was paid, shows that Shimko never made the reasonable inquiry and investigation required by Rule 11. To date, Shimko has not gotten his story straight. Shimko violated ER 3.3 by lying at Guenther's trial and at his deposition about amounts his firm was paid. He now concedes, confronted with his own records, that he was paid at least $321,000. However, this amount understates what his firm was paid by at least $100,000 based upon the copies of wire payments and checks Shimko produced and his letter of March 2003. Shimko has also repeatedly violated Rule 11 and ER 3.3 by representing to three federal courts that his firm was owed $359,000 even though he has known since soon after his representation of Defendants ended in April 2003 that he had overcharged them $78,000 for Welling's time as a law clerk. Nevertheless, Shimko failed to subtract out the over billing in his representations to this Court when he filed his memorandum on the Guenther remand; in his pleadings before Judge Sedgwick; and in his pleadings before the Ninth Circuit. Based upon Shimko's fundamental failure to comply with Rule 11 and ER 3.3, Defendants should not be left guessing what story Shimko will tell at the next trial. Shimko's egregious conduct should not be tolerated. Defendants respectfully submit, that

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as a sanction for the repeated violations, his claims should be dismissed. Dated this 1st day of August 2008. RICHARD J. MCDANIEL ATTORNEY AT LAW By /s/ Rich McDaniel Richard J. McDaniel 11811 N. Tatum, #1051 Phoenix, AZ 85028 Attorney for Defendants Woodcock Electronically filed and copied this 1st day of August 2008: David Welling Timothy Shimko & Associates Roger Cohen JABURG & WILK Copy mailed to: David and Rhona Goldfarb 11437 N. 53 rd Place Scottsdale, AZ 85254 Pro Per /s/ Rich McDaniel

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