Free Reply to Response to Motion - District Court of Arizona - Arizona

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Scott D. Levine, Esq. NAUMANN, LEVINE & SILLDORF, LLP 8910 University Center Lane, Ste. 600 San Diego, California 92122 (858) 625-3900 (858) 625-3901 (facsimile) Attorneys for Plaintiffs

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA KAHALA CORP., et al, Plaintiffs, v. RILWALA GROUP, INC., et al, ) ) ) ) ) ) ) ) ) ) ) Case No.: CV'03-2160PHX JAT (lead) CV'04-1543PHX-JAT (cons)

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Defendants.

PLAINTIFFS' REPLY TO OPPOSITION TO MOTION TO EXPEDITE MOTIONS CURRENTLY PENDING Judge: HON. JAMES A. TEILBORG

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It seems that whenever it comes to following the Federal Rules of Civil Procedure or the Orders of this Court, the Defendants seem to find an excuse for their failure to comply. It seems that neither the Federal Rules of Civil Procedure or this Court's Orders matter to the Defendants as they seem to do what they want whenever they want to. They make the argument that they should have their day in court. However, their argument fails to acknowledge the fact that their inaction and/or failure to comply with this Court's Orders has severely prejudiced the Plaintiffs' day in court. The Opposition cites to two arguments with respect to the Motion to Expedite: 1. A letter from Plaintiffs' counsel dated August 19, 2005; and 2. A Request for More Time filed by Ariel Weissberg on July 25, 2005 to a Motion filed by the Plaintiffs on July 5, 2005.

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I. DEFENDANTS CONTINUE TO VIOLATE A COURT'S ORDER Plaintiffs' counsel agrees that the letter dated August 19, 2005 was not sent until August 22, 2005. The questions in this letter, to date, remain unanswered. The date error was made in the moving papers due to the short time that counsel had to prepare and file the Motion to Expedite. Counsel was scheduled to be out of the office on vacation beginning on the following day and thus the error was made. This error, however, should not be permitted to overshadow the improprieties effectuated by the Defendants for the last 10 months. The fact remains that there is an outstanding Order dated July 26, 2005 that required the Defendants to provide Supplemental Responses to all Written Interrogatories, as outlined in a Motion to Compel that was filed in May, 2005, no later than August 10, 2005. Further, this same Order required the Defendants to provide a completed RICO Case Statement by August 10, 2005. In their Opposition, the Defendants have told the Court that when the Defendants get an answer to their Motion filed on August 17, 2005, (7 days after their compliance was Ordered) they will then respond to the supplemental RICO Case Statement (no mention is made as to the timing of when they intend to respond to remaining portion of the Order ­ Supplemental Responses to the written Interrogatories). The bottom line is that the Defendants are intentionally and directly violating a very clear Court Order. Their Motion for Clarification was not filed until 7 days after the Supplemental Responses were due pursuant to the Court's Order. The Defendants are simply trying to buy themselves even more time to provide discovery responses that should have been provided in early January. As the Court will recall, it Ordered the Defendants to respond to written discovery propounded by another party in the case (Anar Enterprises) on April 19, 2005. Instead of providing the responses in compliance with the Court's Order, the Defendants chose to file a motion to compel arbitration. The Court saw this as a delay tactic and in its Order, stated that "the Rilwala Defendants MAY NOT avoid these obligations by filing any motion of any kind seeking to stay or delay the required discovery responses." Once again, the Rilwala Defendants have done just what Case 2:03-cv-02160-JAT TO OPPOSITION TO161 TO EXPEDITE MOTIONS CURRENTLY 2 of 4 Document MOTION Filed 08/30/2005 Page PENDING PLAINTIFFS' REPLY
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the Court Ordered them not to do ­ they filed a motion to clarify so as to delay the Court's Order to provide complete responses to written discovery. II. THE DEFENDANTS HAVE NOT OPPOSED THE MOTION TO DISMISS The Plaintiffs filed a Motion to Dismiss for Failure to Prosecute as to certain CounterDefendants as well as to certain Defendants in a consolidated Complaint. This motion was filed on July 5, 2005. The Response or Opposition was due to be filed on July 15, 2005. The first word anyone heard from the Defendants was when Mr. Weissberg filed a motion seeking more time on July 22, 2005. That mo tion sought until July 29, 2005 to file a response. The Motion for more time was struck by the Court on July 27, 2005. It is now August 30, 2005 ­ over a month after the requested extension date - and there is still no Opposition to the Motion to Dismiss for Failure to Prosecute. III. CONCLUSION Defense counsel (David Schwab) suggests that everything is smooth now that he is involved in the case. However, this is again, the same story that we have been hearing since Mr. Weissberg entered the case back in February, 2005. Despite his representations as to the production of The documents sought were

documents, they are still far short of complete compliance.

represented to be a "box" of documents related to Pravin Patel's operation of the franchises in Chicago. What was produced was 32 pages of marketing invoices. As such, the documents promised in June are still not being produced despite the numerous empty promises by both counsel for the Defendants since June. Plaintiffs requested the Order filed with their Motion to Expedite because they cannot seem to obtain compliance by the Defendants to either the Court's Orders or the Federal Rules of Civil Procedure. Plaintiffs request that the Proposed Order be signed so that the endless delays sought by the Defendants can come to an end. It is unfair for the Plaintiffs to have to continue to incur the costs of this litigation as well as the distraction of the numerous depositions while the Defendants continue to do whatever they want whenever they want. Plaintiffs also oppose any request to Case 2:03-cv-02160-JAT TO OPPOSITION TO161 TO EXPEDITE MOTIONS CURRENTLY 3 of 4 Document MOTION Filed 08/30/2005 Page PENDING PLAINTIFFS' REPLY
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continue the current discovery cut-off. In the alternative, Plaintiffs request a Hearing in person this week, if possible, at the Court's convenience. Counsel for the Defendants is in San Diego thru Thursday. The depositions next week are in Chicago.

Dated: August 30, 2005

NAUMANN, LEVINE & SILLDORF, LLP By: /s/ Scott D. Levine Scott D. Levine, Esq., Attorney for Plaintiffs

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