david gingras aff. iso msj

AFFIDAVIT OF DAVID GINGRAS

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David S. Gingras, #021097Gingras Law Office, PLLC3941 E. Chandler Blvd., #106-243Phoenix, AZ 85048Tel.: (480) 668-3623Fax: (480) [email protected]

Attorney for Plaintiff Xcentric Ventures, LLC

UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

Xcentric Ventures, LLC, an Arizonalimited liability company,

Plaintiff,

v.

Lisa Jean Borodkin, et al.,

Defendants.

Raymond Mobrez,

Counterclaimant,

v.

Xcentric Ventures, LLC, andEdward Magedson,

Counterdefendants.

Case No.: 11-CV-1426-GMS

AFFIDAVIT OF DAVID GINGRAS INSUPPORT OF PLAINTIFF/COUNTERDEFENDANT XCENTRICVENTURES, LLC’S REPLY RE:SUMMARY JUDGMENT RE:COUNTERCLAIM

I, David S. Gingras declare as follows:

1. My name is David Gingras. I am a United States citizen, a resident of the

State of Arizona, am over the age of 18 years, and if called to testify in court or other

proceeding I could and would give the following testimony which is based upon my own

personal knowledge unless otherwise stated.

Case 2:11-cv-01426-GMS Document 145-1 Filed 11/07/12 of 16

2AFFIDAVIT OF DAVID GINGRAS

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2. I am an attorney licensed to practice law in the States of Arizona and

California, I am an active member in good standing with the State Bars of Arizona and

California and I am admitted to practice and in good standing with the United States

District Court for the District of Arizona and the United States District Court for the

Northern, Central, and Eastern Districts of California.

3. I represented Xcentric Ventures, LLC and Edward Magedson in the lawsuit

filed against them in California entitled Asia Economic Institute, LLC, et al. v. Xcentric

Ventures, LLC, et al., Case No. 10-cv-1360 (the “California Litigation”).

4. I am aware that in this matter, Mr. Mobrez claims that his “wiretapping”

cause of action based on an alleged violation of Cal. Pen. Code § 632 was raised in the

prior California Litigation and that such claim was never resolved by the district court.

Both of these assertions are incorrect.

5. The original Complaint filed by Mr. Mobrez in the California Litigation on

January 27, 2010 is attached to Xcentric’s First Amended Complaint (Doc. #55) in this

matter as Exhibit A. This pleading did not raise any cause of action under Cal. Pen.

Code § 632. The failure to include such a claim is understandable because at that time,

Mr. Mobrez was not aware that his calls to Xcentric were recorded. Mr. Mobrez was not

informed that his phone calls to Xcentric were recorded until I took his deposition on

May 7, 2010 and revealed that fact to him by playing the recordings of each call.

6. After I deposed Mr. Mobrez on May 7, 2010, the district court granted

partial summary judgment in favor of Xcentric as to the claim of RICO/extortion in a

ruling dated July 19, 2010. In that same ruling, the district court also dismissed Mr.

Mobrez’s RICO/wire fraud claim pursuant to Fed. R. Civ. P. 9(b) based on a finding that

the claim was not pleaded with particularity. In the same ruling, the court granted Mr.

Mobrez leave to amend his RICO/wire fraud claim within 10 days.

7. On July 27, 2010, Mr. Mobrez filed an 84-page First Amended Complaint

in the California case. As reflected by the caption of the pleading, a copy of which is

attached hereto as Exhibit A, the FAC did not contain a cause of action for wiretapping.



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However, in paragraph 14 of the FAC, also included in Exhibit A, Mr. Mobrez made the

following reference to Xcentric’s practice of recording phone calls:

14. The Ripoff Report enterprise until approximately May or June 2010had a regular business practice of secretly recording or causing to berecorded all telephone conversations to its business telephone number, inassociation with an unidentified vendor, without disclosure to or consent ofall parties to the telephone conversations, in violation of, inter alia, thewiretapping laws of the State of California. The Ripoff Report has used orattempted to use the contents of such secret recordings as a surpriselitigation tactic in actions in, inter alia, California and Arizona. Defendantsused instrumentalities of interstate commerce, specifically wire, to recordsuch telephone calls.

8. Other than this single reference, the First Amended Complaint in the

California action did not specifically refer to California Penal Code § 632, nor did it

request damages relating to the recorded phone calls from Mr. Mobrez to Mr. Magedson.

9. On August 6, 2010, Xcentric filed a Motion to Dismiss the First Amended

Complaint based on Rule 9(b) and 12(b)(6). In addition, Xcentric served Ms. Borodkin

and Mr. Blackert with a proposed Motion for Rule 11 sanctions relating to certain

allegations in the FAC and Xcentric also moved to strike certain allegations in the FAC.

10. In response, on August 17, 2010, Mr. Mobrez filed a Motion for Leave to

Amend and a proposed 72-page Second Amended Complaint. As reflected in the caption

of the proposed SAC, a copy of which is attached hereto as Exhibit B, the Second

Amended Complaint did not contain a cause of action for wiretapping. However, the

proposed SAC did contain the exact same factual allegations as paragraph 14 of the FAC

as quoted above relating to Xcentric’s practice of recording phone calls.

11. On September 20, 2010, a hearing was held in the California Litigation to

discuss numerous pending motions including Xcentric’s Motion to Dismiss the First

Amended Complaint and Mr. Mobrez’s Motion for Leave to file the proposed Second

Amended Complaint. As reflected in the court’s minute order from this hearing, a copy

of which is attached hereto as Exhibit C, the district judge ordered that Mr. Mobrez’s



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“first amended complaint is the operative document”, and the court further ordered

Xcentric to file a Motion for Summary Judgment within seven days.

12. As ordered, on September 27, 2010, Xcentric filed a Motion for Summary

Judgment seeking the disposition of each and every claim set forth in the First Amended

Complaint. Xcentric’s motion was granted in its entirety on May 4, 2011. See Asia

Economic Institute, LLC v. Xcentric Ventures, LLC, 2011 WL 2469822 (C.D.Cal. 2011).

13. Following the summary judgment ruling, on June 15, 2011, the California

district court entered final judgment in favor of Xcentric “as to all claims and relief

requested by Plaintiffs, and Plaintiffs are ordered to take nothing thereby.” A copy of the

district court’s final judgment is attached hereto as Exhibit D.

Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury under the laws of the

United States of America that the foregoing is true and correct.

EXECUTED ON: November 7, 2012.

/S/David S. GingrasDavid S. Gingras



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CERTIFICATE OF SERVICE

I hereby certify that on November 7, 2012 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:

John S. Craiger, Esq.David E. Funkhouser III, Esq.

Quarles & Brady LLPOne Renaissance Square

Two North Central AvenuePhoenix, Arizona 85004-2391

Attorneys for Defendant Lisa J. Borodkin

Raymond MobrezIliana LlanerasPO BOX 3663

Santa Monica, CA 90408Defendants Pro Se

And a courtesy copy of the foregoing delivered to:HONORABLE G. MURRAY SNOW

United States District CourtSandra Day O’Connor U.S. Courthouse, Suite 622

401 West Washington Street, SPC 80Phoenix, AZ 85003-215

/s/David S. Gingras


Exhibit A


First Amended Complaint - 1

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Daniel F. Blackert, (SBN 255021) [email protected] Lisa J. Borodkin, (SBN 196412) [email protected] ASIA ECONOMIC INSTITUTE, LLC 11766 Wilshire Blvd., Suite 260 Los Angeles, CA 90025 Telephone (310) 806-3000 Facsimile (310) 826-4448 Attorneys for Plaintiffs Asia Economic Institute, LLC, Raymond Mobrez, and Iliana Llaneras


CENTRAL DISTRICT OF CALIFORNIA

ASIA ECONOMIC INSTITUTE, LLC, a California LLC; RAYMOND MOBREZ an individual; and ILIANA LLANERAS, an individual, Plaintiffs, vs. XCENTRIC VENTURES, LLC, an Arizona LLC, doing business as BADBUSINESS BUREAU, RIPOFF REPORT, and RIPOFFREPORT.COM, BAD BUSINESS BUREAU, LLC, organized and existing under the laws of St. Kitts and Nevis, West Indies; EDWARD MAGEDSON an individual, also known as EDWARD MAGIDSON also known as the “Editor,” and DOES 1 through 100, inclusive, Defendants.

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

)))

Case No.: 2:10-cv-01360-SVW-PJW FIRST AMENDED COMPLAINT FOR:

(1) VIOLATION OF 18 U.S.C. § 1962(c) --

CIVIL RICO (2) VIOLATION OF 18 U.S.C. § 1962(d) --

RICO CONSPIRACY (3) UNFAIR BUSINESS PRACTICES --

CAL. BUS. & PROF. CODE § 17200 et seq.

(4) DEFAMATION (5) DEFAMATION PER SE (6) INTENTIONAL INTERFERENCE

WITH PROSPECTIVE ECONOMIC RELATIONS

(7) NEGLIGENT INTERFERENCE WITH PROSPECTIVE ECONOMIC RELATIONS

(8) NEGLIGENT INTERFERENCE WITH ECONOMIC RELATIONS

(9) DECEIT (10) FRAUD (11) INJUNCTION

JURY TRIAL DEMANDED

Case 2:10-cv-01360-SVW-PJW Document 96 Filed 07/27/10 Page 1 of 84 Page ID #:2322Case 2:11-cv-01426-GMS Document 145-1 Filed 11/07/12 of 16


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the contents of certain reports; writing and publishing findings; collaborating with

the subjects of paid testimonials and endorsements in writing original content

about them and publishing it through the ROR Website; communicating with

individual subjects of reports by electronic mail, particularly to urge them to file

rebuttals or comments to existing Reports; supervising or acting in association with

a currently unknown individual identified only by the electronic mail address

“[email protected]” at certain times relevant herein, whose duties included

responding to complaints that rebuttals were not posting or were being posted to

the wrong reports; engaging, supervising and collaborating with counsel to draft

significant and influential portions of the ROR Website and otherwise. Magedson

uses instrumentalities of interstate commerce to conduct these activities,

specifically wire.

13. Xcentric and its associates in the Ripoff Report enterprise use

extremely aggressive litigation strategies to, inter alia, protect and perpetuate its

business model, and silence and retaliate against their critics, including by

affirmatively initiating an Arizona state court action against Washington State-

based attorney and search engine optimization consultant and blogger Sarah L.

Bird, Xcentric Ventures LLC v. Bird, (D. Ariz. 09-cv-1033) which action was

dismissed on jurisdictional grounds and is currently on appeal to the Ninth Circuit

Court of Appeals (10-1546); initiating an Arizona state court defamation action

against Phoenix New Times reporter Sarah Fenske, her husband, a source for an

article, the source’s spouse and the publishers, Xcentric v. Village Voice Media,

CV2008-2416 (Arizona Sup. Ct. for Maricopa County); and is currently opposing

an appeal to the Seventh Circuit (10-1167) in Blockowicz v. Williams, 675 F.

Supp. 2d 912 (N.D. Ill. 2009) (09-cv-3955) regarding its purported right to defy

compliance with a permanent injunction ordering it to remove defamatory content.

14. The Ripoff Report enterprise until approximately May or June 2010

had a regular business practice of secretly recording or causing to be recorded all

telephone conversations to its business telephone number, in association with an



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unidentified vendor, without disclosure to or consent of all parties to the telephone

conversations, in violation of, inter alia, the wiretapping laws of the State of

California. The Ripoff Report has used or attempted to use the contents of such

secret recordings as a surprise litigation tactic in actions in, inter alia, California

and Arizona. Defendants used instrumentalities of interstate commerce,

specifically wire, to record such telephone calls.

15. The true names and capacities, whether individual, corporate, or

otherwise, of Defendants DOES 1 to 100 are unknown to Plaintiffs at the present

time, who therefore sue such Defendants by fictitious names, and will amend this

Complaint to show their true names and capacities when ascertained. Plaintiffs are

informed and believe and thereon allege that each of the defendants assigned as a

DOE is responsible in some manner for the events and happenings herein referred

to, and thereby proximately caused injuries and damages to the Plaintiffs. Plaintiffs

will amend this complaint to add as defendants in this action those individuals and

entities who have assisted Defendants in perpetrating the acts and omissions

complained of herein, including additional individuals and entities complicit in

managing and operating the affairs of the Ripoff Report enterprise.

III.

SUMMARY OF THE ALLEGATIONS

16. The Ripoff Report enterprise takes advantage of the average person’s

lack of sophistication in technology, reliance on Internet search engines, and

general lack of time. It misrepresents its true nature to the public and places its

victims in desperate positions through elaborate technological and legal traps and

artifices. It then intimidates and defrauds its victims into believing that the only

practical way of saving their good names is to defend them on its home turf, the

ROR Website, where it makes the rules, it decides who gets heard, and most of all,


Exhibit B


Amended Complaint - 1

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Daniel F. Blackert, (SBN 255021) [email protected] Lisa J. Borodkin, (SBN 196412) [email protected] ASIA ECONOMIC INSTITUTE, LLC 11766 Wilshire Blvd., Suite 260 Los Angeles, CA 90025 Telephone (310) 806-3000 Facsimile (310) 826-4448 Attorneys for Plaintiffs Asia Economic Institute, LLC, Raymond Mobrez, and Iliana Llaneras


CENTRAL DISTRICT OF CALIFORNIA

ASIA ECONOMIC INSTITUTE, LLC, a California LLC; RAYMOND MOBREZ an individual; and ILIANA LLANERAS, an individual, Plaintiffs, vs. XCENTRIC VENTURES, LLC, an Arizona LLC, doing business as BADBUSINESS BUREAU, RIPOFF REPORT, and RIPOFFREPORT.COM, BAD BUSINESS BUREAU, LLC, organized and existing under the laws of St. Kitts and Nevis, West Indies; EDWARD MAGEDSON an individual, also known as EDWARD MAGIDSON also known as the “Editor,” and DOES 1 through 100, inclusive, Defendants.

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

)))

Case No.: 2:10-cv-01360-SVW-PJW SECOND AMENDED COMPLAINT FOR:

(1) UNFAIR BUSINESS PRACTICES --

CAL. BUS. & PROF. CODE § 17200 et seq.

(2) DEFAMATION (3) DEFAMATION PER SE (4) INTENTIONAL INTERFERENCE

WITH PROSPECTIVE ECONOMIC RELATIONS

(5) NEGLIGENT INTERFERENCE WITH PROSPECTIVE ECONOMIC RELATIONS

(6) NEGLIGENT INTERFERENCE WITH ECONOMIC RELATIONS

(7) DECEIT (8) FRAUD (9) INJUNCTION

JURY TRIAL DEMANDED

Case 2:10-cv-01360-SVW -PJW Document 122 Filed 08/17/10 Page 1 of 72 Page ID #:3561


Amended Complaint - 7

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Supp. 2d 912 (N.D. Ill. 2009) (09-cv-3955) regarding its purported right to defy

compliance with a permanent injunction ordering it to remove defamatory content.

9. The Ripoff Report enterprise until approximately May or June 2010

had a regular business practice of secretly recording or causing to be recorded all

telephone conversations to its business telephone number, in association with an

unidentified vendor, without disclosure to or consent of all parties to the telephone

conversations, in violation of, inter alia, the wiretapping laws of the State of

California. The Ripoff Report has used or attempted to use the contents of such

secret recordings as a surprise litigation tactic in actions in, inter alia, California

and Arizona. Defendants used instrumentalities of interstate commerce,

specifically wire, to record such telephone calls.

10. The true names and capacities, whether individual, corporate, or

otherwise, of Defendants DOES 1 to 100 are unknown to Plaintiffs at the present

time, which therefore sue such Defendants by fictitious names, and will amend this

Complaint to show their true names and capacities when ascertained. Plaintiffs are

informed and believe and thereon allege that each of the defendants assigned as a

DOE is responsible in some manner for the events and happenings herein referred

to, and thereby proximately caused injuries and damages to the Plaintiffs. Plaintiffs

will amend this complaint to add as defendants in this action those individuals and

entities who have assisted Defendants in perpetrating the acts and omissions

complained of herein, including additional individuals and entities complicit in

managing and operating the affairs of the Ripoff Report enterprise.

III.

SUMMARY OF THE ALLEGATIONS

11. The Ripoff Report enterprise takes advantage of the average person’s

lack of sophistication in technology, reliance on Internet search engines, and

general lack of time. It misrepresents its true nature to the public and places its



Exhibit C


UNITED STATES DISTRICT COURTCENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL

Case No. CV10-1360-SVW-PJWx Date September 20, 2010

Title Asia Economic Institute et al v. Xcentric Ventures LLC et al

: 20

Initials of Preparer PMC

CV-90 (06/04) CIVIL MINUTES - GENERAL Page 1 of 1

Present: The Honorable STEPHEN V. WILSON, U.S. DISTRICT JUDGE

Paul M. Cruz Deborah GackleDeputy Clerk Court Reporter / Recorder Tape No.

Attorneys Present for Plaintiffs: Attorneys Present for Defendants:

Lisa Boradkin David S. GingrasMaria C. Speth

Proceedings: 1. MOTION TO DISMISS FIRST AMENDED COMPLAINT FILED BY DEFENDANTS[110] (fld 08/06/10)2. MOTION FOR RELIEF FROM MOTION TO DISMISS PLAINTIFFS' FIRSTAMENDED COMPLAINT FILED BY PLAINTIFFS [115] (fld 8/16/10)3. MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT FILED BYPLAINTIFFS [116] (fld 8/16/10)4. MOTION FOR RECONSIDERATION RE ORDER #94 FILED BY PLAINTIFFS [118)(fld 8/16/10)5. MOTION TO STRIKE MATERIAL FROM DOCUMENTS 118 AND 121 AND MOTIONFOR SANCTIONS [124]

Hearing held. The motion reconsideration [118] is denied. Order to issue. The RICO claims arestricken. The first amended complaint is the operative document. The Court sets the followingschedule:

Filing of Motion for Summary Judgment . . . . . . . . . . . . . . . . . . . . . . . . . . . September 27, 2010Opposition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . October 4, 2010Reply . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . October 12, 2010

Hearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . November 1, 2010 at 1:30 p.m.



Exhibit D


david gingras aff. iso msj

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