xcentric ventures v. borodkin - gingras declaration
TRANSCRIPT
8/3/2019 Xcentric Ventures v. Borodkin - Gingras Declaration
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G I N G R A S
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David S. Gingras, #021097Gingras Law Office, PLLC3941 E. Chandler Blvd., #106-243Phoenix, AZ 85048Tel.: (480) 668-3623Fax: (480) 248-3196
Attorney for Plaintiff Xcentric Ventures, LLC
UNITED STATES DISTRICT COURT
DISTRICT OF ARIZONA
XCENTRIC VENTURES, LLC, an
Arizona limited liability company,
Plaintiff,
v.
LISA JEAN BORODKIN, et al .,
Defendants.
Case No: 11-CV-1426-PHX-GMS
DECLARATION OF DAVID S.
GINGRAS IN SUPPORT OF
PLAINTIFF’S MOTION FOR EARLY
DISCOVERY
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.
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 represent Plaintiff XCENTRIC VENTURES, LLC (“Xcentric”) in this
matter and I have possession of Xcentric’s files relating to this matter which I have
personally reviewed and with which I am personally familiar.
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G I N G R A S
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4. This matter is an action for malicious prosecution arising from a civil
lawsuit filed in California against Xcentric Ventures styled Asia Economic Institute, LLC
v. Xcentric Ventures, LLC , Case. No. 10-CV-1360 (C.D.Cal.). The defendants in this
case are the former plaintiffs from the California proceeding (Asia Economic Institute
LLC, Raymond Mobrez, and Iliana Llaneras) and the lawyers who represented them
(Lisa Borodkin and Daniel Blackert). I represented Xcentric in the previous California
action from its inception through its conclusion.
5. At the time this matter was filed, I obtained a summons for Mr. Blackert
using the only address I had for him which the one listed for Mr. Blackert on the State
Bar of California’s website—PO Box 2092, Los Angeles, CA 90078. Because this
address was obviously a post office box rather than home or office address at which
personal service could be attempted, rather than sending a process server to this address
instead I mailed Mr. Blackert a copy of the Complaint, Summons, and a Request For
Waiver of Service form (two copies), and a return, stamped self-addressed envelope
Copies of the Summons and Waiver of Service forms are attached hereto as Exhibit A. I
mailed all of these materials to Mr. Blackert’s post office box on July 21, 2011.
6. On August 3, 2011, the package I mailed to Mr. Blackert’s post office box
was returned to me with a stamp from the post office which read: “Unknown at Box”,
indicating that Mr. Blackert was not located at this address or was otherwise unable to
receive mail at that address.
7. As soon as I receive this notice, on August 3, 2011 I contacted Defendant
Lisa Borodkin via email (prior to her retaining counsel). A copy of my email to Ms
Borodkin is attached hereto as Exhibit B. As reflected in my email, I contacted Ms
Borodkin to ask her if she knew where Mr. Blackert was. Because Ms. Borodkin and
Mr. Blackert were co-counsel in the previous action in California, I thought it was
possible that she may have another address for Mr. Blackert. In my August 3rd
email, I
also asked Ms. Borodkin whether she objected to Xcentric seeking leave to perform early
discovery in an effort to find Mr. Blackert.
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8. Rather than responding to my August 3rd
email, Ms. Borodkin called me
During that call, she told me that she might have information about Mr. Blackert’s
whereabouts, but she stated that she would not provide this information to me unless
Xcentric agreed to dismiss its claims against her. As I would with any other settlement
offer, I discussed Ms. Borodkin’s request with my client and I subsequently informed Ms
Borodkin that her request was not acceptable to Xcentric.
9. After discussing this issue with Ms. Borodkin and upon returning from
vacation, on August 30, 2011 I sent an email to Mr. Blackert using the email address
listed for him on the State Bar of California’s website: [email protected]. I also
sent a copy of this email to a different email address that Mr. Blackert had previously
used during the prior California case: [email protected]. Attached to this email
were copies of the Complaint, Summons, and Request for Waiver forms which I had
previously mailed to Mr. Blackert’s PO box. A copy of my August 30, 2011 email to Mr
Blackert is attached hereto as Exhibit C.
10. A few minutes after sending this email, I received a “bounce back”
notification indicating that the email address [email protected] was invalid.1 A copy
of the bounce back notice I received is attached hereto as Exhibit D. I did not receive
any such notification with regard to the email I sent to [email protected].
1 When the underlying California action filed by Mr. Blackert first began in early 2010, I
noticed that a page was missing from the original Complaint. I attempted to contact Mr
Blackert about this using the phone number listed on the face of the Complaint which
stated that Mr. Blackert was in-house counsel for Asia Economic Institute, LLC. After
receiving no response for several days, I looked up Mr. Blackert’s contact information on
the State Bar of California’s website to see if the Bar had other contact information forhim. At that time, Mr. Blackert’s contact information on the State Bar’s website stated
that he was employed by a law firm called “A. Liberatore, P.C.” which had a website
located at http://www.alpc-law.com/. At that time, Mr. Blackert’s State Bar information
also listed his email address as [email protected]. Based on this, in early 2010 I
contacted the A. Libertore law firm and asked for Mr. Blackert. In response, I was told
that Mr. Blackert “used to work here, but he hasn’t worked here for a long time.” As of
October 12, 2011, Mr. Blackert’s information on the State Bar of California’s website
continues to list his email address as: [email protected].
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G I N G R A S
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11. At or around this same time in late August 2011, I again looked up Mr.
Blackert’s contact information on the State Bar of California’s website and according to
that site, on July 1, 2011 Mr. Blackert was suspended from the practice of law for non-
payment of bar dues.
12. I recently checked with the State Bar of California and determined that on
September 23, 2011, Mr. Blackert was reinstated to the practice of law. Despite this, al
of the publicly available contact information for Mr. Blackert on the Bar’s website
remains invalid.2
A copy of Mr. Blackert’s details from the California Bar’s website (as
of October 12, 2011) is attached hereto as Exhibit E.
13. Based on the above, I have a good faith belief that the State Bar of
California has additional contact information for Mr. Blackert which may be obtained via
subpoena. In addition, I believe that I have exhausted all other possible means for
locating Mr. Blackert and therefore Xcentric will not be able to serve him with the
Complaint and Summons in this matter unless it is permitted to perform discovery as to
his whereabouts.
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: October 12, 2011.
______________________________________ DAVID GINGRAS
2 The State Bar of California also lists a telephone number for Mr. Blackert in
Connecticuit. I have attempted to contact Mr. Blackert by phone at this number, but I
have only received a recording which does not appear to be Mr. Blackert’s voice.
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CERTIFICATE OF SERVICE
I hereby certify that on October 12, 2011 I electronically transmitted the attached
document to the Clerk’s Office using the CM/ECF System for filing, and for transmittalof a Notice of Electronic Filing to the following:
Hartwell Harris, Esq.
LAW OFFICE OF HARTWELL HARRIS
1809 Idaho Avenue
Santa Monica, CA 90403
Attorney for Defendants
Raymond Mobrez
Iliana Llaneras and
Asia Economic Institute, LLC
John S. Craiger, Esq.
David E. Funkhouser III, Esq.
Krystal M. Aspey, Esq.
Quarles & Brady LLP
One Renaissance Square
Two North Central Avenue
Phoenix, Arizona 85004-2391
Attorney for Defendant Lisa J. Borodkin
And a courtesy copy of the foregoing delivered to:
HONORABLE G. MURRAY SNOW
United States District Court
Sandra Day O’Connor U.S. Courthouse, Suite 622
401 West Washington Street, SPC 80
Phoenix, AZ 85003
/s/David S. Gingras
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Exhibit A
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AO 440 (Rev. 12/09) Summons in a Civil Action
U NITED STATES DISTRICT COURTfor the
__________ District of __________
)
))
)
)
)
)
Plaintiff
v. Civil Action No.
Defendant
SUMMONS IN A CIVIL ACTION
To: (Defendant’s name and address)
A lawsuit has been filed against you.
Within 21 days after service of this summons on you (not counting the day you received it) — or 60 days if you
are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ.
P. 12 (a)(2) or (3) — you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of
the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff’s attorney,
whose name and address are:
If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint.
You also must file your answer or motion with the court.
CLERK OF COURT
Date:Signature of Clerk or Deputy Clerk
District of Arizona
Xcentric Ventures, LLC
Lisa J. Borodkin, et al.,
Daniel F. BlackertPO BOX 2092
Los Angeles, CA 90078
Case 2:11-cv-01426-MHB Document 5-3 Filed 07/19/11 Page 1 of 2Case 2:11-cv-01426-GMS Document 28-1 Filed 10/12/11 Page 7 of 18
2:26 pm, Jul 19, 2011
s/ Richard H. Weare, Clerk
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AO 399 (01/09) Waiver of the Service of Summons
U NITED STATES DISTRICT COURTfor the
__________ District of __________
)
))))
Plaintiff v. Civil Action No.
Defendant
WAIVER OF THE SERVICE OF SUMMONS
To:(Name of the plaintiff’s attorney or unrepresented plaintiff)
I have received your request to waive service of a summons in this action along with a copy of the complaint,two copies of this waiver form, and a prepaid means of returning one signed copy of the form to you.
I, or the entity I represent, agree to save the expense of serving a summons and complaint in this case.
I understand that I, or the entity I represent, will keep all defenses or objections to the lawsuit, the court’s jurisdiction, and the venue of the action, but that I waive any objections to the absence of a summons or of service.
I also understand that I, or the entity I represent, must file and serve an answer or a motion under Rule 12 within
60 days from , the date when this request was sent (or 90 days if it was sent outside the
United States). If I fail to do so, a default judgment will be entered against me or the entity I represent.
Date:Signature of the attorney or unrepresented party
Printed name of party waiving service of summons Printed name
Address
E-mail address
Telephone number
Duty to Avoid Unnecessary Expenses of Serving a Summons
Rule 4 of the Federal Rules of Civil Procedure requires certain defendants to cooperate in saving unnecessary expenses of serving a summonsand complaint. A defendant who is located in the United States and who fails to return a signed waiver of service requested by a plaintiff located inthe United States will be required to pay the expenses of service, unless the defendant shows good cause for the failure.
“Good cause” does not include a belief that the lawsuit is groundless, or that it has been brought in an improper venue, or that the court hasno jurisdiction over this matter or over the defendant or the defendant’s property.
If the waiver is signed and returned, you can still make these and all other defenses and objections, but you cannot object to the absence of a summons or of service.
If you waive service, then you must, within the time specified on the waiver form, serve an answer or a motion under Rule 12 on the plaintiff and file a copy with the court. By signing and returning the waiver form, you are allowed more time to respond than if a summons had been served.
District of Arizona
Xcentric Ventures, LLC
Lisa J. Borodkin, et al.
11-CV-1426-GMS
David S. Gingras
08/30/2011
Daniel Blackert Daniel Blackert
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Exhibit B
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Exhibit C
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David Gingras
From: David Gingras [[email protected]]
Sent: Wednesday, August 03, 2011 4:32 PM
To: '[email protected]'
Cc: '[email protected]'
Subject: ROR Lawsuit
Attachments: Blackert Returned Mail.pdf
Page 1 of 1
10/12/2011
Lisa,
I’m sorry to be reaching out to you this way, but I have a question for you. By now, I assume you’re aware of thelawsuit that Xcentric has commenced here in Arizona. Because I have no physical address for Dan, I mailed acopy of the Complaint, Summons, and a request for waiver of service to the PO box address that Dan has listedon the State Bar of California’s website. As reflected in the attached PDF, I just received notice from the postoffice that Dan’s address is invalid.
Because I have no other way of contacting him (I understand that the email address listed on the bar’s website isalso invalid, and I called the phone number they have for him but I got a strange voicemail recording that didn’tsound anything like Dan), I wanted to see if you would be willing to provide me with whatever other address you
may have for him. Obviously I can’t require you to provide this, but I wanted to ask anyway.
If you don’t have any other contact information for Dan or you’re not willing to provide it to me, please let me knowif you have any objection to Xcentric seeking leave from the court to perform early discovery on this issue. Mythinking is that the California bar probably has a non-public address for Dan that I could obtain with a subpoena,so that’s what I would seek leave to do.
Thank you.
David S. Gingras, [email protected].: (480) 668-3623Fax: (480) 248-3196
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Exhibit D
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David Gingras
From: David Gingras [[email protected]]
Sent: Tuesday, August 30, 2011 11:05 AM
To: 'Daniel Blackert'; '[email protected]'
Subject: Xcentric v. Borodkin - Notice of Lawsuit & Request for Waiver of Service
Attachments: Blackert Returned Mail.pdf; 5 - Summons - Blackert.pdf; 1 - Complaint.pdf; AO398 - Notice of Lawsuit.pdf; AO399 - Waiver of Service.pdf
Page 1 of 1
10/12/2011
Dan,
As I am sure you heard by now, Xcentric Ventures has filed a lawsuit in Arizona against AEI, Mr. Mobrez, Ms.Llaneras, Lisa and yourself. Copies of the Complaint and Summons are attached.
I initially sent you copies of these documents along with a request for waiver of service to the address you haveon file with the State Bar of California – PO Box 2092, Los Angeles, CA 90078. Unfortunately, this mail has beenreturned as undeliverable and I have not been able to locate any other address for you.
As such, I am writing to ask whether you will voluntarily agree to accept/waive service. If so, please print, sign,and return the attached waiver form to me as soon as possible.
Thanks.
David S. Gingras, [email protected].: (480) 668-3623Fax: (480) 248-3196
No virus found in this incoming message.Checked by AVG - www.avg.comVersion: 9.0.801 / Virus Database: 271.1.1/2793 - Release Date: 04/06/10 23:32:00
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Exhibit E
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1
David Gingras
From: Mail Administrator [[email protected]]Sent: Tuesday, August 30, 2011 11:10 AMTo: [email protected]: Mail System Error - Returned Mail
Attachments: details.txt; Xcentric v. Borodkin - Notice of Lawsuit & Request for Waiver of Service (21.7 KB)
details.txt (441 B) Xcentric v.
orodkin - Notice ..Recipient: <[email protected]>
Reason: No Such User Here"
Please reply to <[email protected]>
if you feel this message to be in error.
The following attachments have been removed from the bounce message: Blackert Returned
Mail.pdf, 5 - Summons - Blackert.pdf, 1 - Complaint.pdf, AO398 - Notice of Lawsuit.pdf,
AO399 - Waiver of Service.pdf
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Exhibit F
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