DECLARATION OF DAVID S. GINGRAS
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GINGRASLAWOFFIC...
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DECLARATION OF DAVID S. GINGRAS
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GINGRASLAWOFF...
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DECLARATION OF DAVID S. GINGRAS
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GINGRASLAWOFF...
Exhibit A
Case 2:11-cv-01426-GMS Document 107-1 Filed 08/13/12 Page 4 of 19
1 UNITED STATES DISTRICT COURT
2 CENTRAL DISTRICT OF CALIFORNIA
3 ---
4
5 THE HONORABLE STEPHEN V. WILSON, U.S. DISTRICT J...
2
1 APPEARANCES OF COUNSEL:
2
3
4 For the Plaintiff:
5
6 ASIA ECONOMIC INSTITUTE
BY: LISA J. BORODKIN
7 BY: DANIEL F. BLAC...
3
1 LOS ANGELES, CALIFORNIA; MONDAY, APRIL 19, 2010; 2:15 P.M.
2 - - - - -
3
4 THE CLERK: Item 11, CV 10-1360-SVW, Asia Ec...
4
1 recently discovered evidence, yes.
2 THE COURT: Answer my question. The answer is yes,
3 correct?
4 MS. BORODKIN: Corr...
5
1 never taken down, and --
2 THE COURT: Let's say there was a false statement.
3 There has to be causation, injury and s...
6
1 is an instance that you allege in which arguably it was
2 removed.
3 So if you establish that that statement is false,...
7
1 accepting for the moment that the statement wasn't true. In
2 other words, I'm agreeing with you, just for argument's ...
8
1 doesn't extend to someone who takes over a case, especially
2 when the case has reached motion practice, but I'll leav...
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1 positive material is ever posted on the Ripoff Report website,
2 correct?
3 MS. BORODKIN: Again, to be perfectly clear...
10
1 THE COURT: I didn't ask you. I want you to -- now,
2 the questionnaire, was the questionnaire given to the
3 plaintif...
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1 there is something about that case beyond what you prescribed
2 and what I've read. Clearly it's an extortion case, a...
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1 a pattern of racketeering activity which is described in terms
2 of specific predicate acts. Wire fraud is a predicat...
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1 upon. If motion were denied, then we would proceed to
2 discovery.
3 And so while in light of what I've said earlier,...
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1 case statement; I've not ordered a RICO case statement.
2 MS. BORODKIN: I apologize.
3 THE COURT: Yes, please.
4 I'll...
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1 MR. GINGRAS: Your Honor --
2 THE COURT: I don't want to hear any more.
3 MR. GINGRAS: I'm sorry.
4 - - - - - -
5
6
7 ...
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  1. 1. DECLARATION OF DAVID S. GINGRAS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 GINGRASLAWOFFICE,PLLC 3941E.CHANDLERBLVD.,#106-243 PHOENIX,ARIZONA85048 David S. Gingras, #021097 Gingras Law Office, PLLC 3941 E. Chandler Blvd., #106-243 Phoenix, AZ 85048 Tel.: (480) 668-3623 Fax: (480) 248-3196 David@GingrasLaw.com 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-GMS DECLARATION OF DAVID S. GINGRAS IN SUPPORT OF PLAINTIFF’S RESPONSE TO DEFENDANT LISA BORODKIN’S MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM 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. Case 2:11-cv-01426-GMS Document 107-1 Filed 08/13/12 Page 1 of 19
  2. 2. 2 DECLARATION OF DAVID S. GINGRAS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 GINGRASLAWOFFICE,PLLC 3941E.CHANDLERBLVD.,#106-243 PHOENIX,ARIZONA85048 4. Attached hereto as Exhibit A is a true and correct highlighted copy of a transcript from a hearing held on July 12, 2010 in the California Central District Court action which gives rise to this case. 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: August 13, 2012. GINGRAS LAW OFFICE, PLLC /S/ David S. Gingras David S. Gingras Attorney for Plaintiff Case 2:11-cv-01426-GMS Document 107-1 Filed 08/13/12 Page 2 of 19
  3. 3. 3 DECLARATION OF DAVID S. GINGRAS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 GINGRASLAWOFFICE,PLLC 3941E.CHANDLERBLVD.,#106-243 PHOENIX,ARIZONA85048 CERTIFICATE OF SERVICE I hereby certify that on August 13, 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. Krystal M. Aspey, Esq. Quarles & Brady LLP One Renaissance Square Two North Central Avenue Phoenix, Arizona 85004-2391 Attorney for Defendant Lisa J. Borodkin Raymond Mobrez Iliana Llaneras PO BOX 3663 Santa Monica, CA 90408 Defendants Pro Se 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 85003-215 /s/David S. Gingras Case 2:11-cv-01426-GMS Document 107-1 Filed 08/13/12 Page 3 of 19
  4. 4. Exhibit A Case 2:11-cv-01426-GMS Document 107-1 Filed 08/13/12 Page 4 of 19
  5. 5. 1 UNITED STATES DISTRICT COURT 2 CENTRAL DISTRICT OF CALIFORNIA 3 --- 4 5 THE HONORABLE STEPHEN V. WILSON, U.S. DISTRICT JUDGE PRESIDING 6 7 ASIA ECONOMIC INSTITUTE, LLC, ) et al., ) 8 ) Plaintiffs, ) 9 ) vs. ) No. CV 10-1360-SVW 10 ) ) 11 XCENTRIC VENTURES, LLC, et al. ) ) 12 Defendants. ) _______________________________) 13 14 15 16 REPORTER'S TRANSCRIPT OF PROCEEDINGS 17 LOS ANGELES, CALIFORNIA 18 MONDAY, JULY 12, 2010 19 20 21 22 _____________________________________________________________ 23 DEBORAH K. GACKLE, CSR, RPR United States Courthouse 24 312 North Spring Street, Room 402A Los Angeles, California 90012 25 (213) 620-1149 U N I T E D S T A T E S D I S T R I C T C O U R T , C E N T R A L D I S T R I C T O F C A L I F O R N I A C O U R T R E P O R T E R D E B O R A H K . G A C K L E Case 2:11-cv-01426-GMS Document 107-1 Filed 08/13/12 Page 5 of 19
  6. 6. 2 1 APPEARANCES OF COUNSEL: 2 3 4 For the Plaintiff: 5 6 ASIA ECONOMIC INSTITUTE BY: LISA J. BORODKIN 7 BY: DANIEL F. BLACKERT 11766 Wilshire Boulevard, Suite 260 8 Los Angeles, California 90025 9 10 For the Defendants: 11 12 LAW OFFICES OF DAVID S. GINGRAS BY: DAVID S. GINGRAS 13 4072 E. Mountain Vista Drive Phoenix, Arizona 85048 14 15 JABURG & WILK BY: MARIA CRIMI SPETH 16 3200 North Central Avenue, Suite 2000 Phoenix, Arizona 85012 17 602-248-1000 Fax: 602-248-0522 18 Email: mcs@jaburgwilk.com 19 20 21 - - - - - 22 23 24 25 U N I T E D S T A T E S D I S T R I C T C O U R T , C E N T R A L D I S T R I C T O F C A L I F O R N I A C O U R T R E P O R T E R D E B O R A H K . G A C K L E Case 2:11-cv-01426-GMS Document 107-1 Filed 08/13/12 Page 6 of 19
  7. 7. 3 1 LOS ANGELES, CALIFORNIA; MONDAY, APRIL 19, 2010; 2:15 P.M. 2 - - - - - 3 4 THE CLERK: Item 11, CV 10-1360-SVW, Asia Economic 5 Institute, et al. versus Xcentric Ventures, LLC, et al. 6 Counsel, please state your appearances. 7 MS. BORODKIN: Good afternoon, Your Honor. Lisa 8 Borodkin for the plaintiffs. 9 MR. BLACKERT: Good afternoon, Your Honor. Daniel 10 Blackert for the plaintiffs. 11 MR. GINGRAS: Good afternoon, Your Honor. David 12 Gingras on behalf of defendants Xcentric Ventures, LLC, and Ed 13 Magedson. 14 MS. SPETH: Good afternoon, Your Honor. Maria Speth 15 on behalf of the defendants, as well. 16 THE COURT: Let me ask first the plaintiff: The two 17 predicate acts that are in the complaint -- extortion and mail 18 fraud -- the focus of this motion has been the extortion 19 predicate act. The mail fraud -- strike that -- wire fraud has 20 been hardly referenced and certainly not described in any 21 detail at all. 22 Are you pursuing the wire fraud as a predicate act 23 also? 24 MS. BORODKIN: Your Honor, we are, and that was one 25 of the things we were hoping to request from you today due to U N I T E D S T A T E S D I S T R I C T C O U R T , C E N T R A L D I S T R I C T O F C A L I F O R N I A C O U R T R E P O R T E R D E B O R A H K . G A C K L E Case 2:11-cv-01426-GMS Document 107-1 Filed 08/13/12 Page 7 of 19
  8. 8. 4 1 recently discovered evidence, yes. 2 THE COURT: Answer my question. The answer is yes, 3 correct? 4 MS. BORODKIN: Correct. 5 THE COURT: And so can you give me a description of 6 what the wire fraud allegation is, because obviously the 7 complaint, if there had been a 9B -- 8 (Interruption in the proceedings.) 9 THE COURT: Now, if there had been a Rule 9B motion 10 filed in this case, the Rule 9B motion would undoubtedly have 11 been granted because wire fraud is the type of allegation that 12 falls within Rule 9B, and there is no description. 13 Can you tell me, at least orally, how you would deal 14 with that if you were allowed to replead it, and I'll have to 15 give you that opportunity, but I'm interested in your overview 16 now. Tell me how you would replead, if given the opportunity. 17 MS. BORODKIN: Your Honor, we would replead it by 18 stating with particularity specific times, places and speakers 19 and recipients of representations to people that Ripoff reports 20 are never taken down, that the statement was false, it was made 21 with the intent to defraud the recipients of the statements 22 into pursuing applications into the corporate advocacy program. 23 THE COURT: Even if that were pled, how would that 24 constitute a fraud on the plaintiff? 25 MS. BORODKIN: Because it's false that reports are U N I T E D S T A T E S D I S T R I C T C O U R T , C E N T R A L D I S T R I C T O F C A L I F O R N I A C O U R T R E P O R T E R D E B O R A H K . G A C K L E Case 2:11-cv-01426-GMS Document 107-1 Filed 08/13/12 Page 8 of 19
  9. 9. 5 1 never taken down, and -- 2 THE COURT: Let's say there was a false statement. 3 There has to be causation, injury and so forth. How would that 4 all develop under your theory? In other words, it seems that 5 the more likely type of allegation would be that these reports 6 are taken down and then they weren't. Someone would say, Well, 7 look, I joined the corporate program or I paid the fee or 8 whatever because of the representation that these defamatory 9 allegations would be removed. Now you're saying -- you're not 10 saying that, you're saying that the fraud was -- that defendant 11 said they would be never taken down. 12 Where is the injury? 13 MS. BORODKIN: Your Honor, I apologize. This is all 14 very recent that we discovered contradictory evidence in the 15 record. Generally, the injury is that subjects of the Ripoff 16 reports may have declined to pursue certain avenues of relief 17 that may been available to them had they known the true facts 18 which are there are limited circumstances in which reports may 19 be taken down, but they simply don't get that far because their 20 representations on the websites and the correspondence. 21 Defendants stated copiously there is only one way to address 22 these reports. 23 THE COURT: You're saying that the defendant says 24 these allegedly defamatory comments by third parties will never 25 be removed, and you're saying that that is false because there U N I T E D S T A T E S D I S T R I C T C O U R T , C E N T R A L D I S T R I C T O F C A L I F O R N I A C O U R T R E P O R T E R D E B O R A H K . G A C K L E Case 2:11-cv-01426-GMS Document 107-1 Filed 08/13/12 Page 9 of 19
  10. 10. 6 1 is an instance that you allege in which arguably it was 2 removed. 3 So if you establish that that statement is false, how 4 does that constitute wire fraud as to your client? In other 5 words, what would your client have done differently had that 6 reputation been set forth truthfully? 7 MS. BORODKIN: Your Honor, we appreciate what the 8 court's trying to do and narrow this. The truth is there are a 9 whole host of -- 10 THE COURT: Ma'am, here's what you have to do, and I 11 say that kindly, no indictment of you intended: Along the way 12 here between you and the defendant, you've created a horrible 13 record to the point that the magistrate has been so upset that 14 he called both of you uncivil and he's considering sanctions 15 against both of you, and that can't persist. I can see where 16 some of the problem is because you're not listening to my 17 question. You want to get your point across. You have to 18 listen to my question. This is not a deposition office where 19 you can scream at each other as you have. You have to focus. 20 The question again is if the defendant had, in your 21 view, said the truth that these defamatory statements will be 22 taken down as opposed to never been taken down, how would that 23 have defrauded your client? 24 MS. BORODKIN: I'm sorry -- 25 THE COURT: For argument's sake, I'm acknowledging or U N I T E D S T A T E S D I S T R I C T C O U R T , C E N T R A L D I S T R I C T O F C A L I F O R N I A C O U R T R E P O R T E R D E B O R A H K . G A C K L E Case 2:11-cv-01426-GMS Document 107-1 Filed 08/13/12 Page 10 of 19
  11. 11. 7 1 accepting for the moment that the statement wasn't true. In 2 other words, I'm agreeing with you, just for argument's sake. 3 How would that lead to a wire fraud against your 4 client? What would your client have done differently? 5 MS. BORODKIN: Your Honor, perhaps I'd have to ask my 6 client. 7 THE COURT: See, that's the problem, ma'am. This is, 8 in my view, pretty -- I'm looking for a word that is not 9 pejorative that still makes the point -- pretty unacceptable 10 lawyering because under Rule 11 you've now admitted to a 11 Rule 11 violation. You filed a wire fraud allegation as a 12 predicate act for your RICO. As you stand at the lectern, you 13 can't even, in a best-world sense, articulate a wire fraud. 14 You now say you have to speak to your client. The rules 15 clearly say that you have to have a good-faith basis for 16 alleging something in a complaint, and how could you have had a 17 good-faith basis without speaking to your client and now being 18 totally unable to articulate a basis? 19 MS. BORODKIN: Your Honor, with all do respect, I was 20 not counsel of record when the complaint was filed. Would you 21 like to inquire as to the attorney who did prepare and file 22 those papers? 23 THE COURT: May be. I mean it may very well be that 24 that person is the person that has to be called to answer. On 25 the other hand, I'm not so sure that the reach of Rule 11 U N I T E D S T A T E S D I S T R I C T C O U R T , C E N T R A L D I S T R I C T O F C A L I F O R N I A C O U R T R E P O R T E R D E B O R A H K . G A C K L E Case 2:11-cv-01426-GMS Document 107-1 Filed 08/13/12 Page 11 of 19
  12. 12. 8 1 doesn't extend to someone who takes over a case, especially 2 when the case has reached motion practice, but I'll leave that 3 aside for the moment. Let's leave that aside for the moment. 4 Okay. Now, I just want to review with you certain 5 matters. The magistrate judge gave you an hour and a half of 6 additional time to take the deposition of defendant Magedson. 7 MR. GINGRAS: Magedson. 8 THE COURT: Magedson. And forgetting for the moment 9 that there's been some inability -- for lack of a better 10 word -- for the parties to find a time and place, one of the 11 matters that you want to -- the three matters that I can see 12 that you want to inquire further of Magedson are the number of 13 persons enrolled in the category program, correct? Is that one 14 of them? 15 MS. BORODKIN: Correct, Your Honor. 16 THE COURT: One of the three. 17 Then you want information about Magedson's cell phone 18 and whether he uses his cell phone to conduct business. That's 19 the second matter. 20 MS. BORODKIN: Your Honor, to be more specific, we 21 would like to continue the line of questioning that was 22 commenced when we started to discuss the cell phones. He did 23 state that he uses his cell phone for business. 24 THE COURT: I see. 25 And then you want to question him about whether any U N I T E D S T A T E S D I S T R I C T C O U R T , C E N T R A L D I S T R I C T O F C A L I F O R N I A C O U R T R E P O R T E R D E B O R A H K . G A C K L E Case 2:11-cv-01426-GMS Document 107-1 Filed 08/13/12 Page 12 of 19
  13. 13. 9 1 positive material is ever posted on the Ripoff Report website, 2 correct? 3 MS. BORODKIN: Again, to be perfectly clear, he did 4 testify that positive reports are permitted to be posted. We 5 wanted to inquire further as to the nature of those reports, if 6 there was anything other than a rebuttal. 7 THE COURT: I see. Those are the three matters that 8 you want to inquire further of in the hour-and-a-half 9 deposition. 10 MS. BORODKIN: There are those and also, in 11 particular, we wanted to understand further steps such as the 12 second questionnaire that Mr. Magedson testified to and the cap 13 agreement that he testified to. 14 THE COURT: I see. With regard to this -- those are 15 the matters. Thank you for summarizing them. 16 Now, with regard to this questionnaire, aside from 17 the deposition, the plaintiff also wants to see that 18 questionnaire. You've described the questionnaire, but I've 19 never seen the questionnaire. 20 Do you have the questionnaire with you? 21 MR. GINGRAS: I do not, Your Honor. 22 THE COURT: Well, why haven't you shown it to the 23 plaintiff? 24 MR. GINGRAS: Well, we'd be happy to, Your Honor, if 25 it was relevant to any of the -- U N I T E D S T A T E S D I S T R I C T C O U R T , C E N T R A L D I S T R I C T O F C A L I F O R N I A C O U R T R E P O R T E R D E B O R A H K . G A C K L E Case 2:11-cv-01426-GMS Document 107-1 Filed 08/13/12 Page 13 of 19
  14. 14. 10 1 THE COURT: I didn't ask you. I want you to -- now, 2 the questionnaire, was the questionnaire given to the 3 plaintiff? 4 MR. GINGRAS: No. 5 THE COURT: Was the questionnaire given to the 6 plaintiff? 7 MS. BORODKIN: No, Your Honor. 8 THE COURT: I see. In any event, I want the 9 questionnaire submitted. Thank you. 10 Now, actually two documents, something called a 11 second questionnaire and a cap agreement, were either of those 12 given to the plaintiff? 13 MR. GINGRAS: They were not, Your Honor. 14 THE COURT: Then I wanted to give the plaintiff an 15 opportunity to -- yes. In your papers, you, the plaintiff, 16 cited, and seemed to rely heavily on, a case captioned Monex v. 17 Gilliam reported at 680 F.Supp. 2nd 1148. 18 I have considered that case. That was the principal 19 case that you cited. Interestingly, your opponent didn't cite 20 any extortion cases so, the only case that has been brought to 21 my attention in these pleadings is the case that you have 22 relied on. 23 Is there anything that you want to tell me beyond 24 what you've already described as to the significance of that 25 case? I have considered the case. I'm just asking whether U N I T E D S T A T E S D I S T R I C T C O U R T , C E N T R A L D I S T R I C T O F C A L I F O R N I A C O U R T R E P O R T E R D E B O R A H K . G A C K L E Case 2:11-cv-01426-GMS Document 107-1 Filed 08/13/12 Page 14 of 19
  15. 15. 11 1 there is something about that case beyond what you prescribed 2 and what I've read. Clearly it's an extortion case, and I've 3 considered it. You don't have to respond; I'm just giving you 4 the opportunity. 5 MS. BORODKIN: Your Honor, you're correct. That is 6 the -- 7 THE COURT: The only case that either side -- 8 MS. BORODKIN: It's not. Flatley was cited and 9 discussed in our opposition to the motion to strike. 10 THE COURT: Let me ask you this -- all right. Thank 11 you. You may be seated. Anything else? 12 MS. BORODKIN: Just the five things we were asking 13 for today in the terms of relief -- 14 THE COURT: Thank you very much. You may be seated. 15 The motion for summary judgment as to the extortion 16 claim is granted. The -- and I'll issue an order. 17 Will you be making a Rule 9B motion? 18 MR. GINGRAS: Your Honor, I'd probably prefer to see 19 the court's order before I make that determination. When you 20 said "extortion," I'm not sure if you refer to the RICO claim 21 or extortion as simply one of the predicate acts to that claim. 22 I think that makes a difference in terms of whether there is a 23 RICO claim -- 24 THE COURT: With all due expect, sir, what you just 25 said didn't come together because all it takes is, in RICO, is U N I T E D S T A T E S D I S T R I C T C O U R T , C E N T R A L D I S T R I C T O F C A L I F O R N I A C O U R T R E P O R T E R D E B O R A H K . G A C K L E Case 2:11-cv-01426-GMS Document 107-1 Filed 08/13/12 Page 15 of 19
  16. 16. 12 1 a pattern of racketeering activity which is described in terms 2 of specific predicate acts. Wire fraud is a predicate act; 3 extortion is a predicate act. 4 Now, by granting the extortion predicate claim, that 5 means that the only basis for a RICO case would be wire fraud, 6 and of course it would require more than just an act of wire 7 fraud. It would require a pattern and all the other 8 prerequisites. I note -- just one moment -- let me just turn 9 to another case for a second. 10 (Unrelated matter, not transcribed herein) 11 THE COURT: That means that if the plaintiff can 12 prove a pattern of racketeering activity through wire fraud, 13 then arguably if the other prerequisites of RICO are met, 14 namely, enterprise, causation, injury, they have a claim. 15 So what I am saying is that under RICO law, even 16 though RICO itself doesn't have to be the subject of the 17 heightened pleading requirement under Rule 9B, if a predicate 18 act under RICO is subject to a heightened pleading requirement 19 such as in this case, wire fraud, then it has to be done; and 20 I'm just trying to be efficient about it. This complaint would 21 not withstand a Rule 9B motion. 22 You don't have to make a Rule 9B motion, but if you 23 did make one, it undoubtedly would be granted and it would 24 compel the plaintiff to plead if they could with particularity. 25 Then you could make a motion to dismiss, which would be ruled U N I T E D S T A T E S D I S T R I C T C O U R T , C E N T R A L D I S T R I C T O F C A L I F O R N I A C O U R T R E P O R T E R D E B O R A H K . G A C K L E Case 2:11-cv-01426-GMS Document 107-1 Filed 08/13/12 Page 16 of 19
  17. 17. 13 1 upon. If motion were denied, then we would proceed to 2 discovery. 3 And so while in light of what I've said earlier, a 4 further deposition of Magedson is not required. If the 5 plaintiff were able to sustain a pattern of racketeering 6 activity as to wire fraud, I would allow Magedson to be deposed 7 and for more than the hour and a half if they got into wire 8 fraud because that would be a new ball game. 9 So rather than have you make a motion and have it 10 responded to, the complaint is so patently deficient, I 11 would -- if you made a motion, give the plaintiff -- grant the 12 motion, allow the plaintiff an opportunity to replead. 13 Do you have such a motion? 14 MR. GINGRAS: I would, Your Honor. 15 THE COURT: Then your motion is granted. 16 MS. BORODKIN: Your Honor, if I could be heard on 17 that. 18 THE COURT: Yes. What do you want to be heard about? 19 MS. BORODKIN: On the motion to strike, you asked for 20 a RICO case statement -- 21 THE COURT: I'm not -- ma'am, I don't think you're 22 listening to what is going on. This is very distressing. 23 There was nothing about a RICO case statement. I think you're 24 not following the colloquy. We're focused on the pleading of 25 the wire fraud as a predicate act. I said nothing about a RICO U N I T E D S T A T E S D I S T R I C T C O U R T , C E N T R A L D I S T R I C T O F C A L I F O R N I A C O U R T R E P O R T E R D E B O R A H K . G A C K L E Case 2:11-cv-01426-GMS Document 107-1 Filed 08/13/12 Page 17 of 19
  18. 18. 14 1 case statement; I've not ordered a RICO case statement. 2 MS. BORODKIN: I apologize. 3 THE COURT: Yes, please. 4 I'll grant the motion without prejudice, and how much 5 time would you need to replead the RICO case? You could 6 replead it the same way except you would have to articulate 7 within Rule 9B the wire fraud. 8 How much time would you need, sir? 9 MR. BLACKERT: About two weeks, Your Honor. Is that 10 appropriate? 11 THE COURT: Two weeks. 12 MR. BLACKERT: Thank you, Your Honor. 13 THE COURT: The case remains in its bifurcated state 14 until then. In other words, the RICO is bifurcated from the 15 other claims. 16 And the other ruling I will make is this: That in 17 light of the lack of jury demand, it is a court trial. Thank 18 you. Then I'll set -- assuming that two weeks from now the 19 complaint is refiled, I'll give you 10 days thereafter to make 20 a motion if you wish to dismiss, and if you don't make a motion 21 to dismiss, notify us so you can begin your discovery. 22 And then set up a hearing date, Paul, or schedule in 23 light of that. 24 We can do that in a minute order. We'll send you a 25 minute order. U N I T E D S T A T E S D I S T R I C T C O U R T , C E N T R A L D I S T R I C T O F C A L I F O R N I A C O U R T R E P O R T E R D E B O R A H K . G A C K L E Case 2:11-cv-01426-GMS Document 107-1 Filed 08/13/12 Page 18 of 19
  19. 19. 15 1 MR. GINGRAS: Your Honor -- 2 THE COURT: I don't want to hear any more. 3 MR. GINGRAS: I'm sorry. 4 - - - - - - 5 6 7 C E R T I F I C A T E 8 9 I hereby certify that the foregoing is a true and 10 correct transcript from the stenographic record of 11 the proceedings in the foregoing matter. 12 13 July 29, 2010 14 __________________________ ___________________ 15 Deborah K. Gackle Date Official Court Reporter 16 CSR No. 7106 17 18 19 20 21 22 23 24 25 U N I T E D S T A T E S D I S T R I C T C O U R T , C E N T R A L D I S T R I C T O F C A L I F O R N I A C O U R T R E P O R T E R D E B O R A H K . G A C K L E Case 2:11-cv-01426-GMS Document 107-1 Filed 08/13/12 Page 19 of 19

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