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PHILIP M. BALLIF, ESQ.
Nevada Bar No. 002650
3773 Howard Hughes Parkway
Third Floor South
Las Vegas, Nevada 89109
Telephon...
2. The Motion for Summary Judgment stated as grounds for the granting the

   judgment only that Mr. Castillo did not resp...
1. On July 5th, 2007, the Plaintiff filed a Motion for Summary Judgment on all

       claims against Walter Castillo-Mart...
4. On April 20, 2005, Mr. Castillo received a letter from a person claiming to

       be a special agent with the Las Veg...
6. As a result of an actual F.B.I. investigation, criminal R.I.C.O. indictments

       were handed down against Defendant...
defending the action.11 Additionally, the court has an interest in finality of the

judgment that must be balanced against...
from making a defense because he was incarcerated and gravely ill. The

Supreme Court compared his situation to not being ...
II.      Mr. Castillo’s Motion to Set Aside Summary Judgment has been
              filed within a reasonable time.


    ...
conspirators gave him reason to believe he could safely appear to defend the

case.

     III.      The extraordinary natu...
the matter, while set for trial, has not begun. The Plaintiff would not be prejudiced

by allowing Fretus to participate s...
court granted Hadley’s motion to withdraw his admissions because Fed. R. Civ.

P. 36(b) favors a motion to withdraw so tha...
V.     Conclusion

       This Court should consider the reasons for Castillo’s failure to respond

extraordinary consider...
Respectfully Submitted,

                                                s/ PHILLIP M. BALLIF, ESQ._____
                 ...
Arquest Inc.
C/O Paul Miller, Esq.
2845 North Ave.
Grand Junction, CO 81501

Gary Colombo
P.O. Box 33712
Las Vegas, NV 891...
INDEX OF EXHIBITS

Exhibit 1: Plaintiff’s Motion for Summary Judgment.......……………………1-7
Exhibit 2: April 20, 2008 Letter f...
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Redacted Rico Default Motion

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Sample of legal writing from 2008.

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Redacted Rico Default Motion

  1. 1. PHILIP M. BALLIF, ESQ. Nevada Bar No. 002650 3773 Howard Hughes Parkway Third Floor South Las Vegas, Nevada 89109 Telephone: (801) 415-3000 ATTORNEY FOR DEFENDANT UNITED STATES DISTRICT COURT DISTRICT OF NEVADA ROBERT MORROW PLAINTIFF V. NO. CV-S-04-1269-RCJ-LRL GARY COLOMBO, MICHAEL JENKINS DANIEL ELLIS, WALTER CASTILLO MARTINEZ, RAMON C. SANTANA, all Individuals; FRETUS FIDUCIA, LLC; ZAG, LLC; ARQUEST, INC.; DOES 1-30; and DOES 1- DEFENDANTS 30 EMERGENCY MOTION AND MEMORANDUM IN SUPPORT OF MOTION TO SET ASIDE SUMMARY JUDGMENT AND FOR LEAVE TO AMMEND OR WITHDRAW RESPONSE TO ADMISSIONS Comes the Defendant, WALTER CASTILLO MARTINEZ, by counsel, and for his motion to Set Aside Summary Judgment states as follows: 1. On July 5th, 2006, Plaintiff Robert Morrow filed a Motion for Summary Judgment in this Court.
  2. 2. 2. The Motion for Summary Judgment stated as grounds for the granting the judgment only that Mr. Castillo did not respond to Plaintiff’s Request for Admissions. 3. This Court granted the Plaintiff’s Motion for Summary Judgment through its order entered on September 26, 2007. Pursuant to Federal Rule of Civil Procedure 60(b)(6), Mr. Castillo requests that this Court set aside the Judgment entered on September 26, 2007. 4. Fed. R. Civ. P. 60(b)(6) allows the Court to set aside a final judgment for “any other reason justifying relief from the operation of the judgment.” 5. Mr. Castillo has been unable to respond to any pleadings or motions including the Request for Admissions, due to the fact that he has never received any notification of the filings, has not been represented by counsel and has not been present in the United States. 6. The extraordinary circumstances of Mr. Castillo’s situation provide a justification under Federal Rule of Civil Procedure 60(b)(6) for setting aside the September 26,2007 order granting judgment. 7. Mr. Castillo also requests this Court to grant him leave to withdraw his default admissions and enter a new response. FACTS In support of his motion to set aside judgment Mr. Castillo states the following:
  3. 3. 1. On July 5th, 2007, the Plaintiff filed a Motion for Summary Judgment on all claims against Walter Castillo-Martinez.1 Plaintiff stated that Mr. Castillo had not responded to Admissions served on him on February 1, 2006. 2 Plaintiff cited Federal Rule of Civil Procedure 36(a) to support his assertion that the admissions were all admitted due to the fact that Mr. Castillo did not respond within the thirty (30) day allotted time period.3 Due to the lack of response by Mr. Castillo, in accordance with Fed. R. Civ. P. 36(a), this Court determined that Mr. Castillo had admitted all of the admissions listed in the request. 2. On September 26, 2007, this Court entered an order granting summary judgment against Mr. Castillo on all R.I.C.O. and Conversion claims and awarded the Plaintiff $10,000,000 in damages. 3. Mr. Castillo did not have the capacity to respond to either the Request for Admissions or the Motion for Summary Judgment. Mr. Castillo did not have representation and was not present in the United States to respond. There has been no communication between Mr. Castillo and any counsel up to this point due to extraordinary circumstances. Mr. Castillo has been the target of attempts on his life and has been living in Europe to escape harm. Mr. Castillo has been unable to remain at a single, fixed address and has been forced to constantly relocate. 1 Plaintiff’s Motion for Summary Judgment, P.4 attached hereto as Exhibit 1. 2 Plaintiff’s Motion for Summary Judgment, P.4. 3 Id.
  4. 4. 4. On April 20, 2005, Mr. Castillo received a letter from a person claiming to be a special agent with the Las Vegas Office of the Federal Bureau of Investigation.4 Upon receiving this letter, Mr. Castillo became suspicious and retained Charles Rivers and Associates to investigate its legitimacy. The investigation revealed that there was no F.B.I. investigation involving Mr. Castillo and that all of the claims made in the letter were false. The letter commanded Mr. Castillo to appear at Thursday, May 19th, 2005 at 9 A.M. at 700 East Charlseton Blvd. in Las Vegas. 5 Charles Rivers and Associates appeared at the location instead of Mr. Castillo. While there, they observed a suspicious van circling the area. Men entered and exited 6 the vehicle in a manner that suggested they were looking for someone. Mr. Castillo justifiably believed that the letter was part of a conspiracy to end his life. Based on the investigators opinion and advice, Mr. Castillo left the country. 5. After fleeing to safety, Mr. Castillo had the letter examined by a forensics expert, David R. Browne. Mr. Browne determined the letter to be a forgery.7 This corroborated the evidence gathered by the private investigators and confirmed that Mr. Castillo was in imminent danger. 4 April 20, 2008 Letter from “Special Agent David E. Marks” attached hereto as Exhibit 2. 5 Affidavit of Jennifer Culotta attached hereto as Exhibit 3. 6 Id. 7 Forensics Report of David Browne P.9, attached hereto as Exhibit 4.
  5. 5. 6. As a result of an actual F.B.I. investigation, criminal R.I.C.O. indictments were handed down against Defendants Jenkins, Ellis and Colombo.8 With this information Mr. Castillo felt safe enough to reestablish meaningful contact with attorneys here in the United States to pursue his defense in this case. SUMMARY OF LAW Fed. R. Civ. P. 60 allows a court to grant relief to a party against whom a judgment has been entered. The Rule provides several grounds for relief from a judgment including fraud and mistake. Castillo seeks relief under Rule 60(b)(6) which states: …(6) any other reason justifying relief from the operation of the judgment. the motion shall be made within reasonable time United States Federal Courts have been uniform in their treatment of motions for relief under this Rule and granted relief only when the circumstances surrounding the request are extraordinary in nature. 9 A motion to set aside under this section must also be filed within a reasonable time after the entry of judgment. 10 In addition to being extraordinary in nature and timely filed, the party must show injury and circumstances that were out of its control that prevented it from 8 U.S. District Court Crim. Indictment attached hereto as Exhibit 5. 9 Liljeburg v. Health Services Acquisition Corp., 486 U.S. 847, 864 (1988); U.S. v. Alpine Land and Resevoir, Co., 984 F.2d 1047, 1049 (9 th Cir. 1993). 10 In re Pacific Far East Lines, Inc., 889 F.2d 242, (9th Cir. 1989).
  6. 6. defending the action.11 Additionally, the court has an interest in finality of the judgment that must be balanced against the interests of the movant. 12 Mr. Castillo’s reason for seeking relief is extraordinary in nature and timely filed considering the extraordinary nature of the impediments to his participation in his defense. Mr. Castillo was unable to respond to any court filings due to his exile and has been injured by the imposition of a $10,000,000 judgment against him. I. The circumstances surrounding Mr. Castillo’s failure to respond to the Summary Judgment were extraordinary and completely out of his control. In U.S. v. Karahalias Judge Learned Hand set forth what circumstances 13 are adequate grounds for relief under Fed. R. Civ. P. 60(b)(6). After becoming a naturalized citizen Karahalias returned to Greece to retrieve his wife and bring her back to the United States. Because of World War II and his wife’s critical illness, he was unable to return to the United States for 17 years. As a result, he could not defend against the denaturalization action brought against him in his absence. The court determined that an attorney could not have adequately defended against the action without Kalaharias’ presence. The court further held under Fed. R. Civ. P. 60(b)(6), that his inability to return to the United States could be adequate grounds for relief from the denaturalization decision. See Klapprott v. U.S., 335 U.S. 601, 613 (1949)(The Supreme Court determined that a defendant’s circumstances were grounds for relief when he was prevented 11 U.S. v. Washington, 394 F.3d 1152, 1157 (9th Cir. 2005). 12 See Id. at 1161. 13 U.S. v Karahalias, 205 F.2d 331, 333 (2nd Cir. 1953).
  7. 7. from making a defense because he was incarcerated and gravely ill. The Supreme Court compared his situation to not being notified of a judgment at all.); See also James v. U.S., 215 F.R.D. 590,594 (E.D. Cal. 2002)(The court found that the attorney had lied to his client and assured him that he was continuing representation. The attorney then disappeared after the action had been dismissed. The court found this abandonment of a client by his attorney to be an extraordinary situation worthy of relief under Rule 60(b)(6). Mr. Castillo’s circumstances are even more extraordinary than those that have been granted relief in the precedent cases. The circumstances surrounding Karahalias are perhaps the most analogous to case at bar. As in Karahalias, Fretus’ Director, Mr. Castillo, could not return to the United States and defend against the default judgment because he was in fear of losing his life. It is evident from the facts that Mr. Castillo’s life was in imminent danger. This fear prevented him from returning to the United States, contacting an attorney and defending the action. The Ninth Circuit has granted relief under circumstances that are less extraordinary than those here. See James v. United States, 215 F.R.D. 590, 594 (E.D. Cal. 2002); See also Cmty. Dental Services v. Tani, 282 F.3d 1164, 1170- 71 (9th Cir. 2002)(where the court vacated judgments based on an attorney’s abandonment of representation and misrepresentation to the client.)
  8. 8. II. Mr. Castillo’s Motion to Set Aside Summary Judgment has been filed within a reasonable time. Fed. R. Civ. P. 60(b) states in part that a motion to set aside a judgment under this rule must be made within a reasonable time. However, the timeliness of the motion is determined by the facts of each individual case. In United States v. Holtzman, the Ninth Circuit found a 60(b)(6) motion timely filed 5 years after judgment. 762 F.2d 720 (9 th Cir. 1989)( The movant incorrectly interpreted an injunction and upon discovering his mistake immediately moved to vacate the judgment). The 2nd Circuit in U.S. v. Cirami, granted the motion to vacate two years after the decision was entered for a simple case of attorney negligence. 14 In Karahalias, the court granted the movant’s motion to set aside seventeen years after judgment was entered.15 Mr. Castillo files this motion a little less than one year after judgment was entered against him. The circumstances of Mr. Castillo’s case warrant such a long period. Mr. Castillo, was unable to return to the U.S. to respond to pleadings or to facilitate his defense to the entry of default judgment. As in Karahalias, Mr. Castillo was unable to defend the case for fear of death.16 It is also important to note that Mr. Castillo filed this motion to set aside judgment as soon as the threats to him had dissipated. Mr. Castillo’s discovery of a legitimate, F.B.I. investigation into R.I.C.O. activities and indictments of 14 563 F.2d 26, 32 (2nd Cir. 1977) 15 U.S. v. Karahalias, 205 F.2d 331, 333 (2nd Cir. 1953) 16 Karahalias feared that his wife would die if he returned and similarly Mr. Castillo feared his own death.
  9. 9. conspirators gave him reason to believe he could safely appear to defend the case. III. The extraordinary nature of Mr. Castillo’s circumstances and reason for his delay in filing the motion outweigh the interests of the court in the finality of its judgment. Though courts have an interest in the finality of their judgments, it must be balanced against the interests of the movant. 17 Courts will view the motion to set aside the judgment more favorably if granting the motion would lead to an adjudication on the merits.18 In Cirami v. U.S., the 2nd Circuit Court of Appeals found that the great financial interests of the movant outweighed the court’s interest in finality.19 There the movant would have been assessed $271,000.00 in back taxes as a result of the default judgment. 20. Mr. Castillo’s loss as result of the summary judgment in the case at bar are almost 40 times that of the defendant in Cirami. The 2nd Circuit found in Cirami that the great financial interests of the movant outweighed the court’s interest in finality.21 There the movant stood to be assessed $271,000 in back taxes as a result of the default judgment. 22 Here the Court has entered a $30,000,000 default judgment against Fretus. Unlike in U.S. v. Wasington, where reopening the case would have destroyed carefully crafted plans for fishing rights here the court’s interests in finality are minimal. The trial of 17 See U.S. v. Washington, 394 F.3d 1152, 1157 (9th Cir. 2005). 18 See SEC v. Seaboard Corp., 666 F.2d 414, 417 (9th Cir. 1982). 19 563 F.2d 26, 35 (2nd Cir. 1977). 20 Id. at 29. 21 563 F.2d 26, 35 (2nd Cir. 1977) 22 Id. at 29.
  10. 10. the matter, while set for trial, has not begun. The Plaintiff would not be prejudiced by allowing Fretus to participate since he will already be trying the case against other defendants. IV. Mr. Castillo should be allowed to withdraw his default answer to admissions and enter a new response. According to Fed. R. Civ. P. 36(b), a court can grant leave for a party to withdraw or amend its answer to admissions. Section (b) of the rule states as follows: [T]he court may permit withdrawal or amendment when the presentation of the merits of the action will be subserved thereby and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice that party in maintaining the action or defense on the merits. This rule favors a determination of the action on the merits.23 In a situation where the admissions satisfy the elements of a claim and the court has not had to decide the case on the merits, this rule operates to favor the withdrawal of the admission.24 In Hadley, the defendant did not respond in the allotted time so the admissions were taken to be admitted.25 The admissions essentially proved the government’s case and there was no need to hear the case on the merits. 26 The 23 See Hadley v. U.S., 45 F.3d 1345, 1348 (9th Cir. 1995). 24 Id. 25 Hadley, 45 F.3d at 1348. 26 Id.
  11. 11. court granted Hadley’s motion to withdraw his admissions because Fed. R. Civ. P. 36(b) favors a motion to withdraw so that the court can hear the merits of the case.27 Just as in Hadley, Mr. Castillo’s default admissions made the case for the Plaintiff and enabled him to win a summary judgment. A withdrawal of the admissions would allow the court to hear the case on the merits. The party who obtained the admissions must not be prejudiced by the withdrawal.28 However, it is that party’s burden to prove that it has suffered prejudice.29 The party would be prejudiced if it would have difficulty presenting evidence during trial because it now had to prove what had previously been admitted.30 However, if the party who obtained the admissions had evidence covering the issues admitted, then there is no prejudice.31 The government in Hadley suffered no prejudice from the motion to withdraw admissions.32 It already had evidence on the two issues that were admitted and was not forced to go out and obtain evidence. 33 The government did not meet its burden of showing prejudice. 34 The plaintiff in the case at bar also has all of the evidence he needs. A trial on the same exact issues that were admitted is being held. In its preparation for trial against the other defendants, the Plaintiff would have had to obtain the same evidence as it would require to try the case against Mr. Castillo. 27 Hadley, 45 F.3d at 1348. 28 Id. 29 Hadley, 45 F.3d at 1348. 30 Id. at 1349 31 Hadley, 45 F.3d at 1349-50. 32 Hadley, 45 F.3d at 1349-50. 33 Id. 34 Hadley, 45 F.3d at 1349-50.
  12. 12. V. Conclusion This Court should consider the reasons for Castillo’s failure to respond extraordinary considering Mr. Castillo’s life was in jeopardy. Taking into account the extraordinary nature of Mr. Castillo’s position, one year is a very reasonable time within which to file for relief from a judgment under Fed R. Civ. P 60(b)(6). For the foregoing reasons Mr. Castillo’s motion to set aside the summary judgment should be granted. Considering under the circumstances that the Court’s interests in finality of this judgment are minimal and the Plaintiff is not unduly prejudiced, setting aside the default judgment and allowing Castillo to participate is a small burden compared to Castillo’s current liability for the $10,000,000 summary judgment. Finally, the Court should allow Mr. Castillo to withdraw his motion pursuant to Fed. R. Civ. P. 36(b). The court should favor trying the case on the merits. Also, the plaintiff cannot show prejudice because he should already have the same evidence prepared for his trial against other defendants as he would need to try the case against Mr. Castillo. Wherefore, Mr. Castillo respectfully requests that this Court set aside its September 26, 2007 Order Granting Summary Judgment against him and allow Mr. Castillo to withdraw his default admissions.
  13. 13. Respectfully Submitted, s/ PHILLIP M. BALLIF, ESQ._____ PHILIP M. BALLIF, ESQ. Nevada Bar No. 002650 Howard Hughes Parkway Third Floor South Las Vegas, Nevada 89109 Telephone: (702) 862-3300 ATTORNEY FOR DEFENDANT NOTICE OF ELECTRONIC FILING I hereby certify that on September 19th, 2008 I electronically filed with the clerk of the court by using the CM/ECF system, which will send a notice of electronic filing to the following: mferrario@kkbrf.com, amoore@kkbrf.com, dcastleberry@swlaw.com, sforbes@kkbrf.com, tcowden@kkbrf.com, wbryson@kkbrf.com. CERTIFICATE OF MAILING I hereby certify that service of the foregoing EMERGENCY MOTION AND MEMORANDUM IN SUPPORT OF MOTION TO SET ASIDE DEFAULT JUDGMENT was made on the ______ day of _____________ , 2008 by depositing a true copy of the same for mailing at Jeffersonville, Indiana, addressed to each of the following:
  14. 14. Arquest Inc. C/O Paul Miller, Esq. 2845 North Ave. Grand Junction, CO 81501 Gary Colombo P.O. Box 33712 Las Vegas, NV 89133 Daniel R. Ellis P.O. Box 21044 St. Catharines, ON L2M7X2 Michael Jenkins C/O Paul Miller 2845 North Ave. Grand Junction, CO 81501 s/ PHILLIP M. BALLIF__________ PHILIP M. BALLIF, ESQ. Nevada Bar No. 002650 Howard Hughes Parkway Third Floor South Las Vegas, Nevada 89109 Telephone: (702) 862-3300 ATTORNEY FOR DEFENDANT
  15. 15. INDEX OF EXHIBITS Exhibit 1: Plaintiff’s Motion for Summary Judgment.......……………………1-7 Exhibit 2: April 20, 2008 Letter from “Special Agent David E. Marks”….. 1-2 Exhibit 3: Affidavit of Jennifer Culotta............................................................... Exhibit 4: Forensics Report of David Richard Browne……………………. 1-10 Exhibit 5: U.S. District Court Crim. Indictment

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