Xcentric Ventures v. Borodkin - Gingras Declaration

8/3/2019 Xcentric Ventures v. Borodkin - Gingras Declaration

http://slidepdf.com/reader/full/xcentric-ventures-v-borodkin-gingras-declaration 1/18

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

G I N G R A S

L A W O F F I C E , P

L L C

3 9 4 1 E . C H A N D L E R B L V D . ,

# 1 0 6 - 2 4 3

P H O E N I X , A R I Z O N A 8 5 0 4 8

David S. Gingras, #021097Gingras Law Office, PLLC3941 E. Chandler Blvd., #106-243Phoenix, AZ 85048Tel.: (480) 668-3623Fax: (480) 248-3196

[email protected]

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.

Case 2:11-cv-01426-GMS Document 28-1 Filed 10/12/11 Page 1 of 18



2

1

2

3

45

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

G I N G R A S


L L C

3 9 4 1 E . C H A

N D L E R B L V D . ,

# 1 0 6 - 2 4 3

P H O E N I X , A R I Z O N A 8 5 0 4 8

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.




3

1

2

3

45

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

G I N G R A S


L L C

3 9 4 1 E . C H A


# 1 0 6 - 2 4 3

P H O E N I X , A R I Z O N A 8 5 0 4 8

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].




4

1

2

3

45

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

G I N G R A S


L L C

3 9 4 1 E . C H A


# 1 0 6 - 2 4 3

P H O E N I X , A R I Z O N A 8 5 0 4 8

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.




5

1

2

3

45

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

G I N G R A S


L L C

3 9 4 1 E . C H A


# 1 0 6 - 2 4 3

P H O E N I X , A R I Z O N A 8 5 0 4 8

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




Exhibit A




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



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




Exhibit B







Exhibit C




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




Exhibit D




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




Exhibit E




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




Exhibit F





Xcentric Ventures v. Borodkin - Gingras Declaration

Documents