Case 8:11-cv-00485-AG-AJW Document 512

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1 Marc Steven Colen

2 5737 Kanan Road, Ste. 347 3 Agoura Hills, CA 91301 4

The Colen Law Firm

Telephone: 818.716.2891 Facsimile: None1 5 Email: mcolen@colenlaw.com

6 7 Todd Sankey, The Sankey Firm, Inc., 8 and Sankey Investigations 9 10 11 12 13 14 Lisa Liberi, et al., 15 16 17 18 19 20 21 22 23 24 25 26 27 28
1

Attorney for Defendants Neil Sankey,

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA, SOUTHERN DIVISION ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No.: 8:11-cv-00485 AG (AJWx) Hon. Andrew Guilford, Judge of the United States District Court Courtroom 10D DEFENDANTS TODD SANKEY AND THE SANKEY FIRMS REPLY TO THE PLAINTIFFS OPPOSITION TO DEFENDANTS TODD SANKEY AND THE SANKEY FIRMS MOTION RE ADMISSIONS

Plaintiffs, vs. Orly Taitz, et al., Defendants __________________________

Date Action Filed: Hearing Date: Final Pre-Trial Conf.: Trial Date:

May 4, 2009 May 7, 2012 May 21, 2012 June 5. 2012

I have very recently moved and a fax line has not yet been installed. It should be completed within a few days.
Case No.: 8:11-cv-00485 AG (AJWx) REPLY TO OPPOSITION TO MOTION TO WITHDRAW ADMISSIONS BY TODD SANKEY AND THE SANKEY FIRM page 1

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1 2 3 I. Introduction 4

TABLE OF CONTENTS 3 4 5

5 II. Prong One: Presentation On The Merits 6 7 III. Prong Two: Prejudice 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 IV. Conclusion 27 28

A. Plaintiffs Irrelevant Argument No. One: Plaintiffs Inability To Depose Either Mr. Neil Sankey Or Mr. Todd Sankey B. Plaintiffs Irrelevant Argument No. Two: Plaintiffs Inability To Propound Follow-Up Discovery C. Plaintiffs Irrelevant Argument No. Three: Initial Disclosures D. Plaintiffs Irrelevant Argument No. Four: Interrogatories E. Plaintiffs Irrelevant Argument No. Five: Motion For Summary Judgment 7 8 7 7 6 6

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1 2 3 4 5 Fed. R. Civ. P. 36(b) 6 7 8 9 Conlon v. United States,

TABLE OF AUTHORITIES STATUTES 4 CASES

10 474 Fed.3d 616, 622 (9 Cir. 2007). 11 12 Curtis v. State Farm Lloyds, 13 2004 WL 1048241 (S.D.N.Y.). 14 15 Hadley v. United States, 16 45 F.3d 1345, 1348 (9th Cir.1995). 17 18 19 20 21 22 23 24 25 26 27 28

th

4, 7

Raiser v. Utah County, 409 F3d 1243, 1246 (10th Cir. 2005) 8

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I. INTRODUCTION The Plaintiffs Opposition to the Todd Sankey and the Sankey Firm, Inc.s

4 Motion to Withdraw Admissions Deemed Admitted is devoid of merit. It spends 5 its ink upon irrelevant issues and an immense volume of declarations with an 6 even larger volume of attachments. 7 8

The instant motion concerns only the two-prong test of FRCP (36) as set

9 forth in the moving papers. Anything else is superfluous. The Opposition is 10 similar to certain other of the Plaintiffs pleadings: hundreds upon hundreds of 11 documents of attachments and long declarations of irrelevant and improper 12 opinion testimony. We will herein simply discuss the invalidity and irrelevancy 13 of Mr. Bergs arguments. 14 15 16 17

II. PRONG ONE: PRESENTATION ON THE MERITS The issue of the necessity of presenting the Moving Parties case was

18 discussed in the moving papers; in short, 19 20 21 22 23 24 25

"The first half of the test in Rule 36(b) is satisfied when upholding the admissions would practically eliminate any presentation of the merits of the case." Conlon v. United States 474 Fed.3d 616, 622 (9th Cir. 2007) quoting Hadley v. United States, 45 F.3d 1345, 1348 (9th Cir.1995). The moving papers present a detailed discussion of the Admissions being

26 contrary to the truth in Section II.B.3. Of the twenty-five requests, only four (4) 27 admissions are properly admitted - and in no instance do the admissions further 28
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1 the Plaintiffs case. Todd Sankey and the Sankey Firm, Inc. cannot defend their 2 case when faced with admissions that are contrary to the truth. 3 4 5 6 7 8 9 10 11 12

It seems to this Court that because the merits of this case would be subverted if Astra was not permitted to amend its default admissions, prohibiting the amendment would operate merely as a sanction and impede the true fact-finding process. Curtis v. State Farm Lloyds, 2004 WL 1048241 (S.D.N.Y.). III. PRONG TWO: PREJUDICE The Plaintiffs arguments revolve on their asserted difficulty in proving

13 their case without the use of factually untrue admissions. In particular, it argues 14 prejudice because of the unavailability of key witnesses and the need to obtain 15 additional evidence. Yes, it is true that Mr. Berg may not depose anyone nor may 16 he propound any further discovery because: 17 18 Mr. Berg failed to notice the depositions of anyone prior to the discovery cut19 off. Mr. Bergs tactical decision to be sure. 20 21 Mr. Berg failed to propound any follow-up discovery prior to the discovery 22 cut-off which occurred only days prior to his propounding any discovery. Unless 23 the responding parties prepared and served their responses in only a few days, 24 which is inconceivable, no follow-up discovery was possible. Again, Mr. Bergs 25 tactical decision. 26 /// 27 /// 28 ///
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[The Plaintiffs are blessed that these Sankey Defendants missed the

2 deadline for responses and, as result, will be required to respond to approximately 3 two thousand interrogatories and demands for the production of documents 4 without objection - notwithstanding the limit of 25 for interrogatories. ] 5 6 A. PLAINTIFFS IRRELEVANT ARGUMENT NO. ONE: 7 PLAINTIFFS INABILITY TO DEPOSE EITHER 8 MR. NEIL SANKEY OR MR. TODD SANKEY 9 10
2

The relevant issues are defined in the manner presented in the Motion, not

11 on the facts that Mr. Berg cannot take the depositions of Mr. Neil Sankey or Mr. 12 Todd Sankey [hereinafter Messrs. Sankey.] because of any actions or lack of 13 actions of either or both of them. Mr. Berg voluntarily and simply made the 14 choice to wait until a short time prior to the discovery cut-off date to propound 15 any discovery. It is Mr. Berg and he alone that made the decision to not notice 16 the depositions of Messrs. Sankey prior to being precluded from doing so. It is 17 the actions of Mr. Berg and he alone that caused Plaintiffs to be prevented from 18 taking any depositions in this case. 19 20 B. PLAINTIFFS IRRELEVANT ARGUMENT NO. TWO: 21 PLAINTIFFS INABILITY TO PROPOUND 22 FOLLOW-UP DISCOVERY 23 24

In the same manner as he did for the depositions of Messrs. Sankey, Mr.

25 Berg voluntarily and simply made the choice to wait until a short time prior to the 26 discovery cut-off date to propound any discovery. Again, it is Mr. Berg and he 27 28
2

The volume of this discovery requires extensive analysis and preparation which remains underway.
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1 alone that made the decision that precludes him from propounding follow-up 2 discovery. 3 4 C. PLAINTIFFS IRRELEVANT ARGUMENT NO. THREE: 5 INITIAL DISCLOSURES 6 7

The Initial Disclosures by any of the Sankey Defendants have nothing

8 whatsoever to do with this Motion. 9 10 D. PLAINTIFFS IRRELEVANT ARGUMENT NO. FOUR: 11 INTERROGATORIES 12 13

The Plaintiffs interrogatories and requests for documents have nothing

14 whatsoever to do with this Motion. This Motion concerns the Requests for 15 Admissions only. 16 17 E. PLAINTIFFS IRRELEVANT ARGUMENT NO. FIVE: 18 19 20

MOTION FOR SUMMARY JUDGMENT The existence of the pending Motion for Summary Judgment does not

21 relate to this Motion: 22 23 24 25 26 27 28

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We agree with the other courts that have addressed the issue and conclude that reliance on a deemed admission in preparing a summary judgment motion does not constitute prejudice. Conlon v. United States 474 Fed.3d 616, 624 (9th Cir. 2007).

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[P]reparing a summary judgment motion in reliance upon erroneous admission does not constitute prejudice. Raiser v. Utah County 409 F3d 1243, 1246 (10th Cir. 2005). Further, Plaintiffs Motion for Summary Judgment is untimely for several

6 reasons, the most importance of which is that a decision on the merits is 7 impossible given the Plaintiffs unwillingness to provide any proper responses to 8 Todd Sankeys discovery requests. Not a single one. Not a single document. 9 Nothing supports Plaintiff Liberis allegations of emotional distress and related 10 problems. 11 12
3

No documents, not a single one, were provided in response to Mr. Todd

13 Sankeys requests for documents; there are apparently no documents that 14 supported the Plaintiffs demand for damage as to the Sankey Defendants alone 15 of six billion, five hundred and sixty million dollars ($6,560,000,000.00) and 16 cumulatively as to all defendants the sum of over one hundred forty four billion 17 ($144,000,000,000.00). 18 19

In addition, and in response to hundreds of requests each addressing one of

20 the hundreds of numbered allegation in the First Amended Complaint, the 21 Plaintiffs responded with a single response very much out of compliance with 22 the FRCP. And that response was a refusal to supply any documents to support 23 their allegations. If no documents exist other than the largely inadmissible 24 declarations of the Plaintiffs to support their First Amended Complaint, a Motion 25 for Summary Judgment by the Moving Parties must be successful against the 26 Plaintiffs. 27 28
3

Nonetheless, Messrs. Sankey do not dispute that Plaintiff Liberi suffers from mental health problems; they dispute that they had anything whatsoever to do with her problems.
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IV. CONCLUSION The Plaintiffs base their opposition as to prejudice on their inability to

4 prove their case because they cannot depose Messrs. Sankey nor obtain follow-up 5 discovery. That is a result of Mr. Bergs conscious choices to not notice the 6 depositions of either Mr. Todd Sankey or Mr. Neil Sankey prior to the discovery 7 cut-off nor to propound his discovery requests such that responses would be due 8 prior to the discovery cut-off. 9 10

It is certainly true that the Plaintiffs will face tremendous difficulty in

11 proving their case against the moving parties unless it is based on admissions that 12 are patently false. They cannot prevail on the merits. 13 14 15 Dated: 29 April 2012 16

17 _____________________________ 18 Marc Steven Colen

Marc Steven Colen

The Colen Law Firm Attorney for Defedants Neil Sankey, 20 Todd Sankey, The Sankey Firm, Inc., 21 and Sankey Investigations
19 22 23 24 25 26 27 28
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