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J. Henk Taylor (016321)

RYAN RAPP & UNDERWOOD, P.L.C.

3200 N. Central Ave, Suite 2250

Phoenix, Arizona 85012

Telephone: (602) 280-1000

Facsimile: (602) 265-1495

Email: htaylor@rrulaw.com 

Jeffrey M. Eilender (admitted pro hac vice)

Bradley J. Nash (admitted pro hac vice)

Joshua Wurtzel (admitted pro hac vice)

SCHLAM STONE & DOLAN LLP

26 Broadway

New York, New York 10004

Telephone: (212) 344-5400

Facsimile: (212) 344-7677

E-Mail: jeilender@schlamstone.com 

E-Mail: bnash@schlamstone.com 

E-Mail: jwurtzel@schlamstone.com 

Attorneys for Defendants CWT Canada II Limited

Partnership, Resource Recovery Corporation, and

Jean Noelting

UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

Wells Fargo Bank, N.A.

Plaintiff,

v.

Wyo Tech Investment Group, LLC, CWT 

Canada II Limited Partnership, Resources 

Recovery Corporation, and Jean Noelting,

Defendants.

Case No.: 2:17-CV-04140-DWL

CWT PARTIES’ MOTION FOR 

AN ORDER TO SHOW CAUSE

Oral Argument Requested

And related claims.

Case 2:17-cv-04140-DWL Document 159 Filed 06/19/19 Page 1 of 8
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-iTABLE OF CONTENTS

Page

ARGUMENT........................................................................................................................ 1

CONCLUSION .................................................................................................................... 4

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Defendants CWT Canada II Limited Partnership, Resource Recovery Corporation, 

and Jean Noelting (collectively, the “CWT Parties”) move this Court under Fed. R. Civ. P. 

45(g) for entry of an order to show cause why nonparties Danzik Applied Sciences, LLC, 

Charles J. Davis, Richard W. Davis, Ashley Mosharrafa, Tamir Mosharrafa, Ali M. 

Mosharrafa, and Kristin Joiner Mosharrafa—all of whom are Wyo Tech-related parties—

should not be held in contempt for their failure to respond to the subpoenas served on 

them. This motion is supported by the following memorandum of points and authorities 

and the Declaration of Joshua Wurtzel.

MEMORANDUM OF POINTS AND AUTHORITIES

ARGUMENT

On February 4, 2019, the CWT Parties served Danzik Applied Sciences, LLC 

(“DAS”) with subpoenas for documents and testimony through its registered agent in 

Delaware. Wurtzel Decl. Ex. A. 

Also on February 4, the CWT Parties served Charles J. Davis and Richard W. 

Davis with subpoenas for documents by delivering the subpoenas to a person of suitable 

age and discretion at the Davises’ home. Id. Exs. B, C. And though this person refused to 

give his name to the process server, this person taunted the process server after being 

served (id. Exs. B, C)—and was thus likely one of the Davises.

On February 11, 2019, the CWT Parties served Ali M. Mosharrafa and Kristin 

Joiner Mosharrafa with subpoenas for documents by personal delivery to Ms. Mosharrafa

at the home where we believe they both live. Id. Exs. D, E. Also on February 11, the CWT 

Parties served subpoenas for documents on Tamir Mosharrafa and Ashley Mosharrafa by 

personal delivery to each of them. Id. Exs. F, G.

These nonparties are all relevant witnesses. Indeed, though Wyo Tech has 

repeatedly insisted that Dennis Danzik has no interest in Wyo Tech, recently-produced 

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documents show that DAS—Danzik’s family-owned company that he used to steal the 

CWT Parties’ tax credits and which he owns and controls—is Wyo Tech’s managing 

member, and was its sole member before any outside investors joined. Id. Ex. H. And we 

also believe the Davises and Mosharrafas are purported investors in Wyo Tech. Id. ¶¶ 2-9.

DAS’s and the Davises’ document productions in response to the subpoenas were 

due on February 28, 2019. Id. Exs. I, J. The Mosharrafas’ document productions in 

response to the subpoenas were due on March 18, 2019. Id. Exs. K, L. And DAS was also 

required to appear—in accordance with Fed. R. Civ. P. 30(b)(6)—for a deposition on 

March 27, 2019. Id. Ex. I. The place of compliance of all these subpoenas is Phoenix, 

Arizona. Id. Exs. I, J, K, L.

On April 16, 2019, we sent letters to all these nonparties, demanding that they 

produce the documents requested by the subpoenas or reach out to us to discuss the 

subpoenas by April 19, 2019. Id. Ex. M. In our letter to DAS, we further stated that we 

would work out a mutually-convenient date for its deposition after getting its document 

production. Id. Ex. M.

But none of these nonparties responded to these letters, or produced any 

documents, or served any written responses to the subpoenas by the return date. Id. ¶ 15

And none of these nonparties reached out to us or made any contact concerning these 

subpoenas at any time, nor have they produced any documents or served any written 

responses to the subpoenas at any time. Id.

Under Fed. R. Civ. P. 45(g), this Court may “hold in contempt a person who, 

having been served, fails without adequate excuse to obey the subpoena or an order 

related to it.” “‘Although the subpoena is in a sense the command of the attorney who 

completes the form, defiance of a subpoena is nevertheless an act in defiance of a court 

order and exposes the defiant witness to contempt sanctions.’” Sell v. Country Life Ins. 

Case 2:17-cv-04140-DWL Document 159 Filed 06/19/19 Page 4 of 8
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Co., 2017 WL 5713885, at *3 (D. Ariz. Feb. 27, 2017) (quoting Fed. R. Civ. P. 45 

advisory committee’s note); see also Martinez v. City of Avondale, 2013 WL 5705291, at 

*3 (D. Ariz. Oct. 18, 2013) (“A subpoena duces tecum is itself a court order, 

noncompliance with which may warrant contempt sanctions.”).

“‘Civil contempt is characterized by the court’s desire to compel obedience to a 

court order, or to compensate the contemnor’s adversary for the injuries which result from 

the noncompliance.’” Sell, 2017 WL 5713885, at *3 (quoting Falstaff Brewing Corp. v. 

Miller Brewing Co., 702 F.2d 770, 778 (9th Cir. 1983)). “A party moving for civil 

contempt ‘has the burden of showing by clear and convincing evidence that the 

contemnors violated a specific and definite order of the court.’” Id. (quoting FTC v. 

Affordable Media, LLC, 179 F.3d 1228, 1239 (9th Cir. 1999)). “‘The burden then shifts to 

the contemnors to demonstrate why they were unable to comply.’” Id. (quoting Affordable 

Media, LLC, 179 F.3d at 1239). Further, “Rule 45 requires a person to move to quash or 

modify a subpoena in a ‘timely’ manner.” Id. (quoting Fed. R. Civ. P. 45(d)(3)). And so 

“failure to serve timely objections to a subpoena waives all grounds for objection.” Id.

As explained above, all these nonparties were properly served with subpoenas by 

personal delivery, and they thus knew about these subpoenas and their obligations to 

comply. And even after their defaults, we sent each of them a letter and gave them an 

additional opportunity to respond before seeking relief from this Court. But these 

nonparties continued to ignore these subpoenas and our demands for compliance. 

This Court should thus hold these nonparties in contempt, order them to pay the 

CWT Parties’ legal fees incurred in making this motion, and impose a daily fine until they 

fully comply with the subpoenas served on them. See United States v. Bright, 596 F.3d 

683, 696 (9th Cir. 2010) (upholding $500 daily fine and payment of party’s costs as 

contempt sanction). This Court should also hold that all these nonparties’ objections to the 

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subpoenas served on them have been waived. See Sell, 2017 WL 5713885, at *3 (“failure 

to serve timely objections to a subpoena waives all grounds for objection”).

Finally, the CWT Parties reserve the right to also seek sanctions against Wyo Tech 

for its deliberate interference with these subpoenas. Indeed, during a call with another 

purported Wyo Tech investor who was served with a subpoena in Nevada, this investor 

told us that Wyo Tech officers told him he could disregard the subpoena served on him, 

and that Wyo Tech’s CEO—Bill Hinz—said he could toss the subpoena in the garbage 

because it was invalid. Wurtzel Decl. ¶ 16. Further, this investor also said that he received 

a copy of a letter from Wyo Tech’s counsel, Wilenchik & Bartness, to us claiming that the 

nonparty subpoenas we served were invalid because we did not give them notice of the 

subpoenas before service. Id. ¶ 17. This claim was erroneous, since we e-mailed 

Wilenchik & Bartness copies of these subpoenas before serving them, and pointed this out 

to Wilenchik & Bartness as soon as we got their letter. Id. ¶ 17, Ex. N. But despite having 

clarified that Wilenchik & Bartness did get notice of these subpoenas before their service 

and that there was no basis to tell nonparties that these subpoenas were not valid, to our 

knowledge, neither Wilenchik & Bartness nor Wyo Tech sent a correction to these 

nonparties or further clarified their claim. Id. ¶ 18.

1

CONCLUSION

This Court should issue an order to show cause why nonparties Danzik Applied 

Sciences, LLC, Charles J. Davis, Richard W. Davis, Ashley Mosharrafa, Tamir 

 1 We served subpoenas on other Wyo-Tech-related nonparties, including Dennis Danzik, 

in Wyoming and Nevada. Almost all these nonparties defaulted and refused to respond to 

these subpoenas. We will be seeking contempt sanctions against many of, if not all, these 

other nonparties in Wyoming and Nevada. But we reserve our right to seek sanctions here 

against Wyo Tech for its deliberate interference with these additional subpoenas. And 

since virtually all these nonparties are in close contact with, or under the control of, Wyo 

Tech, we further reserve our right to seek an order of preclusion against Wyo Tech based 

on these nonparties’ failure to respond to subpoenas.

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Mosharrafa, Ali M. Mosharrafa, and Kristin Joiner Mosharrafa should not be held in civil 

contempt, ordered to pay the CWT Parties’ legal fees incurred in making this motion, and 

further order to pay a daily fine until they fully comply with these subpoenas. Since these 

nonparties have already been served, this Court should also authorize service of its order 

to show cause on these nonparties by overnight courier.

Dated:June 19, 2019

Phoenix, Arizona

Respectfully submitted,

RYAN RAPP & UNDERWOOD, P.L.C.

By: /s/ Henk Taylor (016321)

J. Henk Taylor (016321)

3200 N. Central Ave., Suite 1600

Phoenix, Arizona 85012

Telephone: (602) 280-1000

Facsimile: (602) 265-1495

E-Mail: htaylor@rrulaw.com

SCHLAM STONE & DOLAN LLP

Jeffrey M. Eilender (admitted pro hac 

 vice)

Bradley J. Nash (admitted pro hac vice)

Joshua Wurtzel (admitted pro hac vice)

26 Broadway

New York, New York 10004

Telephone: (212) 344-5400

Facsimile: (212) 34407677

E-Mail: jeilender@schlamstone.com

E-Mail: bnash@schlamstone.com

E-Mail: jwurtzel@schlamstone.com 

Attorneys for Defendants CWT Canada II 

Limited Partnership, Resource Recovery 

Corporation, and Jean Noelting

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ORIGINAL e-filed and COPIES

e-mailed this 19th day of June

2019 as follows:

Dennis I. Wilenchik

WILENCHIK & BARTNESS P.C.

2810 North Third Street

Phoenix, AZ 85004

E-Mail: diw@wb-law.com

Leo R. Beus

BEUS GILBERT PLLC

701 North 44th Street

Phoenix, AZ 85008

E-Mail: lbeus@beusgilbert.com

Attorneys for Wyo Tech Investment 

Group, LLC

/s/ Henk Taylor 

J. Henk Taylor

Case 2:17-cv-04140-DWL Document 159 Filed 06/19/19 Page 8 of 8