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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 131 Filed 05/13/19 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 the Court for entry of an order 

to show cause why nonparties Wilenchik & Bartness, P.C. (“Wilenchik”) and Beus 

Gilbert PLLC (“Beus Gilbert”)—counsel for Defendant Wyo Tech Investment Group, 

LLC—should not be held in contempt for their failure to produce the documents requested 

in the CWT Parties’ February 11, 2019 subpoenas in accordance with this Court’s April 9, 

2019 order (Dkt. No. 119). 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 11, 2019, the CWT Parties served Wilenchik and Beus Gilbert with 

identical subpoenas seeking documents sufficient to show all payments—including date, 

amount, and source account—made to Wilenchik and Beus Gilbert by Wyo Tech and 

Inductance Energy Corporation (another Danzik-related entity formed using Wyo Tech 

money), as well as documents sufficient to show the clients on whose behalf and matters 

for which these payments were made. Dkt. No. 101 at 7-16; Wurtzel Decl. ¶ 2, Exs. A-C.

Wilenchik objected to this subpoena on relevance grounds, and as this Court 

knows, on February 25, 2019, the CWT Parties and Wilenchik submitted a joint letter 

requesting a hearing to resolve this dispute. Dkt. No. 101. In this joint letter, the CWT 

Parties argued that both Wilenchik and Beus Gilbert should be ordered to produce 

documents in accordance with the subpoena. Id. at 2.

On February 27, 2019, this Court held a phone hearing on this issue, and took the 

CWT Parties’ motion under advisement. Dkt. No. 103. And on March 5, 2019, this Court 

ordered the parties to submit supplemental briefs regarding three legal issues that this 

Court held were critical to this discovery dispute and which were “intertwined with 

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broader unresolved issues in the case.” Dkt. No. 109 at 1.

On March 25, 2019, the parties submitted supplemental briefing regarding these 

three issues. Dkt. Nos. 113-14. On April 8, 2019, this Court heard oral argument on, 

among other things, these three issues. Dkt. No. 118. And at the end of this oral argument,

this Court asked Wilenchik, “If I end up ruling against you and agreeing to enforce the 

subpoenas, will two weeks be enough to comply?”—to which the attorney arguing this 

motion for Wilenchik stated: “As I stated earlier, Mr. Wilenchik, the partner, is returning 

on Thursday. If two-and-a-half weeks or pushing back to the end of the third week, I think 

that would be better, because he’s been gone for the better part of a month now and 

there’s 1,000 things on the partner’s desk that are going to have to be dealt 

with. . . . That’s if you see it in your wisdom to do that, then three weeks would be 

preferable.” Wurtzel Decl. Ex. D at 41:19-42:5.

On April 9, 2019, this Court ruled for the CWT Parties on the three issues that were 

the subject of the supplemental briefing, overruled Wilenchik’s and Beus Gilbert’s 

objections to the subpoenas served on them, and ordered Wilenchik and Beus Gilbert to 

“produce the documents requested by the subpoenas by April 26, 2019.” Dkt. No. 119 at 

19.

Despite this order and Wilenchik’s agreement to comply with an order to produce 

these documents by this deadline, Wilenchik and Beus Gilbert have failed to produce any 

documents in response to the subpoenas. Wurtzel Decl. ¶ 5. Nor have they asked for 

additional time to do so. Id. Thus, Wilenchik and Beus Gilbert have deliberately and 

without excuse failed to comply with this Court’s April 9 order.

Civil contempt “‘consists of a party’s disobedience to a specific and definite court 

order by failure to take all reasonable steps within the party’s power to comply.” Inst. of 

Cetacean Research v. Sea Shepherd Conservation Soc’y, 774 F.3d 935, 945 (9th Cir. 

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2014) (citation omitted). Indeed, 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.’” United States v. Bright, 596 F.3d 683, 

695-96 (9th Cir. 2010) (citation omitted).

The party alleging civil contempt must show that the alleged contemnor violated 

the court’s order by clear and convincing evidence. Inst. of Cetacean Research, 774 F.3d 

at 945. And “[g]iven the remedial purpose of the sanction, a finding of contempt must be 

accompanied by conditions by which contempt may be purged, spelled out in either the 

original order or the contempt order.” Bright, 596 F.3d at 696. And “although the district 

court generally must impose the minimum sanction necessary to secure compliance, the 

district court retains discretion to establish appropriate sanctions.” Id. (citation omitted).

Further, this Court may hold a nonparty in contempt for failure, without “adequate 

excuse,” to obey a subpoena or an order related to it. Fed. R. Civ. P. 45(g). See Sali v. 

Corona Reg’l Med. Ctr., 884 F.3d 1218, 1224 (9th Cir. 2018) (court may hold deponent in 

contempt under Rule 45(g) for “fail[ure] without adequate excuse to obey the subpoena or 

an order related to it”) (citation omitted).

Here, there is no dispute that Wilenchik and Beus Gilbert were served with the 

subpoenas. See Wurtzel Decl. Exs. B, C. And Wilenchik and Beus Gilbert both 

participated in extensive briefing before this Court concerning the subpoenas—making 

clear that they knew about these subpoenas and their obligations to respond if the Court 

overruled their objections. See Dkt. Nos. 101, 113. And Wilenchik and Beus Gilbert 

represented that they could comply with the subpoenas within two and a half weeks, if this 

Court ordered them to. Wurtzel Decl. Ex. D at 41:19-42:5. 

As this Court knows, on April 9, this Court ordered Wilenchik and Beus Gilbert to 

produce the documents requested by the subpoenas by April 26—which was two and a 

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half weeks later. Dkt. No. 119. And Wilenchik and Beus Gilbert indisputably got notice of 

this order, since they are both registered on ECF as counsel of record for Wyo Tech in this 

case. But as explained above, Wilenchik and Beus Gilbert have not produced any 

documents in response to the subpoenas. Wurtzel Decl. ¶ 5.

Wilenchik and Beus Gilbert have no excuse for their failure to produce the 

documents requested by the subpoenas by April 26—and certainly no excuse for their 

failure to produce these documents since then. To the contrary, Wilenchik’s and Beus 

Gilbert’s failure to produce these documents is in deliberate disobedience of this Court’s 

April 9 order. And given Wilenchik’s and Beus Gilbert’s complete disregard of this 

Court’s order, this Court should hold Wilenchik and Beus Gilbert in civil contempt, order 

them to pay the CWT Parties’ legal fees incurred in making this motion, and further order 

them to pay the CWT Parties $500 per day from April 27 through the date they fully 

comply with this Court’s April 9 order by producing all documents requested by the 

subpoenas. See Bright, 596 F.3d at 696 (upholding $500 daily fine and payment of party’s 

costs as contempt sanction).

CONCLUSION

This Court should issue an order to show cause why Wilenchik and Beus Gilbert 

should not be held in civil contempt, ordered to pay the CWT Parties’ legal fees incurred 

in making this motion, and further ordered to pay the CWT Parties $500 per day from 

April 27 through the date they fully comply with this Court’s April 9 order by producing 

all documents requested by the subpoenas.

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Dated:May 13, 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 13th day of May

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 131 Filed 05/13/19 Page 8 of 8