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Mattern v. PushTraffic, Motion to Amend First Amended Complaint to Second Amended Class Action Complaint
Mattern v. PushTraffic, Motion to Amend First Amended Complaint to Second Amended Class Action Complaint

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Published by: Dr. Jonathan Levy, PhD on Feb 01, 2011
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Case 2:10-cv-09860-DMG -JC Document 79

Filed 01/30/11 Page 1 of 4 Page ID #:943

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THOMAS EASTON CSB #109218 LAW OFFICE OF THOM AS EASTON 967 Sunset Dr Springfield OR 97477 Tel: 541-746-1335 easton3535@gmail.com JONATHAN H. LEVY CSB #158032 37 Royale Pointe Dr Hilton Head SC 29926 Tel: 202-318-2406 Fax: 202-318-2406 jonlevy@hargray.com Attorneys for Plaintiffs OF COUNSEL Richard E. Joseph, Esq. Michigan State Bar No. P39924 203 Mason St Charlevoix, MI 49720

UNITED STATES DISTRICT COURT 12 CENTRAL DISTRICT OF CALIFORNIA 13 DOUGLAS MATTERN, et al., 14 Plaintiffs, 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TO DEFENDANTS AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on March 7, 2011 at 9:30 a.m. at Courtroom 7, Los Angeles, Spring Street, before the Honorable D OLLY M. G EE, Plaintiffs will move the Court for an order allowing the filing of Plaintiffs’ proposed Second Amended Complaint on the grounds that . v. PUSHTRAFFIC, et al., Defendants. NOTICE OF MOTION AND MOTION TO AMEND COMPLAINT Date: March 7, 2011 Time: 9:30 a.m. Ctrm: 7, Los Angeles, Spring Street Honorable D OLLY M. G EE NO. CV10-9860 DMG (JCx)

This motion is based upon this Notice of Motion, the Points and Authorities, and all the Exhibits attached hereto. POINTS AND AUTHORITIES I. BACKGROUND The original complaint was filed July 2, 2010 in the United States District Court for Northern California and the First Amended Complaint filed October 4, 2010 in the same
Notice of Motion & Motion to Amend Complaint ~ CV10-9860 DMG (JCx) ~ Page 1 of 4

Case 2:10-cv-09860-DMG -JC Document 79

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Court. The case was subsequently transferred to this Court. Then by Stipulation and the Court’s Order which set the timing of this motion (Doc.77). II. MEET & CONFER The Parties have met and conferred regarding this Motion and will continue to meet and confer after the Defendants have had an opportunity to review the Motion and Proposed Second Amended Complaint. This motion is made following the conference of counsel pursuant to L.R. 7-3 which took place electronically on 12/28/10 through 12/30/10 and resulted in the Order regarding the timing of this motion (Doc. 77). The Parties subsequently conferred electronically 1/27/11 through 1/28/11 regarding the date set for this Motion. III. FACTUAL REASONS AMENDMENT IS REQUIRED The Parties have narrowed the causes of action, to just two, RICO § 1962(c) and Fraud from the previous fifteen causes of action. Plaintiffs are dismissing four Defendants by way of stipulation with the remaining Defendants and three other Defendants are being dismissed after investigation revealed their identities had been stolen by the remaining Defendants. As a result of the First Amended Complaint, Plaintiffs met and conferred with counsel for former Defendants: Denton, MyEbizNow.net, Multi faceted Global Corp. and Progressive Tax Group and discovered a previously unknown pervasive pattern and practice by the remaining Defendants of what Plaintiffs’ term identity theft. This also led to the discovery of the theft of the identities of Internet Marketers: Alderson, Andrews, Beckta, Cobb, Davies, and Kirkland by Defendants and subsequent contact with some of these parties and their attorneys which verified this practice. Plaintiffs have shared some of the declarations gathered with Defendants. Additionally, as a result of the First Amended Complaint additional Plaintiffs and victims have emerged who provided details and facts that provided a better basis for understanding the pattern and overall scope of Defendants’ actions. IV. PROPOSED CHANGES Due to the voluntary dismissal of eight defendants and the voluntary deletion of all but
Notice of Motion & Motion to Amend Complaint ~ CV10-9860 DMG (JCx) ~ Page 2 of 4

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two causes of action from the previous fifteen, the pagination and organization of the Proposed Second Amended Complaint differs radically from the previous First Amended Complaint. This can be determined from redline proposed complaint and Word Perfect generated document changes summary in the Appendix to this Motion. According to Word Perfect there were 1523 Deletions and 1366 Insertions of words when the First Amended Complaint and Proposed Second Amended Complaint were electronically compared. Plaintiffs believe however that the significant additions to the substance of the complaint are as follows: 1. Plaintiffs have identified the finite pattern of the actual practices of Defendants complained of and summarized in Tables One and Two of the proposed Second Amended Complaint (SAC) at paragraphs 42 and 51. 2. Plaintiffs describe the general practice of identity theft throughout the complaint but in particular at SAC paragraph 27. 3. Three additional Plaintiffs have been added for unique reasons: (a) Plaintiff Robert Old, Jr. because of his advanced age at the time of being defrauded by Defendants, 93 years old, at SAC paragraph 106; (b) Plaintiff James Horlacher because of his allegations of mail fraud at SAC paragraph 105; (c) Plaintiff Grace Adele because she was defrauded on three separate occasions by Defendants at SAC paragraph 104. 4. Plaintiffs now bring the form of this action as a Class due to the numerous other victims of Defendants who have contacted counsel seeking a remedy and the ability of Plaintiffs’ to now confidently articulate the overall pattern and practices of Defendants. This is set forth in the SAC Class Allegation at SAC paragraphs 31-37. 5. Plaintiffs have added a section regarding Punitive Damages in response to Defendants’ previous objections as to the form of the pleading at SAC paragraph 120. 6. Plaintiffs have added a section on Equitable Tolling & Fraudulent Concealment due to the pervasive pattern of identity theft by Defendants which has frustrated Plaintiffs’
Notice of Motion & Motion to Amend Complaint ~ CV10-9860 DMG (JCx) ~ Page 3 of 4

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attempts to fully identify the entire nature and scope of the wrongs done to them at SAC paragraphs 121-125. 7. There also been hundreds of smaller changes made to correct minor errata in spelling, dates, and names, plead with grater precision, plead fraud in conformity with FRCP Rule 9(b), clarify and narrow RICO predicate acts, and reformat the entire complaint for the reasons stated above. V. LEGAL ARGUMENT Federal Rule of Civil Procedure Rule 15(a)(2) states that a party may amend the pleading by leave of Court, and that leave to amend should be given freely when justice so requires. Leave to amend generally may be denied only for four reasons: (1) undue delay, (2) bad faith or dilatory motive, (3) undue prejudice, or (4) futility of amendment. Townsend v. Univ. of Alaska, 543 F.3d 478, 485 (9 th Cir. 2008) citing Foman v. Davis, 371 U.S. 178 (1962). None of these reasons exist in this instance. WHEREFORE, Plaintiffs pray the Court grant Plaintiffs’ Motion for Leave to file its Second Amended Class Action Complaint. DATED: January 30, 2011. Respectfully submitted, s/ Thomas Easton, Esq. THOMAS EASTON s/Jonathan Levy,Esq. JONATHAN LEVY Of Attorneys for Plaintiffs Mattern et al. CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the forgoing document has been filed with the Courts’ CM/ECF filing system on this 30 th day of January, 2011, which will provide service on all counsel of record. s/Thomas Easton, Esq;

Notice of Motion & Motion to Amend Complaint ~ CV10-9860 DMG (JCx) ~

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