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Quarles & Brady LLP

Firm State Bar No. 00443100 Renaissance One, Two North Central Ave. Phoenix, AZ 85004-2391
TELEPHONE 602.229.5200

John S. Craiger (#021731) John.Craiger@quarles.com David E. Funkhouser III (#022449) David.Funkhouser@quarles.com Attorneys for Defendant Lisa Jean Borodkin IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA XCENTRIC VENTURES, LLC, an Arizona limited liability company, Plaintiff, v. LISA JEAN BORODKIN and JOHN DOE BORODKIN, husband and wife; RAMOND MOBREZ and ILIANA LLANERAS, husband and wife; DANIEL BLACKERTS and JANE DOE BLACKERTS, husband and wife; ASIA ECONOMIC INSTITUTE, LLC, a California limited liability company, DOES 1-10, inclusive Defendants. Defendant Lisa Jean Borodkin ("Ms. Borodkin) hereby moves, pursuant to Federal Rule of Civil Procedure 12(e), for a more definite statement with respect to the Verified Complaint (Complaint) against her. This Motion is based on the Memorandum of Points and Authorities filed and served herewith, and upon the papers, records and pleadings on file herein, and specifically without waiving other defenses under Federal Rule of Civil Procedure 12, motions for which are filed concurrently with this Motion. No. 2:11-CV-01426-PHX-GMS DEFENDANT LISA JEAN BORODKIN'S MOTION FOR MORE DEFINITE STATEMENT PURSUANT TO FED. R. CIV. P. 12(e) (Assigned to the Honorable G. Murray Snow) (Oral Argument Requested)

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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 I.

MEMORANDUM OF POINTS AND AUTHORITIES PRELIMINARY STATEMENT This motion is necessary because the Complaint fails to set forth a short and plain statement of the claim showing that the pleader is entitled to relief, as required by Federal Rule of Civil Procedure 8(a)(2). Under the Federal Rules, "[e]ach allegation must be simple, concise, and direct." Fed. R. Civ. P. 8(d)(1). Instead of short and plain, the Complaints allegations, as against Ms. Borodkin, are convoluted, self-contradictory and insufficient to put her on notice of the nature of the claims against her. The Complaint uses impermissible shotgun pleading and puzzle pleading, to mask the fact that its claims are circular, vague, and cannot, by logic, apply to Ms. Borodkin, as pled. Without a more definite statement, Ms. Borodkin does not have notice of the claims against her and literally cannot frame a responsive pleading to the Complaint. A more definite statement is necessary to ascertain who allegedly did what to whom. Specifically, a more definite statement is necessary (1) to identify which defendants are referred to in shotgun-type allegations referring to all Defendants in paragraphs 2, 9, 23, 53, 58, 75, 82, 83, 84, 85, 86, 87, 88, 89, 90 and 91 of the Complaint, (2) to identify the unintelligible and shotgun-like references to claims in Paragraphs 48, 52, 53, 55, 57, 65, 66, 67, 69, 72, 76, 77, 79, 82 and 89 of the Complaint, (3) to reasonably identify which factual allegations, if any, of improper motive, are referred to by the Complaints paragraphs 53, 82 and 84, as against Ms. Borodkin, and (4) to reasonably identify which factual allegations, if any, of wrongful conduct are referred to in paragraphs 87, 88, and 89 of the Complaint. Therefore, this Motion should be granted.

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II.

SUMMARY OF RELEVANT FACTS A. The California Action

Generally, this litigation arises out of an action litigated from January 27, 2010 to June 15, 2011 in the Central District of California (the California Action). Compl.1 28, 67. The plaintiffs in the California Action were Raymond Mobrez, Iliana Llaneras and Asia Economic Institute LLC (the AEI Parties). Compl. 28. The Defendants in the California Action were Xcentric Ventures LLC (Xcentric) and Edward Magedson. Compl. 30. Magedson is the Manager of Xcentric and the sole shareholder of the corporation that is the sole owner/member of Xcentric. See Doc. 21.2 Ms. Borodkin, a California attorney, did not represent the AEI Parties when the California Action was initiated. Compl. 31. Ms. Borodkin joined the California Action as attorney for the AEI Parties four (4) months after it was commenced. See id. From January 27, 2010 to July 19, 2010, the California Action included claims for RICO violations predicated on attempted extortion. Compl. 57 and Ex. A. On July 19, 2010, summary judgment was granted on only those claims. Compl. 57. From July 19, 2010 to June 15, 2011, the California Action was litigated on the remaining claims. Compl. 67. The California Action terminated on June 15, 2011. Compl. 67. B. The Complaint

Xcentric commenced this action on July 19, 2011, by filing the Complaint. See Doc. 4. The exact nature of the Complaints causes of actions is somewhat unclear. The Complaint nominally includes claims for (1) Wrongful Initiation of Civil Proceedings, Compl. 68-74, (2) Wrongful Continuation of Civil Proceedings, Compl. 75-84 and (3) Aiding and Abetting Tortious Conduct, Compl. 85-91. However, Xcentric has
1 2

References to Compl. are to the Complaint in this action. References to Doc. __ are to documents filed in this action.

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referred to this action as one for malicious prosecution. See, e.g., Doc. 22. The sole allegations in the Complaint referring to Ms. Borodkin by name are 4 (identifying Ms. Borodkin as a California resident); 31 (entering an appearance in the Asia Litigation); 44-47 (receiving letter from David Gingras); 48 (continuing Asia Litigation after receipt of letter); 51 (allegedly assisting Mobrez in creating corrected declaration); 54-57 (filing, arguing and receiving order on motion for leave to conduct discovery); 59 (filing motion for reconsideration); and 61-63 (filing, submitting a declaration on and receiving a order on motion for leave to conduct discovery). Despite this, the Complaint contains vague and general group allegations to Defendants. In the Second and Third Causes of Action, the Complaint fails to incorporate only those paragraphs that apply to each claim and each defendant. The general references to Defendants are especially problematic where essential elements such as malice and lack of probable cause are pled only in legal conclusions. See Compl. 53, 82, 84. Through this vague manner of pleading, the Complaint seemingly attempts to link Ms. Borodkin to the actions of the other defendants, and avoids committing to an express cause of action to which Ms. Borodkin can reasonable respond. Accordingly, Ms. Borodkin moves under Rule 12(e) for an order striking the Complaint and ordering Xcentric to replead sufficiently to put her on notice of the exact claims against her. III. LEGAL ARGUMENT. A. Motions Under Rule 12(e).

Rule 12(e) provides in part: A party may move for a more definite statement of a pleading to which a responsive pleading is allowed but which is so vague or ambiguous that the party cannot reasonably prepare a response. The motion must be made before filing a responsive pleading and must point out the defects complained of and the details desired.

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Fed R. Civ. P. 12(e). Whether to grant a Rule 12(e) Motion is within the sound discretion of the Court. See 5 Wright & Miller, Federal Practice & Procedure 1217 (1990), cited in Babb v. Bridgestone/Firestone, 861 F. Supp. 50, 52 (M.D. Tenn. 1993); Fleming v. Michigan, No. 2:09-cv-11795, 2010 U.S. Dist. LEXIS 22790, at *27 (E.D. Mich. Feb. 23, 2010). The proper test in evaluating a motion under Rule 12(e) is whether the complaint provides the defendant with a sufficient basis to frame his responsive pleadings. See Thomas v. Independence Twp., 463 F.3d 285, 301 (3d Cir. 2006); Federal Sav. and Loan Ins. Corp. v. Musacchio, 695 F. Supp. 1053, 1060 (N.D. Cal. 1988). Under the notice pleading standard, sufficient factual allegations are required to provide fair notice of the nature of the claim and the grounds on which the claim rests. See Bell Atlantic Corporation v. Twombly, 550 U.S. 544, 555-56; 127 S. Ct. 1955, 1965; 167 L. Ed. 2d 929, 940 (2007). Rule 12(e) motions are designed to strike at unintelligibility, rather than at lack of detail in the complaint. See Cox v. Maine Maritime Academy, 122 F.R.D. 115, 116 (D. Me. 1988). A Rule 12(e) motion is an acceptable way to detect potentially meritless claims early. See Educadores Puertorriquenos En Accion v. Hernandez, 367 F.3d 61, 67 (1st Cir. 2004)). Rule 12(e) exists to rectify complaints that are unintelligible or vague. See Cobb v. Regions Bank, 2010 U.S. Dist. LEXIS 49544 at *8 (W.D. Tenn. May 19, 2010); Cox v. Maine Maritime Acad., 122 F.R.D. 115, 116 (D. Me. 1988). B. A More Definite Statement Is Necessary So That Ms. Borodkin Can Ascertain Which, If Any, of the Allegations in the Complaint Apply To Her As Opposed to Other Defendants.

A complaint does not provide adequate notice to a defendant where it fails to isolate the allegedly actionable acts of each defendant, and thereby does not provide adequate notice as to the nature of the claims against each. See Robbins v. Okla. ex rel. Dep't of Human Servs., 519 F.3d 1242, 1250 (10th Cir. 2008); see also Atuahene v. City

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of Hartford, 10 Fed. Appx. 33, 34 (2d Cir. 2001) (By lumping all the defendants together in each claim and providing no factual basis to distinguish their conduct, [the] complaint failed to satisfy this minimum standard); Cobb v. Regions Bank, 2010 U.S. Dist. LEXIS 49544 at *8 (granting Rule 12(e) motion and ordering plaintiff to replead specifying by proper name which defendants committed which alleged acts). Motions for more definite statement are appropriate to refine generalized group allegations to defendants that do not distinguish among specific conduct of each. See Van Dyke Ford, Inc. v. Ford Motor Co., 399 F. Supp. 277, 284 (E.D. Wis. 1975). Plaintiffs cannot file complaints naming countless defendants as a fishing expedition; plaintiffs must have a good faith basis for drawing each defendant into civil litigation. See Ames v. Dep't of Marine Res. Comm'r, 256 F.R.D. 22, 24 (D. Me. 2009). The Twombly court was particularly critical of complaints alleging conspiracies that "mentioned no specific time, place, or person involved." See 550 U.S. at 565, 127 S. Ct. at 1971, 167 L. Ed. 2d at 946 n.10. Given such a complaint, "a defendant seeking to respond to plaintiffs' conclusory allegations . . . would have little idea where to begin." Id. The Complaint as drafted, alternates between specifically named defendants and Defendants generally so as to render these claims unintelligible. Only the Complaints Second and Third Causes of Action are asserted against Ms. Borodkin. Yet virtually all theories of liability in the Second and Third Causes of Action are alleged against the Defendants as a group. The Complaint begins at paragraph 2 with a paragraph reciting an unsubstantiated litany of alleged unlawful, criminal, tortious, and unethical conduct by Defendants. Compl. 2. From there, the Complaints Allegations Common To All Claims begin with allegations of specific wrongful acts by Defendants Mobrez, Llaneras, AEI and/or Blackert (not Ms. Borodkin). Compl. 12-31. The Complaint alleges that, prior to the commencement of the Asia Litigation [January 27, 2010] Defendants Mobrez, Llaneras

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and/or Blackert performed legal research, determined a litigation strategy and initiated the California Action. Compl. 23-24, 28. The Complaint admits that Ms. Borodkin did not become involved in the California Action until April 19, 2010. Compl. 31. However, in the Third Cause of Action, the allegations broaden to allege that Defendants including Borodkin committed the previous acts in concert. Compl. 89. The Third Cause of Action, for Aiding and Abetting Tortious Conduct, incorporates all of the Complaints previous allegations, and alleges that Ms. Borodkin was aware of conduct that occurred before her involvement: 87. . . Defendants AEI, MOBREZ, LLANERAS, BLACKERT, BORODKIN and DOES 1-1- each were each [sic] aware that the other Defendants were engaged in the conduct alleged herein for which they are liable to Xcentric. (Compl. 87) (emphasis added). Ms. Borodkin literally cannot frame a response to the allegations in paragraph 87 of the Complaint because it does not apprise her of how she can have been aware that the other defendants were engaging in conduct, in January 2010, Compl. 23-28, when she was not involved in the California Action until April 19, 2010. Compl. 31. This allegation fails to put Ms. Borodkin on notice of the nature of the claim against her. It defines the tortious conduct, tautologically, only as the conduct alleged herein for which they are liable to Xcentric. Compl. 87. The Third Cause of Action also alleges, nonsensically, at paragraph 89, that Ms. Borodkin acted in concert with the other defendants during the wrongful commencement of the California Action [in January 2010]: 89. . . Defendants AEI, MOBREZ, LLANERAS, BLACKERT, BORODKIN and DOES 1-10, each acted in concert with one another during the wrongful commencement and continuation of the Asia Litigation. Pursuant to A.R.S. 122506(D), Defendants and each of them are jointly and severally liable to XCENTRIC for any and all damages suffered.

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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 Compl. 89 (emphasis added). This defies law and logic. Ms. Borodkin literally cannot respond to the allegations in paragraph 89 of the Complaint because it cannot be understood, on a grammatical level, how she can have acted in concert with the other defendants in the commencement of the California Action on January 27, 2010. Compl. 28. She was not involved with the California Action until April 2010. See Compl. 31. Paragraphs 2, 9, 53, 58, 90 and 91 all contain unintelligible references to Defendants. Paragraphs 86, 87, 88, and 89 all contain unintelligible compound references to AEI, Mobrez, Llaneras, Blackert and Borodkin that also contradict the allegation at paragraph 31. Ms. Borodkin is entitled to know which of these references refer to her in each instance so that she can frame a response. C. A More Definite Statement Is Necessary to Decipher the Shotgun Nature of the Claims And Theories Pled Against Ms. Borodkin.

Shotgun pleadings are those that incorporate every antecedent allegation by reference to each subsequent claim for relief. See Teamsters Local 617 Pension & Funds v. Apollo Group, Inc., 633 F. Supp. 2d 763, 783 (D. Ariz. 2009). See also Anderson v. Dist. Bd. of Trs. of Cent. Fla. Cmty. Coll., 77 F.3d 364, 366 (11th Cir. 1996); Cobb v. Regions Bank, 2010 U.S. Dist. LEXIS 49544 at *6 (W.D. Tenn. May 19, 2010) (citing Byrne v. Nezhat, 261 F.3d 1075, 1128 (11th Cir. 2001). In Anderson, the complaint

contained six nested counts, each adopting the allegations of all preceding counts. See 77 F.3d at 366. The complaint in Anderson was a perfect example of shotgun pleading in that it was virtually impossible to know which allegations of fact were intended to support which claim(s) for relief. Id. at 366. In such cases, the defendant is expected to move the court, pursuant to Rule 12(e), to require the plaintiff to file a more definite statement. See Anderson, 77 F.3d at 366; see also Jordan v. Carter, 428 F.3d 67, 75 (1st Cir. 2005). Motions for a more definite statement are appropriate to pare down "shotgun"

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pleadings. Clark v. McDonald's Corp., 213 F.R.D. 198, 233 (D.N.J. 2003). District courts have a "supervisory obligation to sua sponte order repleading pursuant to [Fed. R. Civ. P. 12(e)] when a shotgun complaint fails to link adequately a cause of action to its factual predicates." See Wagner v. First Horizon Pharmaceutical Corp., 464 F.3d 1273, 1275 (11th Cir. 2006); see also Covington v. Cole, 528 F.2d 1365, 1373 (5th Cir. 1976) ("the court, sua sponte, might require the defendants to formulate and serve a motion for a more definite statement on petitioner under Rule 12(e)). It is through shotgun pleading in the Second and Third Causes of Action that Xcentric tries to draw Ms. Borodkin into this litigation. Each claim in the Complaint adopts the allegations of all preceding claims. Compl. 68, 75, 85. Xcentric fails to incorporate only those paragraphs that apply to each claim and each defendant. The final claim incorporates by reference the previous 84 paragraphs in three sub-levels of incorporation and calls it wrongful conduct. Requiring a more definite statement is necessary because of Xcentrics ambiguity in articulating its cause of action against Ms. Borodkin. The Second Cause of Action against Ms. Borodkin, purports to be Wrongful Continuation of Civil Proceedings. See Comp. 75-84. However, a search of all published cases, in both federal and state courts, reveals that no Arizona court has ever recognized a cause of action for "Wrongful Continuation of Civil Proceedings." Xcentric has called this an action for malicious prosecution. See, e.g., Doc. 21. The elements of an action for malicious prosecution are: "that the defendant (1) instituted a civil action which was (2) motivated by malice, (3) begun [or maintained] without probable cause, (4) terminated in plaintiff's favor and (5) damaged plaintiff.'" Wolfinger v. Cheche, 206 Ariz. 504, 508-09, 80 P.3d 783, 787-88 (App. 2003) (quoting Bradshaw v. State Farm Mut. Auto. Ins. Co., 157 Ariz. 411, 416-17, 758 P.2d 1313, 1318-

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19 (1988)) (emphasis added). Because an element of the claim of malicious prosecution is that the defendant instituted a civil action, and that Ms. Borodkin admittedly did not institute the California Action, Compl. 31, Ms. Borodkin is entitled to fair notice of whether Xcentric intends to pursue a malicious prosecution claim against her, or whether Xcentric is attempting to argue for Arizona to recognize a new legal theory. Ms. Borodkin is entitled to a dismissal if Xcentric cannot satisfactorily replead. Through shotgun pleading, Xcentric also attempts to avoid specifying the legal theory for the Third Cause of Action for Aiding and Abetting Tortious Conduct. This leaves Ms. Borodkin to guess as to an essential element of the Third Cause of Action. In order to state a claim for aiding and abetting tortious conduct, Plaintiffs must plead three elements: (1) that the primary tortfeasor committed a tort that caused injury to the plaintiff; (2) that the defendant knew that the primary tortfeasor's conduct constituted a breach of duty; and (3) that the defendant substantially assisted or encouraged the primary tortfeasor in the achievement of the tort. See Wells Fargo Bank v. Ariz. Laborers, Teamsters and Cement Masons Local No. 395 Pension Trust Fund, 201 Ariz. 474, 486, 38 P.3d 12, 24 (2002); Restatement (Second) of Torts 876(b) (1977); iStar RC Paradise Valley LLC v. Five Star Dev. Cmtys. LLC, 2011 U.S. Dist. LEXIS 118532 at *12-13 (D. Ariz. Oct. 13, 2011). Here, the circularity of the Complaint is revealed. The first element of a claim of aiding and abetting tortious conduct is that the primary tortfeasor committed a tort. See id. It is thus critical to clarify what tort is referred to, and who the primary tortfeasor is. Since, as explained above, Ms. Borodkin did not initiate the California Action, Ms. Borodkin cannot be the primary tortfeasor if the tort is malicious prosecution.

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Moreover, the second element of a claim of aiding and abetting tortious conduct is that the defendant knew that the primary tortfeasor's conduct constituted a tort. See Wells Fargo, 201 Ariz. at 485; iStar, 2011 U.S. Dist. LEXIS 118532 at *14. Since, as explained above, an element of a claim of malicious prosecution is that that the litigation terminated in plaintiff's favor," see Wolfinger, 206 Ariz. at 508-09, 80 P.3d at 787-88, Ms. Borodkin cannot have known that the other defendants conduct constituted the tort of malicious prosecution while she was litigating the California Action. In other words, Xcentric cannot bootstrap a defective claim for malicious prosecution against Ms. Borodkin into a derivative tort claim for aiding and abetting the same. The shotgun-style pleading of the Third Cause of Action is insufficient to put Ms. Borodkin on notice of the nature of the claim for Aiding and Abetting Tortious Conduct. Accordingly, the Complaint should be stricken and Defendants should be ordered to replead so that Ms. Borodkin can frame a response. D. A More Definite Statement Is Necessary To Decipher the Puzzle Pleading Regarding Ms. Borodkins Malice or Improper Purpose.

Puzzle pleadings are those that require the defendant and the court to match the statements up with the reasons they are false or misleading. See Teamsters Local 617, 633 F. Supp. 2d at 783-784; In re Petsmart, Inc. Sec. Litig., 61 F. Supp. 2d 982, 991 fn.3 (D. Ariz. 1999) (collecting cases in the Ninth Circuit courts disapproving of puzzle pleadings in securities litigation context). A Rule 12(e) motion is appropriate to decipher puzzle pleading where the complaint fails to present facts in a manner or format that permits the Court (or Defendants) to readily identify the allegations relevant to each individual defendant's scienter. See, e.g., N.Y. State Teachers' Ret. Sys. v. Fremont Gen. Corp., 2010 U.S. Dist. LEXIS 46820 at *10 (C.D. Cal. Mar. 29, 2010). In N.Y. State Teachers, the court dismissed the Third Amended Complaint with prejudice because the plaintiffs chronic

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inability to allege specific facts showing scienter for each named defendant indicated that the plaintiff could not do so. See 2010 U.S. Dist. LEXIS 46820 at *12-13. The Court may strike a complaint that relies on puzzle pleading. See In re GlenFed, Inc. Sec. Litig., 42 F.3d 1541, 1554 (9th Cir. 1994); Byrne v. Nezhat, 261 F.3d 1075, 1128-34 (11th Cir. 2001); In re Autodesk, Inc. Sec. Litig., 132 F. Supp. 2d 833, 842 (N.D. Cal. 2000); Wagner, 464 F.3d at 1280. The Complaint attributes malice and improper motive to Ms. Borodkin through puzzle pleading a litany of facts followed with only conclusory statements as to improper motive and lack of probable cause. Compl. 58, 82, 84. This puzzle is particularly vexing as to the Third Cause of Action. The Complaint seems to assert a theory that alleged defects in the RICO claim predicated on attempted extortion [which was resolved on July 19, 2010] Compl. 57, 77, made the other claims entirely groundless and unlawful. Compl. 79. From July 19, 2010 to June 15, 2011, the other ten claims in the California Action were litigated, that were not related to the RICO/attempted extortion claim. Compl. 58, 67. The Complaint does not contain allegations as to why the ten causes of action in the California Action were purportedly groundless. Compl. 58. Moreover, the Complaint admits that on May 20, 2010, the AEI Parties field corrected declarations recanting the testimony Xcentric complains of. Compl. 49, 50, Exs. F-G. The Complaint does not contain allegations as to why correcting declarations made the remainder of the California Action factually groundless. This leaves Ms. Borodkin and the Court to guess what civil proceedings the Third Cause of Action for wrongful continuation of civil proceedings refers to, or why they were allegedly continued maliciously. Therefore, it does not put Ms. Borodkin on reasonable notice as to the nature of the claims against her. At a minimum, Xcentric should be ordered to allege a factual basis establishing Ms.

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Borodkins improper motive, or dismiss the claims against Ms. Borodkin. E. References to Claim(s) Are Unintelligible. The Complaint as drafted, alternates between using claims in the California Action to refer, variously, to (1) RICO purportedly predicated on extortion, Compl. 24, 25, 30, 57, (2) a purported but non-existent claim for extortion, Compl. 36, 52, 72.c, 77, (3) RICO predicated on attempted extortion, Compl. Ex. A, and (4) all twelve claims in the original Asia Litigation Complaint, Compl. 44, 48, 53, 69, 76, 82. Ms. Borodkin is entitled to know which claims in the California Action are meant by these unintelligible and logically inconsistent references to claims. The Complaint admits that the original complaint filed in the California Action on January 27, 2010 contained twelve claims for relief. Compl. 30 (emphasis added). Only two of the twelve claims in the California Actions original complaint were for RICO. See Compl. 30. According to the January 27, 2010 complaint in the California Action, attached as Exhibit A to the Complaint, the California Action also included claims for Defamation, Unfair Business Practices, Civil Conspiracy, Defamation Per Se, False Light, Intentional and Negligent Interference with Economic Advantage, Inducing Breach of Contract, Injunction and Permanent Injunction. Compl. 29, Ex. A. The Complaint also refers inaccurately to a claim in the Asia Litigation Complaint for RICO predicated on extortion. Compl. 30. This reference is unintelligible. The Complaints own Exhibit A shows that the California Actions complaint contained no claim for RICO predicated on extortion. Compl. 29, Ex. A. Rather, the California Actions complaint contained a claim for RICO predicated on attempted extortion. See Compl. 29, Ex. A at 21. Elsewhere, the Complaint, mischaracterizes the claim as one simply for extortion:

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36. . . Among other allegations, the allegation [in the May 3, 2010 Declaration] that Mr. Magedson demanded at least five grand from Defendant MOBREZ formed the primary basis for the claim that XCENTRIC and Magedson engaged in extortion as to AEI, MOBREZ, and LLANERAS. Compl. 36 (emphasis added). The Complaints reference to the claim that XCENTRIC and Magedson engaged in extortion is unintelligible, given that it conflicts with Exhibit A (accurately showing the claim to be RICO predicated on attempted extortion). Compare Compl. 36 with Compl. Ex. A. Similar references to a claim for extortion are in Paragraphs 52, 72.c, and 77. This ambiguity renders references to claims unintelligible, as it is impossible to determine whether they refer to the actual claim in the Complaint for the California Action for RICO predicated on attempted extortion, Compl. Ex. A, or claims that are erroneously attributed to the AEI Parties by the Complaint. Identifying what claims are referred to are essential, as an element of malicious prosecution is that litigation was begun or continued without probable cause. See Wolfinger, 206 Ariz. at 508-09. Therefore, the Complaints inconsistent references to

claims are unintelligible. They are pleaded in a vague and self-contradictory manner that it is impossible to discern which claims are alleged to have been brought without probable cause. Paragraph 44 unintelligibly alleges that evidence contrary to the May 3, 2010 declaration rendered all claims in the California Action completely groundless, even though the May 3, 2010 pertained only to the RICO/attempted extortion phase of the California Action. Compl. 44. The Complaints references to claims are made further unintelligible by Paragraph 57s allegation that the Court on July 19, 2010 grant[ed] partial summary judgment in favor of XCENTRIC and Magedson as to the RICO/extortion claims. Compl. 57. As pled in the Complaint, the California Action therefore contained no RICO/extortion claims after July 19, 2010. The Complaint admits that a First Amended

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Complaint was filed on July 27, 2010, Compl. 58. The Complaint is devoid of allegations describing why the other ten claims in the California Action were factually groundless or why Ms. Borodkins participation in the other ten claims in the California Action after July 19, 2010 was without probable cause. Paragraphs 48, 52, 53, 55, 57, 65, 66, 67, 69, 72, 76, 77, 79, 82 and 89 of the Complaint all contain unintelligible references to claims. Ms. Borodkin is entitled to know which of these references refer to the claim for RICO predicated on attempted extortion that was disposed of on July 19, 2010, and which refer to the other causes of action for Defamation, Unfair Business Practices, Civil Conspiracy, Defamation Per Se, False Light, Intentional Interference with Economic Advantage, Negligent Interference with Economic Advantage, Inducing Breach of Contract, Injunction and Permanent Injunction, so that she can frame a response. F. References to Malice and Purpose Other than the Proper Adjudication of the Claims Are Unintelligible.

The Complaint attributes to Ms. Borodkin, in a conclusory manner, malicious motive in the California Action and a purpose other than that of securing the proper adjudication of the claims in which the proceeding are based. Compl. 53, 82, 84. However, the Complaint fails to allege what this ulterior motive is. The only allegations specifying Ms. Borodkin describe litigation tasks. See Compl. 31 (entering an appearing in the Asia Litigation), 44-47 (as recipient of letter from David Gingras), 48 (continuing Asia Litigation after receipt of letter), 51 (allegedly assisting Mobrez in creating corrected declaration), 54-57 (filing, arguing and receiving order on motion for leave to conduct discovery), 59 (filing motion for reconsideration), 61-63 (filing and receiving a order on motion for leave to conduct discovery). Because malice is an essential element of Plaintiffs Second Cause of Action (if it

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is a claim for malicious prosecution), the cause of action, as alleged, is insufficient to put Ms. Borodkin on reasonable notice of the nature of the claim. Defendants should not be burdened by discovery and trial unless the plaintiff can allege specific nonconclusory factual allegations that establish improper motive. See e.g., Ames, 256 F.R.D. at 30. Legal conclusions couched as factual allegations are not given a presumption of truthfulness, and "conclusory allegations of law and unwarranted inferences are not sufficient to defeat a motion to dismiss." Pareto v. FDIC, 139 F.3d 696, 699 (9th Cir. 1998). Ms. Borodkin is entitled to know the general factual theory for Plaintiffs allegations of improper motive and malice so that she can frame a response. G. References to Wrongful Conduct Are Unintelligible.

The Complaint contains references to wrongful conduct in the Third Cause of Action that are unintelligible. Compl. 88, 89, and 90. More clarity as to wrongful conduct is needed for Ms. Borodkin to frame a response. The Complaints Third Cause of Action suffers from a fatal ambiguity in failing to identify the primary tort that Ms. Borodkin allegedly aided and abetted. Paragraphs 83, 87, 88 and 90 of the Complaint all contain unintelligible references to wrongful conduct. Compl. 83, 87-88, 90. Allegations of wrongful conduct are insufficient to place Ms. Borodkin on reasonable notice of the primary tort. In short, Xcentric has left it up to the Defendants and the Court to try to figure out exactly what the wrongful conduct is, and to match the factual allegations up with the reasons they are wrongful or actionable. Borodkin is entitled to know which of these references refer to her own, versus another primary tortfeasors, conduct, and what the primary tort is, if any, is so that she can frame a response. IV. CONCLUSION For the foregoing reasons, the Court should grant this motion for a more definite statement. The Complaint should be stricken and Xcentric should be ordered (1) to clarify

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which defendant is referred to in each reference to Defendants in 2, 9, 23, 53, 58, 75, 82, 83, 84, 85, 86, 87, 88, 89, 90 and 91 of the Complaint, (2) to identify the references to claims in Paragraphs 48, 52, 53, 55, 57, 65, 66, 67, 69, 72, 76, 77, 79, 82 and 89 of the Complaint, (3) to identify which specific factual allegations, if any, establish improper motive referred to in paragraphs 53, 82 and 84 of the Complaint, and (4) to identify which wrongful conduct is referred to in paragraphs 87, 88, and 89 of the Complaint. In doing so, Xcentric should be ordered to separate each specific theory advanced and incorporate only those allegations that apply to each claim. RESPECTFULLY SUBMITTED this 31st day of October, 2011. QUARLES & BRADY LLP Renaissance One, Two North Central Avenue Phoenix, AZ 85004-2391 By /s/ David E. Funkhouser III John S. Craiger David E. Funkhouser III Attorneys for Lisa Jean Borodkin

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CERTIFICATE OF SERVICE I hereby certify that on October 31, 2011, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrant: David S. Gingras, Esq. (David@GingrasLaw.com) Attorneys for Plaintiff Hartwell Virginia Harris (hartwell@hartwellharris.com) Attorney for Defendants Mobrez, Llaneras and Asia Economic Institute LLC /s/ David E. Funkhouser III

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