Free Memorandum - District Court of Arizona - Arizona

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Terrance J. Slominski, OSB 81376 7150 SW Hampton, Suite 201 Tigard OR 97223 Phone: 503-968-2505 Fax: 503-684-7950 E-mail: [email protected] Attorney for Plaintiff, David Menken

5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 v. GERRY F. EMM, husband, MAXINE C. EMM, wife, COLDWELL BANKER ITILDO, INC., a foreign corporation, MARSHA L. TOMERLIN, wife, WILLIAM TOMERLIN, DAVID J. MORANDI, husband, JANE DOE MORANDI, wife; SCARPELLO, HUSS & OSHINSKI, LTD, A Nevada Law firm, Defendants. BACKGROUND This case was dismissed in June 2005 before discovery was complete. After remand from the Ninth Circuit Court of Appeals, Plaintiff retained new counsel and on April 12, 2008 the Court set out a new scheduling order that, among other things required that the parties complete a settlement conference. A settlement conference was held before the Honorable Michelle H. Burns on March 14, 2008. The settlement conference did not resolve the case. DAVID MENKEN, Plaintiff, IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

No. 04-598-PHX-MHM PLAINTIFF'S MEMORANDUM OF LAW IN SUPPORT OF MOTION TO FILE FIRST AMENDED COMPLAINT

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PLAINTIFF'S MOTION TO FILE FIRST AMENDED COMPLAINT Case 2:04-cv-00598-MHM Document 74 Filed 04/08/2008 Page 1 of 3

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The parties are proceeding in developing their claims and defenses. The original complaint was a State Court Complaint that was removed from the Superior Court for the State of Arizona for the County of Maricopa. There have been no prior amendments. PROPOSED AMENDED COMPLAINT The proposed First Amended Complaint contains amendments to clarify and update Plaintiff's claims since the complaint was filed almost 4 years ago. Although Plaintiff's new counsel has not had the benefit of completing discovery and despite the fact that he has been working on this case for approximately 2 months, the it is anticipated that the proposed amendments will be the final amendments barring the unexpected in discovery or new case law. The proposed amended complaint eliminates one claim (Civil Extortion) and adds a new claim (Intentional Infliction of Emotional Distress). The claim for Interference of Contract is replaced with Interference with Business Expectancy to state the nature of Plaintiff's claim more precisely. The claim for the statutory slander of title has been separated into two counts, one count for the wrongful recording of the lien and a second count for refusing to remove the lien. With respect to damages plaintiff has increased his claim for economic damages for the lost sale to from $430 to $700 and has added a claim for emotional distress in the amount of $75,000. Although Plaintiff has added a request for punitive damages in the claims for Intentional Infliction of Emotional Distress and the Intentional Interference with Business Expectancy, he has removed the request for punitive damages in the claim for Violation of ARS 33-420 as it already has a request for treble damages provided by ARS 33-420. Under FRCP 15, leave to amend shall be granted freely, Amersource Bergan Corp et.al.

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PLAINTIFF'S MOTION TO FILE FIRST AMENDED COMPLAINT Case 2:04-cv-00598-MHM Document 74 Filed 04/08/2008 Page 2 of 3

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V. Dialysist West, Inc., 465 F.3d 946, 951 (9th Cir. 2006) Defendants will not be prejudiced by the amendment, Dated this 8th day of April, 2008.

4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 /S/ TERRANCE J. SLOMINSKI Terrance J. Slominski, OSB 81376 Attorney for Plaintiff Pro Hac Vice

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PLAINTIFF'S MOTION TO FILE FIRST AMENDED COMPLAINT Case 2:04-cv-00598-MHM Document 74 Filed 04/08/2008 Page 3 of 3