Free Motion for Leave to File - District Court of Arizona - Arizona

1 2 3 4

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 /S/ TERRANCE J. SLOMINSKI 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. Plaintiff moves the Court for an Order allowing the filing of his First Amended Complaint. A copy of the proposed Amended Complaint is attached hereto. In support of this motion, Plaintiff relies on the Memorandum filed herewith. Dated this 8th day of April, 2008. DAVID MENKEN, Plaintiff, IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA ) ) No. 04-598-PHX-MHM ) ) PLAINTIFF'S MOTION TO FILE ) FIRST AMENDED COMPLAINT ) ) ) ) ) ) ) ) ) )

Page 1 -

PLAINTIFF'S MOTION TO FILE FIRST AMENDED COMPLAINT Case 2:04-cv-00598-MHM Document 73 Filed 04/08/2008 Page 1 of 12

1 2 3 4 5 6 7

Peter Strojnik, 6464 The Law Firm of PETER STROJNIK 3030 North Central Avenue, Suite 1401 Phoenix, Arizona 85012 602-297-3019 www/strojnikTerrance 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

8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 v. GERRY F. EMM, andhusband, MAXINE C. EMM, husband and wife, COLDWELL BANKER ITILDO, INC., a foreign corporation, MARSHA L. TOMERLIN and JOHN DOE TOMERLIN, husband and wife, JIM VALENTINE and JANE DOE VALENTINE, husband and wife, wife, WILLIAM TOMERLIN, DAVID J. MORANDI, andhusband, JANE DOE MORANDI, husband and wife; SCARPELLO, HUSS & OSHINSKI, LTD, aA Nevada Law firm, Defendants. IN THE SUPERIORUNITED STATES DISTRICT COURT OF FOR THE STATEDISTRICT OF ARIZONA IN AND FOR THE COUNTY OF MARICOPA DAVID MENKEN, a single man, Plaintiff, ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

No. CV 2002-02339504-598-PHXMHM VERIFIEDPLAINTIFF'S FIRST AMENDED COMPLAINT Negligence Wrongful Interference wWith Contractual Relations Civil Extortion A.R.S. §33-420 , Slander of Title in Violation of A.R.S. §33-420 and Intentional Infliction of Emotional Distress, Negligence (JURY TRIAL DEMANDED)

Page 1 -

PLAINTIFF'S FIRST AMENDED COMPLAINT Case 2:04-cv-00598-MHM Document 73 Filed 04/08/2008 Page 2 of 12

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

Parties, Jurisdiction and Venue 1. Plaintiff is a natural person. 2. Defendants GERRY F. EMM and MAXINE C. EMM ("Emm") are husband and wife; COLDWELL BANKER ITILDO, INC. ("Itildo") is a foreign corporation; MARSHA L. TOMERLIN and JOHN DOE TOMERLIN ("Tomerlin") are husband and wife; JIM VALENTINE and JANE DOE VALENTINE ("Valentine") are husband and wife; DAVID J. MORANDI and JANE DOE MORANDI ("Morandi") are husband and wife.

SCARPELLO, HUSS & OSHINSKI, LTD is a Nevada Law Firm. David Morandi is a member of the SCARPELLO, HUSS & OSHINSKI, LTD law firm. 3. Morandi performed acts complained of herein during the court and scope of his employment or other association with the firm of SCARPELLO, HUSS, & OSHINSKI, LTD, rendering the law firm liable to Plaintiff under the theory of respondeat superior. 4. Defendants Morandi and Scarpello, Huss & Oshinski, LTD are attorneys for Defendants Emm, Itildo, Tomerlin and Valentine. 5. Morandi performed acts and omissions in his capacity as the attorney and agent for other named defendants, to wit, Defendants Emm, Itildo, Tomerlin and Valentine. 6I. INTRODUCTION This is a case arising out of the wrongful recording of a foreign judgment in Arizona. II. JURISDICTION This court has taken jurisdiction of the case through removal by Defendants based on diversity 28 U.S.C §1332(a). Plaintiff is a resident of the state of Arizona and Defendants Marsha L. Tomerlin, William Tomerlin and Coldwell Banker Itildo, Inc. are residents of the state of Nevada. Venue is proper in this court. III. GENERAL ALLEGATIONS

Page 2 -

PLAINTIFF'S FIRST AMENDED COMPLAINT Case 2:04-cv-00598-MHM Document 73 Filed 04/08/2008 Page 3 of 12

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

1A. Plaintiff is a judgment debtor in the United States District Court Ccase captioned United States District Court Cause No. CV-N-96-00142. 7 1B. Defendants Emm, Itildo, Marsha L. Tomerlin and Valentine are jJudgment

creditors in United States District Court Case captioned United States District Court Cause No. CV-N-96-00142. 8. John doe and Jane Doe Defendants are spouses of named Defendants whose true names will be substituted once they have been ascertained. 9 1C. Defendant William Tomerlin is the spouse of Marsha L. Tomerlin. 1D. At all times relevant hereto, married dDefendants were acting on behalf of their marital communities. 10. Defendants caused events to occur in Maricopa County, State of Arizona. General Allegations 11. Plaintiff realleges all allegations heretofore set forth. 12 2. On or about May 1, 2003, judgment creditors, through their attorneys and agents,

recorded the jJudgment taken against Plaintiff in Cause No:. CV-N-96-00142 in the records of the mMaricopa County Recorder Recording No 2003-0558897. 2003-1558877. (Exhibit "A") 13 3. Arizona Revised Statutes permit the recording of a federal judgment pursuant to

A.R.S. § 33-963. The statute states: 33--963. Procedure for recording judgment of federal court; lien An abstract of a judgment given by any court of record of the United States within this state shall be recorded in the manner provided in section 33-961 and in compliance with section 33-967, if applicable, before the judgment becomes a lien upon, or in any manner affects or encumbers, the real property of the judgment debtor, or any part thereof.

Page 3 -

PLAINTIFF'S FIRST AMENDED COMPLAINT Case 2:04-cv-00598-MHM Document 73 Filed 04/08/2008 Page 4 of 12

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

14

4. The recorded judgment did not comply with the requirement of applicable Arizona

Revised Statutes in the following non-exclusive specifics:

#

Tat the recording was invalid and/or contained a material misstatement

in the form of omission of or false claim or isgroundless or otherwise invalid by virtue of non-compliance with the requirement of A.R.S. §33-967;

#

The recording did not give notice of the amount of the judgment to

permit judgment creditor to pay and satisfy the judgment pursuant to A.R.S. §33-964;

#

The recorded judgment was not corrected within twenty days of

demand pursuant to A.R.S. §33-420. 15as it was time barred under A.R.S. 12.544; 5. The judgment became a purported lien against the property of Plaintiff ("property") located at 30019 North 150th StreetSt. in Scottsdale, Arizona. 16. As of July 31, 2003, the property was valued at $770,000.00 according to a Field Review Report. (Exhibit "B") 17. A full appraisal of real property valued the property at $1,070,000.000. (Exhibit "C") 18 6. On August 20, 2003, Defendants advised Plaintiff's agents that the payoff amount

of the judgment was $79,985.20. (Exhibit "D") The payoff demand included impermissible additions to the judgment in the form of post judgment attorney's fees and costs in the sum of $$36,740.52. 19 7. Plaintiff's agents advised Defendants that the amount was incorrect, and that the

recording of the judgment along with the illegal demand was a violation of A.R.S. §33-420. (Exhibit "E") 20 8. Numerous pieces of correspondence were exchanged between Plaintiff's attorneys

and Defendants' attorneys; Defendants' refused to limit the payoff amount to the amount of the judgment plus interest. (Exhibit "F")

Page 4 -

PLAINTIFF'S FIRST AMENDED COMPLAINT Case 2:04-cv-00598-MHM Document 73 Filed 04/08/2008 Page 5 of 12

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

21

9. On or prior toabout October 23, 2003, Plaintiff began negotiating a potential sale

of the property, and received a verbal offer for the purchase of the property. 22 10. Plaintiff knew that the title to the property was clouded by the purported

judgment lien'; therefore, on October 23, 2003, Plaintiff's agents advised Defendants toon the existence of the offer and the fact that the sale cannot be completed with the purported lien in place. (Exhibit "G") 23 11. On October 29, 2003, Plaintiff received an offer contained in the rResidential

Resale Real Estate Purchase contract for the Ppurchase of the property at the purchase price of $1,300,000.00. (Exhibit "H") Plaintiff rejected the offer. Subsequently, the offer of purchase was increased to $1,500,000.00. 24. Defendants still refused Although Plaintiff wanted to accept the legally owed amount as full satisfaction ofoffer and intended to accept the offer, the offer expired while Plaintiff attempted to obtain a release of the lien from Defendants. 12. On November 11, 2003, Defendants received the second formal demand to comply with Arizona Revised Statutes with respect to the purported lien. (Exhibit "I") 5. Defendants have refused to make the necessary corrections or otherwise validate the purported judgment lien. COUNT ONE (Negligence) 27 13. Despite Plaintiff's continued demands, Defendants refused to remove their lien. FIRST CLAIM FOR RELIEF (Negligence) 15. Plaintiff realleges all allegations heretofore set forth. 28 payoff. 16. Defendants owed Plaintiff a duty of care to not inflate the amount of the judgment

Page 5 -

PLAINTIFF'S FIRST AMENDED COMPLAINT Case 2:04-cv-00598-MHM Document 73 Filed 04/08/2008 Page 6 of 12

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

29 30 31

17. Defendants owed Plaintiff a duty of compliance with Arizona Revised Statutes. 18. Defendants breached their duties to Plaintiff. 19. Defendants' breach of their duties as hereinabove described caused Plaintiff

damage; to wit, the loss of the sale of his property. 32 20. As a direct and proximate result of Defendants' negligence, Plaintiff has been

damaged in the sum of $43700,000.00. WHEREFORE, Plaintiff prays for judgment against Defendants as follows: A. For judgment in the principal amount of $430,000.00; B. For costs in prosecuting this action; C. For such other and further relief as the court may deem just and proper. COUNT TWOSECOND CLAIM FOR RELIEF (Wrongful Interference Wwith Contractual RelationsBusiness Expectancy) 33 34 35 21. Plaintiff realleges all allegations heretofore set forth. 22. Defendants knew of the pending sale of the property by Plaintiff. 23. The pending sale was a valid contractual relationbusiness expectancy between

Plaintiff and a third party. 36 37 24. Defendants' conduct terminated the expectancy of the sale of the property. 25. Defendants' interference with contractualPlaintiff's business relations was

motivated by a desire to receive a sum of money in excess of that allowed by law or supported by the judgment entered in the United States District Court Cause No. CV-N-9600142. 38 26. Defendants' interference caused Plaintiff economic damage in the sum no less

than $430,000.00. 39$700,000 and emotional distress in the form of humiliation, fear, anger and worry in an amount not less than $75,000 27. Defendants' interference was intentional and demonstrated a reckless disregard

Page 6 -

PLAINTIFF'S FIRST AMENDED COMPLAINT Case 2:04-cv-00598-MHM Document 73 Filed 04/08/2008 Page 7 of 12

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

for the rights of Plaintiff, entitling Plaintiff to an award of punitive damages sufficient to deter these and other similarly situated defendants from engaging in like conduct. WHEREFORE, Plaintiff prays for judgment against Defendants as follows: A. For judgment in the principalan amount of $430,000.00; B. For costs in prosecuting this action; C. For such other and further relief as the court may deem just and proper.

COUNT THREE (Civil Extortion) 40not less than $1,000,000. THIRD CLAIM FOR RELIEF (Intentional Infliction of Emotional Distress) 28. Plaintiff realleges all allegations heretofore set forth. 41 29. Defendants engaged in Civil extortion by demanding a sum of money in excess of

the amount due them under the Judgment under a threat of not releasing the purported lien unless their extortionate demand was met. 42. PlaintiffDefendants' acts were done with the intention of causing Plaintiff severe emotional distress. 30. As a result of the acts of Defendants, Plaintiff has suffered emotional distress and has been damaged by Defendants extortionate demandin the amount of $75,000. 43 31. Defendant's extortion Defendants' interference was intentional and demonstrated

a reckless disregard for the rights of Plaintiff, entitling Plaintiff to an award of punitive damages sufficient to deter these and other similarly situated defendants from engaging in like conduct. WHEREFORE, Plaintiff prays for judgment against Defendants as follows: A. For judgment in the principal amount to be determined at trial;

Page 7 -

PLAINTIFF'S FIRST AMENDED COMPLAINT Case 2:04-cv-00598-MHM Document 73 Filed 04/08/2008 Page 8 of 12

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 45 46 44

B. For an award of punitive damaged in the sum to be determined at trial; C. For costs in prosecuting this action; D. For such other and further relief as the Court may deem just and proper. COUNT FOURan amount not less than $1,000,000. FOURTH CLAIM FOR RELIEF (A.R.S. § 33-420) COUNT I 32. Plaintiff realleges all allegations heretofore set forth. 33. The purported lien was groundless and invalid pursuant to A.R.S. §33-420(D). 34. Pursuant to A.R.S. § 33-420(A), a recording of a groundless and invalid purported

lien by Defendants entitlesd Plaintiff to the sum of not less than five thousand dollars, or for treble the actual damages caused by the recording, whichever is greater, and reasonable attorney fees and costs of the action. 47 35. Plaintiff has been damaged by Defendants' violation of statutes in tTitle 33 in the

sum of not less than $43700,000.00 and emotional distress in the amount of $75,000. 48 36. Plaintiff is entitled to treble damages, to wit, the sum of no less than

$1,290,000.00. 49. Defendant's violation of A.R.S. §33-420 was intentional and demonstrated a reckless disregard for the rights of Plaintiff, entitling Plaintiff to an award of punitive damages sufficient to deter these and other similarly situated defendants from engaging in like conduct for a total amount of not less than $2,100,000. COUNT II 37. 38. Plaintiff realleges all allegations heretofore set forth. Despite Plaintiff's demands that Defendants remove the lien, Defendants refused to do so resulting in damages as alleged herein. 39. In addition to the lost sale of property Plaintiff incurred approximately

Page 8 -

PLAINTIFF'S FIRST AMENDED COMPLAINT Case 2:04-cv-00598-MHM Document 73 Filed 04/08/2008 Page 9 of 12

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 40.

$30,000 in damages in the form of attorney fees to get the lien removed JURY DEMAND Plaintiff demands a jury trial.

WHEREFORE, Plaintiff prays for judgment against Defendants as follows: A. For judgment in the principal amount of $430,000.00 trebled to $1,290,000.00; B. For an award of1. For Plaintiff's First Claim for Relief (Negligence) the sum of $700,000; 2. For Plaintiff's Second Claim for Relief (Wrongful Interference with contractual Relations) the sum of $700,00, together with punitive damages in the sum to be determined at trial; C. For costs and attorney feesan amount not less than $1,000,000; 3. For Plaintiff's Third Claim for Relief (Intentional Infliction of Emotional Distress), the sum of $75,000 together with punitive damages in an amount not less than $1,000,000; 4. For Plaintiff's Fourth Claim for Relief (Violation of A.R.S. §33-420) the sum of $730,000 trebled to $2,190,000, together with Plaintiff's attorney fees incurred herein pursuant to A.R.S. § 33-420; D. For such other and further§33-420; 5. For Plaintiff's costs and disbursements incurred herein; and 6. For such other relief as the Court may deem just and proper. Dated this ___7 day of December, 2003. PETER STROJNIK, P.C.

_________________________________ Peter StrojnikApril, 2008.

/S/ TERRANCE J.SLOMINSKI Terrance J. Slominski, OSB 81376

Page 9 -

PLAINTIFF'S FIRST AMENDED COMPLAINT Case 2:04-cv-00598-MHM Document 73 Filed 04/08/2008 Page 10 of 12

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

Attorneys for Plaintiff VERIFICATION The undersigned David Menken declares under the penalty of perjury that he has read the foregoing, and that the foregoing is true and correct to the best of his knowledge, memory and belief.

_______________________________ David Menken

Page 10 -

PLAINTIFF'S FIRST AMENDED COMPLAINT Case 2:04-cv-00598-MHM Document 73 Filed 04/08/2008 Page 11 of 12

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

Terrance J. Slominski, OSB 81376 Attorney for Plaintiff Pro Hac Vice

Page 2 -

PLAINTIFF'S MOTION TO FILE FIRST AMENDED COMPLAINT Case 2:04-cv-00598-MHM Document 73 Filed 04/08/2008 Page 12 of 12