Free Motion to Amend/Correct - District Court of Arizona - Arizona

1 Burton M. Bentley, Esq. (Bar No. 00980) BURTON M. BENTLEY, P.C. 2 5343 North 16th Street, Suite 480 Phoenix, Arizona 85016 3 (602) 861-3055 4 (602) 861-3230 fax Attorney for Defendant Paul Richard 5 6 7

IN THE UNITED STATES DISTRICT COURT IN THE DISTRICT OF ARIZONA CAUSE NO. CIV 03 2390-PHX-JAT Plaintiff, vs.

8 LAWRENCE J. WARFIELD, 9 RECEIVER, 10 11 12 13 MICHAEL ALANIZ, et al. 14 15 16 17 18

DEFENDANT PAUL RICHARD'S MOTION TO ALTER JUDGMENT PURSUANT TO FEDERAL RULES OF CIVIL PROCEDURE 59(e) and 60(a)(5)

Defendants.

Defendant Paul E. Richard ("Richard") by and through counsel undersigned, hereby submits this Motion to Alter Judgment pursuant to Federal Rules of Civil

19 Procedure, Rules 59(e) and 60(a)(5). 20 21 22

The accompanying Memorandum of Points and Authorities supports this Motion. The nine jury verdicts issued on February 26, 2007 and the Court's Judgment In A Civil

23 Case, CIV 03-2390-PHX-JAT dated February 28, 2007, are hereby incorporated by 24 reference. 25 26

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MEMORANDUM OF POINTS AND AUTHORITIES I. Introduction Defendant Richard entered into a Consent Judgment in the State of Maine on

5 November 26, 2003. See Consent Judgment dated November 26, 2003 was admitted 6 7 8

into evidence as Plaintiff's trial Exhibit 51. This Consent Judgment required Richard to pay restitution of $23,000.00 to the Securities Administrator in the State of Maine.

9 Consent Judgment dated November 26, 2003, p. 3, ¶ 4. A later Order Amending 10 11 12

Consent Judgment dated January 20, 2004 required the State to pay the money directly to Smith Thiemann ("Thiemann). See Order Amending Consent Judgment dated

13 January 20, 2004, attached hereto as Exhibit A. 14 15 16

All funds have been paid by Defendant Richard pursuant to the Consent Judgment dated November 26, 2003 pursuant to its terms, and accordingly, Thiemann has been

17 paid in full. 18 19 20

Trial in this matter was conducted in the Court of Judge Teilborg from February 6, 2007 to February 26, 2007. During the course of the trial, Defendant Richard testified

21 that he paid restitution to Thiemann, his client that had purchased the CGAs from him. 22 23 24

The jury in the matter returned nine verdicts on nine separate causes of action for Richard in this case on February 26, 2007. The Court entered Judgment on February 28,

25 2007. The total judgment entered against Mr. Richard was $67,700. See Judgment in a 26 27 28

Civil Case, CIV 03-2390-PHX-JAT dated February 28, 2007, p. 2, which represented a percentage of the Receiver's claims, to-wit: 47.05% This indicates that no discount
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1 was given for the $23,000 already received by the Victim, Thiemann. The perecentage 2 assessed by the jury mirrored the exact same percentages assessed by the jury as to all 3 4 5 6 7 8 9 10 11 12

other Defendants. It would be manifestly unjust to fail to discount the Judgment by this amount paid as that would allow Thiemann to be paid twice if full restitution were made by the Receiver whose avowed purpose is to restore the Victim's losses. II. Legal Argument A motion to alter a judgment pursuant to Fed.R.Civ.P. 59(e) must be made in writing within ten days from the date of the final judgment issued by the Court.

13 Fed.R.Civ.P. 59(e). Such motion must specify the grounds upon which the trial court 14 15 16

should base reconsideration.

Sussman v. Salem, Saxon & Nielsen, P.A., 153 F.R.D.

689, 694 (M.D. Fla. 1994). "Rule 59(e) does not set forth any grounds for relief and the

17 district court has considerable discretion in reconsidering an issue." Id., citing American 18 19 20

Homes Assur. Co. v. Glenn Estess & Associates, Inc., 763 F.2d 1237, 1238-39 (11th Cir. 1985). One of the grounds upon which the courts have delineated a justification of

21 reconsideration is "the need to correct clear error or prevent manifest injustice." Id., 22 23 24

citing Decker Coal Company v. Hartman, 706 F. Supp. 745, 750 ( D. Montana 1988) quoting All Hawaii Tours v. Polynesian Cultural Center, 116 F.R.D. 645, 649 (D.

25 Hawaii 1987). 26 27 28

Further, Rule 60(a)(5), Fed.R.Civ.P., provides that a court may relieve a party from a final judgment for the reason that "(5) the judgment has been satisfied ... or it is
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1 no longer equitable that the judgment should have prospective applications;..." 2 3 4

III.

Conclusion

Since Defendant Paul Richard has repaid the total of $23,000 to Thiemann and to

5 the State of Maine, the judgment of $67,700 issued by the Court on February 28, 2007 6 7 8 9 10 11 12 13 14 15 16 17

should be reduced by $23,000 to prevent injustice pursuant to existing law. proposed Amended Judgment in a Civil Case is attached hereto as Exhibit "B." Dated at Phoenix, Arizona this 12th day of March, 2007.
BURTON M. BENTLEY, P.C.

The

s/ Burton M. Bentley Burton M. Bentley Attorney for Defendant Paul Richard

PROOF OF SERVICE This is to certify that a true copy of the foregoing Motion has been filed

18 electronically with the Court and that the persons on the attached service list designated 19 20 21

as "CM/ECF Registered" will be served with same by the Court's CM/ECF system; that a proposed Order has been emailed to the assigned Judge with copies to all persons on

22 the attached service list as "CM/ECF Registered." 23 24 25

/s/ Burton M. Bentley Burton M. Bentley Ryan W. Anderson, Esq. CM/ECF Registered

26 Guttilla & Murphy, PC 27 Attorneys for the Receiver 28

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