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

Alexander Poulos (State Bar #012319
1 Tabitha A. Jecmen (State Bar #024901)
2 TIFFANSq)A& BOSCO
THIRD FLOOR CAMELBACK ESPLANADE II
3 2525 EAST CAMELBACK ROAD
4 PHOENIX, ARIZONA 85016-4237
TELEPHONE: (602) 255-6000
5 FACSIMILE: (602) 255-0103
6 Attorneys for Robert Johnson and Groupe Angelil International Holdings, S.A. (now
known as Tight Lines International, LLC)
7
8 UNITED STATES DISTRICT COURT IN THE
9 DISTRICT OF ARIZONA
10 United States of America,
Cause No. CR 02-993-PHX—FJM
I1 Plaamlrr,
12 MOTION TO AMEND ROBERT
vs. JOHNSON’S AND GROUP
13 ANGELIL INTERNATIONAL
Kwikmed, Inc., HOLDINGS, S.A.’s FIRST
14 Cymedic Health Group, Inc., AMENDED PETITION FOR
Keith B. Salvato, HEARING REGARDING ENTRY
15 Kimberlyn L. Salvato, OF FINAL FORFEITURE
Ronald N. Wanchuk, ORDERS AND MOTION TO SET
16 Janice G. Gamblin, ASIDE FORFEITURE
William J. Clemans, JUDGMENT
17 Adalberto Robles.
Oral Argument Requested
I8 Defendants.
19
20
21 Robert Johnson ("Johnson"), and Groupe Angelil International Holdings,
22 S.A.("AngeIiI") (collectively "Movants"), by and through undersigned counsel, pursuant
23 to Rule 15 (a), Federal Rules of Civil Procedure, moves the Court for an Order allowing
24 them to amend their First Amended Petition For Hearing Regarding Entry Of Final
25 Forfeiture Orders And Motion To Set Aside Forfeiture Judgment to add the related
26 theories of constructive trust and Arizona Trust Fund Doctrine. Pursuant to L.R. Civ.
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1 15.1, a proposed Second Amended Petition is attached as Exhibit A with additions
2 underlined. Exhibit A is submitted without the exhibits attached to the First Amended
3 Petition, but said Exhibits are intended to be a part of the Second Amended Petition and
4 will be included if the court grants this motion. A supporting memorandum follows:
5 MEMORANDUM OF POINTS AND AUTHORITIES
6 The Federal Rules of Civil Procedure and interpretive case law provide that leave
7 to amend pleadings should be freely given so that a case may be decided on its merits.
8 FRCP Rule 15(a) states, in part, [A] party may amend the party's pleading only by
9 leave of court or by written consent of the adverse party; and leave shall be freely given
10 when justice so requires."
11 "Leave to amend, though within the discretion of the trial court, should be guided
12 by the underlying purpose of Rule 15(a) of the Federal Rules of Civil Procedure, which
13 was to facilitate decisions on merits, rather than on technicalities or pIeadings." James
14 v. P/i/en 269 F.3d 1124, 1126 (9"‘ Cir. 2001) citing United States v. Webb, 655 F.2d
15 977, 979-80 (9th Cir. 1981). Rule 15’s policy of favoring amendments to pleadings
16 should be applied with "extreme IiberaIity." United States v. Webb, 655 F.2d 977, 979
17 (9th Cir. 1981). "On|y where prejudice is shown or the movant acts in bad faith are
18 courts protecting the judicial system or other litigants when they deny leave to amend a
19 pleading. Stokes v. Arpaio, 2007 WL 505066 (D. Ariz. 2007) citing Webb supra at 980.
20 "Prejudice is the touchstone of the inquiry under Rule 15(a)." ld.
21 This motion is made in good faith. The federal civil and criminal forfeiture
22 statutes are extremely complex and require thorough, repeated analysis as to how they
23 relate to each other and how they apply in general and to particular case facts.
24 Undersigned counsel became aware of the applicability of the constructive trust and
25 Arizona Trust Fund Doctrine theories to the present case after weeks of reviewing the
26 forfeiture statutes and interpretive case law and legal articles and comparing them to
ase 2:02-cr—00993—FJl\/I Document 265 2 Filed 11/21/2007 Page 2 of 4

1 the present facts. This analysis was and is hampered by Movants’ inability to access
2 facts under seal or in the sole possession of Plaintiff and/or Defendants.
3 Plaintiff would suffer no prejudice if the Court grants Movants’ request for leave
4 to amend. The proposed Second Amended Petition adds the related theories of
5 constructive trust and Arizona Trust Fund Doctrine to support Movants’ claims that they
6 are bona fide purchasers and owners of the forfeited Property who have more than a
7 general, unsecured interest in, or claim against, the property or estate of Defendants.
8 The theories of constructive trust and Arizona Trust Fund Doctrine are equitable
9 remedies that this Court may impose to secure Movant Johnson’s 1% direct interest in
10 specific Kwikmed gross revenues and Movant AngeIiI’s 40% direct and specific
11 ownership interest in Kwikmed.
12 The constructive trust theory is no surprise to Plaintiffs. Movants referenced it in
13 a letter dated October 25, 2007 regarding Movants’ Remission Petition, which letter
14 Plaintiff received prior to responding to the First Amended Petition. Movants also
15 referenced the constructive trust theory in their Motion to Produce and in their Reply to
16 PIaintiff’s Response to Movants’ First Amended Petition.
17 The proposed Second Amended Petition also updates facts and allegations as
18 they have been revealed since the filing of the First Amended Petition.
19 ln declining Movants’ written request for a stipulation to permit this Second
20 Amended Petition, Plaintiff stated that it believes Movants do not fall within any of the
21 statutory bases for recovery in addition to other arguments Plaintiff made in its
22 Response. P|aintiff’s substantive objections to Movants’ forfeiture claim are that
23 Movants are general creditors who had knowledge of Defendants’ illegal conduct. The
24 additions in this Second Amended Petition will not cause Plaintiff to change its position.
25 These proceedings are in their early stages and this motion for leave to amend
26 Movants’ Petition should not delay them.
ase 2:02-cr—00993—FJI\/I Document 265 3 Filed 11/21/2007 Page 3 of4

1 WHEREFORE, Movants request that this Court enter its orders granting
2 Movants’ leave to file their Second Amended Petition as set forth in the attached Exhibit
3 A.
4 RESPECTFULLY SUBMITTED this 21st day of November, 2007.
5
6 TIFFANY & BOSCO, P.A.
7 By: /s/ Alexander Poulos
8 Alexander Poulos
Tabitha A. Jecmen
9 Third Floor Camelback Esplanade ll
2525 East Camelback Road
10 Phoenix, Arizona 85016-4237
Attorneys for Robert Johnson and
11 Groupe Angelil International Holdings,
S.A.
12
13 Electronically filed this
14 21st day of November, 2007 with:
15 Clerk of the
United States District Court
16 District of Arizona
401 West Washington St.
17 Phoenix, AZ 85003
18
Copy of the foregoing
19 Emailed to:
20 Honorable Frederick J. Martone
United States District Court of Arizona
21 401 West Washington St., SPC 62
Phoenix, AZ 85003
22
23 Lisa Roberts, Esq.
Assistant United States Attorney
24 40 North Central Ave., #1200
Phoenix, AZ 85004
25 /s/ Sandy Zahnter
26
354898
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