Free Trial Brief - District Court of Arizona - Arizona

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GREENBERG TRAURIG, LLP
ATTORNEYS AT LAW SUITE 700 2375 EAST CAMELBACK ROAD PHOENIX, ARIZONA 85016 (602) 445-8000

Steven M. Weinberg, SBN 016817, [email protected] Brian J. Schulman, SBN 015286, [email protected] Kimberly A. Warshawsky, SBN 022083, [email protected] Attorneys for Plaintiff Awareness Corporation and Third Party Defendants Allcock and Schmidt IN THE UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Awareness Corporation, Plaintiff, Group Vision International, L.L.C., et al., Defendants. And related cross claims and third party actions. Plaintiff Awareness Corporation ("Awareness") hereby submits its bench memorandum regarding its claim for unjust enrichment against the Distributor Defendants. Awareness brought suit against the Distributor Defendants for unjust enrichment based upon the Distributor Defendants' actionable acts against Awareness. Awareness' claim for unjust enrichment was not implicated in the parties' various motions for summary judgment, and were thus not contemplated by the Court's June 1, 2005 Order on the motions for summary judgment. This claim will therefore be determined at trial. "Unjust enrichment occurs whenever a person has and retains money or benefits which in justice and equity belong to another." City of Sierra Vista v. Cochise Enters.,
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No. CV03-2024-PHX-DGC PLAINTIFF AWARENESS CORPORATION'S BENCH MEMORANDUM NO. 6 RE: UNJUST ENRICHMENT

Case 2:03-cv-02024-DGC

Document 360

Filed 08/08/2005

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2375 EAST CAMELBACK ROAD, SUITE 700 PHOENIX, ARIZONA 85016 (602) 445-8000

Inc., 144 Ariz. 375, 382 (Ariz. Ct. App. 1985). To sustain its claim for unjust enrichment, Awareness must establish: (1) an enrichment; (2) an impoverishment; (3) a connection between the enrichment and the impoverishment; (4) the absence of justification for the enrichment and the impoverishment; and (5) the absence of a legal remedy. Cmty. Garden Bank v. Hamlin, 898 P.2d 1005, 1008 (Ariz. Ct. App. 1995). Arizona courts have said that the "restitution through an implied-in-law contract or quasi contract is available as a matter of reason and justice from the acts and conduct of the parties and circumstances surrounding the transactions, ... and [is] imposed for the purpose of bringing about justice without reference to the intentions of the parties." Murdock-Bryant Constr. v. Pearson, 703 P.2d 1197, 1202 (Ariz. 1985) (citing Artukovich & Sons v. Reliance Truck Co., 614 P.2d 327, 329 (Ariz. 1980)) (en banc). Quantum meruit is the measure of damages awarded for a claim of relief for unjust enrichment, and is based upon the value of services rendered. See Landi v. Arkules, 835 P.2d 458, 467 (Ariz. Ct. App. 1992). "To recover quantum meruit damages for unjust enrichment, [Awareness] must prove (1) that [it] is entitled to restitution, i.e. that the other party was unjustly enriched at the expense of [Awareness]; (2) that [it] rendered services which benefitted the [defendants]; and (3) that he conferred this benefit under circumstances which would render the other party's retention of the value without payment inquitable." Id. (citing RESTATEMENT OF RESTITUTION §§ 1, 40). The quantum meruit theory of damages also allows "recovery where the plaintiff had performed services for the defendant, whether the services were provided at the defendant's request, on a theory of implied-in-fact contract, or without the defendant's request by benefiting him in some way." Murdock-Bryant, 703 P.2d at 1197.

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2375 EAST CAMELBACK ROAD, SUITE 700 PHOENIX, ARIZONA 85016 (602) 445-8000

RESPECTFULLY SUBMITTED this 8th day of August, 2005. GREENBERG TRAURIG, LLP By: /s/ Kimberly A. Warshawsky Steven M. Weinberg Brian J. Schulman Kimberly A. Warshawsky Attorneys for Awareness Corporation and Third Party Defendants Allcock and Schmidt

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2375 EAST CAMELBACK ROAD, SUITE 700 PHOENIX, ARIZONA 85016 (602) 445-8000

CERTIFICATE OF SERVICE I hereby certify that on August 8, 2005, I electronically transmitted the attached document to the Clerk' Office using the CM/ECF System for filing and transmittal s of a Notice of Electronic Filing to the following CM/ECF registrants: Curtis D. Drew, Esq. 2342 North Pima Road Scottsdale, Arizona 85257-2405 [email protected] Attorney for Defendant Group Vision International, L.L.C. G. Gregory Eagleburger, Esq. The Eagleburger Law Group 2999 North 44th Street, Suite 303 Phoenix, Arizona 85018 [email protected] Attorneys for Distributor Defendants I hereby certify that on August 8, 2005, I served the attached document by facsimile and United States mail on the following, who are not registered participants of the CM/ECF System:

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/s/ J. David Smith

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