Free Motion to Dismiss Case - District Court of Arizona - Arizona

Andrew S. Gordon (AZ Bar No. 003660) COPPERSMITH GORDON SCHERMER OWENS & NELSON 2800 N. Central Ave. Suite 1000 Phoenix, Arizona 85004-1007 Phone: 602/224-0999 Fax: 602/224-6020 [email protected] FRIEDMAN & FEIGER, LLP Michael D. Donohue (Texas Bar No. 05989380) 5301 Spring Valley, Suite 200 Dallas, Texas 75254 Phone: 972/788-1400 Fax: 972/776-5313 [email protected] Attorneys for Aventis Technologies Corporation

Kaja-Anne Jezycki (AZ Bar No. 016223) Attorney at Law 1334 East Chandler Blvd. Suite 5, D60 Phoenix, Arizona 85048 Phone: 480/363-2526 Fax: 480/452-0367 [email protected] Attorney for The Barons Financial Group, Inc. and Dan D. Wolfe

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA AVENTIS TECHNOLOGIES CORPORATION, Plaintiff, vs. THE BARONS FINANCIAL GROUP, INC., DAN D. WOLFE and J.P. MORGAN CHASE BANK, Defendants.

NO. CV03 1624 PHX JAT AVENTIS TECHNOLOGIES CORPORATION'S, THE BARONS FINANCIAL GROUP, INC.'S AND DAN D. WOLFE'S AGREED MOTION TO DISMISS WITH PREJUDICE (Hon. James A. Teilborg)

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MOTION Given an agreement between Plaintiff Aventis Technologies Corporation "Plaintiff") and Defendants The Barons Financial Group, Inc. and Dan D. Wolfe (collectively "Defendants"), and for the reasons set forth below, Plaintiff and Defendants respectfully request that the Court enter the proposed form of Order lodged herewith dismissing Defendants with prejudice. MEMORANDUM OF POINTS AND AUTHORITIES Plaintiff and Defendants have entered into a Mutual Release and Dismissal Agreement (the "Agreement") resolving the claims between them--including the claims made by Plaintiff against Defendants in this case--with prejudice and without an award of attorneys' fees or costs to any party. Among other things, this Agreement is contingent on the dismissal of Plaintiff's claims against Defendants with prejudice with each party to bear its own attorneys' fees and costs and the dismissal of Defendants as parties in this matter. Given the current procedural status of this case, such a dismissal is proper "upon order of the court and upon such terms and conditions as the court deems proper." Fed. R. Civ. P. 41(a)(2). Because the dispute between Plaintiff and Defendants has been fully resolved, and because there are no other claims by any other party against Defendants in this matter, the dismissal of Plaintiff's claims against Defendants with prejudice, with each party to bear its own attorneys' fees and costs and dismissal of Defendants as parties in this matter is appropriate. As a general rule, "a district court should grant a motion for voluntary dismissal unless a [non-settling] defendant can show
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that it will suffer some plain legal prejudice as a result." Waller v. Financial Corp. of America, 828 F.2d 579, 583 (9th Cir. 1987) (citing Hamilton v. Firestone Tire & Rubber Co., Inc., 679 F.2d 143, 145 (9th Cir. 1982)). Counsel for Aventis is informed by counsel for defendant JPMorgan Chase ("JPMorgan") that JPMorgan does not intend to oppose this dismissal of Defendants. Indeed, JPMorgan and Aventis have also reached a settlement agreement and will seek dismissal by separate motion of JPMorgan as a party from this action. CONCLUSION For these reasons, pursuant to Fed.R.Civ.P. 41(a)(2), Plaintiff and Defendants respectfully request that the Court grant this Agreed Motion to Dismiss with Prejudice, and enter the proposed form of order lodged herewith dismissing Plaintiff's claims against Defendants with prejudice. RESPECTFULLY SUBMITTED the 27th day of September, 2005. COPPERSMITH GORDON SCHERMER OWENS & NELSON Andrew S. Gordon (AZ Bar No. 003660) 2800 N. Central Ave. Suite 1000 Phoenix, Arizona 85004-1007 By: s/ Andrew S. Gordon Andrew S. Gordon

FRIEDMAN & FEIGER, L.L.P. Michael D. Donohue (Texas Bar No. 05989380) 5301 Spring Valley Road, Suite 200 Dallas, Texas 75254 Attorneys for Plaintiff Aventis Technologies Corporation
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Kaja-Anne Jezycki (AZ Bar No. 016223) Attorney at Law 1334 East Chandler Blvd. Suite 5, D60 Phoenix, Arizona 85048 By: s/ Kaja-Anne Jezycki Kaja-Anne Jezycki

Attorney for Defendants Barons Financial Group, Inc. and Dan D. Wolfe

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CERTIFICATE OF SERVICE AVENTIS TECHNOLOGIES CORPORATION v. THE BARONS FINANCIAL GROUP, INC., DAN D. WOLFE and J.P. MORGAN CHASE BANK Case No. CV03-1624-PHX-JAT

I HEREBY CERTIFY THAT ON SEPTEMBER 27, 2005, I ELECTRONICALLY TRANSMITTED THE ATTACHED AVENTIS TECHNOLOGIES CORPORATION'S, THE BARONS FINANCIAL GROUP, INC.'S AND DAN D. WOLFE'S AGREED MOTION TO DISMISS WITH PREJUDICE TO: Hal Michael Clyde [email protected] [email protected] [email protected] Samuel Anderson Thumma [email protected] Clinten Newhall Garrett [email protected] [email protected] [email protected]

I HEREBY CERTIFY THAT ON SEPTEMBER 27, 2005, I MAILED THE ATTACHED AVENTIS TECHNOLOGIES CORPORATION'S, THE BARONS FINANCIAL GROUP, INC.'S AND DAN D. WOLFE'S AGREED MOTION TO DISMISS WITH PREJUDICE TO: Kaja-Anne Jezycki 1334 E. Chandler Blvd. Ste. 5 D60 Phoenix, AZ 85048

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I HEREBY CERTIFY THAT ON SEPTEMBER 27, 2005, I BOTH MAILED VIA U.S. MAIL AND ELECTRONICALLY TRANSMITTED THE (1) AVENTIS TECHNOLOGIES CORPORATION'S, THE BARONS FINANCIAL GROUP, INC.'S AND DAN D. WOLFE'S AGREED MOTION TO DISMISS WITH PREJUDICE AND (2) [PROPOSED] ORDER DISMISSING PLAINTIFF'S CLAIMS AGAINST THE BARONS FINANCIAL GROUP, INC. AND DAN D. WOLFE WITH PREJUDICE AND DISMISSING JPMORGAN CHASE BANK, N.A. AS A PARTY TO: The Honorable James A. Teilborg United States District Court 401 West Washington Phoenix, AZ 85003 [email protected]

s/ Andrew S. Gordon

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