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

Andrew S. Gordon (003660) COPPERSMITH GORDON SCHERMER OWENS & NELSON 2800 North Central Avenue Suite 1000 Phoenix, Arizona 85004-1007 Phone: (602) 224-0999 Fax: (602) 224-6020

H. Michael Clyde (009647) Samuel A. Thumma (014679) Clinten N. Garrett (022457) PERKINS COIE BROWN & BAIN P.A. 2901 North Central Avenue Post Office Box 400 Phoenix, Arizona 85001-0400 [email protected] (602) 351-8000 Counsel for JPMorgan Chase Bank, N.A.

Michael D. Donohue (TX Bar No. 05989380) FRIEDMAN & FEIGER LLP 5301 Spring Valley, Suite 200 Dallas, Texas 75254 Phone: (972) 788-1400 Fax: (972) 776-5313 Counsel for Aventis Technologies Corporation

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Aventis Technologies Corporation, Plaintiff, v. The Barons Financial Group, Inc., and JP Morgan Chase Bank, Defendants. Motion Given an agreement between Plaintiff Aventis Technologies Corporation ("Plaintiff") and Defendant JPMorgan Chase Bank, N.A. ("JPMorgan"), and for the AVENTIS TECHNOLOGIES CORPORATION'S AND JPMORGAN CHASE BANK, N.A.'S AGREED MOTION TO DISMISS WITH PREJUDICE No. CV'03 1624 PHX JAT

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reasons set forth below, Plaintiff and JPMorgan respectfully request that the Court enter the proposed form of Order lodged herewith dismissing JPMorgan with prejudice. Memorandum of Points and Authorities Plaintiff and JPMorgan have entered into a Mutual Release and Dismissal Agreement (the "Agreement") resolving the claims between them--including the claims made by Plaintiff against JPMorgan in this case--with prejudice and without an award of attorneys' fees or costs to either party. Among other things, this Agreement is contingent on the dismissal of Plaintiff's claim against JPMorgan with prejudice with each party to bear its own attorneys' fees and costs and the dismissal of JPMorgan as a party 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 JPMorgan has been fully resolved, and because there are no other claims by any other party against JPMorgan in this matter, the dismissal of Plaintiff's claim against JPMorgan with prejudice, with each party to bear its own attorneys' fees and costs and dismissal of JPMorgan as a party 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 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 JPMorgan is informed by counsel for defendant Barons Financial Group, Inc. ("Barons") that Barons does not intend to oppose this dismissal of JPMorgan. Moreover, the remaining defendants will not suffer any legal prejudice as a result of this dismissal of JPMorgan.

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Conclusion For these reasons, pursuant to Fed.R.Civ.P. 41(a)(2), Plaintiff and JPMorgan 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 JP Morgan with prejudice. Respectfully submitted, Dated: August 29, 2005. COPPERSMITH GORDON SCHERMER OWENS & NELSON 2800 N. Central Ave. Suite 1000Phoenix, 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 PERKINS COIE BROWN & BAIN P.A.

By s/ Samuel A. Thumma __________________ H. Michael Clyde Samuel A. Thumma Clinten N. Garrett 2901 North Central Avenue Post Office Box 400 Phoenix, Arizona 85001-0400 Attorneys for JPMorgan Chase Bank, N.A.

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CERTIFICATE OF SERVICE I hereby certify that on August 29, 2005, I electronically transmitted the attached documents to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: [email protected]; [email protected] I hereby certify that on August 29, 2005, I served the attached document by first class mail on Judge James A. Teilborg, United States District Court of Arizona, 401 West Washington Street, Phoenix, Arizona 85003-2118. I hereby certify that on August 29, 2005, I served the attached document by first class mail on the following, who are not registered participants of the CM/ECF System: Michael D. Donohue, Esq. Friedman & Feiger, LLP, 5301 Spring Valley, Suite 200, Dallas, Texas 75254

s/ Kaye Leach

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