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Document 112 (Main)
- 1. Alexander (Zander) Blewett,III Anders Blewett HOYT & BLEWETT PLLC 501 Second Avenue North P.O. Box 2807 Great Falls, MT 59403-2807 Phone: (406) 761-1960 Fax: (406) 761-7186 E-mail: zblewett@hoytandblewett.com ablewett@hoytandblewett.com Larry D. Drury LARRY D. DRURY, LTD. 100 N. LaSalle Street, Ste. 1010 Chicago, IL 60602 Phone: (312) 346-7950 Fax: (312) 346-5777 E-mail: ldrurylaw@aol.com Robert A. Langendorf ROBERT A. LANGENDORF, P.C. 134 N. LaSalle Street, Ste. 1515 Chicago, IL 60602 Phone: (312) 782-5933 Fax: (312) 371-1771 E-mail: rlangendorf@comcast.net Attorneys for Plaintiffs IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA MISSOULA DIVISION * * * * * * * * * * * * * * * * * * * * * MICHELE REINHART, ) DAN DONOVAN, and ) DEBORAH NETTER, individually ) and on behalf of all others similarly ) situated, ) ) Plaintiffs, ) ) v. ) ) GREG MORTENSON, DAVID ) OLIVER RELIN, PENGUIN ) GROUP (USA), INC., a Delaware ) Corporation, and MC CONSULTING, ) INC., a Montana Corporation, ) ) Defendants. ) Cause No. CV-11-72-M Judge: Sam E. Haddon PLAINTIFFS’ MOTION TO FILE FOURTH AMENDED COMPLAINT PURSUANT TO RULE 15 F.R.Civ.P., and MOTION TO DROP AND ADD PARTIES, PURSUANT TO RULE 21 F.R.CIV.P. * * * * * * * * * * * * * * * * * * * * * Case 9:11-cv-00072-SEH Document 112 Filed 11/30/11 Page 1 of 4
- 2. COME NOW thePlaintiffs and move this Court for an order granting leave, pursuant to Rule 15, F.R.Civ.P., to file a Fourth Amended Complaint for Class Action with Demand for Jury Trial and to drop Michele Reinhart as a party Plaintiff and to add George and Susie Pfau as party Plaintiffs, pursuant to Rule 21, F.R.Civ.P. The purposes for which Plaintiffs move the Court for an order granting leave to file the Fourth Amended Complaint are as follows: 1. To change the definition of the class to include those purchasers of the two books in the U.S., excluding Montana Federal Judges and their immediate family members. 2. To drop Plaintiff, Michele Reinhart, as a party Plaintiff and to add George and Susie Pfau as party Plaintiffs. 3. Further investigation into this case has allowed Plaintiffs to discover they have claims against Greg Mortenson, David Oliver Relin (Relin), Penguin Group (USA), Inc. (Penguin), Central Asia Institute (CAI) and MC Consulting, Inc. (MC), for RICO violations, pursuant to 18 U.S.C. § 1962(c) and (d). Counts I and II of the Fourth Amended Complaint set forth these claims based on RICO violations. This further investigation has reflected that CAI was a participant in the enterprise which committed the RICO violations and that CAI should be a party Defendant in this case, not for the original reason brought by Jean Price, a donor, but because of CAI’s involvement in the RICO violations as a member of the enterprise. The RICO violations create federal question jurisdiction for this Court, pursuant to 28 U.S.C. § 1331, in addition to federal question jurisdiction under 28 U.S.C. § 1332(d), the class action federal question. Furthermore, the RICO claims, predicated on mail fraud and wire fraud, do not require that every purchaser who is a member of the class specifically rely on the enterprise’s mail fraud and wire fraud. -2- Case 9:11-cv-00072-SEH Document 112 Filed 11/30/11 Page 2 of 4
- 3. 4. Further investigationhas shown the involvement of CAI in Plaintiffs’ fraud claim (Count V), deceit claim (Count VI), unjust enrichment claim (Count VII), accounting and injunctive relief claim (Count XI), and the class action allegations (Count XII) and, therefore, it is necessary to add CAI as a party Defendant in such Counts. Plaintiffs’ counsel requested all defense counsel to consent to the filing of an amended complaint to change the definition of the class. This occurred in Judge Molloy’s courtroom on September 16, 2011. Counsel for all Defendants steadfastly refused to so consent. Therefore, Plaintiffs have complied with L.R. 7.1(c)(1). In addition, Plaintiffs’ counsel sent a copy of the proposed Fourth Amended Complaint to Defendants’ counsel requesting their consent. They did not consent, claiming they needed more time, even though they had already refused to consent earlier. In any event, time is of the essence in order to accommodate Michele Reinhart’s decision to be dropped as a party Plaintiff and to add George and Susie Pfau as replacement party Plaintiffs. Plaintiffs’ Fourth Amended Complaint for Class Action and Demand for Jury Trial is attached hereto as Exhibit “A”. This Motion has been supported by a brief filed herewith. DATED this 30th day of November, 2011. HOYT & BLEWETT PLLC /s/ Alexander Blewett, III Alexander (Zander) Blewett, III Anders Blewett Attorneys for Plaintiffs // // // // -3- Case 9:11-cv-00072-SEH Document 112 Filed 11/30/11 Page 3 of 4
- 4. CERTIFICATE OF SERVICE Ihereby certify that, on this 30th day of November, 2011, a copy of the foregoing document was served on the following persons by the following means: 1,2,3,4,5,6,7 CM/ECF Hand Delivery Mail Overnight Delivery Service Fax E-Mail 1. Clerk, U.S. District Court 2. John M. Kauffman Kasting, Kauffman & Mersen, P.C. 716 S. 20th Avenue, Suite 1010 Bozeman, MT 59718 Attorneys for Def. Mortenson 3. Kevin C. Maclay Todd E. Phillips Caplin & Drysdale, Chartered One Thomas Circle, NW, Ste. 1100 Washington, D.C. 20005 Co-Counsel for Def. Mortenson 4. Jonathan M. Herman Dorsey & Whitney LLP 51 West 52nd Street New York, NY 10019-6119 Attorneys for Def. Penguin 5. F. Matthew Ralph Dorsey & Whitney LLP Suite 1500, 50 S. Sixth Street Minneapolis, MN 55402-1498 Attorneys for Def. Penguin 6. Charles E. Hansberry Elena J. Zlatnik Garlington, Lohn & Robinson, PLLP P.O. Box 7909 Missoula, MT 59807-7909 Attorneys for Def. David Oliver Relin 7. Sonia A. Montalbano Elliott, Ostrander & Preston, P.C. Union Bank of California Tower 707 SW Washington St., Ste. 1500 Portland, OR 97205 Attorneys for Def. David Oliver Relin HOYT & BLEWETT PLLC /s/ Alexander Blewett, III Alexander (Zander) Blewett, III Anders Blewett Attorneys for Plaintiffs -4- Case 9:11-cv-00072-SEH Document 112 Filed 11/30/11 Page 4 of 4