Case 2:11-cv-01426-GMS Document 65 Filed 04/12/12 Page 1 of 6

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GINGRAS LAW OFFICE, PLLC 3941 E. CHANDLER BLVD., #106-243 PHOENIX, ARIZONA 85048

David S. Gingras, #021097 Gingras Law Office, PLLC 3941 E. Chandler Blvd., #106-243 Phoenix, AZ 85048 Tel.: (480) 668-3623 Fax: (480) 248-3196 David@GingrasLaw.com Attorney for Plaintiff Xcentric Ventures, LLC

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA XCENTRIC VENTURES, LLC, an Arizona limited liability company, Plaintiff, v. LISA JEAN BORODKIN et al., Defendants.

Case No.: 11-CV-1426-GMS PLAINTIFFS RESPONSE TO DEFENDANT LISA BORODKINS SECOND MOTION TO STRIKE AND SECOND MOTION FOR MORE DEFINITE STATEMENT

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Plaintiff XCENTRIC VENTURES, LLC (Plaintiff or Xcentric) respectfully submits the following Response to Defendants LISA BORODKINs (Ms. Borodkin) Second Motion to Strike and Second Motion for More Definite Statement (Doc. #64). I. ARGUMENT

As the Court is aware, this is Ms. Borodkins second Motion for More Definite Statement. In her first motion filed nearly six months ago (Doc. #35; filed Oct. 31, 2011), Ms. Borodkin argued that Xcentrics Complaint was ambiguous and unintelligible for numerous reasons, one of which was that the Complaint did not differentiate between the malicious motives of Ms. Borodkin herself as opposed to the motives of her former clients, Mr. Mobrez and Ms. Llaneras. In its order dated March 1, 2012 (Doc. #52), this Court rejected all of Ms. Borodkins ambiguity arguments except for the one noted above. Specifically, the Court expressed the following concern:
RESPONSE TO DEFENDANT LISA BORODKINS SECOND MOTION TO STRIKE AND FOR MORE DEFINITE STATEMENT

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GINGRAS LAW OFFICE, PLLC 3941 E. CHANDLER BLVD., #106-243 PHOENIX, ARIZONA 85048

The Complaint does not make clear, for instance, whether Plaintiff is alleging that Borodkin had her own, independent improper purposes, much less provide any detail regarding what Borodkins alleged improper purposes were. Plaintiff must therefore provide a more definite statement regarding Borodkins alleged improper motives and purposes. Doc. #52 at 19:1014. To address this issue, Xcentric filed its First Amended Complaint on March 16, 2012 (Doc. #55).1 As ordered, the FAC clarified that Xcentric did, in fact, allege that Ms. Borodkin had her own independent improper purposes for continuing the prior lawsuit after becoming aware that the case was factually and legally groundless. These allegations are set forth in 82 of the FAC which Ms. Borodkin has copied verbatim on pages 78 of her current motion. The Amended Complaint further clarified the basis for the only other cause of action against Ms. Borodkinaiding and abetting. Although Xcentric fully complied with the Courts order, Ms. Borodkin continues to feign ignorance of the factual basis for Xcentrics claims against her, contending that Xcentric should now be ordered to provide a more definite statement regarding Ms. Borodkins alleged improper purpose, separate and apart from that of Mr. Blackert, so that she can reasonably frame a response . Mot. at 2:1012 (emphasis in original). This argument is frivolous. As explained in the FAC, Xcentric alleges that both Ms. Borodkin and her former co-counsel Mr. Blackert acted with malicious intent as set forth in 82 of the FAC. There is no need and indeed no basis for Xcentric to distinguish between Ms. Borodkins alleged improper purpose, separate and apart from that of Mr. Blackert because Xcentric does not contend that that Ms. Borodkin and Mr. Blackert acted separately; rather Xcentric contends both lawyers acted together and they both shared the same malicious intent. Ms. Borodkins motion argues that Xcentrics First Amended Complaint was untimely. See Doc. #64 at 5:12. This position is simply incorrect. The Courts order requiring a more definite statement was issued on March 1, 2012. Pursuant to Fed. R. Civ. P. 12(e), Xcentric was obligated to re-plead within 14 days, excluding the date the order was issued. See Fed. R. Civ. P. 6(a)(1) (explaining day of the event is not included in the calculation). Thus, Xcentrics amended pleading was due 14 days from March 2; i.e., by March 16. Because the FAC was filed on March 16, 2012, it was timely. 2
RESPONSE TO DEFENDANT LISA BORODKINS SECOND MOTION TO STRIKE AND FOR MORE DEFINITE STATEMENT
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GINGRAS LAW OFFICE, PLLC 3941 E. CHANDLER BLVD., #106-243 PHOENIX, ARIZONA 85048

Rather than failing to comprehend this point due to a lack of factual detail, Ms. Borodkins position is more accurately expressed as being that she simply denies these allegations. As this Court already explained, such a scenario does not warrant relief under Rule 12(e); Rule 12(e) motions are ordinarily restricted to situations where a pleading suffers from unintelligibility rather than want of detail, and if the requirements of the general rule as to pleadings are satisfied and the opposing party is fairly notified of the nature of the claim, such motion is inappropriate. March 1, 2012 Order (Doc. 52) at 17:610 (quoting Castillo v. Norton, 219 F.R.D. 155, 163 (D. Ariz. 2003)). If Xcentrics Amended Complaint was truly so lacking in detail that a reasonable person could not understand its allegations, then relief under Rule 12(e) might be appropriate. However, such is not the case here; the fact that Ms. Borodkin denies the allegations against her is not the same thing as saying that she does not understand Xcentrics claims. Because Ms. Borodkin denies Xcentrics allegations against her, the appropriate remedy is for her to file an Answer and defend this action on the merits rather than engaging in repeated hyper-technical hair-splitting analysis of the sufficiency of Xcentrics pleadings. Indeed, as noted during the last round of briefing, claims for malicious prosecution are not subject to the heightened pleading-with-particularity requirements of Rule 9(b). See Galbraith v. County of Santa Clara, 307 F.3d 1119 (9th Cir. 2002) (finding claims for false arrest and malicious criminal prosecution were not subject to the heightened pleading requirements of Rule 9(b)). As such, the sufficiency of Xcentrics Complaint must be evaluated under Rule 8s short and plain statement of the claim standard as interpreted by Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937 (2009) and Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Xcentric respectfully contends that its First Amended Complaint easily meets these standards notwithstanding Ms. Borodkins arguments to the contrary. For instance, Ms. Borodkin argues the specific aspects of attorney malice as outlined in paragraph 82 3
RESPONSE TO DEFENDANT LISA BORODKINS SECOND MOTION TO STRIKE AND FOR MORE DEFINITE STATEMENT

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GINGRAS LAW OFFICE, PLLC 3941 E. CHANDLER BLVD., #106-243 PHOENIX, ARIZONA 85048

of the FAC are wholly conclusory and that [t]hey consist only of motives attributed to Ms. Borodkin and Mr. Blackerts alleged states of mind and do not furnish any facts of actions taken by Ms. Borodkin or Mr. Blackert that would allow a fact-finder to arrive at these conclusions. Mot. at 6:1417. This argument (which Xcentric respectfully

disagrees with as an inaccurate characterization of the First Amended Complaint) simply ignores the point that under California law malice sufficient to support an action for malicious prosecution is an extremely broad and flexible concept which can, in fact, be inferred: Malice may range anywhere from open hostility to indifference. [Citations] Malice may also be inferred from the facts establishing lack of probable cause. Soukup v. Law Offices of Herbert Hafif, 39 Cal.4th 260, 293, 139 P.3d 30, 52, 46 Cal.Rptr.3d 638, 664 (Cal. 2006) (emphasis added)). Thus, even if the First Amended Complaint lacked any further factual enhancement as to Ms. Borodkins specific alleged malicious motives (which Xcentric has already provided), a reasonable trier of fact could still properly infer the existence of malice from the mere fact that the prior action suffered from a complete lack of probable causea conclusion which Ms. Borodkin cannot genuinely deny. Nothing more is required to inform Ms. Borodkin of the nature of the claims against her. Of course, in an effort to remove any question about its claims, Xcentrics original and Amended Complaint both contain substantial additional detail explaining that Ms. Borodkins clients commenced litigation against Xcentric which was founded upon perjured facts which were fabricated from whole cloth. The facts further reflect that despite discovering very early on that the action was completely groundless, Ms. Borodkin continued to actively and aggressively pursue the case for as long as she possibly could despite knowing the case had no basis. Standing alone, this would be sufficient to allow a jury to infer malice on the part of Ms. Borodkin, but Xcentric has offered even greater detail as to Ms. Borodkins wrongful actions in both its original and Amended Complaint. While Ms. Borodkin is free to deny these allegations and/or to present some alternative innocent explanation for her actions, the appropriate mechanism for doing so is via an Answer to the Complaint, not a second Rule 12(e) motion. 4
RESPONSE TO DEFENDANT LISA BORODKINS SECOND MOTION TO STRIKE AND FOR MORE DEFINITE STATEMENT

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GINGRAS LAW OFFICE, PLLC 3941 E. CHANDLER BLVD., #106-243 PHOENIX, ARIZONA 85048

In any event, because the California District Court ultimately resolved each and every claim on the merits against Ms. Borodkins former clients for the same reasons known to Ms. Borodkin in May 2010, this conclusively establishes that the prior action lacked probable cause and that Ms. Borodkin continued prosecuting the case despite knowing that it lacked probable cause. See Restatement (Second) of Torts 674 cmt. g (explaining elements of malicious prosecution tort and noting, the invalidity of the claim is conclusively established by its unsuccessful prosecution and cannot be relitigated in an action brought under the rule stated in this Section.) Under the liberal pleading

standards of Fed. R. Civ. P. 8 and in view of the broad interpretation of the malicious prosecution tort recognized by California law, Xcentrics First Amended Complaint contains more than sufficient detail to inform Ms. Borodkin of the basis for the claims against her. To the extent that Ms. Borodkin feels more factual detail is necessary, she can request such information in subsequent discovery. What she may not do is to

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continue delaying the commencement of this action by filing successive attacks on the sufficiency of Xcentrics well-pleaded Complaint. II. CONCLUSION

For the reasons stated herein, Ms. Borodkins Second Motion to Strike and Second Motion for More Definite Statement (Doc. #64) should be denied. DATED April 12, 2012. GINGRAS LAW OFFICE, PLLC /S/ David S. Gingras David S. Gingras Attorneys for Plaintiff

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RESPONSE TO DEFENDANT LISA BORODKINS SECOND MOTION TO STRIKE AND FOR MORE DEFINITE STATEMENT

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GINGRAS LAW OFFICE, PLLC 3941 E. CHANDLER BLVD., #106-243 PHOENIX, ARIZONA 85048

CERTIFICATE OF SERVICE

I hereby certify that on April 12, 2012 I electronically transmitted the attached document to the Clerks Office using the CM/ECF System for filing, and for transmittal of a Notice of Electronic Filing to the following: Hartwell Harris, Esq. LAW OFFICE OF HARTWELL HARRIS 1809 Idaho Avenue Santa Monica, CA 90403 Attorney for Defendants Iliana Llaneras and Asia Economic Institute, LLC John S. Craiger, Esq. David E. Funkhouser III, Esq. Quarles & Brady LLP One Renaissance Square Two North Central Avenue Phoenix, Arizona 85004-2391 Attorney for Defendant Lisa J. Borodkin Raymond Mobrez 11766 Wilshire Blvd., Suite 260 Los Angeles, CA 90025 Defendant Pro Se And a courtesy copy of the foregoing delivered to: HONORABLE G. MURRAY SNOW United States District Court Sandra Day OConnor U.S. Courthouse, Suite 622 401 West Washington Street, SPC 80 Phoenix, AZ 85003-215

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/s/David S. Gingras

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RESPONSE TO DEFENDANT LISA BORODKINS SECOND MOTION TO STRIKE AND FOR MORE DEFINITE STATEMENT