Busch et al v. Welling et al

MOTION for Summary Judgment

D. Ariz.December 1, 2016

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 James O. Bell (023584) SPIESS & BELL, PC 4500 N. 32nd Street, Suite 201B Phoenix, Arizona 85018 (602) 254-8100 jim@spiessbell.com Attorneys for Plaintiffs and Counter-Defendants IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Larry J. Busch, Jr. and Busch Law Center, LLC, Plaintiffs, vs. Owen David Welling; Patricia Gail Welling; and Yellow Brick Road, LLC, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) Case No.: 2:13-CV-02517-PHX-JJT PLAINTIFFS/COUNTER-DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT Yellow Brick Road, LLC, Counterclaimant, v. Larry J. Busch, Jr. and Nancy L. Busch, husband and wife; and Busch Law Center, LLC, Counter-Defendants. ) ) ) ) ) ) ) ) ) ) ) ) Plaintiffs Larry J. Busch, Jr. (individually “Busch”), Nancy L. Busch and Busch Law Center, LLC (collectively the “Busch Parties”) hereby move for entry of summary judgment granting each count of their complaint Case 2:13-cv-02517-JJT Document 121 Filed 12/01/16 Page 1 of 18 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 against Yellow Brick Road, LLC (“YBR”) and dismissing each count of YBR’s counterclaim against the Busch Parties as follows: THE UNDISPUTED FACTS On December 15, 2009 a client of the Busch Law Center, LLC referred Busch to John Childs of Alicorn Capital Management, LLC (“ACM”) as a potential escrow agent. Plaintiffs’ Statement of Facts (“SOF”) at ¶ 1. Busch was the sole member and only employee of the Busch Law Center, LLC. SOF at ¶ Prior to December 15, 2009 Busch had no knowledge of, connection to or communication of any type with ACM or any person or entity acting on behalf of or associated with ACM, including John Childs, Scott Koster, Gregory Botolino, Richard Hall, Christine Wong-Sang, Vladamire Pierre-Louis, Hendrix Toussaint, the Toussaint Law Group P.C., Centerlink LLC, Berea Inc. and SBUSA. SOF at ¶ 3. On April 10, 2010 ACM and YBR entered into an agreement memorialized in an Engagement Letter pursuant to which ACM, as an intermediary and for an initial fee of $300,000, agreed to provide to YBR a Stand By Letter of Credit (the “SBLC”) to be issued by Success Bullion USA, LLC (“SBUSA”). SOF at ¶ 4. Pursuant to the Escrow Instructions which were a part of the Engagement Letter, Busch was to act as the escrow agent in Case 2:13-cv-02517-JJT Document 121 Filed 12/01/16 Page 2 of 18 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 the transaction between ACM and YBR (the “YBR Transaction”). SOF at ¶ 5. The Escrow Instructions were jointly drafted by ACM and YBR. SOF at ¶ 6. At the time of the YBR Transaction, Busch had no reason to know or suspect that either ACM, John Childs, Scott Koster, Gregory Botolino, Richard Hall, Christine Wong-Sang, Vladamire Pierre-Louis, Hendrix Toussaint, the Toussaint Law Group P.C., Centerlink LLC, Berea Inc. and/or SBUSA were engaged in any fraudulent activities. SOF at ¶ 7. At the time of the YBR Transaction, Busch had no knowledge that the YBR Transaction was not legitimate or that any participant or party involved in the YBR Transaction was engaged in any fraudulent activity. SOF at ¶ 8. Busch had no communication with YBR prior to or during the YBR Transaction and at no time made any representations to YBR. SOF at ¶¶ 9 & 10. His only role in connection with the YBR Transaction was to provide service as an escrow agent. SOF at ¶ 11. Busch did not knowingly agree to participate, nor did he intend to participate, in any scheme or enterprise designed to defraud YBR. SOF at ¶¶ 12 & 13. At the time of the YBR Transaction, Busch was not aware of the existence, nature or scope of any scheme or enterprise designed to defraud YBR. SOF at ¶ 14. Moreover, he had no input into, direction or control over or concerning Case 2:13-cv-02517-JJT Document 121 Filed 12/01/16 Page 3 of 18 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 the initiation, terms, details, governing agreements or performance of the YBR Transaction. SOF at ¶ 15. Pursuant to the Escrow Instructions, YBR was required to wire transfer the sum of $300,000 (the “YBR Funds”) into the trust account of the Busch Law Center, LLC. SOF at ¶ 16. Immediately upon receipt by email or fax of a copy of the signed Engagement Letter, Busch was required to wire transfer $50,000 of the YBR Funds to SBUSA, the provider of the SBLC without further authorization from YBR. SOF at ¶ 17. The balance of the YBR Funds were to remain in the Busch Law Center, LLC trust account until such time as Busch received by email or fax a copy of the parties’ signed Notice of Approval and a copy of the issued SBLC, at which time Busch was required to immediately distribute to various identified parties by wire transfer the remaining $250,000 of YBR Funds without further authorization from YBR. SOF at ¶ 18. On May 25, 2010 Busch received by fax copies of the fully executed Engagement Letter and Escrow Instructions. SOF at ¶ 19. On May 27, 2010 YBR wire transferred $300,000 into the trust account of the Busch Law Center, LLC. SOF at ¶ 20. On June 9, 2010 Busch wire transferred $45,000 to SBUSA. SOF at ¶ 21. Case 2:13-cv-02517-JJT Document 121 Filed 12/01/16 Page 4 of 18 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 On June 11, 2010 Busch received by email a copy of the fully executed Notice of Approval. SOF at ¶ 22. On June 11, 2010 Busch received by email a copy of the SBLC issued by SBUSA. SOF at ¶ 23. On June 11, 2010 Busch wire transferred the remaining $255,000 of YBR Funds to the various identified parties. SOF at ¶ 24. For his service as escrow agent Busch was paid $6,215, including wire transfer fees. SOF at ¶ 25. On October 17, 2012 YBR sent an email to Busch and others alleging that YBR was the victim of a fraud in connection with the YBR Transaction. SOF at ¶ 26. Prior to sending that email, YBR had not informed Busch and Busch was unaware that YBR claimed it was the victim of a fraud. SOF at ¶ 26. YBR did not allege in its October 17, 2012 email that Busch or the Busch Law Center, LLC were involved in committing any fraud. SOF at ¶ 27. Pursuant to the Escrow Instructions, YBR was required to indemnify and hold Busch harmless against any loss, liability, damage, cost or expense, including reasonable attorney fees, (a) related in any way to Busch acting upon any notice, request, waiver, consent, receipt or other paper or document believed by Busch to be signed by YBR or other proper parties or (b) incurred in connection with any act or thing done Case 2:13-cv-02517-JJT Document 121 Filed 12/01/16 Page 5 of 18 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 pursuant to the Escrow Instructions. SOF at ¶ 28. In addition, YBR agreed to reimburse Busch for all expenses, including counsel fees and costs, he incurred by reason of his position as escrow agent and agreed that Busch would not be liable to YBR for any actions he took pursuant to the terms of the Escrow Instructions. SOF at ¶ 29. On August 19, 2013 YBR filed suit against Busch and the Busch Law Center, LLC in the U.S. District Court, District of Minnesota, seeking damages arising out of Busch’s services as escrow agent in the YBR Transaction. SOF at ¶ 30. YBR’s Minnesota lawsuit was dismissed against Busch and the Busch Law Center, LLC by Court Order on August 7, 2014. SOF at ¶ 31. Busch incurred legal fees and costs in the amount of $88,587.71 in defending against YBR’s Minnesota lawsuit. SOF at ¶ 32. STANDARD OF REVIEW “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56. This Court must determine, viewing the evidence in the light most favorable to the nonmoving party, whether there are any genuine issues of material fact. Suzuki Motor Corp. v. Consumers Union of U.S., Inc., 330 F.3d 1110, 1131 (9th Cir. 2003). “This standard provides that the mere existence of some Case 2:13-cv-02517-JJT Document 121 Filed 12/01/16 Page 6 of 18 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). LEGAL ARGUMENT 1. THE BUSCH PARTIES ARE ENTITLED TO SUMMARY JUDGMENT ON THEIR CLAIMS AGAINST YBR. In their complaint the Busch Parties have asserted claims against YBR as follows: COUNT I - for breach of contract, alleging that YBR breached its obligations under the Escrow Instructions to hold harmless and indemnify Busch and seeking damages the attorney fees and costs incurred by the Busch Parties in defending against the Minnesota litigation initiated and prosecuted by YBR; COUNT II – for declaratory judgment that the Busch Parties are not liable to YBR for the failure of the parties to the YBR Transaction to deliver an operative SBLC to YBR, that YBR agreed to hold the Busch Parties harmless in the event YBR did not receive an operative SBLC and that YBR must indemnify the Busch Parties for the fees and costs incurred in defending the Minnesota lawsuit; and COUNT III – for the attorney fees and costs incurred by the Busch Parties in this litigation. Case 2:13-cv-02517-JJT Document 121 Filed 12/01/16 Page 7 of 18 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 The foregoing Facts establish that YBR agreed as part of the Escrow Instructions that Busch would not be liable to YBR for his actions as escrow agent and that YBR would hold harmless and indemnify him for any loss, including attorney fees and costs, he incurred as a result of his service as escrow agent in the YBR Transaction. Nevertheless, in a clear breach of those agreements, YBR initiated and prosecuted a lawsuit against the Busch Parties in federal court in Minnesota, thereby causing the Busch Parties to incurred fees and costs in the amount of $88,587.71 before that action was dismissed. The Escrow Instructions, which were agreed to and signed by YBR, were obviously intended, in part, to benefit Busch. As an intended beneficiary of that contract, he is entitled to enforce its terms and obtain relief in the event of its breach. Samsel v. Allstate Ins. Co., 199 Ariz. 480, 484, ¶ 15, 19 P.3d 621, 625 (App. 2001), as corrected (Mar. 22, 2001), vacated on other grounds by Samsel v. Allstate Ins. Co., 204 Ariz. 1, 59 P.3d 281 (2002); Norton v. First Fed. Savings, 128 Ariz. 176, 178, 624 P.2d 854, 856 (1981). Pursuant to Arizona law, as escrow agent Busch’s obligations were limited to complying strictly with the terms of the escrow agreement and disclosing facts that a reasonable escrow agent would perceive as Case 2:13-cv-02517-JJT Document 121 Filed 12/01/16 Page 8 of 18 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 evidence of fraud being committed on a party to the escrow. Maxfield v. Martin, 217 Ariz. 312, 314, ¶ 12, 173 P. 3d 476, 478 (2007). The foregoing Facts show that Busch complied with the terms of the Escrow Instructions and had no knowledge of or reason to even suspect that any fraud was being committed. Thus Busch fulfilled his obligations as escrow agent, and the Busch Parties are, in light of YBR’s breach of its contractual obligations, entitled to judgment against YBR for the $88,587.71 cost of defending the Minnesota litigation and declaring the Busch Parties are not liable to YBR for the failure of the parties to the YBR Transaction to deliver an operative SBLC to YBR, that YBR agreed to hold the Busch Parties harmless in the event YBR did not receive an operative SBLC and that YBR must indemnify the Busch Parties for the fees and costs incurred in defending the Minnesota lawsuit. The Busch Parties are also entitled to judgment that YBR is liable for the Busch Parties’ reasonable attorney fees and costs in this action pursuant to A.R.S. § 12-341 and A.R.S. § 12-341.01 inasmuch as this action arises out of contract. 2. YBR’S COUNTERCLAIM AGAINST THE BUSCH PARTIES SHOULD BE DISMISSED IN ITS ENTIRETY. In its counterclaim YBR has asserted claims for monetary Case 2:13-cv-02517-JJT Document 121 Filed 12/01/16 Page 9 of 18 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 judgment against the Busch Parties for: (1) Violation of 18 U.S.C. § 1961, et seq., (2) Conspiracy to Violate 18 U.S.C. § 1961, et seq., (3) Civil Conspiracy to Commit Fraud, (4) Aiding and Abetting Fraud, (5) Conversion and (6) attorney fees and costs pursuant to A.R.S. § 12-341 and A.R.S. § 12-341.01. YBR has also requested the entry of declaratory judgment that it is not bound by the terms of the Engagement Letter, including the provisions set forth in the Escrow Instructions, as the result of (1) being fraudulently induced into entering into the Engagement Letter and Escrow Instructions and/or (2) the Busch Parties’ willful misconduct and/or gross negligence. In regard to each of these claims YBR must establish that Busch, while acting as escrow agent in the YBR Transaction, was at a minimum aware that a fraud was being perpetrated upon YBR. This YBR cannot do. The undisputed fact is that at the time of the YBR Transaction, Busch was not involved in, a part of or aware of any fraud. A. Violation of 18 U.S.C. § 1961, et seq. “To state a claim under § 1962(c), a plaintiff must allege (1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity.” Walter v. Drayson, 538 F.3d 1244, 1247 (9th Cir. 2008) quoting Odom v. Microstoft Corp., 486 F.3d 541, 547 (9th Cir.2007) (en banc). YBR has not properly pled and cannot prove these four elements. Case 2:13-cv-02517-JJT Document 121 Filed 12/01/16 Page 10 of 18 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 One is not liable under 18 U.S.C.A. § 1962(c) prohibiting the conduct of enterprise's affairs through pattern of racketeering activity, “unless [he or she] has participated in operation or management of enterprise itself.” Reves v. Ernst & Young, 507 U.S. 170, 183, 113 S. Ct. 1163, 1172, 122 L. Ed. 2d 525 (1993); 18 U.S.C.A. § 1962(c). Simply because one provides goods or services that ultimately benefit the enterprise does not mean that one becomes liable under RICO as a result. There must be a nexus between the person and the conduct in the affairs of an enterprise. The operation or management test goes to that nexus. In other words, the person must knowingly engage in “directing the enterprise's affairs” through a pattern of racketeering activity. Univ. of Maryland at Baltimore v. Peat. Marwick, Main Co., 996 F.2d 1534, 1539 (3d. Cir. 1993) citing Reves at 113 S. Ct. 1170. Moreover, one who is unaware of a fraud until after it has been committed cannot be considered to have engaged in directing the affairs of the fraudulent enterprise. Albright v. Attorney's Title Ins. Fund, 504 F. Supp.2d 1187, 1205 (D.Utah 2007). Busch was unaware at the time of YBR Transaction in June 2010 that any participant or party involved in the YBR Transaction was engaged in any fraudulent activity. His only role in connection with the YBR Transaction was to provide service as an escrow agent. He was not aware of the existence, nature or scope of any scheme or enterprise Case 2:13-cv-02517-JJT Document 121 Filed 12/01/16 Page 11 of 18 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 designed to defraud YBR and had no input into, direction or control over or concerning the initiation, terms, details, governing agreements or performance of the YBR Transaction. To prove a pattern of racketeering activity for purposes of RICO, a plaintiff must show that the defendants committed at least two predicate acts within a ten year period that are related and amount to or pose a threat of continued criminal activity. Albright v. Attorney's Title Ins. Fund, 504 F.Supp.2d 1187, 1206 (D.Utah 2007); Burke v. Dowling, 944 F. Supp. 1036, 1053 (E.D.N.Y. 1995). “Criminal conduct forms a pattern if it embraces criminal acts that have the same or similar purpose, results, participants, victims, or methods of commission....” H.J. Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 239, 109 S.Ct. 2893, 106 L.Ed.2d 195 (1989). The mere commission of two predicate acts, however, is not enough. Rather, plaintiff must show that predicate acts are related, and that they amount to or pose threat of continued criminal conduct. Burke v. Dowling, 944 F. Supp. at 1053. YBR has not adequately plead and cannot establish either a pattern of two related predicate acts or that there is any threat of continued criminal conduct. See YBR’s Answer and First Amended Counterclaim, ¶¶ 103 & 113. Case 2:13-cv-02517-JJT Document 121 Filed 12/01/16 Page 12 of 18 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 B. Conspiracy to Violate 18 U.S.C. § 1961, et seq. 18 U.S.C.A. § 1962(d) provides that “[i]t shall be unlawful for any person to conspire to violate any of the provisions of subsection (a), (b) or (c) of this section.” Liability under Section 1962(d) requires that the Busch Parties “knowingly agreed to facilitate a scheme which includes the operation or management of a RICO enterprise.” United States v. Fernandez, 388 F.3d 1199, 1230 (9th Cir.2004). To establish a violation of this provision, YBR must allege either an agreement that is a substantive violation of RICO or that the Busch Parties agreed to commit, or participated in, a violation of two predicate offenses. Howard v. America Online, Inc., 208 F.3d 741, 751 (9th Cir. 2000). The Busch Parites “must also have been ‘aware of the essential nature and scope of the enterprise and intended to participate in it.” Id. (quoting Baumer v. Pachl, 8 F.3d 1341, 1346 (9th Cir.1993)). At the pleading stage, a plaintiff claiming a RICO conspiracy must allege that the defendant knew about and agreed to facilitate conduct that violated RICO. See United States v. Fiander, 547 F.3d 1036, 1041 (9th Cir.2008) (citing Salinas v. United States, 522 U.S. 52, 66, 118 S.Ct. 469, 139 L.Ed.2d 352 (1997)). “Bare allegations” are not enough if they provide no Case 2:13-cv-02517-JJT Document 121 Filed 12/01/16 Page 13 of 18 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 basis to infer assent to contribute to a common enterprise. Arch Ins. Co. v. Allegiant Prof'l Bus. Servs. ., Inc., 2012 WL 1400302 (C.D.Cal. Apr.23, 2012). Busch’s only role in connection with the YBR Transaction was to provide service as an escrow agent. At the time of the YBR Transaction, Busch was neither aware of the existence, nature or scope of any scheme or enterprise designed to defraud YBR nor did he knowingly agree to participate, or did he intend to participate, in any such scheme or enterprise. C. Civil Conspiracy to Commit Fraud. A civil conspiracy occurs where two or more people agree to accomplish an unlawful purpose or to accomplish a lawful object by unlawful means, causing damages. Wells Fargo Bank v. Arizona Laborers, Teamsters & Cement Masons Local No. 395 Pension Trust Fund, 201 Ariz. 474, 498, ¶ 99, 38 P.3d 12, 36 (2002), as corrected (Apr. 9, 2002). To establish conspiracy a party must prove the existence of an actual agreement by clear and convincing evidence and that the conspirators acted with specific intent. Id. at ¶ 100; State v. Gunnison, 127 Ariz. 110, 114, 618 P.2d 604, 608 (1980). Here the Facts set forth above establish that Busch, who had been first contacted by ACM just a few months prior to the YBR Transaction and Case 2:13-cv-02517-JJT Document 121 Filed 12/01/16 Page 14 of 18 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 was paid a modest amount for his escrow services, had no knowledge that any of the parties to that Transaction intended to commit or were engaged in committing any acts of fraud. Busch did not knowingly agree to participate, nor did he intend to participate, in any scheme or enterprise designed to defraud YBR. Having not agreed to join in any effort to defraud YBR, the Busch Parties cannot be liable for civil conspiracy. D. Aiding and Abetting Fraud. Claims of aiding and abetting tortious conduct require proof of three elements: (1) the primary tortfeasor must commit a tort that causes injury to the plaintiff; (2) the defendant must know that the primary tortfeasor's conduct constitutes a breach of duty; and (3) the defendant must substantially assist or encourage the primary tortfeasor in the achievement of the breach. Wells Fargo Bank v. Arizona Laborers, 201 Ariz. at 485, ¶ 34, 38 P.3d at 23. YBR cannot establish the second or third of these elements. The Facts show that Busch was unaware that any party to the YBR Transaction was involved in defrauding YBR. Moreover, his role was limited to that of a simple escrow agent. His actions in following the Escrow Instructions which YBR had drafted and approved, did not substantially Case 2:13-cv-02517-JJT Document 121 Filed 12/01/16 Page 15 of 18 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 assist the commission of any fraud. The test for substantial assistance is whether the assistance makes it “easier” for the violation to occur. Id. at 489–90, ¶ 54, 38 P.3d 12, 27–28. Busch did what any escrow agent in his position would have done. E. Conversion. “Conversion is an intentional exercise of dominion or control over a chattel which so seriously interferes with the right of another to control it that the actor may justly be required to pay the other the full value of the chattel.” Miller v. Hehlen, 209 Ariz. 462, 472, ¶ 34, 104 P.3d 193, 203 (App. 2005); Restatement (Second) of Torts § 222A(1) (1965). Conversion also requires an intent to exercise a dominion or control over the property of another which is in fact inconsistent with the other's rights. Miller v. Hehlen, at 472, ¶ 37, 104 P.3d 203. The Facts here establish that the only dominion or control Busch exercised over the YBR Funds was fully in accord with YBR’s instruction pursuant to the Escrow Instructions. F. Attorney Fees and Costs. Because it cannot prevail upon any of its claims against the Busch Parties, YBR is not entitled to recover attorney fees or costs in this action as it is not the prevailing party. A.R.S. § 12-341 and A.R.S. § 12-341.01. Case 2:13-cv-02517-JJT Document 121 Filed 12/01/16 Page 16 of 18 17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 G. Declaratory Relief. Pursuant to the foregoing, YBR is not entitle to declaratory judgment that it is not bound by the terms of the Engagement Letter, including the provisions set forth in the Escrow Instructions. The Facts show that Busch neither fraudulently induced YBR into entering into the Engagement Letter and Escrow Instructions nor committed willful misconduct and/or gross negligence in serving as escrow agent. Busch had no communication whatsoever with YBR prior to or during the YBR Transaction. YBR admits that he made no representations to it. Moreover, he followed the Escrow Instructions competently. CONCLUSION For the reasons set forth above, the Busch Parties respectfully request that the Court enter summary judgment granting each of their claims set forth in their complaint against YBR and dismissing each of the claims asserted by against the Busch Parties by YBR in its counterclaim. DATED this 30th day of November, 2016. SPIESS & BELL PC By: /s/ James O. Bell James O. Bell, Esq. 4500 N. 32nd Street, Suite 201B Phoenix, AZ 85018 602-254-8100 Attorneys for Plaintiffs and Counter-Defendants Case 2:13-cv-02517-JJT Document 121 Filed 12/01/16 Page 17 of 18 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 CERTIFICATE OF SERVICE I hereby certify that on November 30th, 2016, I electronically transmitted the attached document to the Clerk’s Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/EFC registrants: David A. Selden Julie A. Pace Justin V. Niedzialek The Cavanagh Law Firm 1850 N. Central Ave., Suite 2400 Phoenix, AZ 85004 dselden@cavanaghlaw.com jpace@cavanaghllaw.com jniedzialek@cavanaghlaw.com Attorneys for Defendants A copy of the foregoing mailed On November 30th, 2016 to: John Childs Kristen Childs 2740 Meadow Creek Way Arcata, California 95521 By: /s/ Gabriel F. Gambee Case 2:13-cv-02517-JJT Document 121 Filed 12/01/16 Page 18 of 18