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Case 2:11-cv-01426-GMS Document 166 Filed 12/10/12 Page 1 of 5

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GINGRAS LAW OFFICE, PLLC 3941 E. CHANDLER BLVD., #106-243 PHOENIX, AZ 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/Counterdefendant 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. Raymond Mobrez, Counterclaimant, v. Xcentric Ventures, LLC, and Edward Magedson, Counterdefendants.

Case No.: 11-CV-1426-GMS MOTION FOR LEAVE TO AMEND

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Pursuant to Fed. R. Civ. P. 15(a)(2), Plaintiff/Counterdefendant XCENTRIC VENTURES, LLC (Plaintiff or Xcentric) respectfully moves for leave to file the Proposed Second Amended Complaint (SAC) submitted herewith.
MOTION FOR LEAVE TO AMEND

Case 2:11-cv-01426-GMS Document 166 Filed 12/10/12 Page 2 of 5

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

When the facts of a case are lengthy and complex as they are here, drafting an appropriate Complaint can present a daunting Goldilocks problem. On the one hand, a Complaint may be too cold, and thus subject to dismissal under Rule 12(b)(6), if it fails to allege sufficient facts to state a plausible claim for relief. On the other hand, at the other end of the spectrum a Complaint may also be too hot, and thus equally subject to dismissal, when it contains more facts than necessary; A complaint that is argumentative, prolix, replete with redundancy ... [and] consists largely of immaterial background information is subject to dismissal. Donahoe v. Arpaio, ___ F.Supp.2d ____, 2012 WL 1161580, *41 (D.Ariz. 2012) (quoting McHenry v. Renne, 84 F.3d 1172, 1177 (9th Cir. 1996)). The solution to the Goldilocks pleading problem is two-fold. First, rather than requiring hyper-technical drafting and demanding that the plaintiff recite and include every fact, every detail, and every document at issue, the modern construction of Rule 8 employs a far more lenient standard. The rule does not require a Complaint to set forth detailed facts, but rather just a short and plain statement of the claim sufficient to nudge a claim across the line from conceivable to plausible. Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1951 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). This is not a difficult test. Second, at the motion to dismiss stage of a case, courts must give the Complaint the benefit of the doubt by accepting its allegations as true and by drawing all reasonable inferences in favor of the plaintiff. See Didyoung v. Allstate Ins. Co., 2012 WL 1983779, *3 (D.Ariz. 2012) (explaining, When analyzing a complaint for failure to state a claim under Rule 12(b)(6), [a]ll allegations of material fact are taken as true and construed in the light most favorable to the nonmoving party.) (quoting Smith v. Jackson, 84 F.3d 1213, 1217 (9th Cir. 1996)). This well-worn standard applies to malicious prosecution cases exactly as it does with any other type of claim. See Pochoda v. Arpaio, 2009 WL 1407543, *5 (D.Ariz. 2009) (denying Rule 12(b)(6) Motion to Dismiss in malicious prosecution action based on classic Rule 12 standards). 2
MOTION FOR LEAVE TO AMEND

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Case 2:11-cv-01426-GMS Document 166 Filed 12/10/12 Page 3 of 5

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

Taken together, these interpretations of Rule 8 require that the plaintiff be afforded significant deference during the early, pre-discovery stage of the case. See Addy v. State Farm Ins. Co., 2010 WL 1408886, *1 (D.Ariz. 2010) (noting, A motion to dismiss for failure to state a claim is disfavored and rarely granted.) (citing Gilligan v. Jamco Dev. Corp., 108 F.3d 246, 24849 (9th Cir. 1997)); Saunders v. Silva, 2009 WL 3756674 (D.Ariz. 2009) (noting, Rule 12(b)(6) motions are viewed with disfavor, and [d]ismissal without leave to amend is proper only in extraordinary cases.) (quoting Broam v. Bogan, 320 F.3d 1023, 1028 (9th Cir. 2003)). Here, although Xcentric contends that the facts set forth in its previous Complaint were sufficient to state a claim, it is not necessary to debate these points at any great length. This is so because all of the concerns which resulted in the prior dismissal can be resolved by merely allowing Xcentric to amend its Complaint in order to provide a clearer picture of the events giving rise to this action. To that end, a proposed Second Amended Complaint is submitted herewith in redline form. While leave to amend is generally within the district courts sound discretion, as this Court has noted, Rule 15s policy of favoring amendments to pleadings should be applied with extreme liberality. Stickler v. Arpaio, 2012 WL 3596514 (D.Ariz. 2012) (quoting Eldridge v. Block, 832 F.2d 1132, 1135 (9th Cir.1987). Moreover, the Ninth Circuit has repeatedly held that a district court should grant leave to amend even if no request to amend the pleading was made, unless it determines that the pleading could not be cured by the allegation of other facts. OSU Student Alliance v. Ray, --- F.3d ----, 2012 WL 5200341, *20 (9th Cir. 2012) (emphasis added) (quoting Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (en banc) (observing, in a line of cases stretching back nearly 50 years, we have held that in dismissing for failure to state a claim under Rule 12(b)(6), a district court should grant leave to amend even if no request to amend the pleading was made, unless it determines that the pleading could not possibly be cured by the allegation of other facts.) (quoting Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995) and compiling extensive authority). 3
MOTION FOR LEAVE TO AMEND

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Case 2:11-cv-01426-GMS Document 166 Filed 12/10/12 Page 4 of 5

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

As reflected in the proposed Second Amended Complaint, there are voluminous additional facts not previously included in the prior Complaint which Xcentric contends are more than sufficient to demonstrate that its claims can survive scrutiny under Rule 12(b)(6). Xcentric notes that despite the length of the proposed Second Amended

Complaint, every effort has been made to prepare a pleading which is not too hot, nor too cold, and which strikes an appropriate balance between pleading too many facts at the risk of pleading too few. Indeed, were Xcentric to include every fact and every exhibit supporting its position, the amended pleading would be many orders of magnitude longer. For that reason, Xcentric respectfully requests leave to file the Second Amended Complaint submitted herewith. DATED December 10, 2012. GINGRAS LAW OFFICE, PLLC /S/ David S. Gingras David S. Gingras Attorney for Plaintiff/Counterdefendant Xcentric Ventures, LLC

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MOTION FOR LEAVE TO AMEND

Case 2:11-cv-01426-GMS Document 166 Filed 12/10/12 Page 5 of 5

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

CERTIFICATE OF SERVICE

I hereby certify that on December 10, 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: John S. Craiger, Esq. David E. Funkhouser III, Esq. Krystal M. Aspey, Esq. Quarles & Brady LLP One Renaissance Square Two North Central Avenue Phoenix, Arizona 85004-2391 Attorney for Defendant Lisa J. Borodkin Raymond Mobrez Iliana Llaneras PO BOX 3663 Santa Monica, CA 90408 Defendants 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 /s/David S. Gingras

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MOTION FOR LEAVE TO AMEND