UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
(Alexandria Division)
H-QUOTIENT, Inc., Case No.: 04-CV-468
a Virginia Corporation,
BRIEF IN SUPPORT OF MOTION TO
Plaintiff, STRIKE FIRST AMENDED COMPLAINT
vs.
MAX F. JONES.,
an individual,
Defendant
BRIEF IN SUPPORT OF MOTION TO STRIKE FIRST AMENDED COMPLAINT
Comes now, Defendant Max Jones and in support of its Motion to Strike First Amended Complaint and states as follows:
STATEMENT OF FACTS
On April 28, 2004, Plaintiff served a Complaint purportedly
alleging Securities Fraud against this Defendant and on May 18,
2004 this Defendant responded by filing a Motion to Dismiss
pursuant to FRCP 12(b)1, 2, 3 and 6.
On June 1, 2004 the Plaintiff filed a Reply to the Defendant’s Motion to Dismiss and attempted to simply include an Amended Complaint with its Reply. At no time has the Plaintiff
BRIEF IN SUP OF NOT TO STRIKE Page 1 of 6
attempted to obtain leave of the Court or the permission from the Defendant to file an Amended Complaint.
FAILURE TO COMPLY WITH FRCP 15(a)and(d)
Federal Rules of Civil procedure are quite clear with respect to filing an Amended Complaint. Rule 15(a), clearly states “a party may amend the party’s pleading only by leave of court or by written consent of the adverse party”. Neither of which have occurred.
In this case, not only did the Plaintiff not request leave of the Court, but the Defendant had in fact already responded to the Plaintiff’s original Complaint. A ruling on the Defendant’s responsive pleading to the Complaint is still pending before this Court.
The Plaintiff then attempts to raise an issue which occurred after the original Complaint was filed, namely the purported allegation that Defendant attempted to obtain the services of a citizen of Virginia by asking them to “swing by the Office and check it out...” and again, without Order by this Court or without resolution of the Motions currently pending before this Court. The Plaintiff then attempts to cure the remaining defects of the original Complaint.
The Defendant cannot reasonably be expected to respond to two different Complaints at the same time, therefore the Amended Complaint must be stricken and the Plaintiff should be required
BRIEF IN SUP OF NOT TO STRIKE Page 2 of 6
to comply with the proper procedures in filing an Amended Complaint.
AMENDED COMPLAINT WAS FILED FOR IMPROPER PURPOSE
The Plaintiff in this case is well aware that the Defendant is not represented by council and is attempting to circumvent the Federal Rules of Civil Procedure in an effort to confuse this Defendant and cause undue delays.
The original Complaint filed in this case was so fatally flawed that the Plaintiff could not possibly have expected to prevail in any other way other than perhaps by default. When it became obvious to the Plaintiff that this Defendant fully intended to defend against this frivolous litigation, the Plaintiff again attempted to use short cuts and improper procedures in an effort to gain an upper hand and confuse both this Court and the Defendant.
The Plaintiff Is fully aware that the original Complaint is fatally flawed and as evidence thereof, see attached and marked as Exhibit A, which is a copy of a Motion to Dismiss which was recently filed by the Plaintiff in another case in which the Plaintiff is currently being accused of Securities Fraud. In that case, the Plaintiff asserts that the Complaint against them should be dismissed for failure to state a claim and then spells out the proper way of stating a claim for Securities Fraud and Fraud in General. It is quite clear, the Plaintiff knows how to properly plead a case for fraud if they are able to assert a
BRIEF IN SUP OF MOT TO STRIKE Page 3 of 6
defense stating the proper requirements. Yet, the Plaintiff has failed to do so in their own pleadings before this Court. One can only presume, the Plaintiff never intended to be forced to prosecute this case properly.
The Plaintiff is merely attempting to harass this Defendant and cause unnecessary delays and additional expense in hopes of prevailing by confusing this Defendant. As the Plaintiff is a learned attorney, he should be required to follow the proper rules of Civil Procedure and this Motion to Strike should be granted.
SANCTIONS
FRCP 11(c) (1) (B), provides for Sanctions initiated by the Court on its own motion. The conduct by this Plaintiff is so egregious that the Court should sanction the Plaintiff in an effort to deter any further such misconduct on behalf of the Plaintiff.
Furthermore, the Plaintiff is relying on 15 USC § 78j (a) &(b), and 17 CFR § 240.lOb—5 as a basis for its claims. Pursuant to 15 USC 78u—4. (c) (1)and(2) which states:
(c) Sanctions for abusive litigation
(1) Mandatory review by court
In any private action arising under this chapter, upon final adjudication of the action, the court shall include in the record specific findings regarding compliance by each party and each attorney representing any party with each requirement of Rule 11(b) of the Federal Rules of Civil Procedure as to any complaint, responsive pleading, or dispositive motion.
(2) Mandatory sanctions
BRIEF IN SUP OF MOT TO STRIKE Page 4 of 6
If the court makes a finding under paragraph (1) that a party or attorney violated any requirement of Rule 11(b) of the Federal Rules of Civil Procedure as to any complaint, responsive pleading, or dispositive motion, the court shall impose sanctions on such party or attorney in accordance with Rule 11 of the Federal Rules of Civil Procedure. Prior to making a finding that any party or attorney has violated Rule 11 of the Federal Rules of Civil Procedure, the court shall give such party or attorney notice and an opportunity to respond.
It is mandatory that the Court review the pleadings in this case and sanction a party and/or their legal counsel if they are found to have violated Rule 11 of the Fed. Rules of Civ. Pro.
WHEREFORE, premises considered, Defendant requests that the Amended Complaint be stricken and that he be granted all such other relief as this Court deems just and equitable.
Respectfully submitted this 14 day of June, 2004
Max Jones, Def. Pro Se
713 Winchester Drive
Richardson, Texas 75080
972-231—7903
BRIEF IN SUP OF MOT TO STRIKE Page 5 of 6
CERTIFICATE OF SERVICE
I certify that on this 14 day of June, 2004, I served a copy of the foregoing upon the following counsel of record by depositing a copy of same in the United States mail with proper postage affixed thereto:
George LeRoy Moran, Esq.
4041 University Drive, Suite 301
Fairfax, Virginia 22030—3410
Max F. Jones
BRIEF IN SUP OF MOT TO STRIKE Page 6 of 6 |
