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Mem of Law-Support of Intervenor's Motion to Serve Complaint-021105

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					1    MAX FOLKENFLIK, ESQ.
     FOLKENFLIK & MCGERITY
2    1500 Broadway, 21st Floor
     New York, NY 10036
3    Telephone: (212) 757-0400
     Facsimile:  (212) 757-2010
4
     THEODORE W. PHILLIPS (SBN-37236)
5    PHILLIPS, GREENBERG & HAUSER
     3080 Cedar Ravine
6    Placerville, CA 95667
     Telephone: (530) 622-2992
7    Facsimile:    (530) 622-1506

8    Attorneys for AVIATION DATA, INC.

9                IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA

10                         IN AND FOR THE COUNTY OF ALAMEDA

11
                                             )    Case No: 2001-022881
12   WILLIAM D. HOFFMAN and GREG W.          )
     CARR, on behalf of the General Public   )    [Assigned to the Honorable
13   of the State of California and others   )    Ronald M. Sabraw, Dept. 22]
     similarly situated,                     )
14                                           )    NOTICE OF MOTION AND MOTION
                         Plaintiffs,         )    IN SUPPORT OF INTERVENOR’S
15                                           )    MOTION FOR LEAVE TO SERVE THE
     vs.                                     )    COMPLAINT IN INTERVENTION
16                                           )
     AMERICAN EXPRESS TRAVEL                 )    Action Filed: September 6, 2001
17   RELATED SERVICES CO., a New             )
     York corporation; and Does 1            )    Date: March 24, 2005
18   through 50,                             )    Dept: 22
                                             )    Time: 1:30 p.m.
19                       Defendants.         )
                                             )
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                                       NOTICE OF MOTION
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     TO ALL PARTIES, DEFENDANT, OBJECTORS AND TO THEIR ATTORNEYS OF
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     RECORD:
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           PLEASE TAKE NOTICE that on March 24, 2005, at 1:30 p.m., or as soon thereafter
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     as may be heard, in Department 22 of the above-entitled Court located at 1221 Oak St.,
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     Oakland, California, Plaintiffs will and hereby do move this Court, for an order granting
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     Intervenor leave to serve its Complaint-in-Intervention. This motion is based on the
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     documents, pleadings and exhibits served in connection with this motion and the other
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1    motions filed or joined in by Intervenor, Plaintiffs and Objectors for the March 24th hearing,

2    the records and pleadings on file with the Court, and the arguments of counsel.

3    Dated: February 14, 2005

4                                               Respectfully submitted,

5
                                                __________________________________
6                                               MAX FOLKENFLIK, ESQ.
                                                FOLKENFLIK & MCGERITY
7                                               1500 Broadway, 21st Floor
                                                New York, NY 10036
8                                               (212) 757-0400

9                                               THEODORE W. PHILLIPS (SBN-37236)
                                                PHILLIPS, GREENBERG & HAUSER
10                                              3080 Cedar Ravine
                                                Placerville, CA 95667
11                                              Telephone: (530) 622-2992
                                                Facsimile: (530) 622-1506
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                                                   2
1    MAX FOLKENFLIK, ESQ.
     FOLKENFLIK & MCGERITY
2    1500 Broadway, 21st Floor
     New York, NY 10036
3    Telephone: (212) 757-0400
     Facsimile:  (212) 757-2010
4
     THEODORE W. PHILLIPS (SBN-37236)
5    PHILLIPS, GREENBERG & HAUSER
     3080 Cedar Ravine
6    Placerville, CA 95667
     Telephone: (530) 622-2992
7    Facsimile:    (530) 622-1506

8    Attorneys for AVIATION DATA, INC.

9                IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA

10                         IN AND FOR THE COUNTY OF ALAMEDA

11
                                             )    Case No: 2001-022881
12   WILLIAM D. HOFFMAN and GREG W.          )
     CARR, on behalf of the General Public   )    [Assigned to the Honorable
13   of the State of California and others   )    Ronald M. Sabraw, Dept. 22]
     similarly situated,                     )
14                                           )    NOTICE OF MOTION AND MOTION
                         Plaintiffs,         )    IN SUPPORT OF INTERVENOR’S
15                                           )    MOTION FOR LEAVE TO SERVE THE
     vs.                                     )    COMPLAINT-IN-INTERVENTION
16                                           )
     AMERICAN EXPRESS TRAVEL                 )    Action Filed: September 6, 2001
17   RELATED SERVICES CO., a New             )
     York corporation; and Does 1            )    Date: March 24, 2005
18   through 50,                             )    Dept: 22
                                             )    Time: 1:30 p.m.
19                       Defendants.         )
                                             )
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           Intervenor Aviation Data, Inc., by its attorneys Folkenflik & McGerity and Phillips,
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     Greenberg & Hauser, submits this Notice of Motion and Motion for Leave to Serve the
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     Complaint-in-Intervention.
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                                       NOTICE OF MOTION
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     TO ALL PARTIES, DEFENDANT, OBJECTORS AND TO THEIR ATTORNEYS OF
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     RECORD:
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           PLEASE TAKE NOTICE that on March 24, 2005, at 1:30 p.m., or as soon thereafter
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     as may be heard, in Department 22 of the above-entitled Court located at 1221 Oak St.,
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1       Oakland, California, Plaintiffs will and hereby do move this Court, for an order granting

2       Intervenor leave to serve its Complaint-in-Intervention. This motion is based on the

3       documents, pleadings and exhibits served in connection with this motion and the other

4       motions filed or joined in by Intervenor, Plaintiffs and Objectors for the March 24th hearing,

5       the records and pleadings on file with the Court, and the arguments of counsel.

6                                             MEMORANDUM

7              By motion dated December 30, 2003, Aviation Data, Inc. moved this Court for leave

8       to intervene in the above-captioned action. That motion came on to be heard on January

9       27, 2004. The intervention motion was argued. By Order dated February 17, 2004, the

10      Court ruled “The Motion for Leave to Amend by Aviation Data, Inc. is “GRANTED.”

11             Defendant then renewed its objection to allowing intervention at hearings on March

12      2nd and March 11th. The CMC Order reflecting the rulings at those hearings, the Court

13      ordered: “The Court has already granted the motion to intervene. The Court will not

14      reconsider on its own motion its Order granting the motion of Aviation Data, Inc., for leave

15      to intervene. Service of the Complaint in Intervention by Aviation Data, Inc. shall be stayed

16      by this Order until entry of a final order on approval of the settlement, at which point the

17      complaint may be moot, dismissed, or thereafter served.” CMO March 2 and March 11

18      Hearings.

19             On December 15, 2004, Defendant served a “Notice of Termination of Settlement”

20      asserting that Class Plaintiffs would no longer support the terms of the Preliminary Approval

21      of the Settlement dated August 7, 2003. Exhibit 20.1 Thereafter, at the CMC Conference

22      on January 13th, during the settlement process, Class Counsel confirmed that due to

23      American Express’s misrepresentations, Class Plaintiffs would not support the Settlement.

24      Exhibit 21.

25             Accordingly, by motion dated concurrently with this motion, Class Plaintiffs,

26      Intervenor and Objectors are jointly moving for the Court to deny final approval of the

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    1

28      Citations to Exhibits are those contained in the Exhibit Binder submitted in Support of
        Plaintiff’s, Intervenor’s and Objectors’ Joint Motions.


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1    Settlement, preliminarily approved on August 7th. Should those motions be granted, and

2    given the uniform position of all parties that the Settlement should be terminated, it is likely

3    that they will, then the posture of the case will be to proceed with litigation, and it would be

4    appropriate at that time for the Court to remove its stay and order the Complaint in

5    Intervention to be served.

6                                            DISCUSSION

7           The Court has already granted Intervenor leave to intervene. If anything, the

8    proceedings since that date have shown the value of allowing intervention to protect the

9    rights of Intervenor and of absent Class Members. §387 Code Civ. Proc. As a result of

10   proceeding with the post-settlement discovery, Intervenor was able to uncover that the

11   Settlement originally proposed to the Court by Class Plaintiffs and Defendant was procured

12   as a result of Defendant’s fraud.

13          Intervenor is not required to proceed on the existing Complaint, but may serve its

14   own Complaint-in-Intervention. See, Kuchins v. Hawes, 226 Cal. App, 3d 535 (1990).

15   Accordingly, and as contemplated by the Court’s Case Management Order with respect to

16   the March 2nd and March 11th conferences, the Complaint in Intervention should now be

17   allowed to be served.

18          We note, however, that in accordance with California Code of Civil Procedure §472,

19   Intervenor is allowed to amend its Complaint once, as of right, before any answer to that

20   pleading is filed. Intervenor expressly preserves its rights to amend its pleading as a matter

21   of right in accordance with §472, Code Civ. Proc.

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     Dated: February 14, 2005
23
                                                 Respectfully submitted,
24

25                                               __________________________________
                                                 MAX FOLKENFLIK, ESQ.
26                                               FOLKENFLIK & MCGERITY
                                                 1500 Broadway, 21st Floor
27                                               New York, NY 10036
                                                 (212) 757-0400
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1                                                                              THEODORE W. PHILLIPS (SBN-37236)
                                                                               PHILLIPS, GREENBERG & HAUSER
2                                                                              3080 Cedar Ravine
                                                                               Placerville, CA 95667
3                                                                              Telephone: (530) 622-2992
                                                                               Facsimile: (530) 622-1506
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