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Case 2:10-cv-09860-DMG -JC Document 79 Filed 01/30/11 Page 1 of 4 Page ID #:943

1 THOMAS EASTON CSB #109218


LAW OFFICE OF THOM AS EASTON
2 967 Sunset Dr
Springfield OR 97477
3 Tel: 541-746-1335
easton3535@gmail.com
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JONATHAN H. LEVY CSB #158032
5 37 Royale Pointe Dr
Hilton Head SC 29926
6 Tel: 202-318-2406
Fax: 202-318-2406
7 jonlevy@hargray.com
Attorneys for Plaintiffs
8
OF COUNSEL
9 Richard E. Joseph, Esq.
Michigan State Bar No. P39924
10 203 Mason St
Charlevoix, MI 49720
11
UNITED STATES DISTRICT COURT
12
CENTRAL DISTRICT OF CALIFORNIA
13
DOUGLAS MATTERN, et al., NO. CV10-9860 DMG (JCx)
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Plaintiffs, NOTICE OF MOTION AND MOTION
15 v. TO AMEND COMPLAINT
16 PUSHTRAFFIC, et al., Date: March 7, 2011
Time: 9:30 a.m.
17 Defendants. Ctrm: 7, Los Angeles, Spring Street
Honorable D OLLY M. G EE
18
19 TO DEFENDANTS AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE
20 NOTICE that on March 7, 2011 at 9:30 a.m. at Courtroom 7, Los Angeles, Spring Street,
21 before the Honorable D OLLY M. G EE, Plaintiffs will move the Court for an order allowing
22 the filing of Plaintiffs’ proposed Second Amended Complaint on the grounds that .
23 This motion is based upon this Notice of Motion, the Points and Authorities, and all
24 the Exhibits attached hereto.
25 POINTS AND AUTHORITIES
26 I. BACKGROUND
27 The original complaint was filed July 2, 2010 in the United States District Court for
28 Northern California and the First Amended Complaint filed October 4, 2010 in the same

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1 Court. The case was subsequently transferred to this Court. Then by Stipulation and the
2 Court’s Order which set the timing of this motion (Doc.77).
3 II. MEET & CONFER
4 The Parties have met and conferred regarding this Motion and will continue to meet
5 and confer after the Defendants have had an opportunity to review the Motion and Proposed
6 Second Amended Complaint. This motion is made following the conference of counsel
7 pursuant to L.R. 7-3 which took place electronically on 12/28/10 through 12/30/10 and
8 resulted in the Order regarding the timing of this motion (Doc. 77). The Parties subsequently
9 conferred electronically 1/27/11 through 1/28/11 regarding the date set for this Motion.
10 III. FACTUAL REASONS AMENDMENT IS REQUIRED
11 The Parties have narrowed the causes of action, to just two, RICO § 1962(c) and
12 Fraud from the previous fifteen causes of action. Plaintiffs are dismissing four Defendants by
13 way of stipulation with the remaining Defendants and three other Defendants are being
14 dismissed after investigation revealed their identities had been stolen by the remaining
15 Defendants.
16 As a result of the First Amended Complaint, Plaintiffs met and conferred with counsel
17 for former Defendants: Denton, MyEbizNow.net, Multi faceted Global Corp. and
18 Progressive Tax Group and discovered a previously unknown pervasive pattern and practice
19 by the remaining Defendants of what Plaintiffs’ term identity theft. This also led to the
20 discovery of the theft of the identities of Internet Marketers: Alderson, Andrews, Beckta,
21 Cobb, Davies, and Kirkland by Defendants and subsequent contact with some of these parties
22 and their attorneys which verified this practice. Plaintiffs have shared some of the
23 declarations gathered with Defendants.
24 Additionally, as a result of the First Amended Complaint additional Plaintiffs and
25 victims have emerged who provided details and facts that provided a better basis for
26 understanding the pattern and overall scope of Defendants’ actions.
27 IV. PROPOSED CHANGES
28 Due to the voluntary dismissal of eight defendants and the voluntary deletion of all but

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1 two causes of action from the previous fifteen, the pagination and organization of the
2 Proposed Second Amended Complaint differs radically from the previous First Amended
3 Complaint. This can be determined from redline proposed complaint and Word Perfect
4 generated document changes summary in the Appendix to this Motion. According to Word
5 Perfect there were 1523 Deletions and 1366 Insertions of words when the First Amended
6 Complaint and Proposed Second Amended Complaint were electronically compared.
7 Plaintiffs believe however that the significant additions to the substance of the
8 complaint are as follows:
9 1. Plaintiffs have identified the finite pattern of the actual practices of Defendants
10 complained of and summarized in Tables One and Two of the proposed Second Amended
11 Complaint (SAC) at paragraphs 42 and 51.
12 2. Plaintiffs describe the general practice of identity theft throughout the complaint
13 but in particular at SAC paragraph 27.
14 3. Three additional Plaintiffs have been added for unique reasons:
15 (a) Plaintiff Robert Old, Jr. because of his advanced age at the time of being
16 defrauded by Defendants, 93 years old, at SAC paragraph 106;
17 (b) Plaintiff James Horlacher because of his allegations of mail fraud at SAC
18 paragraph 105;
19 (c) Plaintiff Grace Adele because she was defrauded on three separate
20 occasions by Defendants at SAC paragraph 104.
21 4. Plaintiffs now bring the form of this action as a Class due to the numerous other
22 victims of Defendants who have contacted counsel seeking a remedy and the ability of
23 Plaintiffs’ to now confidently articulate the overall pattern and practices of Defendants. This
24 is set forth in the SAC Class Allegation at SAC paragraphs 31-37.
25 5. Plaintiffs have added a section regarding Punitive Damages in response to
26 Defendants’ previous objections as to the form of the pleading at SAC paragraph 120.
27 6. Plaintiffs have added a section on Equitable Tolling & Fraudulent Concealment
28 due to the pervasive pattern of identity theft by Defendants which has frustrated Plaintiffs’

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1 attempts to fully identify the entire nature and scope of the wrongs done to them at SAC
2 paragraphs 121-125.
3 7. There also been hundreds of smaller changes made to correct minor errata in
4 spelling, dates, and names, plead with grater precision, plead fraud in conformity with FRCP
5 Rule 9(b), clarify and narrow RICO predicate acts, and reformat the entire complaint for the
6 reasons stated above.
7 V. LEGAL ARGUMENT
8 Federal Rule of Civil Procedure Rule 15(a)(2) states that a party may amend the
9 pleading by leave of Court, and that leave to amend should be given freely when justice so
10 requires. Leave to amend generally may be denied only for four reasons: (1) undue delay, (2)
11 bad faith or dilatory motive, (3) undue prejudice, or (4) futility of amendment. Townsend v.
12 Univ. of Alaska, 543 F.3d 478, 485 (9 th Cir. 2008) citing Foman v. Davis, 371 U.S. 178
13 (1962). None of these reasons exist in this instance.
14 WHEREFORE, Plaintiffs pray the Court grant Plaintiffs’ Motion for Leave to file its
15 Second Amended Class Action Complaint.
16 DATED: January 30, 2011. Respectfully submitted,
17 s/ Thomas Easton, Esq.
THOMAS EASTON
18 s/Jonathan Levy,Esq.
JONATHAN LEVY
19 Of Attorneys for
Plaintiffs Mattern et al.
20
CERTIFICATE OF SERVICE
21 I hereby certify that a true and correct copy of the forgoing document has been filed
with the Courts’ CM/ECF filing system on this 30 th day of January, 2011, which will provide
22 service on all counsel of record.
s/Thomas Easton, Esq;
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