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Charles R. Markley, OSB #75240
E-mail:
2 GREENE & MARKLE ,P.C.
1515 SW Fifth Avenue, Suite 600
3 Portland, OR 97201
Telephone: (503) 295-2668
4 Facsimile: (503) 224-8434
Jason W. Whalen, WSBA #22195
E-mail: iwhalenWeisenhowerlaw.com
6 Joshua B. Lane, SBA #42192
E-mail:
7 EISENHOWE & CARLSON PLLC
1201 Pacific Avenue, Suite 1200
8 Tacoma, W A 98402
Telephone: (253) 572-4500
9 FacSimile: (253) 272-5732
Of Attorneys for Plaintiffs
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FILED31.JAtj '12 11
UNITED STATES DISTRICT COURT
DISTRICT OF OREGON
Portland Division
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DANNY O'BRIEN and LORRIE A.
O'BRIEN, individually and as husband and
16 wife, on their own behalves and, as
shareholders, on behalf of and for the benefit 0
17 INTERNATIONAL CHARTER
INCORPORATED OF WYOMING, a
18 Wyoming corporation,
19 Plaintiffs,
vs.
21 BRIAN 1. BOQUIST and PEGGY L.
BOQUIST, individually and as husband and
22 wife; MARCUS HINES, individually;
MARCUS HINES and "JANE DOE" HINES
23 as husband and wife; and INTERNATIONAL
CHARTER INCORPORATED OF
24 WYOMING, a Wyoming corporation,
Defendants.
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COMPLAfNT - 1
00503557.DOC
NO. CV '12 -1 75 - HU
COMPLAINT AND VERIFIED
SHAREHOLDER DERIVATIVE
COMPLAINT FOR DAMAGES,
WRONGFUL TERMINATION,
ACCOUNTING, APPOINTMENT OF
CUSTODIAN, AND INJUNCTIVE AND
DEC LARA TORY RELIEF
JURY TRIAL DEMANDED
1200 Wells Fargo Plaza
120' Paclr)C Avenue
EISENHOWER
Tacoma. WA 98402
Tel: 2SJ .S7HSOO
EISENHOWER & CARLSON. PLLC
Fax: 153 172. 5732
Case 3:12-cv-00175-HU Document 1 Filed 01/31/12 Page 1 of 13 Page ID#: 1
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Plaintiffs, Danny and Lorrie A. O'Brien, on their own behalves and, as shareholders, on
2 behalf of and for the benefit of International Charter Incorporated of Wyoming ("ICI
3 Wyoming"), and complain and allege as follows:
4 I. PARTIES
1.1 Plaintiffs Danny and Lorrie A. O'Brien (hereafter "the O'Briens" or "Plaintiffs
6 O'Brien") are husband and wife, residing in Lakewood, Pierce County, Washington, and form a
7 marital community under Washington law. The O'Briens, collectively, have a 45% shareholder
8 interest in ICI Wyoming.
9 1.2 Upon information and belief, Defendants Brian J. and Peggy L. Boquist (hereafter
"the Boquists" or "Defendants Boquist") are husband and wife, residing in Dallas, Polk County,
11 Oregon. The Boquists, collectively, have a 45% shareholder interest in ICI Wyoming.
12 1.3 Upon information and belief, Defendants Marcus Hines and Jane Doe Hines
13 (hereafter "the Hines" or "Defendants Hines") are husband and wife, residing in Green Valley,
14 Pima County, Arizona. Marcus Hines has a 10% shareholder interest in ICI Wyoming.
1.4 ICI Wyoming is, and was at all material times, a Wyoming corporation. Upon
16 information and belief, ICI Wyoming has, and at all material times had, its principal place of
17 business in Dallas, Polk County, Oregon.
18 II. JURISDICTION
19 2.1 This Court has original jurisdiction over the subject matter of this action pursuant
to 28 US.c. 1332(a) (diversity jurisdiction). The aggregate amounts in controversy exceed the
21 sum of $75,000.00, exclusive of interest and costs. The parties are completely diverse, because
22 the action is between Plaintiffs who are citizens of the State of Washington and Defendants who
23 are respectively citizens of the State of Oregon (Defendants Boquist), the State of Arizona
24 (Defendants Hines), and the States of Wyoming and Oregon (Defendant ICI Wyoming).1
26 I Because ICI Wyoming is adverse to this action, it must be aligned as a party defendant. See Doctor v. Harring/ on.
196 U.S. 579, 587, 25 S.Ct. 355, 49 L.Ed. 606 (1905), and Smith v. Sperling. 354 U.S. 91 , 96-97, 77 S.Ct. 1112, 1
L.Ed.2d 1205 (1957)
COMPLAINT - 2
1100 Wells fargo Plaza
120 r Pacll'ic Avenue
EISENHOWER
Tacoma. WA 98401
00503557.DOC
EISENHOWER & CARLSON . PLLC ~ : ~ l l ; ~ ~ ; i ; ; ) ~ O
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III. VENUE
2 3.1 Venue is proper in this District pursuant to 28 U.S.c. 1391 (b)(3).
3 IV. SUMMARY OF FACTS
4 4.1 ICI Wyoming is a corporation incorporated in the State of Wyoming on or around
May 24, 2007.
6 4.2 ICI Wyoming maintains the Boquist residence in Dalles, Oregon, as its principal
7 place of business.
8 4.3 Plaintiffs Danny O'Brien and Lorrie O'Brien own a collective 45% shareholder
9 interest in ICI Wyoming.
4.4 Defendants Brian 1. Boquist and Peggy L. Boquist own a collective 45%
II shareholder interest in ICI Wyoming.
12 4.5 Defendant Hines owns a 10% shareholder interest in ICI Wyoming.
13 4.6 Through December 2011, Danny O'Brien, Lorrie O'Brien, Brian 1. Boquist,
14 Peggy L. Boquist, and Marcus Hines served as the 5 directors of ICI Wyoming.
4.7 In addition to serving as its directors, the parties also served as officers of ICI
16 Wyoming. Defendant Brian 1. Boquist serves ICI Wyoming in the capacity of Executive Vice
17 President. Defendant Peggy L. Boquist serves ICI Wyoming in the capacity as Secretary and
18 Comptroller. Defendant Marcus Hines serves ICI Wyoming in the capacity of Vice President of
19 Operations. Plaintiff Danny O'Brien served ICI Wyoming in the capacity of Senior Vice
President until December 30, 2011.
21 4.8 Since its incorporation in May 2007, Defendants Boquist have exclusively
22 controlled the books and records of ICI Wyoming, including all financial and accounting
23 information.
24 4.9 Since 2007, ICI Wyoming has performed and continues to perform, coordinate,
and direct certain battlefield simulation, training, and support contract services for an Alaska
26 native corporation, Defense Training Systems ("DTS").
COMPLAINT - 3
1200 Wells fargo Plaza
120 I Pacllc Avenue
EISENHOWER
Tacoma. WA 98102
00503557.DOC Te' ,253 .572.4500
EISENHOWER & CARLSON , PLLC
fa" llJ 1711711
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4.10 ICI Wyoming has, as its principal asset, a contract with DTS to act as a
2 subcontractor to DTS's prime contract with the United States Marines under DTS 08-D-0001
3 Camp Lejeune Task Order ("DTS Contract"). The balance of the DTS Contract, through April
4 30,2012, enables ICI Wyoming to complete approximately 16 missions, generating significant
revenues and profits for ICI Wyoming and its shareholders.
6 4.11 ICI Wyoming has an option to extend the DTS Contract for one additional year,
7 through April 2013, potentially generating revenues and profits for ICI Wyoming and its
8 shareholders in excess of $2,000,000.00.
9 4.12 As of the end of calendar year 2011, ICI Wyoming had a projected cash balance
of approximately $217,839.00.
1 1 4.13 It had been the practice and course of dealing of ICI Wyoming and its Board of
12 Directors to distribute to ICI Wyoming's shareholders ordinary income andlor dividends in the
13 form of all remaining cash balances of ICI Wyoming at year-end. Income and dividends
14 distributed to shareholders in 2010 exceeded $1,000,000.00.
4.14 Since 2007, the parties, as shareholders and directors ofICI Wyoming, generally
16 discussed, without formal agreement, investing some of the income and profits from ICI
17 Wyoming to other business opportunities and entities, including the following companies
18 principally funded by the operations of ICI Wyoming and owned equally (50/50) by Plaintiffs
19 O' Brien and Defendants Boquist (hereafter "Jointly Held Companies"):
1. Powder River Cartridge Company, LLC (Oregon) ("PRCC Oregon");
2. ICI Cattle & Timber Company LLC (Nevada) ("ICIC & TC Nevada"); and
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3. ICI Cattle & Timber Company LLC (Oregon) ("ICIC & TC Oregon").
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4.15 Additionally, the Boquists and the O'Briens owned equal shares in International
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Charter Incorporated of Oregon ("ICI Oregon"), the predecessor entity to ICI Wyoming.
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4. 16 Beginning in the spring of 20 11 , a dispute arose between Defendants Boquist and
Plaintiffs O'Brien regarding the continuing direction and operations of ICI Wyoming and related
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COMPLAINT - 4
1200Well ,Fargo Plala
, 20 I Pacifi c Avenue
EISENHOWER
Tacoma. WA 98402
00503557.DOC
EISENHOWER & CARLSON . PLLC ~ ~ ~ ~ ~ ~ ~ : ; 5 4 : ) ~ 0
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company assets and projects, including the Jointly Held Companies, which were and continue to
2 be funded primarily by the operation and assets of ICI Wyoming.
3 4.17 ' After Plaintiffs raised objections to certain actions and activities of Defendants
4 Boquist with regard to their exercise of control over ICI Wyoming and the Jointly Held
Companies, Defendants began to exclude Plaintiffs from access to the books and records of ICI
6 Wyoming and from any decisional control of or participation in ICI Wyoming.
7 4.18 On or around December 16, 2011, Defendants Boquists made demand on
8 Plaintiffs that Plaintiffs accept a buyout of their interests in ICI Wyoming and the Jointly Held
9 Companies under an unreasonable short timeline and for nominal consideration.
4.19 To force Plaintiffs to accept their terms, Defendant Brian J. Boquist, in his
11 capacity as Executive Vice President and Director of ICI Wyoming, issued, on December 20,
12 2011, a 10-Day Meeting Notice to the directors of ICI Wyoming, including Plaintiffs, advising
13 of his intent to conduct the year-end business of the corporation, including the determination of
14 year-end disbursements and dividends, the termination of the employment and formal dismissal
of Plaintiff Danny O'Brien as Director, and an action to "bar" Defendant Lorrie A. O'Brien from
16 serving in any capacity as Director ("Meeting of Directors").
17 4.20 Plaintiffs requested that the Meeting of Directors be postponed; the request was
18 denied.
19 4.21 On December 26, before the proposed Meeting of Directors, Plaintiffs requested,
through counsel, consistent with the provisions of the Wyoming Business Corporations Act
21 (Section 17-16-1605), to inspect the books, records and documents oflCI Wyoming. Plaintiffs'
22 request was ignored.
23 4.22 On December 29, Plaintiffs, in their capacity as directors, served their written
24 Notice of Dissent and Objection to the Meeting of Directors. That afternoon, Plaintiffs were
advised that the Meeting of Directors would not be held as noticed.
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COMPLAINT - 5
1200WelisFargo PIaza
120 I Pacifi c Avenue
EISENHOWER
Tacoma. WA 98402
00503557.DOC -EIS:":E:":N:":H L":'C
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4.23 Over Plaintiffs' written Notice of Dissent and Objection, and despite being
2 advised that the Meeting of Directors would not be held, Plaintiffs received, by overnight mail
3 on December 30, a "Directors Resolution" dated December 22, 2011, signed by directors Brian J.
4 Boquist, Peggy L. Boquist, and Marcus Hines indicating that said directors had taken the action
as noticed. As a result, Defendants Boquist and Hines are the remaining directors ofICI
6 Wyoming.
7 4.24 Following the tennination of Plaintiffs as directors, ICI Wyoming's in-house
8 bookkeeper resigned. Prior to his resignation, he had maintained, at Defendant Boquists' sole
9 direction, the books and records of ICI Wyoming and, to some extent, the Jointly Held
Companies.
11 4.25 Following their forced tennination as directors, Plaintiffs subsequently
12 discovered, through the infonnation obtained from ICI's fonner bookkeeper, that Defendants
13 Boquist, in their capacities as directors and officers of ICI Wyoming, and in the course and scope
14 of their exercising sole control over all the corporate books, records and financial accounts oflCI
Wyoming since 2007, diverted or caused to be diverted substantial cash assets of ICI Wyoming
16 to their exclusive benefit, and to the detriment of ICI Wyoming and its shareholders, including
17 the O'Briens.
18 4.26 On infonnation and belief, the Boquists diverted assets and funds oflCI
19 Wyoming to pay personal expenses of the Boquists, and to fund other projects and/or entities
owned or controlled exclusively by Defendants Boquist, including but not limited to a new
21 entity, Powder River Cartridge Company, LLC, organized and filed under the laws of the State
22 of Wyoming in 2008.
23 4.27 Through this wholly owned entity, Powder River Cartridge Company, LLC
24 (organized in Wyoming), the Boquists directed thousands of dollars of revenue generated by ICI
Wyoming to their own use and without Plaintiffs' knowledge or consent, including but not
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COMPLAINT - 6
1200 Well s Fargo Plaza
120 I PaCific Avenue
EISENHOWER
Tacoma. WA 96402
00503557.DOC
Tel 253 .572.4500
Fa> . ISl 172.S712
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limited to political campaign contributions for causes supported or advocated by Defendant
2 Brian ] . Boquist, in his capacity as an Oregon State Senator.
3 4.28 Following the action of Defendants to remove Plaintiffs as directors, Defendant
4 Brian ]. Boquist has recently approached DTS to sell back to DTS the value of the remaining
missions on the current DTS Contract for less than the contract value to ICI Wyoming.
6 Defendant Boquist has also advised DTS that ICI Wyoming will not seek to obtain the available
7 one year extension of the DTS Contract. Both actions have caused or may cause imminent risk
8 of loss to ICI Wyoming, thereby causing direct and irreparable injury to its shareholders,
9 including the O'Briens, valued at hundreds of thousands of dollars in lost revenues and profits.
4.29 The forced removal of Plaintiffs as directors, the continuing use by Defendants
11 Boquist of corporate funds for their personal business interests and expenses, and Defendants'
12 subsequent actions to impact or cancel the current and future value of the DTS Contract, has
13 caused or will cause irreparable damage and loss to Plaintiffs, as well as to all the shareholders,
14 in amounts to be determined at the time of trial, but at no less than Plaintiffs' 45% share of the
projected cash balance ofiCI Wyoming at the end of December 2011, estimated at
16 approximately $97,650.00 or more in anticipated year-end profits and dividends, plus their share
17 of the future revenues generated by the DTS Contract, estimated to exceed $2,000,000.00
18 through April 2013.
19 V. FIRST CLAIM FOR RELIEF -- DERIVATIVE SHAREHOLDER CLAIMS
5. 1 Plaintiffs repeat and re-allege each and every allegation in the foregoing
21 paragraphs as though fully set forth herein.
22 5.2 Plaintiffs, as minority shareholders ofiCI Wyoming, seek judgment against
23 Defendants Boquist and Hines (collectively "Defendants"), as ICI Wyoming's controlling
24 shareholders, controlling officers, and controlling directors. Plaintiffs seek to remedy
Defendants' breach of the fiduciary duties of loyalty and care, misappropriation of corporate
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COMPLAINT - 7
I 200 Wells Fargo Plaza
120 I Pacific Ave nu e
EISENHOWER
Tacoma. WA 98402
OOS03SS7.DOC
EISENHOWER & CARLSON . PLLC
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opportunities, waste of corporate assets, self-dealing, oppression of shareholder reasonable
2 expectations, and unfair competition.
3 5.3 This action is not a collusive one to confer jurisdiction that the Court would
4 otherwise lack.
5.4 After Plaintiffs O' Brien were summarily discharged as directors, a demand was
6 not made on ICI Wyoming to obtain action by the board of directors relating to this lawsuit
7 because Defendants, who sit on and completely control the board, would have voted against any
8 such action. Therefore, a demand by Plaintiffs that the ICI Wyoming board of directors initiate
9 this lawsuit would have been pointless, futile, and a waste of time.
5.5 Irreparable injury to ICI Wyoming would result if Plaintiffs were required to
11 make demand and wait for the expiration of the ninety day period foreseen under W.S. 17-16
12 742 before bringing suit. The irreparable harm would take the form of the loss of the full value
13 of ICI Wyoming' s principal asset, the DTS Contract.
14 5.6 In so far as is just and reasonable, Plaintiffs seek direct recovery to prevent an
award from reverting to the wrongdoers, i.e., the Defendants, who remain in control oflCI
16 Wyoming.
17 5.7 Plaintiffs also seek punitive damages on account of Defendants' willful, wanton,
18 and oppressive misconduct under the provisions of applicable Wyoming law.
19 VI. SECOND CLAIM FOR RELIEF -- AN ACCOUNTING
6.1 Plaintiffs repeat and re-allege each and every allegation in the foregoing
22 6.2 Plaintiffs have given Defendants written notice of Plaintiffs' demand to inspect
23 and copy records of ICI Wyoming, which are in the possession and control of Defendants.
24 6.3 Defendants have refused to comply fully with Plaintiffs' demand.
6.4 Plaintiffs seek a court order directing Defendants to provide Plaintiffs with a full
26 and complete accounting of the records oflCI Wyoming, and of the Jointly Held Companies to
COMPLAINT - 8
I 100 Wells fargo Plaza
120 I Pacific Avenue
EISENHOWER Tacoma. WA 98402
00503557,DOC
EISENHOWER & CARLSON , PLLC ~ : ~ ; ~ ; i ; i ~ S J ~ O
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the extent funded by leI Wyoming. Plaintiffs are entitled to such relief as shareholders of leI
2 Wyoming and pursuant to applicable law.
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VII. THIRD CLAIM FOR RELIEF -- WRONGFUL TERMINATION
4
paragraphs as though fully set forth herein.
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7.2 Defendants wrongfully terminated Plaintiff Danny O'Brien as an employee and
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both Danny and Lorrie O'Brien as directors of leI Wyoming after Plaintiffs sought to resolve the
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9 issues raised by Defendants' fiduciary breaches. Defendants' termination of Plaintiffs was
motivated by retaliation and Defendants' hope to insulate themselves from litigation by
1 1
"squeezing-out" Plaintiffs from leI Wyoming. The termination of Plaintiffs was wrongful and
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in violation of both public policy and leI Wyoming's bylaws.
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7.3 Plaintiffs seek punitive damages on account of Defendants' willful , wanton, and
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oppressive misconduct.
VIII. FOURTH CLAIM FOR RELIEF -- APPOINTMENT OF A CUSTODIAN
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17 8.1 Plaintiffs repeat and re-allege each and every allegation in the foregoing
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8.2 As a direct and non-derivative claim, Plaintiffs seek the appointment of a
custodian for leI Wyoming because "those in control of the corporation are acting fraudulently
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and irreparable injury to the corporation is threatened or being suffered." W.S. 17-16-748(a)(ii)
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8.3 The appointment of a custodian for leI Wyoming is reasonably necessary, and
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other available remedies are inadequate. The appointment of a custodian will serve the best
interests of leI Wyoming and its shareholders and creditors.
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COMPLAfNT - 9
110 I PaCifi c Avenue
EISENHOWER
Tacoma. WA 98401
00503557.DOC Te' o 153.572.4500
Fel x: 2S).272 .S7)2
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IX. FIFTH CLAIM FOR RELIEF -- INJUNCTIVE RELIEF
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9.2 Defendants' actions, including but not limited to Defendants' efforts to reject the
remaining work under the DTS contract, have caused and are causing irreparable hann to
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Plaintiffs' interests.
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9.3 An injunction is necessary to prevent Defendants from causing further hann to
9 Plaintiffs' interests.
9.4 An injunction is the appropriate relief due to the recurring nature of the invasion
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and the imminent threat of continued damage to Plaintiffs' interests.
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X. SIXTH CLAIM FOR RELIEF -- DECLARATORY JUDGMENT
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16 10.2 The following actual controversy has arisen and now exists between Plaintiffs and
17 Defendants concerning their respective rights:
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a. Plaintiffs believe that Defendants have wrongfully breached their duties of
19 loyalty and care, misappropriated corporate opportunities, wasted corporate assets,
committed self-dealing, oppressed shareholder reasonable expectations, caused or
21 threatened to cause irreparable hann to leI Wyoming, and wrongfully terminated
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Plaintiffs.
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b. On infonnation and belief, Defendants deny or will deny the allegations
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contained in the preceding subparagraph.
10.3 Plaintiffs seek a judicial declaration to the effect of each of Plaintiffs' contentions
26 in the preceding paragraph.
COMPLAfNT - 10
1200 f argo Plaza
120 I Paofic Avenue
Te"
00503557.DOC
Fax. 253 .272 .5732
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XI. RESERVATION OF RIGHTS
4 11.2 Plaintiffs are still in the process of investigating any and all claims they might
have against Defendants and possibly others under applicable law. Plaintiffs hereby reserve their
6 right to amend this Complaint and/or assert additional claims against Defendants as discovery
7 unfolds.
8 XII. PRAYER FOR RELIEF
9 WHEREFORE, having asserted the above causes of action, Plaintiffs pray for the
following relief:
11 1. For joint and several judgments against Defendants in an amount exceeding the
12 sum of$75,000, to remedy Defendants' breach of their fiduciary duties of loyalty and care,
13 misappropriation of corporate opportunities, waste of corporate assets, self-dealing, and
14 oppression of shareholder reasonable expectations;
2. For direct recovery by Plaintiffs of the award of damages, including punitive
16 damages to the extent awarded, directed to the shareholders to prevent said award from reverting
17 to the wrongdoers who remain in control of ICI Wyoming;
18 4. For joint and several judgments against Defendants in an amount to be proven at
19 trial, including punitive damages to the extent awarded, to remedy Defendants' wrongful
termination and/or oppression of Plaintiffs;
21 5. For a full and complete accounting of ICI Wyoming, and the Jointly Held
22 Companies, as necessary;
23 6. For the appointment of a custodian;
24 7. For the injunctive and declaratory relief requested herein;
8. For payment of Plaintiffs' reasonable attorney's fees and costs, as authorized by
26 applicable law;
COMPLAINT - 11
1201 PaCific Avenue
Te',253.572.45oo
00503557.DOC
fa,,, 253 .272 5731
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9. For pre-judgment and post-judgment interest on Plaintiffs' claims at the highest
2 rate allowable by law; and
3 10. For such other and further relief as the Court deems just and equitable in the
4
premIses. 31 yr
DATED day of January, 2012.
[2,MARKLEY, PC
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Charles R. Markley, ORS # 752405
Attorneys for Plaintiffs
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COMPLAINT - 12
1200 Wells Fargo Pl aza
120 ! Pacific Avenue
EISENHOWER
Tacoma. WA 98402
00503557. DOC
Te' o 253.572.4500
Fax: 253. 272 . 5732
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VERIFICATION
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STATE OF WASHINGTON)
) ss.
4
County of Pierce )
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The undersigned, being first duly sworn, on oath depose and say that they are the
6
Plaintiffs in the above"entitled matter; that they have read the foregoing Verified Complaint and
know the contents thereof and believe the same to be true. .
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8

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lO
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LORRIE O'BRIEN
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13 SIGNED AND SWORN to before me on this
Danny O'Brien and Lorrie O'Brien.
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0'

,2012 by
COMPLAINT - 1S
EISENHOWER
________ Tacoma, WA 98402

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