Wow, great post I am not sure what it has to do with Biel, but great DD related to what not sure? Guilty by association I guess, is what the post is trying to imply, LMAO, highlighted in red not sure what it means DISMISSAL
Case 4:10-cv-04221 Document 48 Filed in TXSD on 07/11/11 Page 1 of 8
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
JAMES P. KERR; RICHARD §
HOOVER; MARY HOOVER; §
DALE E. GALE; BRUCE W. §
GALE; JACOB P. CUKJATI, IV; §
NATALIE F. CUKJATI; § CIVIL ACTION NO: 4:10-CV-04221
WILLIAM McILVRIDE; §
CHARLES L. WEST; and §
MICHAEL PAUL LeBLEU, § JURY TRIAL DEMANDED
Individually and as Representatives §
of a Class of Similarly-Situated §
Individuals §
§
Plaintiffs §
§
VS. §
§
EXOBOX TECHNOLOGIES §
CORPORATION; ROBERT B. §
DILLON; SCOTT COPELAND; §
REGINALD GOODMAN; §
MICHAEL WITTENBURG; §
MARC PERNIA; MICHAEL §
WIRTZ; RICHARD EVANS, M.D.; §
ROBERT L. SONFIELD, JR.; JASON §
LANDESS; SYDNEY BARRETT; §
JEFFREY BRADLEY; DONALD §
BRADLEY; MARC LANE; ROGER §
BREWER; ALEXANDERIA K. §
BLANKENSHIP; WILLIAM SKLAR; §
JAMES L. JIMMERSON; and LESLIE §
DANYEL OWENS-SWINT §
Defendants §
PLAINTIFFS’ NOTICE OF DISMISSAL
TO THE HONORABLE JUDGE OF SAID COURT:
COME NOW, PLAINTIFFS, in the above styled and numbered cause, and file this their
notice of dismissal as to certain Defendants under Federal Rule of Civil Procedure
41(a)(1)(A)(i), and in support thereof would respectfully show the Court as follows:
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Case 4:10-cv-04221 Document 48 Filed in TXSD on 07/11/11 Page 2 of 8
1. Plaintiffs are James P. Kerr, Richard Hoover, Marry Hoover, Dale E. Gale, Bruce W.
Gale, Jacob P. Cukjati IV, Natalie F. Cukjati, William McIlvride, Charles L. West, Michael Paul
LeBleu, Individually and as Representatives of a Class of Similarly-Situated Individuals.
2. Defendants named in this case are Exobox Technologies Corporation, Robert B. Dillion,
Scott Copeland, Reginald Goodman, Michael Wittenburg, Marc Pernia, Michael Wirtz, Richard
Evans, M.D., Robert L. Sonfield, Jr., Jason Landess, Sydney Barrett, Jeffrey Bradley, Donald
Bradley, Marc Lane, Roger Brewer, Alexandria K. Blakenship, William Sklar, James L.
Jimmerson, and Leslie Danyel Owens-Swint.
3. On July 27, 2010, plaintiffs sued defendants in Texas state district court, filed as Cause
No. 2010-46276, in the 234th Judicial District Court of Harris County, Texas. On October 29,
2010, Defendant Robert L. Sonfield, Jr. (“Sonfield”) removed the state court action to federal
court.
4. Plaintiffs’ Class Action petition purported to bring claims of fraud and
misrepresentation; Texas and Federal Securities Laws violations; and conspiracy and aiding and
abetting fraud and violations of securities laws. Sonfield asserted that Plaintiffs’ state law claims
and causes of action were preempted by Section 28(f)(l) of the Securities Exchange Act of 1934
as amended by SLUSA, 15 U.S.C. § 78bb(f)(l), and Section 16(b) of the Securities Act of 1933
as amended by SLUSA, 15 U.S.C. § 77p(b). Contrary to Sonfield’s representations in his Notice
of Removal, however, Plaintiffs did not allege an amount in controversy as suggested by
Sonfield. Moreover, if the class action is not certified as such, the amount in controversy would
not be in the amount suggested by Sonfield in support of his assertion of preemption.
5. Additionally, the United States Supreme Court has recently issued an opinion that
limited and distinguished the persons or entities that may be liable on claims under Rule 10b-5 of
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Case 4:10-cv-04221 Document 48 Filed in TXSD on 07/11/11 Page 3 of 8
the applicable securities regulations. In Janus Capital Group, Inc. v. First Derivative Traders,
564 U.S. , No. 09-525, 2011 U.S., Lexis 4380 (U. S. June 13, 2011) (a copy of this case was
filed as Doc. 43-1), the United States Supreme Court held that only persons or entities with
ultimate authority over statements, including their content and whether and how to communicate
them, can “make” a false statement that is actionable under Rule 10b-5. Janus Capital at *2-3,
*5-6, *27. The Supreme Court distinguished between a person acting solely in the capacity as
the “preparer” or “publisher” of false statements, and a person that is determined to be the
“maker” of such false statements. Janus Capital at *13-14. The Supreme Court looked to
whether such a person/entity had “control” over the entity making the statement such that the
statement would become that “controlling person’s” statement, or be attributable to that
“controlling person” as his or her own statement. The United States Supreme Court looked at
“control” of the entity as the determining factor.
6. The claims being brought by Plaintiffs concern only a limited time frame and a limited
series of actions and transactions. The limited time frame and series of actions and transactions
are set forth in Plaintiffs’ latest Amended Complaint. In light of this recent decision, and in light
of the limited claims being brought in this class action petition, Plaintiffs hereby dismiss a
number of Defendants, without prejudice, pursuant to Federal Rule of Civil Procedure
41(a)(1)(A)(i). Those Defendants being dismissed are set forth below.
7. Defendant Robert Dillon has not been served with process and has not filed an answer
or a motion for summary judgment. Notice of Dismissal, without prejudice, as to Robert Dillon
pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(i) is hereby given.
3
Case 4:10-cv-04221 Document 48 Filed in TXSD on 07/11/11 Page 4 of 8
8. Defendant Reginald Goodman has been served with process in the State Court
proceedings and filed an answer in the state court case. He purported to give notice of the filing
of such answer in the federal court case (Doc 36), although Plaintiffs are not certain that such
pleading constitutes an answer, and would submit that it does not comport with the requirements
for an answer in federal court. Goodman has not filed a motion for summary judgment. Notice
of Dismissal, without prejudice, as to Reginald Goodman pursuant to Federal Rule of Civil
Procedure 41(a)(1)(A)(i) is hereby given.
9. Defendant Michael Wittenburg has been served with process and has not filed an
answer or a motion for summary judgment. Notice of Dismissal, without prejudice, as to
Michael Wittenburg pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(i) is hereby given.
10. Defendant Marc Pernia has not been served with process and has not filed an answer or
a motion for summary judgment. Notice of Dismissal, without prejudice, as to Marc Pernia
pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(i) is hereby given.
11. Defendant Michael Wirtz has not been served with process and has not filed an answer
or a motion for summary judgment. Notice of Dismissal, without prejudice, as to Michael Wirtz
pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(i) is hereby given.
12. Defendant Richard Evans, M.D. has been served with process but has not filed an
answer or a motion for summary judgment. Notice of Dismissal, without prejudice, as to
Richard Evans, M.D., pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(i) is hereby given.
4
Case 4:10-cv-04221 Document 48 Filed in TXSD on 07/11/11 Page 5 of 8
13. Defendant William Sklar has not been served with process and has not filed an answer
or a motion for summary judgment. Notice of Dismissal, without prejudice, as to William Sklar
pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(i) is hereby given.
14. Defendant Leslie Danyel Owens-Swint has been served with process and has not filed
an answer or a motion for summary judgment. Additionally, this Defendant purports to have
filed a bankruptcy proceeding, although the extent of which proceedings, and the applicability of
same to whether she may obtain a discharge of the claims made against here herein, are disputed
by Plaintiffs. Nonetheless, in light of the Janus Capital ruling, Notice of Dismissal, without
prejudice, as to Leslie Danyel Owens-Swint pursuant to Federal Rule of Civil Procedure
41(a)(1)(A)(i) is hereby given.
15. Defendant Scott Copeland has not been served with process and has not filed an answer
or a motion for summary judgment. Notice of Dismissal, without prejudice, as to Scott Copeland
pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(i) is hereby given.
16. Defendant Sydney Barrett has not been served with process and has not filed an answer
or a motion for summary judgment. Notice of Dismissal, without prejudice, as to Sydney Barrett
pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(i) is hereby given.
17. Defendant James L. Jimmerson has been served with process and has not filed an
answer or a motion for summary judgment. Notice of Dismissal, without prejudice, as to James
L. Jimmerson pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(i) is hereby given.
18. The Defendants remaining in this case are as follows: Robert L. Sonfield; Donald C.
Bradley; Jeffrey W. Bradley; Jason Landess; Marc Lane; Roger Brewer; Alexanderia K.
5
Case 4:10-cv-04221 Document 48 Filed in TXSD on 07/11/11 Page 6 of 8
Blankenship; and Exobox Technologies Corporation. Out of those remaining Defendants,
service was obtained and achieved on Robert L. Sonfield; Jason Landess; Alexanderia K.
Blankenship; and Exobox Technologies Corporation. The Defendants that have filed motions to
dismiss are Robert L. Sonfield, Jason Landess and Exobox Technologies Corporation.
19. The Motions to Dismiss filed by James J. Jimmerson (Doc. 35) and Michael Wittenburg
(Doc. 34) are now moot. Accordingly, these Motions to Dismiss should be denied as moot. A
proposed Order reflecting same is submitted herewith.
20. As of the present date, this case has not yet been certified as a class action. Moreover,
discovery has been stayed pending further Order of this Court.
21. A receiver has not been appointed in this action.
22. Plaintiffs would submit that this case is not governed by any federal statute that requires
an order of the court for dismissal of the case.
23. Plaintiffs have not before dismissed an action based on or including the same claims as
those presented in this suit.
24. Pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(i), the dismissals set forth
herein should be without prejudice to refiling.
Respectfully submitted,
/s/ Eddie M. Krenek
Eddie M. Krenek
Attorney-In-Charge
State Bar No. 11724980
Southern District Bar No. 10887
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Case 4:10-cv-04221 Document 48 Filed in TXSD on 07/11/11 Page 7 of 8
Tricia K. Thompson
State Bar No. 24031324
Southern District Bar No. 841498
KRENEK LAW OFFICES
419 Mason Park Blvd.
Katy, Texas 77450
Telephone: 281-578-7711
Telefax: 281-578-8988
COUNSEL FOR PLAINTIFFS, Individually and as
Representatives of a Class of Similarly-Situated Individuals
7
Case 4:10-cv-04221 Document 48 Filed in TXSD on 07/11/11 Page 8 of 8
CERTIFICATE OF SERVICE
This is to certify that on July 11, 2011, a true and correct copy of the foregoing
was served in compliance with the Federal Rules of Civil Procedure upon all counsel of
record and parties by mail, telefax and/or by electronic transmission:
Mr. Robert M. Corn, Esq. Richard Evans, M.D.
2000 The Lyric Centre 1011 Augusta Dr., Suite 210
440 Louisiana Street Houston, Texas 77057
Houston, Texas 77002-1636 Via telefax 713-977-2716
Via S.D. Tex. CM/ECF
Jeffrey R. Parsons Reginald Goodman
David A. Walton 2216 Peach Lane
BEIRNE, MAYNARD & PARSONS, LLP Pasadena, Texas 77502
1300 Post Oak Blvd, 25th Floor
Houston, Texas 77056 Michael Wittenburg
Via S.D. Tex. CM/ECF and/or 3335 Country Club Blvd.
Via fax 713-960-1527 Stafford, Texas 77477
David L. Tolin Jason Landess
THE TOLIN LAW FIRM 7054 Big Springs Court
4320 Calder Avenue Las Vegas, Nevada 89113
Beaumont, Texas 77706
Via S.D. Tex. CM/ECF and/or
Via fax 409-896-2965
/s/ Eddie M. Krenek
Eddie M. Krenek
8
Case 4:10-cv-04221 Document 48-1 Filed in TXSD on 07/11/11 Page 1 of 2
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
JAMES P. KERR; RICHARD §
HOOVER; MARY HOOVER; §
DALE E. GALE; BRUCE W. §
GALE; JACOB P. CUKJATI, IV; §
NATALIE F. CUKJATI; § CIVIL ACTION NO: 4:10-CV-04221
WILLIAM McILVRIDE; §
CHARLES L. WEST; and §
MICHAEL PAUL LeBLEU, § JURY TRIAL DEMANDED
Individually and as Representatives §
of a Class of Similarly-Situated §
Individuals §
§
Plaintiffs §
§
VS. §
§
EXOBOX TECHNOLOGIES §
CORPORATION; ROBERT B. §
DILLON; SCOTT COPELAND; §
REGINALD GOODMAN; §
MICHAEL WITTENBURG; §
MARC PERNIA; MICHAEL §
WIRTZ; RICHARD EVANS, M.D.; §
ROBERT L. SONFIELD, JR.; JASON §
LANDESS; SYDNEY BARRETT; §
JEFFREY BRADLEY; DONALD §
BRADLEY; MARC LANE; ROGER §
BREWER; ALEXANDERIA K. §
BLANKENSHIP; WILLIAM SKLAR; §
JAMES L. JIMMERSON; and LESLIE §
DANYEL OWENS-SWINT §
Defendants §
ORDER DENYING JIMMERSON’S AND WITTENBURG’S
MOTIONS TO DISMISS AS MOOT
BE IT REMEMBERED that on this day, the Court considered Defendant James J.
Jimmerson’s Motion to Dismiss Under Rule 12(B)(6) and, in the Alternative, Rule 12(B)(5)
[Doc. 35] and Defendant Michael Wittenburg’s Motion to Dismiss [Doc. 34]. In light of the
Case 4:10-cv-04221 Document 48-1 Filed in TXSD on 07/11/11 Page 2 of 2
filing of Plaintiff’s Notice of Dismissal pursuant to Federal Rule of Civil Procedure
41(a)(1)(A)(i), these motions are now moot. It is therefore,
ORDERED that Defendant James J. Jimmerson’s Motion to Dismiss [Doc. 35] and
Michael Wittenburg’s Motion to Dismiss [Doc. 34] are DENIED as Moot.
SIGNED on , 2011.
KEITH P. ELLISON
U.S. DISTRICT JUDGE
