Motion to Add 200 New Plaintiffs to Armando Montelongo RICO Lawsuit
RESPONSE TO MOTION TO STRIKE DEFENDANTS ANSWER
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JAMES A. MONROE, Pro Per
KIMBERLY SULLIVAN, Pro Per
ADAM SALENE, Pro Per
TURTLE COMMUNICATIONS, INC.
P.O. Box 5322
Scottsdale, Arizona 85261
Defendants
IN THE SUPERIOR COURT
COUNTY OF MARICOPA, STATE OF ARIZONA
JAMES L. GAGAN, an Indiana Resident,
Plaintiff,
vs.
JAMES A. MONROE, an Arizona resident;
KIMBERLY SULLIVAN, an Arizona
resident; ADAM SALENE, an Arizona
resident; and TURTLE COMMUNICATIONS,
INC., a Texas corporation,
Defendants.
CASE NO.: CV2016-004580
DEFENDANTS’ RESPONSE TO
PLAINTIFF’S MOTION TO STRIKE
THE ANSWER OF TURTLE
COMMUNICATIONS, INC.,
KIMBERELY SULLIVAN AND ADAM
SALENE
AND
RESPONSE TO MOTION TO PERMIT
PLAINTIFF AND COMMISSIONER
BARTH TO MOVE FORWARD AS TO
THESE DEFENDANTS
(Assigned to: Honorable Dawn Bergin)
Defendants, JAMES A. MONROE, KIMBERLEY SULLIVAN, and ADAM
SALENE, (collectively “Defendants”) each appearing pro per, pursuant to Rules 11(a) and
12(f) of the Ariz. R. Civ. Proc. (A.R.C.P.) file Defendants’ Response to Plaintiff’s Motion to
Strike the Answer of Turtle Communications, Inc., Kimberley Sullivan and Adam Salene and
Response to Motion to Permit Plaintiff and Commissioner Barth to Move Forward as the
These Defendants (“Response”) and move for an Order denying both of Plaintiff’s requests
and instead allow Defendants the opportunity to correct and sign and file an Amended
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Answer. This Response is supported by the included Memorandum of Law and all documents
on file with the Court.
MEMORANDUM OF LAW
Plaintiff’s Motion to Strike the Answer of Defendants and Motion to Permit to
Proceed fails under the requirements of A.R.C.P. Rule 12(f) and should be dismissed.
Alternatively, Plaintiff also fails to show cause for the Answer to be stricken pursuant to Rule
11(a) which authorizes the Court to allow Defendants the opportunity to correct the deficiency
and request they be allowed to amend their Answer.
I. FACTS
On, or about April 20, 2016, Plaintiff filed his Complaint against Defendants alleging
fraudulent conveyances in violation of the Arizona Uniform Fraudulent Transfer Act and
A.R.S. §§44-1004 and 44-1009. On June 6, 2016, after the Court granted an extension,
Defendants filed a Rule 12(b) Motion to Dismiss in lieu of filing an Answer. Thereafter, on
September 9, 2016, the Court denied Defendants’ Motion to Dismiss stating the 1994
Judgment was valid.
Defendants filed a timely Motion for Reconsideration on October 5, 2016, and the
Court without allowing a response from Plaintiff denied the Motion on October 14, 2016.
Defendants’ filed their Answer on October 17, 2016.
As shown, at all times relevant hereto, Defendants’ have presented to and the Court
has accepted all pleadings and motions filed by all of the unrepresented Defendants
collectively with the singular signature by Defendant James Monroe. Only now does Plaintiff
object and move to strike Defendants Answer so that he can obtain a default judgment when
he could have done so at any other time and failed to do so.
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II. LEGAL ARGUMENT
Plaintiff moves to strike Defendants entire Answer on the premise that Defendants
failed to sign and Defendant Monroe is not an attorney and cannot sign for them and he is
entitled to proceed for a default judgment. However, Plaintiff fails to meet any of the
requirements as promulgated under Rule 12(f) to strike the Answer which refers to a different
set of circumstances and states it “is inappropriate upon motion made by a party within twenty
days after service of the pleading upon the party or upon the court's own initiative at any time,
the court may order stricken from a pleading any insufficient defense or any redundant,
immaterial, impertinent, or scandalous matter.”
Clearly, Plaintiff does not state any of these matters in his Motion as required under
Rule 12(f) and, further even if he had stated such relief is generally disfavored and
infrequently granted. See, Engel v. Landman, 221 Ariz. 504, 509, 212 P. 3d 842; absent
extraordinary circumstances or those expressly contemplated in Rule 12(f), motions to strike
usually waste the time of the court and the resources of the parties; Id. at 504. Further, Courts
generally want to see a case settled on their merits rather than upon matters of procedures or
by entry of default.
Contrary to Plaintiff’s move that the Answer be stricken, Defendants are in fact
entitled to relief under Rule 11(a) of A.R.C.P. which governs the signings of pleadings. In
particular, it provides “that unsigned pleading be stricken "unless it is signed promptly after
the omission is called to the attention of the pleader or movant." Rowland v. Kellogg Brown
and Root, Inc., 115 P. 3d 124; See, also, Palmer v. Howell, Ariz: Court of Appeals, 2nd Div.,
Dept. A 2012, in that case the Court stated it did acknowledge that Rule 11(a) requires an
unsigned pleading to be stricken, but that sanction is mandated only when "the omission [ha]s
[been] called to the attention of the pleader" and she has failed to sign it promptly thereafter.
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In concluding on the matter, the court denied Palmer's motion based on the alternative
grounds "that the relief sought is not appropriate" and that Palmer's motion failed to comply
with the rules of procedure under Rule 12(f).
Further, Courts have addressed the issue that the failure to sign a pleading is a
technicality or defect that warrants amendment and are typically liberally granted upon
request. Procedural defects will not be fatal if they can be cured by a later amendment. See,
In re Cassidy's Estate, 77 Ariz. 288, 296-97, 270 P.2d 1079, 1084-85 (1954); amendments to
pleadings are to be granted liberally so as to serve the interests of justice. Id. at 297.
This is the first time Plaintiff has moved to strike any of Defendants pleadings or
motions in light of the fact that Defendants have never signed any such motion or pleading.
Instead, Defendant Monroe has signed for Defendants collectively and to which the Court has
accepted. Therefore, on that basis it should not now be entitled to refuse Defendants the
opportunity to defend their actions, especially in light of the fact that they have been denied
both a Motion to Dismiss and Motion for Reconsideration.
Finally, it is acceptable practice that Courts generally disfavor default judgments and
therefore again it would be proper to deny Plaintiff its relief and allow this matter to be
determined on its merits. See, Colboch v. Aviation Credit Corp., 64 Ariz. 88, 94, 166 P.2d
584, 588 (1946) “It has long been the policy of our state that "[c]auses should be determined
on their merits rather than upon matters of procedure.” Additionally, it is a general rule that
Courts disfavor default judgments "because default judgments are not favored, the same
liberality that governs the application of the rules to a particular case should govern the
interpretation of the rules, resolving any doubts in favor of the interpretation that facilitates
deciding cases on their merits. Ruiz v. Lopez, 225 Ariz. 217, ¶ 18, 236 P.3d 444, 449 (App.
2010).
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III. CONCULSION.
The Court should deny Plaintiff’s Motion to Strike and barr any default judgment on
the basis that the Motion fails to meet any requirements under either A.R.C.P. Rules 12(f) or
11(a). Instead, the Court should allow Defendants leave to amend their Answer and refile
with proper signatures affirming their acknowledgment and agreement as to the contents set
forth therein.
WHEREFORE, based on the foregoing, Defendants request that the Court deny
Plaintiff’s Motion to Strike the Answer of Defendants Turtle Communications, Kimberely
Sullivan and Adam Salene and deny Plaintiff’s Motion to Permit Plaintiff to Move Forward
with Default Proceedings As to Those Defendants, and for such other and further relief as the
Court deems proper.
DATED this 21st day of November, 2016.
/s/ James Monroe
JAMES MONROE, Pro Per
Defendant
/s/KIMBERLEY SULLIVAN*
KIMBERLEY SULLIVAN, Pro Per
Defendant
/s/ ADAM SALENE *1
ADAM SALENE, Pro Per
Defendant
Original e-filed with the Clerk
this 21st
day of November, 2016,
with a copy e-served to:
Honorable Dawn Bergin
Maricopa County Superior Court
101 W. Jefferson Street
Phoenix, Arizona
1
Filed electronically and original signature page will be sent by mail to Plaintiff
