Plaintiffs, Bank of America Ask Judge For More Time; Golden Panda’s Clarence Busby Updates Motion To Dismiss

UPDATED 5:28 P.M. EDT (U.S.A.) Attorneys for three plaintiffs who accused ASD President Andy Bowdoin, ASD attorney Robert Garner and Golden Panda Ad Builder President Clarence Busby of racketeering have asked a federal judge for more time to prepare.

The plaintiffs were joined in the motion by Bank of America, a non-RICO defendant in the case.

If the motion is granted, it would extend the time for responses between the plaintiffs and Bank of America until July 30 — two days short of the one-year anniversary federal prosecutors informed ASD that assets tied to ASD and Golden Panda were being seized.

The forfeiture case was brought by the government in August. The RICO case was brought in civil court Jan. 15 as a separate case by three members of ASD. Bowdoin, Garner and Busby are accused of racketeering in the RICO case. Bank of America is accused of aiding and abetting a fraudulent scheme.

Citing court records in their joint motion, the plaintiffs and Bank of America said the bank moved to dismiss the plaintiffs’ initial complaint on March 20. But the plaintiffs filed an amended complaint April 27, “thereby mooting Bank of America’s motion to dismiss the initial complaint.”

Under a new proposed timeline, Bank of America would have until June 10 to move to dismiss or otherwise respond to the plaintiffs’ amended complaint. The plaintiffs, meanwhile, would have until July 10 to file an opposition to a motion to dismiss,  and Bank of America would have until July 30 to file a reply in support of a motion to dismiss.

ASD President Andy Bowdoin is the only named defendant not to have responded to the lawsuit.

UPDATE 3:04 P.M. Attorneys for Golden Panda Ad Builder President Clarence Busby have filed a supplement to their motion to dismiss the case against Busby. The supplement advised the court that the motion to dismiss applies to both the Jan. 15 initial complaint and the April 27 amended complaint filed by the plaintiffs.

“The amended complaint contains no substantive change in the substance of claims against Rev. Busby as would warrant either the withdrawal of Rev. Busby’s motion to dismiss or amendment thereto,” Busby’s lawyers said.

“Counsel to Rev. Busby received the amended complaint on April 29, 2009, one day after submitting Rev. Busby’s motion to dismiss the original complaint,” the lawyers said. “The amended complaint contains substantively the same content as the original complaint as that content pertains to Rev. Busby; the amended complaint’s substantive modifications pertain to Defendant Bank of America, N.A.

“In their amended complaint, Plaintiffs have pled facts with greater specificity concerning Defendant Bank of America’s relationship and involvement with Defendant AdSurfDaily,” the lawyers said. “The factual allegations against Rev. Busby, however, are unaltered from Plaintiffs’ original complaint.

“Under the original and amended complaints, the Plaintiffs’ claims against Rev. Busby are barred by the doctrine of res judicata; the plaintiffs lack standing to sue Rev. Busby; the plaintiffs have failed to plead facts sufficient to state a prima facie case that Rev. Busby owed a fiduciary duty; and the plaintiffs have failed to plead facts sufficient to state a prima facie case that Rev. Busby has violated the civil RICO statute. ”

“Accordingly,” Busby’s lawyers said, “under both complaints, the plaintiffs have failed to state a claim upon which relief can be granted and the amended, as the original, complaint should be dismissed.”

See our original post on Busby’s motion to dismiss.

See our post on the amended complaint.

UPDATE 5:28 P.M. Judge Rosemary Collyer has granted the joint motion by the plaintiffs and Bank of America for more time.

MINUTE ORDER granting . . .  Bank of America’s unopposed Motion for Extension of Time. Bank of America shall answer or otherwise respond to the Amended Complaint . . . no later than June 10, 2009. If Bank of America files a motion to dismiss or for summary judgment, Plaintiffs shall respond no later than July 10, 2009; and Bank of America shall reply no later than July 30, 2009. Signed by Judge Rosemary M. Collyer on 5/1/09.

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