1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

J. Henk Taylor (016321)

RYAN RAPP & UNDERWOOD, P.L.C.

3200 N. Central Ave, Suite 2250

Phoenix, Arizona 85012

Telephone: (602) 280-1000

Facsimile: (602) 265-1495

Email: htaylor@rrulaw.com 

Jeffrey M. Eilender (admitted pro hac vice)

Bradley J. Nash (admitted pro hac vice)

Joshua Wurtzel (admitted pro hac vice)

SCHLAM STONE & DOLAN LLP

26 Broadway

New York, New York 10004

Telephone: (212) 344-5400

Facsimile: (212) 344-7677

E-Mail: jeilender@schlamstone.com 

E-Mail: bnash@schlamstone.com 

E-Mail: jwurtzel@schlamstone.com 

Attorneys for Defendants CWT Canada II Limited

Partnership, Resource Recovery Corporation, and

Jean Noelting

UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

Wells Fargo Bank, N.A.

Plaintiff,

v.

Wyo Tech Investment Group, LLC, CWT 

Canada II Limited Partnership, Resources 

Recovery Corporation, and Jean Noelting,

Defendants.

Case No.: 2:17-CV-04140-DWL

CWT PARTIES’ OPPOSITION TO 

DEFENDANT WYO TECH 

INVESTMENT GROUP, LLC’S 

MOTION TO ENJOIN AND FOR 

LEAVE TO AMEND

Oral Argument Requested

And related claims.

Case 2:17-cv-04140-DWL Document 107 Filed 03/01/19 Page 1 of 21
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

-iTABLE OF CONTENTS

Page

PRELIMINARY STATEMENT .......................................................................................1

STATEMENT OF FACTS................................................................................................3

ARGUMENT....................................................................................................................5

I. THIS COURT SHOULD DENY WYO TECH’S REQUEST FOR AN 

INJUNCTION AND AN ORDER STAYING OR VACATING THE 

RESTRAINING NOTICES.........................................................................5

Wyo Tech Must Move to Stay or Vacate the Restraining Notices in New 

York ............................................................................................................5

The Anti-Injunction Act Prevents This Court From Staying or Vacating the 

Restraining Notices .....................................................................................6

The CWT Parties May Use a New York Restraining Notice to Restrain 

Assets Outside of New York........................................................................8

Wyo Tech Lacks Standing to Move to Stay or Vacate Restraining Notices 

Served on Others.......................................................................................10

II. THIS COURT SHOULD DENY WYO TECH’S REQUEST FOR LEAVE 

TO AMEND..............................................................................................10

Wyo Tech Fails to Attach Its Proposed Amended Pleading to This 

Motion.......................................................................................................11

Amendment Would Be Futile Because This Court Lacks Personal 

Jurisdiction Over the CWT Parties.............................................................12

Amendment Would Be Futile Because the Proposed Crossclaims Are Not 

Allowed Under Rule 13(g), and This Court Lacks Subject-Matter 

Jurisdiction Over Them .............................................................................14

III. THIS COURT SHOULD DENY WYO TECH’S REQUEST FOR 

RECONSIDERATION OF THIS COURT’S ORDER DISMISSING WYO 

TECH’S CLAIMS AGAINST THE CWT PARTIES AND THEIR 

COUNSEL ................................................................................................15

CONCLUSION...............................................................................................................17

Case 2:17-cv-04140-DWL Document 107 Filed 03/01/19 Page 2 of 21
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Defendants CWT Canada II Limited Partnership, Resource Recovery Corporation, 

and Jean Noelting (collectively, the “CWT Parties”) submit this memorandum of points 

and authorities, along with the Declaration of Jeffrey M. Eilender, in opposition to 

Defendant Wyo Tech Investment Group, LLC’s Emergency Motion to Enjoin CWT 

Parties from Attempts to Utilize New York Restraining Notices to Restrain Funds of 

Nondebtors and Nondebtor Assets Located Outside of New York and Motion to Amend 

Complaint, dated February 15, 2019 (Dkt. No. 98).

MEMORANDUM OF POINTS AND AUTHORITIES

PRELIMINARY STATEMENT

During the February 27, 2019 telephone hearing, this Court stated about this 

motion: “I do have some questions about, even if you’re right on the merits, that these 

restraining notices are improper, whether I am the right court to be ruling on that 

jurisdictionally. And whether, even if I’m potentially the right court, whether I’m the right 

court right now given the status of which parties are currently in the caption of this 

lawsuit.” Eilender Decl. Ex. A at 18:4-10. This Court was correct in raising these 

questions, because Wyo Tech makes its request to stay or vacate the CWT Parties’ New 

York restraining notices before the wrong Court—and thus, this request should be denied.

First, under N.Y. C.P.L.R. § 5222(b), only the “court out of which the restraining 

notice issued” can stay or vacate the restraining notice. CSX Transp., Inc. v. Island Rail 

Terminal, Inc., 879 F.3d 462, 471 (2d Cir. 2018). So Wyo Tech must make this request to 

the court in the New York Action out of which these restraining notices were issued.

Second, the Anti-Injunction Act prohibits a federal court from staying 

“proceedings in a State court” except in rare circumstances not present here. A restraining 

notice issued in accordance with C.P.L.R. § 5222—though issued without the court’s 

involvement—is a “state court proceeding within the meaning of the Anti-Injunction Act.”

Case 2:17-cv-04140-DWL Document 107 Filed 03/01/19 Page 3 of 21
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

-2-

Pressman v. Neubardt, 2002 WL 31780183, at *4 (S.D.N.Y. Dec. 12, 2002). And so this 

Court may not stay or vacate these restraining notices.”

Third, Wyo Tech erroneously argues that a New York restraining notice is 

ineffective if the property to be restrained is located outside of New York. Contrary to 

Wyo Tech’s claim, a New York court may order a garnishee to “turn over out-of-state 

property.” Koehler v. Bank of Bermuda Ltd., 12 N.Y.3d 533, 541 (2009). So these 

restraining notices are proper and enforceable. Further, Wyo Tech also erroneously argues 

that the CWT Parties must use Arizona enforcement tools to restrain assets in Arizona, 

even though New York enforcement tools are equally available. This is not the law.

Fourth, Wyo Tech lacks standing to seek to stay or vacate restraining notices 

served on parties other than itself—including Dennis Danzik’s wife and daughter—unless 

it concedes that it is the alter ego of the Danzik family and is merely operating for its

benefit.

The Court should also deny Wyo Tech’s request for leave to amend to add 

Inductance Energy Corporation—another Danzik-related entity—and assert new claims 

against the CWT Parties and their counsel.

First, Wyo Tech fails to attach its proposed amended pleading to this motion in 

violation of Local Rule 15.1(a). So neither the CWT Parties nor the Court can evaluate 

these proposed claims as pled. 

Second, even if Wyo Tech attached its proposed amended pleading, amendment 

would be futile because this Court lacks personal jurisdiction over the CWT Parties. 

Indeed, in its December 19, 2018 decision dismissing Wyo Tech’s crossclaims and 

purported third-party claims against the CWT Parties and their counsel, this Court held 

that it lacked personal jurisdiction over the CWT Parties because—while the CWT Parties 

and their counsel “committed the intentional act of causing a restraining notice to be 

Case 2:17-cv-04140-DWL Document 107 Filed 03/01/19 Page 4 of 21
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

-3-

served on Wells Fargo”—this act was “not directed toward Arizona.” Dkt. No. 94 at 10.

As explained below, the same is true of the restraining notices of which Wyo Tech 

complains here.

Third, under Fed. R. Civ. P. 13(g), crossclaims in an interpleader case are allowed 

only to make claims against the interpleaded funds. But the claims that Wyo Tech 

proposes to add here relate to alleged damages arising from separate restraining notices 

served on separate garnishees. Thus, these crossclaims cannot be added under Fed. R. Civ. 

P. 13(g). And for the same reason, this Court lacks subject-matter jurisdiction over these 

proposed claims.

Moreover, this Court should deny Wyo Tech’s request for reconsideration of this 

Court’s December 19, 2018 order dismissing its claims against the CWT Parties and their 

counsel, since none of the allegedly new fact facts Wyo Tech raises were material to, i.e., 

would have affected the outcome of, this Court’s decision. Indeed, as explained below, 

this Court lacks personal jurisdiction over Wyo Tech’s proposed claims related to service 

of these new restraining notices. And in any event, the CWT Parties’ service of these new 

restraining notices does nothing to strengthen their previous contacts (or lack of contacts) 

with Arizona when they served the restraining notice on Wells Fargo that led to this 

interpleader action.

STATEMENT OF FACTS

As this Court knows, on September 7, 2016, the court in the New York Action 

entered judgment in favor of the CWT Parties and against Dennis Danzik and his 

company, RDX Technologies Corporation, for $7,033,491.13 for their theft of millions of 

dollars of the CWT Parties’ tax credits. See Dkt. No. 89-2. And as this Court also knows, 

on June 3, 2016, after a four-day hearing, the court in the New York action also held 

Danzik and RDX in criminal and civil contempt for their violation of court orders—

Case 2:17-cv-04140-DWL Document 107 Filed 03/01/19 Page 5 of 21
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

-4-

holding that Danzik is the “epitome of a recalcitrant, contemptuous, and incorrigible 

litigant,” who “lie[d],” “deliberately did not disclose” relevant records, “coerced” a 

witness into “submitting false affidavits,” and “perjured himself before a Canadian 

bankruptcy court.” Dkt. No. 89-3 at 9-10, 12, 13. The New York court also issued a

commitment order and arrest warrant for Danzik (Dkt. Nos. 89-4, 89-5). And while 

Danzik has fled New York and evaded arrest, if he returns, he will be imprisoned.

Danzik has refused to pay any portion of this judgment, and has moved heaven and 

earth to evade the CWT Parties’ efforts to enforce it—including filing two bankruptcies 

that were both dismissed for, among other things, lack of good faith.

Thus, on February 8, 2019, the CWT Parties served restraining notices on, among 

others, Wilenchik & Bartness, P.C. and Beus Gilbert PLLC (Danzik’s and his cronies’ 

counsel); Elizabeth Danzik (Danzik’s wife); Autumn and Jovahna Danzik (Danziks’ 

daughters, at least one of whom is involved in Danzik’s business); and Wyo Tech. 

Eilender Decl. ¶ 3; Dkt. Nos. 98-2-8. The CWT Parties served these restraining notices by 

certified mail in accordance with C.P.L.R. § 5222(a). Id. These restraining notices 

prohibited their recipients from (1) “mak[ing] or suffer[ing] any sale, assignment, or 

transfer of, or any interference with any property in which Judgment Debtors have an 

interest,” and (2) “transfer[ing] any income, money, or money due or to become due to 

Judgment Debtors, or any other party or person having some relationship to Judgment 

Debtors—including making any payments on behalf of Judgment Debtors or to be utilized 

to satisfy the debts or expenses of Judgment debtors or for the benefit of Judgment 

Debtors.” See Dkt. Nos. 98-2 at 4, 98-3 at 4, 98-4 at 4, 98-5 at 4, 98-6 at 4, 98-7 at 4, 98-8

at 4.

This type of broad restraint is proper under New York law. See Ray v. Jama 

Prods., Inc., 74 A.D.2d 845, 845-46 (2nd Dep’t 1980) (affirming contempt order for 

Case 2:17-cv-04140-DWL Document 107 Filed 03/01/19 Page 6 of 21
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

-5-

violation of restraining notice when garnishee paid money to theatrical company for 

judgment debtor to perform at garnishee’s restaurant because it was “clear that although 

the [judgment debtor] was not to receive the money directly, it was to be utilized to satisfy 

his debts and expenses,” and so he derived the benefits thereof”).

Further, on February 11, 2019, the CWT Parties served a restraining notice on a 

Bank of the West branch in New York, restraining any assets held in the name of Danzik, 

RDX, or any known Danzik entities—including Inductance Energy Corporation, which 

the evidence shows, among other things, has paid tens of thousands of dollars of Danzik’s 

legal fees.1 Eilender Decl. ¶ 4. Contrary to Wyo Tech’s counsel’s representation during 

the February 27, 2019 telephone hearing, we understand from Bank of the West’s counsel 

that Bank of the West is fully complying with the restraining notice. Id. ¶ 5. But 

documents produced by Bank of the West show that Inductance moved hundreds of 

thousands of dollars out of its accounts shortly before Danzik’s New York counsel 

disclosed these accounts to us in accordance with a New York subpoena, and so we 

understand that Bank of the West restrained only $1,009.83 in Inductance’s accounts. Id.

ARGUMENT

I. THIS COURT SHOULD DENY WYO TECH’S REQUEST FOR AN 

INJUNCTION AND AN ORDER STAYING OR VACATING THE 

RESTRAINING NOTICES

 Wyo Tech Must Move to Stay or Vacate the Restraining Notices in New 

York

Under C.P.L.R. § 5222(b), a person served with a restraining notice is “forbidden 

to make or suffer any sale, assignment, transfer or interference with any property in which 

he or she has an interest” except “upon direction of the sheriff or pursuant to an order of 

the court, until the judgment or order is satisfied or vacated.”

 

1 These restraining notices are referred to collectively as the “Restraining Notices.”

Case 2:17-cv-04140-DWL Document 107 Filed 03/01/19 Page 7 of 21
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

-6-

But “the phrase ‘an order of the court’ in C.P.L.R. § 5222(b) refers only to the 

court out of which the restraining notice issued.” CSX Transp., Inc., 879 F.3d at 471. 

Indeed, this is the “plain and unambiguous meaning of C.P.L.R. § 5222(b),” and in any 

event, “permitting a second court to dissolve a restraining notice issued out of the first 

court would injure the rights of creditors and threaten the first court’s injunctive power.” 

Id.

Here, the Restraining Notices were all issued out of the New York Action. Dkt. 

Nos. 98-2-7. So any motion to vacate or stay the Restraining Notices must be made before 

the New York court in the New York Action.

Further, if Wyo Tech and the other garnishees it purports to represent do not want 

to go to New York to challenge these restraining notices, they can do what any 

nondomiciliary defendant has the option to do when sued in a foreign jurisdiction—

default, and when the CWT Parties seek to enforce a judgment against them based on their 

default, challenge domestication of the judgment on personal jurisdiction grounds. See 

Otter Prod. LLC v. Custom Offshore Tackle LLC, 2013 WL 815910, at *2 (C.D. Cal. Mar. 

4, 2013) (“‘The principle that a party may silently suffer a default judgment and later 

challenge personal jurisdiction is a foundational principle of federal jurisdictional law.’”) 

(citation omitted). But they cannot seek to stay or vacate the restraining notices here.

 The Anti-Injunction Act Prevents This Court From Staying or Vacating

the Restraining Notices

Under the Anti-Injunction Act, “[a] court of the United States may not grant an 

injunction to stay proceedings in a State court except as expressly authorized by Act of 

Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its 

judgments.” 28 U.S.C. § 2283. 

“The Supreme Court has confirmed what is facially apparent; the breadth of the 

Case 2:17-cv-04140-DWL Document 107 Filed 03/01/19 Page 8 of 21
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

-7-

Act’s prohibition is broad.” Bennett v. Medtronic, Inc., 285 F.3d 801, 805 (9th Cir. 2002).

And “‘[a]ny doubts as to the propriety of a federal injunction against state court 

proceedings should be resolved in favor of permitting the state courts to proceed in an 

orderly fashion to finally determine the controversy.’” Id. (citation omitted). Indeed, the 

Anti-Injunction Act restriction is “based upon considerations of federalism and speaks to a 

question of high public policy.” Negrete v. Allianz Life Ins. Co. of N. Am., 523 F.3d 1091, 

1100 (9th Cir. 2008). And so it is not a “minor revetment to be easily overcome,” and is 

instead a “fortress which may only be penetrated through the portals that Congress has 

made available.” Id.

“Although CPLR 5222(a) permits an attorney for the judgment creditor to issue a 

restraining notice without the court’s involvement, it is legal process nonetheless.” 

Doubet, LLC v. Trustees of Columbia Univ. in City of New York, 934 N.Y.S.2d 33 

(Table), 2011 WL 2636259, at *10 (N.Y. Sup. Ct. July 6, 2011), aff’d, 99 A.D.3d 433 

(N.Y. App. Div. 1st Dep’t 2012). And “[l]ike any legal process, it is an assertion of the 

court’s, and the state’s, power.” Id. Thus, the issuance of a New York restraining notice is 

a “proceeding[] in a State court” under the Anti-Injunction Act. Pressman v. Neubardt, 

2002 WL 31780183, at *4 (S.D.N.Y. Dec. 12, 2002) (denying motion to enjoin judgment 

creditors’ use of restraining notices to enforce New York state judgment because 

restraining notice is a “state court proceeding within the meaning of the Anti-Injunction 

Act”).

Here, Wyo Tech asks this Court to “declar[e] that the Restraining Notices and 

Information Subpoenas are invalid and unenforceable” and “requir[e] the CWT Parties to 

obtain permission from this Court prior to attempting any future collection efforts on 

persons or entities other than the Judgment Debtors themselves.” Dkt. No. 98 at 9. But 

granting this relief would require this Court to enjoin the New York State court judgmentCase 2:17-cv-04140-DWL Document 107 Filed 03/01/19 Page 9 of 21
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

-8-

enforcement proceedings, and thus “impede the enforcement proceedings” related to a 

New York state judgment—which violates the Anti-Injunction Act. See Pressman, 2002 

WL 31780183, at *4.

Further, the “limited exceptions” to the Anti-Injunction Act—express 

Congressional authorization, necessity in aid of a federal court’s jurisdiction, and 

protection or effectuation of a federal court’s judgments—do not apply here. 

 The CWT Parties May Use a New York Restraining Notice to Restrain 

Assets Outside of New York

Wyo Tech argues that the Restraining Notices are “invalid” because they “attempt 

to restrain funds and/or assets located outside of New York.” Dkt. No. 98 at 5. According 

to Wyo Tech, it is “black letter law” that restraining notices are “ineffective if the property 

to be restrained is located outside of New York as restraining notices issued in connection 

with a New York proceeding does not reach property in other jurisdictions.” Id. But Wyo 

Tech errs.

Contrary to Wyo Tech’s claim, a New York court may order a garnishee to “turn 

over out-of-state property.” Koehler, 12 N.Y.3d at 541; see also Gryphon Domestic VI, 

LLC v. APP Int’l Fin. Co., B.V., 41 A.D.3d 25, 38 (N.Y. App. Div. 1st Dep’t 2007) (New 

York court may compel person to turn over out-of-state assets); Abuhamda v. Abuhamda, 

236 A.D.2d 290, 290 (N.Y. App. Div. 1st Dep’t 1997) (affirming order requiring bank, 

“which engages in business in this State and is clearly subject to its jurisdiction,” to 

“refrain from paying out funds that are currently in one of its accounts, albeit one not 

physically located in New York”); Dkt. No. 69 at 6 (this Court holding that “Wells Fargo 

had authority under New York law to comply with the Restraining Notice by freezing a 

bank account opened in Arizona”).

The cases Wyo Tech cites (Dkt. No. 98 at 5) for its erroneous proposition are 

Case 2:17-cv-04140-DWL Document 107 Filed 03/01/19 Page 10 of 21
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

-9-

inapposite, because they deal with attachment, not judgment enforcement. See McCarthy 

v. Wachovia Bank, N.A., 759 F. Supp. 2d 265, 275 (E.D.N.Y. 2011) (“although ‘[i]t is 

well-established that, where personal jurisdiction is lacking, a New York court cannot 

attach property not within its jurisdiction,’” C.P.L.R. article 52 “‘contains no express 

territorial limitation barring the entry of a turnover order that requires a garnishee to 

transfer money or property into New York from another state or country’”—so “‘a court 

sitting in New York that has personal jurisdiction over a garnishee bank can order the 

bank to produce [property] located outside New York’”) (citation omitted).

Wyo Tech also argues that a judgment creditor that “wishes to seize assets must 

use the procedural mechanisms available to seize assets in Arizona,” and since “Arizona 

does not have the equivalent of a Restraint Notice,” the Restraining Notices are 

unenforceable. Dkt. No. 98 at 6. 

But Wyo Tech does not cite any authority for the proposition that a judgment 

creditor that has a judgment domesticated in Arizona and another state may use only

Arizona enforcement tools—even if another state’s enforcement tools are equally 

available to it under that other state’s laws. Indeed, Arizona’s version of the Uniform 

Enforcement of Foreign Judgments Act does not require this. See Ariz. Rev. Stat. Ann. 

§ 12-1702 (foreign judgment “has the same effect and is subject to the same procedures, 

defenses and proceedings for reopening, vacating, or staying as a judgment of a superior 

court of this state and may be enforced or satisfied in like manner”) (emphasis added).

Nor could this be the rule, because if it were, then all the New York decisions 

holding that a New York court can require a garnishee to “turn over out-of-state property” 

could not stand—at least for property in states that have adopted the Uniform 

Enforcement of Foreign Judgments Act. 

Further, Judge Tuchi also recognized that this is not the law when he dismissed 

Case 2:17-cv-04140-DWL Document 107 Filed 03/01/19 Page 11 of 21
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

-10-

Wyo Tech’s wrongful garnishment counterclaim against Wells Fargo, holding that “Wyo 

Tech does not cite a case in which a garnishee bank was liable under Arizona law for 

complying with an out-of-state garnishment notice served on an out-of-state branch, nor is 

the Court aware of one.” Dkt. No. 69 at 6 (emphasis added).

 Wyo Tech Lacks Standing to Move to Stay or Vacate Restraining 

Notices Served on Others

“‘Ordinarily, a party must assert his own legal rights and cannot rest his claim to 

relief on the legal rights of third parties.’” E. Bay Sanctuary Covenant v. Trump, 909 F.3d 

1219, 1240 (9th Cir. 2018). 

Wyo Tech asks this Court to declare that all the Restraining Notices are “invalid 

and unenforceable.” Dkt. No. 98 at 3. But Wyo Tech cannot assert the rights of the other 

parties served with the Restraining Notices—which include Dennis Danzik’s wife and 

daughter—unless it concedes that it is the alter ego of the Danzik family and is merely 

operating for its benefit.

And further, though there is an exception to the rule that a party may assert only its 

own rights when “(1) ‘the party asserting the right has a close relationship with the person 

who possesses the right’ and (2) ‘there is a hindrance to the possessor’s ability to protect 

his own interests’” (E. Bay Sanctuary Covenant, 909 F.3d at 1240), Wyo Tech makes no 

showing on either of these prongs for any of the other parties served with one of the 

Restraining Notices.

II. THIS COURT SHOULD DENY WYO TECH’S REQUEST FOR LEAVE TO 

AMEND

While the Court should “freely give leave” to amend the pleadings under Fed. R. 

Civ. P. 15(a)(2), the Court should deny leave to amend when “amendment would be 

futile.” Lu v. Stanford Univ., 2019 WL 826564, at *1 (9th Cir. Feb. 21, 2019). And so 

leave to amend should be denied when the Court would lack jurisdiction over the 

Case 2:17-cv-04140-DWL Document 107 Filed 03/01/19 Page 12 of 21
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

-11-

proposed amended claims. See Rainero v. Archon Corp., 844 F.3d 832, 840 (9th Cir. 

2016) (leave to amend denied because proposed amended complaint “failed to allege a 

sufficient amount in controversy” to support subject-matter jurisdiction); Gaines v. Gen. 

Motors, LLC, 2018 WL 3752336, at *3 (S.D. Cal. Aug. 7, 2018) (leave to amend denied 

because there was “no basis for the Court to exercise personal jurisdiction over the 

proposed out-of state named plaintiffs’ claims”).

 Wyo Tech Fails to Attach Its Proposed Amended Pleading to This 

Motion

Under Local Rule 15.1(a), “[a] party who moves for leave to amend a pleading 

must attach a copy of the proposed amended pleading as an exhibit to the motion, which 

must indicate in what respect it differs from the pleading which it amends, by bracketing 

or striking through the text to be deleted and underlining the text to be added.”

This Court “routinely denies amendment motions for failure to comply with LRCiv 

15(a).” Garcia v. Ryan, 2016 WL 8201046, at *3 (D. Ariz. Dec. 20, 2016), report and 

recommendation adopted, 2017 WL 469024 (D. Ariz. Feb. 3, 2017). Indeed, a party’s 

failure to attach a redline showing the differences between the original and the proposed 

amended pleading “significantly hinders the Court’s ability to compare the original and 

proposed amended complaint.” Bivins v. Ryan, 2013 WL 321847, at *4 (D. Ariz. Jan. 28, 

2013) (denying motion for leave to amend for failure to comply with L.R. Civ. 15.1(a)).

Here, not only does Wyo Tech fail to attach a redline showing the changes it seeks 

to make to its pleading, but it does not even attach a proposed amended pleading at all. 

Instead, Wyo Tech merely states in its brief that it seeks to add claims “related to an 

additional recently sent Restraining Notice to it, and to add as an additional Plaintiff, 

Inductance Energy Corporation whose Bank of the West accounts were recently and 

improperly restrained by the CWT Parties use of an invalid and improper NY CPLR 

Case 2:17-cv-04140-DWL Document 107 Filed 03/01/19 Page 13 of 21
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

-12-

§ 5222.” Dkt. No. 98 at 8. But Wyo Tech does state what claims it, or Inductance, seeks to 

add—let alone what the factual and legal basis of these claims is. And so the CWT Parties 

cannot even attack the viability of Wyo Tech’s proposed amended claims. Thus, this 

motion should be denied for this reason alone.

 Amendment Would Be Futile Because This Court Lacks Personal 

Jurisdiction Over the CWT Parties

As this Court knows, to have personal jurisdiction over a nondomiciliary 

defendant, a plaintiff must show that a defendant’s alleged actions were “directed at 

Arizona, not just at individuals who resided there.” Morrill v. Scott Fin. Corp., 873 F.3d 

1136, 1148-49 (9th Cir. Oct. 23, 2017) (emphasis added). Indeed, “[t]he proper question is 

not where the plaintiff experienced a particular injury or effect but whether the 

defendant’s conduct connects him to the forum in a meaningful way.” Nakanwagi v. 

Tenet Healthcare Corp., 2017 WL 394492, at *2 (D. Ariz. Jan. 30, 2017) (emphasis 

added) (citation omitted). Thus, the “proper focus of the inquiry is on” Defendants’ 

contacts with Arizona, “not their alleged contacts with [Arizona] residents.” Neumann v. 

Lincoln Gen. Ins. Co., 2018 WL 2047556, at *1 (9th Cir. May 2, 2018).

Further, personal jurisdiction “cannot be based ‘solely on a defendant’s knowledge 

that the subject of his tortious activity resides in a particular state.’” Taraska v. Everett, 

2016 WL 2940008, at *2 (D. Ariz. May 20, 2016) (citation omitted). And “effects in a 

forum State, even if foreseeable, are not sufficient for specific personal jurisdiction 

without some defendant-initiated contact with the State.” Carpenter v. All Am. Games, 

2017 WL 1090706, at *2 (D. Ariz. Mar. 23, 2017).

In its decision dismissing Wyo Tech’s crossclaims and purported third-party claims 

against the CWT Parties and their counsel, this Court held that it lacked personal 

jurisdiction over the CWT Parties because—while the CWT Parties and their counsel 

Case 2:17-cv-04140-DWL Document 107 Filed 03/01/19 Page 14 of 21
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

-13-

“committed the intentional act of causing a restraining notice to be served on Wells 

Fargo”— this act was “not directed toward Arizona.” Dkt. No. 94 at 10. Specifically, this 

Court held that, because the restraining notice that restrained Wyo Tech’s funds was 

“issued under New York law,” was “in relation to a judgment obtained in New York state 

court,” and was “served on a New York branch of Wells Fargo,” the CWT Parties and 

their counsel “cannot be said to have ‘expressly aimed’ their conduct at Arizona”—

regardless of where the harm was felt. Id.

This holding applies in exactly the same way here. Indeed, Wyo Tech states that it 

seeks to add claims based on an “additional recently sent Restraining Notice to it,” and 

that it also seeks to add Inductance as an additional plaintiff based on restraining notices

served on it and its accounts at Bank of the West. Dkt. No. 98 at 8-9. But just like the 

restraining notice the CWT Parties served on Wells Fargo (which led to this interpleader 

action), the restraining notices the CWT Parties recently served on Wyo Tech and 

Inductance were “issued under New York law,” were “in relation to a judgment obtained 

in New York state court,” and were served by mail to Wyo Tech’s and Inductances’s 

address in Wyoming. See Dkt. No. 98-4; Eilender Decl. ¶ 3, Ex. B. And the restraining 

notice served on Bank of the West was also “issued under New York law,” was “in 

relation to a judgment obtained in New York state court,” and was “served on a New York

branch” of Bank of the West. Eilender Decl. ¶ 4, Ex. C. 

Thus, the CWT Parties had no greater contacts with Arizona in serving these 

restraining notices than they did in serving the Wells Fargo restraining notice—which this 

Court held were “insufficient” for personal jurisdiction. See Dkt. No. 94 at 10. And that 

Wyo Tech and Inductance felt the harm of this action in Arizona is not enough for 

personal jurisdiction either. See Carpenter, 2017 WL 1090706, at *2 (allegation that 

defendant knew that his alleged tortious conduct would “result in Plaintiff suffering 

Case 2:17-cv-04140-DWL Document 107 Filed 03/01/19 Page 15 of 21
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

-14-

significant injury in Arizona” insufficient under effects test); Taraska, 2016 WL 2940008, 

at *2 (plaintiff’s affidavit stating that defendants knew he resided in Arizona when 

defendants defamed him “not enough” under effects test).

Further, while the CWT Parties served some of the other restraining notices 

attached to Wyo Tech’s motion by mailing them to addresses in Arizona, this additional 

contact with Arizona is not enough for personal jurisdiction either. See Coast Equities, 

LLC v. Right Buy Props., LLC, 701 F. App’x 611, 613 (9th Cir. 2017) (“‘sending of letters 

to the forum state [is] legally insufficient to enable the court to exercise personal 

jurisdiction over the non-resident defendant’”) (alterations in original) (citation omitted).

Thus, the proposed amendment here would be futile, because this Court lacks 

personal jurisdiction over the CWT Parties concerning these claims. See K.D. Capital 

Equip., LLC v. Burkhalter Rigging, Inc., 2012 WL 13026884, at *3 (D. Ariz. Nov. 19, 

2012) (leave to amend denied when “Proposed Amended Complaint fails to establish this 

Court’s personal jurisdiction over Defendants”).

 Amendment Would Be Futile Because the Proposed Crossclaims Are 

Not Allowed Under Rule 13(g), and This Court Lacks Subject-Matter 

Jurisdiction Over Them

Under Fed. R. Civ. P. 13(g), a pleading may state as a crossclaim “any claim by 

one party against a coparty if the claim arises out of the transaction or occurrence that is 

the subject matter of the original action or of a counterclaim, or if the claim relates to any 

property that is the subject matter of the original action.” 

“In interpleader actions, crossclaims are generally permitted if they are asserted 

against the common fund or the subject of the main action,” i.e., the interpleaded funds. 

State Farm Life Ins. Co. v. Cai, 2010 WL 4628228, at *5 (N.D. Cal. Nov. 4, 2010). But 

crossclaims that “‘concern[] matters unrelated to the fund or subject matter of the 

interpleader suit and [are] not against the common fund,’ should be dismissed.” Id.

Case 2:17-cv-04140-DWL Document 107 Filed 03/01/19 Page 16 of 21
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

-15-

(alterations in original) (citation omitted); see also Hartford Cas. Ins. Co. v. Lexington 

Ins. Co., 2016 WL 1267801, at *3 (S.D.N.Y. Mar. 30, 2016) (“crossclaims are permissible 

“to attack [other interpleader defendants’] claims against the common fund, but for no 

other purpose”) (alteration in original) (quoting Allstate Ins. Co. v. McNeill, 382 F. 2d 84, 

87 (4th Cir. 1967)); Ionian Corp. v. Country Mut. Ins. Corp., No. 03:10-CV-00199-HZ, 

2015 WL 4464138, at *8 (D. Or. July 21, 2015) (“any crossclaim must arise out of or 

relate to” the interpleaded funds “under Rule 13(g)”).

The proposed crossclaims here do not relate to the interpleaded funds, but instead 

relate to separate restraining notices served on different garnishees over a year later. And 

so they cannot be asserted in this interpleader action. See Ionian Corp. v. Country Mut. 

Ins. Co., 836 F. Supp. 2d 1173, 1187 (D. Or. 2011) (dismissing crossclaim under Fed. R. 

Civ. P. 13(g) because crossclaim went “well beyond any claim to” the interpleaded funds).

Further, the Court in an interpleader action lacks subject-matter jurisdiction over 

crossclaims that do not relate to the interpleaded funds. See Hartford Cas. Ins. Co., 2016 

WL 1267801, at *3 (“independent tort claims fall outside the scope of jurisdiction under 

§ 1335”). And this is true even if diversity jurisdiction would otherwise exist. See id. (“To 

the extent that diversity jurisdiction might exist, Delfino has the option to sue for breach 

of contract, or any other causes of action, in a separate federal action; it need not, and 

should not, do so here.”). Thus, this Court lacks subject-matter jurisdiction over the 

proposed crossclaims here.

III. THIS COURT SHOULD DENY WYO TECH’S REQUEST FOR 

RECONSIDERATION OF THIS COURT’S ORDER DISMISSING WYO 

TECH’S CLAIMS AGAINST THE CWT PARTIES AND THEIR COUNSEL

Wyo Tech argues that, because the CWT Parties served the Restraining Notices, 

this Court should “reconsider its prior ruling that it lacked personal jurisdiction over the 

lawyer and law firm defendants as these numerous actions all aimed directly at companies 

Case 2:17-cv-04140-DWL Document 107 Filed 03/01/19 Page 17 of 21
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

-16-

and individuals located in Arizona clearly constitute sufficient contacts with Arizona for 

this Court to exercise its jurisdiction over them. But Wyo Tech errs.

A motion for reconsideration of an interlocutory order, like here, will be granted 

only if (1) there are “material differences in fact or law from that presented to the Court 

and, at the time of the Court’s decision, the party moving for reconsideration could not 

have known of the factual or legal differences through reasonable diligence”; (2) there are 

“new material facts that happened after the Court’s decision”; (3) there has been a 

“change in the law that was decided or enacted after the Court’s decision”; or (4) the 

movant makes a “convincing showing that the Court failed to consider material facts that 

were presented to the Court before the Court’s decision.” Marquez v. Glendale Union 

High Sch. Dist., 2018 WL 6418540, at *3 (D. Ariz. Dec. 6, 2018) (emphasis added). The 

only of these prongs that even arguably applies here is that there are new material facts. 

But as explained below, these new facts are not “material.”

First, as explained above, and contrary to Wyo Tech’s argument (Dkt. No. 98 at 9), 

the CWT Parties’ service (through their counsel) of the Restraining Notices is not enough 

to allow this Court to exercise personal jurisdiction over them. Indeed, while Wyo Tech 

argues that service of the Restraining Notices was “aimed directly at companies and 

individuals located in Arizona,” Wyo Tech ignores that personal jurisdiction “cannot be 

based ‘solely on a defendant’s knowledge that the subject of his tortious activity resides in 

a particular state.’” Taraska v. Everett, 2016 WL 2940008, at *2 (citation omitted). Thus, 

these new facts—even if available when this Court dismissed Wyo Tech’s claims against 

the CWT Parties and their counsel for lack of personal jurisdiction (Dkt. No. 94)—were 

not material, because they would not have affected the outcome of this Court’s decision.

Second, even if service of the Restraining Notices gave rise to personal jurisdiction 

over the CWT Parties and their counsel (it didn’t), this does not make the CWT Parties’ 

Case 2:17-cv-04140-DWL Document 107 Filed 03/01/19 Page 18 of 21
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

-17-

and their counsel’s contacts with Arizona when they served the restraining notice on 

Wells Fargo in New York any stronger. Indeed, “[p]ersonal jurisdiction must exist for 

each claim asserted against a defendant,” and a plaintiff “may not create personal 

jurisdiction over one claim by arguing that jurisdiction might be proper over a different, 

hypothetical claim not before the court.” Picot v. Weston, 780 F.3d 1206, 1215 n.3 (9th 

Cir. 2015). So Wyo Tech may not use the CWT Parties or their counsel’s service of the 

Restraining Notices as a basis to impose personal jurisdiction over them for actions this 

Court already held were “insufficient.” See Dkt. No. 94 at 10. Nor could this Court 

exercise pendent personal jurisdiction over the CWT Parties, since pendent personal 

jurisdiction applies only when all the claims “arise[] out of a common nucleus of 

operative facts”—which as explained above, they do not. See Best W. Int’l Inc. v. I-70 

Hotel Corp., 2012 WL 2952363, at *5 (D. Ariz. July 19, 2012). And so, again, these new 

facts were not material because they would not have affected the outcome of this Court’s 

decision dismissing Wyo Tech’s claims against the CWT Parties and their counsel.

CONCLUSION

This Court should deny Wyo Tech’s requests (1) to stay or vacate the Restraining 

Notices, (2) for leave to amend, and (3) that this Court reconsider its December 19, 2018 

order dismissing Wyo Tech’s claims against the CWT Parties and their counsel for lack of 

personal jurisdiction.

Case 2:17-cv-04140-DWL Document 107 Filed 03/01/19 Page 19 of 21
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

-18-

Dated:March 1, 2019

Phoenix, Arizona

Respectfully submitted,

RYAN RAPP & UNDERWOOD, P.L.C.

By: /s/ Henk Taylor (016321)

J. Henk Taylor (016321)

3200 N. Central Ave., Suite 1600

Phoenix, Arizona 85012

Telephone: (602) 280-1000

Facsimile: (602) 265-1495

E-Mail: htaylor@rrulaw.com

SCHLAM STONE & DOLAN LLP

Jeffrey M. Eilender 

Bradley J. Nash

Joshua Wurtzel

26 Broadway

New York, New York 10004

Telephone: (212) 344-5400

Facsimile: (212) 34407677

E-Mail: jeilender@schlamstone.com

E-Mail: bnash@schlamstone.com

E-Mail: jwurtzel@schlamstone.com 

Attorneys for Defendants CWT Canada II 

Limited Partnership, Resource Recovery 

Corporation, and Jean Noelting

Case 2:17-cv-04140-DWL Document 107 Filed 03/01/19 Page 20 of 21
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

-19-

ORIGINAL e-filed and COPIES

e-mailed this 1st day of March

2019 as follows:

Dennis I. Wilenchik

David A. Timchak

WILENCHIK & BARTNESS P.C.

2810 North Third Street

Phoenix, AZ 85004

E-Mail: diw@wb-law.com

E-Mail: davidt@wb-law.com

Leo R. Beus

Timothy John Paris

BEUS GILBERT PLLC

701 North 44th Street

Phoenix, AZ 85008

E-Mail: lbeus@beusgilbert.com

E-Mail: tparis@beusgilbert.com

Attorneys for Wyo Tech Investment 

Group, LLC

/s/ Henk Taylor 

J. Henk Taylor

Case 2:17-cv-04140-DWL Document 107 Filed 03/01/19 Page 21 of 21