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Friedman v. United States

United States District Court, D. Nevada

May 7, 2019

SCOTT FRIEDMAN, Plaintiff(s),
v.
UNITED STATES OF AMERICA, et al., Defendant(s).

          ORDER

         Presently before the court is defendants Thayne Larson, Gene Tierney, and Matthew Zito's (the “FBI agents”) motion for entry of judgment pursuant to Rule 54(b). (ECF No. 130). Plaintiff Scott Friedman filed a response (ECF No. 157), to which the FBI agents replied (ECF No. 160).

         Also before the court is defendant United States of America's (“United States”) motion for judgment on the pleadings. (ECF No. 133). Friedman filed a response (ECF No. 158), to which the United States replied (ECF No. 159).

         Also before the court is Friedman's motion to dismiss. (ECF No. 135). Defendant Tali Arik filed a response (ECF No. 146), to which Friedman replied (ECF No. 155).

         I. Facts

         Plaintiff Friedman filed this action against the defendants on May 11, 2018. (ECF No. 1). The complaint is 95 pages long and references an additional 435-plus pages of exhibits identified and filed as exhibits A-X. (ECF Nos. 1, 2, 3, 17-24). The complaint names eleven defendants including the United States, three FBI agents (agents Larson, Tierney, and Zito), three Las Vegas Metropolitan Police Department (“LVMPD”) officers (officers Joe LePore, Darren Heiner, and Jason Hahn), LVMPD, two individuals (Tali Arik and Julie Bolton), and Arik Ventures, LLC (“Arik Ventures”). (ECF No. 1).

         This litigation involves a federal criminal prosecution against Freidman for federal wire charges. Id. Friedman alleges that defendants engaged in various unlawful activities before and during Friedman's criminal case. Id. The complaint contains the following factual allegations:

         Friedman was an LVMPD police officer for fifteen years and retired in August 2012. Id. During his employment with the LVMPD, Friedman also had a real estate business where he would buy and sell, renovate, and rent homes in the Las Vegas area. Id. In 2004, Freidman became acquainted with Arik, who is a cardiovascular surgeon in Las Vegas. Id. Friedman and Arik subsequently formed a business relationship focusing on the purchase of property in Las Vegas. Id.

         In mid-2009, Friedman became concerned about Arik's ability to pay money that Friedman previously loaned to Arik in furtherance of their joint venture. Id. Friedman organized a meeting with Arik to discuss his concerns, in which Arik told Friedman that he owed money to another person, Michael Panik, and that his debt to Panik took priority over his other debt obligations. Id. Arik insisted that he would be amendable to repaying Friedman if Friedman facilitated the payments to Panik. Id. Friedman eventually agreed to transmit funds from Arik to Panik. Id. Thereafter, Arik repaid Friedman. Id. However, Friedman's efforts to resolve his concerns regarding his loan caused Arik to become angry and resentful towards Friedman. Id.

         In early 2010, Arik prepared a written statement (the “2010 written statement”) containing false allegations regarding a fraud scheme in which he was a victim. Id. The fraud scheme that Arik described centered on a real estate venture called the “Back Canyon Estates” project in California. Id. The 2010 written statement implicated Friedman in the fraud scheme. Id. Thereafter, Arik met with FBI agent Tierney and provided the 2010 written statement to support his efforts to solicit a criminal investigation of Friedman's activities. Id. The U.S. Attorney's office subsequently informed Arik that it had declined to take any action. Id.

         In mid-2011, Arik initiated a state-court civil lawsuit to recover financial losses that he incurred as a result of the Back Canyon Estates venture. Id. The lawsuit named multiple defendants including the LVMPD and Friedman. Id. As a result of the lawsuit, the LVMPD investigated Friedman and, eventually, forced him to take an early retirement. Id.

         Thereafter, in 2011 and early 2012, Arik and his long-time girlfriend, Bolton, made various representations to the U.S. attorney's office and the LVMPD to induce a criminal prosecution against Friedman. Id. In June 2012, the FBI opened an investigation into Arik's allegations of fraud against Friedman. Id.

         FBI Agents Tierney, Zito, and Larson conducted the investigation despite possessing the 2010 written statement by Arik, which was exculpatory as to Friedman's guilt. Id. The government eventually brought criminal charges against Friedman and two co-defendants. Id. Shortly before trial, the government informed Friedman's counsel that the LVMPD had found a previously undisclosed “box of materials” that contained the 2010 written statement. Id. After reviewing the materials, the government re-assessed the viability of the case against Friedman and moved to dismiss all charges. Id.

         On May 11, 2018, Friedman initiated this lawsuit. Id. The complaint asserts multiple causes of action, which Friedman organized in the following manner: (1) Federal Tort Claims Act (“FTCA”) claims against the United States for malicious prosecution, abuse of process, false imprisonment, intentional infliction of emotional distress, and negligence; (2) violation of the Fourth and Fifth Amendments against the FBI agents; (3) civil conspiracy against Arik and the FBI agents; (4) malicious prosecution against LePore, Heiner, and Hahn; (5) civil conspiracy against Arik, the FBI agents, Lepore, Heiner, and Hahn; (6) malicious prosecution against Arik and Bolton; (7) champerty and maintenance against Arik and Bolton; (8) defamation against Arik; (9) slander against Arik and Bolton; (10) false imprisonment against the FBI agents, LePore, Heiner, and Hahn; (11) civil conspiracy against Arik, Bolton, the FBI agents, LePore, Heiner, and Han; (12) intentional infliction of emotional distress against all defendants; (13) aiding and abetting against all defendants; and (14) alter ego against Arik Ventures. (ECF No. 1).

         On January 7, 2019, the court dismissed the following claims: (1) all claims against the FBI agents; (2) malicious prosecution, abuse of process, false imprisonment, intentional infliction of emotional distress, civil conspiracy, and negligence against the United States; (3) civil conspiracy pursuant to Bivens, intentional infliction of emotional distress, champerty and maintenance, defamation, and aiding and abetting against Arik; (4) alter ego against Arik Ventures; and (5) malicious prosecution, champerty and maintenance, intentional infliction of emotional distress, and defamation against Bolton. (ECF No. 121).

         On January 17, 2019, Arik filed an answer and counterclaim asserting a single cause of action for abuse of process against Friedman. (ECF No. 124). In the answer and counterclaim, Arik alleges that Friedman defrauded him out of approximately $181, 200.00 by accepting payments from Arik without using those funds to invest in the Back Canyon Estates project or to pay off outstanding loans. Id. Arik then informed law enforcement officials of Friedman's actions, which resulted in Friedman losing his employment and the United States initiating criminal proceedings. Id. Arik further alleges that Friedman initiated this lawsuit as an act of revenge against Arik for reporting Friedman's activities to law enforcement officials. Id.

         Now, Friedman moves to dismiss Arik's counterclaim. (ECF No. 135). The FBI agents move for Rule 54(b) judgment as there are no pending claims against them. (ECF No. 130). Lastly, the United States moves for judgment on the pleadings as to the final claim remaining against the United States. (ECF No. 133).

         II. Legal Standard

         a. Rule ...


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