EXH D 00 SJ Hearing Exh 45 55

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    Specifically, Mr. Moses, through counsel, stated: "[u]pon receiving

    confirmation that Traton is willing to dialogue with Chris [Mr. Moses], he[Mr. Moses] has agreed to dismiss the action without prejudice."30 No otherdemands were made in conjunction with Mr. Moses' request for areasonable dialogue.

    30 Admitted by Defendant, Traton's Second Admissions, 153.

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    Despite Mr. Moses' generous offer, Traton refused to rationally discuss this

    matter with Mr. Moses, giving as its reason that it did not want "word toget around that all you have to do is file a lawsuit to get the head man atTraton to meet with you . . . ."31

    31 Email Exchange between Traton Officers, December 8, 2005, Exhibit P.

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    Upon discovering additional facts, Mr. Moses filed a Motion to Add

    Defendants and Amend Its Complaint ("Motion to Add Defendants").32

    32 Plaintiff's Motion to Add Defendants and Amend Its Complaint, and Brief in Support of Plaintiff's Motion, Exhibit Q.

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    The Supplemental and Second Amended Complaint, which accompanied

    the Motion to Add Defendants, included the following Counts:(1) Trespass, under O.C.G.A. 51-9-1 and 51-9-3;(2) Continuing Trespass, under O.C.G.A. 51-9-6;(3) Liability for Torts of Independent Employee, under O.C.G.A. 51-2-4;(4) Liability for Torts of Contractors, under O.C.G.A. 51-2-5;(5) Civil Conspiracy;(6) Breach of Contract;(7) Breach of Fiduciary Duty;

    (8) Officers' Personal Liability for Corporate Action;(9) Litigation Expenses, under O.C.G.A. 13-6-11; and(10) Punitive Damages, under O.C.G.A. 51-12-5.1.33

    33 Supplemental and Second Amended Complaint, Exhibit R.

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    Despite the ongoing discovery, in yet another effort to resolve this without

    further escalating costs, Mr. Moses presented his third settlement offer toTraton on February 13, 2006.34

    34 February 13, 2006, Email from Mr. Moses to Traton, Exhibit S.

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    In that offer, Mr. Moses requested the following:

    (1) Face-to-face meeting with Traton officers (Bill Poston, DaleBercher, Millburn Poston, etc.);(2) Admission of wrong by Traton, and issue written apology toMr. Moses;(3) Repair of damaged yard to Mr. Moses' satisfaction;(4) Promise to refrain from future damage;(5) Promise to fix future damage that can be attributed to Traton;and(6) Payment of out-of-pocket litigation expenses (~$500) (but not

    any costs for attorney time).35

    35 February 13, 2006, Email from Mr. Moses to Traton.

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    Mr. Moses' third offer was rejected.36

    36 February 27, 2006, Email from Traton to Mr. Moses, Exhibit T.

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    Thus, rather than rationally dialoguing with Mr. Moses, Traton deliberately

    chose to continue with discovery, which Traton certified would cost anestimated $2,950,000.00.37

    37 Defendants' Response to Plaintiff's Motion to Add Defendants and Amend Complaint, pp. 2-3 (Traton's attorneys certified to this

    Court that compliance with discovery was "estimated to cost $2,950,000.00"), Exhibit U.