Free Response to Motion - District Court of Colorado - Colorado

Case 1:01-cv-01644-REB-CBS

Document 478

Filed 05/05/2008

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No. 01-F-1644-CBS-REB CARTEL ASSET MANAGEMENT, a Colorado corporation, Plaintiff, vs. OCWEN FINANCIAL CORPORATION, a Florida corporation, OCWEN FEDERAL BANK FSB, a subsidiary of OCWEN FINANCIAL CORPORATION; and OCWEN TECHNOLOGY XCHANGE, INC. a subsidiary of OCWEN FINANCIAL CORPORATION, Defendants.

RESPONSE IN OPPOSITION TO "DEFENDANTS' MOTION TO STRIKE PLAINTIFF'S REPLY IN SUPPORT OF `REVISED AND RENEWED MOTION TO CONDUCT ADDITIONAL DISCOVERY'"

Plaintiff, Cartel Asset Management, Inc. ("Cartel"), through its undersigned counsel, G.W. MERRICK & ASSOCIATES, LLC, respectfully responds in opposition to DEFENDANTS' MOTION TO STRIKE REPLY IN SUPPORT OF "REVISED AND RENEWED MOTION TO CONDUCT ADDITIONAL DISCOVERY'" filed on April 24, 2008 (the "Motion to Strike"). As grounds for this Response in Opposition to the Motion to Strike, Cartel advises the Court as follows: 1. Defendants' Motion to Strike rests exclusively upon a short comment

made by Magistrate Judge Shaffer at the hearing conducted on March 24, 2008. At the end of the March 24 hearing, Magistrate Judge Shaffer addressed the forthcoming filing of Cartel's Revised and Renewed Motion to Conduct Additional Discovery." At that time, Magistrate Judge

Case 1:01-cv-01644-REB-CBS

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Shaffer remarked: "And I don't want any replies. *** So that we can get going on this. All right, We'll be in recess." The hearing on Cartel's Revised and Renewed Motion was not set at that time. 2. On March 28, 2008Cartel timely filed its Revised and Renewed Motion to

Conduct Additional Limited Discovery. 3. On April 2, 2008, Magistrate Judge Shaffer entered his Minute Order (a

copy of which is attached as "Exhibit A"). Therein, Magistrate Judge Shaffer scheduled a hearing on Cartel's Revised and Renewed Motion for May 15, 2008. By the time that the hearing was set, it had become clear that there was ample time prior to the scheduled hearing for a full briefing. Accordingly, Magistrate Shaffer's April 2, 2008 Minute Order modifies his instructions at the March 24 hearing and expressly provides: "Parties are directed to D.C. Colo.L.CivR. 7.1C for the deadline(s) relating to the filing of the response and reply brief(s)." (Emphasis in original). 4. It is clear that Magistrate Judge Shaffer, upon setting of the May 15

hearing, appreciated that there would be time for a full briefing schedule. With that information in hand his follow on April 2, 2008 Minute Order expressly sets a deadline for filing of a Reply Brief. Cartel's Reply Brief was timely filed under D.C. Colo.L.CivR. 7.1C. 5. It follows that the Defendants' Motion to Strike is yet another example of

the Defendants' eagerness to expend prodigious amounts of time and money in an effort to avoid and/or delay ultimate accountability for its brazen theft of Cartel's valuable trade secret. Manifestly, the Motion to Strike must be denied.

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WHEREFORE, Cartel respectfully prays that this Court deny Defendants' Motion to Strike. Cartel further prays that it be awarded its reasonable attorneys' fees and costs for the truly ridiculous necessity of having to respond to Defendants' Motion to Strike. Dated: May 5, 2008. Respectfully submitted,

By: s/Glenn W. Merrick_ Glenn W. Merrick, No. 10042 G.W. MERRICK & ASSOCIATES, LLC Suite 912, 5445 DTC Parkway Greenwood Village, Colorado 80111 Telephone: (303) 831-9400 Facsimile: (303) 771-5803 E-Mail: [email protected] ATTORNEYS FOR PLAINTIFF, CARTEL ASSET MANAGEMENT

CERTIFICATE OF SERVICE I hereby certify that on the 5th day of May, 2008, a true and correct copy of the foregoing RESPONSE IN OPPOSITION TO "DEFENDANTS' MOTION TO STRIKE PLAINTIFF'S REPLY IN SUPPORT OF `REVISED AND RENEWED MOTION TO CONDUCT ADDITIONAL DISCOVERY'" was electronically filed with the clerk of the court using the CM/ECF System, which will send notification of such filing to the following: Lino S. Lipinsky de Orlov, Esq. Sandra B. Wick Mulvaney, Esq. McKENNA LONG & ALDERIDGE LLP 1875 Lawrence Street, Suite 200 Denver, Colorado 80202 [email protected] [email protected]

s/ Dyanna Spicher

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