Free Proposed Scheduling Order - District Court of Colorado - Colorado

Case 1:01-cv-00693-LTB-BNB

Document 222

Filed 10/28/2005

Page 1 of 12

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No: 01-cv-693-LTB-BNB TY REX, LLC. Plaintiff, v. MARK NEWMAN; JAPHETH B. BOYCE, individually and dba RJB ROCK SHOP; TRANS UNION GEM & MINERAL, INC.; KAREN NEWMAN; JOHN C. BOLAN; ROBERT L. STODDARD and GAIL L. STODDARD, Defendants, MARK NEWMAN and JAPHETH B. BOYCE, Third-Party Plaintiffs, v. JEFFREY S. MILLER, Third-Party Defendant. ______________________________________________________________________________ SCHEDULING ORDER ______________________________________________________________________________ 1. DATE OF CONFERENCE AND APPEARANCES OF COUNSEL The Scheduling Conference will be held on November 3, 2005 at 8:30 a.m. Appearances are as follows: 1. On behalf of Plaintiff Ty Rex LLC and Third-Party Defendant Jeffrey S. Miller: Joe Reece Reece & Baker, LLC P.O. Box 6670 Denver, CO 80206 303-321-2222 2. On behalf of Defendants Mark Newman, Japheth B. Boyce, individually and dba RJB Rock Shop, Trans Union Gem & Mineral, Inc. and Karen Newman: Edward T. Ramey Isaacson, Rosenbaum Woods & Levy, P.C. 633 17th Street, Suite 2200 1

Case 1:01-cv-00693-LTB-BNB

Document 222

Filed 10/28/2005

Page 2 of 12

Denver, CO 80202 303-292-5656 3. On behalf of Defendant John C. Bolan: Luis A. Toro Senn Lewis & Visciano, P.C. 1801 California Street, Suite 4300 Denver, CO 80202 303-298-1122 John Bolan was dismissed from the lawsuit pursuant to a separate stipulation of settlement reached in June, 2003. 4. On behalf of Defendants Robert L. Stoddard and Gail L. Stoddard: Justin D. Cumming Lars Fuller Rothgerber Johnson & Lyons LLP 1200 17th Street, Suite 3000 Denver, CO 80202 303-623-9000 2. STATEMENT OF CLAIMS AND DEFENSES a. Plaintiff Plaintiff is the assignee of a contract for the purchase and sale of a Tyrannosaurus Rex fossil, plus history of ownership and records of its discovery. Based upon representations made to Plaintiff's agent, Plaintiff believed that the seller of the fossil was Defendant Mark Newman ("Newman") and that he had full ownership and ability to enter into said contract. Plaintiff paid $50,000 in partial consideration for the fossil and other contract items and received a written bill of sale conveying title to the fossil to Plaintiff. Immediately after entering into the agreement, while the fossil was in the possession of Japheth Boyce ("Boyce") for restoration, Newman failed to produce valid ownership records or records of the excavation, as agreed. Plaintiff also learned that there could be claims of ownership made against the fossil by a former spouse of one of the persons in the chain of ownership, whom Newman refused to identify. Plaintiff commenced this action against Newman and Boyce for breach of contract and misrepresentation. After suit was commenced, Plaintiff learned the identity of the "previous" owner, John Bolan ("Bolan"), and his former spouse

2

Case 1:01-cv-00693-LTB-BNB

Document 222

Filed 10/28/2005

Page 3 of 12

and further learned that, contrary to the representations made to it by Newman and Boyce, there were photographs and other records of the excavation. Plaintiff also learned that, at the time of sale of the fossils to Plaintiff, the Tyrannosaurus Rex skeleton was the subject of a California divorce proceeding involving Bolan and his wife Christine. Plaintiff also learned that Bolan and Robert and Gail Stoddard, the persons on whose ranch the fossil was first found, had executed documents, for use in the California divorce proceeding that supported the claim made by Bolan in that proceeding in which he denied the existence of any fossils. Plaintiff also learned of an agreement between Bolan, Boyce and the Stoddards that purported to be a joint venture agreement concerning the marketing and sale of the fossil, suggesting that each of these individuals has, at some time, or currently, been an owner of the fossil and furthermore suggesting that Newman had no authority to enter into an agreement purporting to transfer ownership of the fossil to Plaintiff. Plaintiff has also learned that a separate Tyrannosaurus jaw and teeth sold to Plaintiff by Newman was misrepresented by him, both in terms of quality and of value. Subsequently, Plaintiff has amended its complaint to add Trans Union Gem & Mineral, Inc., Karen Newman, John C. Bolan and Robert and Gail Stoddard as additional defendants. Plaintiff brings claims against Mark Newman and Japheth Boyce for fraud and misrepresentation, against Mark Newman, Trans Union, Boyce, Bolan and the Stoddards for breach of contract, against Mark Newman for tortious interference with business, against Mark Newman, Karen Newman (as CEO of Trans Union) and Trans Union for constructive fraud, against Bolan and the Stoddards for fraud and misrepresentation, claims against all defendants based on the Colorado Deceptive Trade Practices Act and for exemplary damages. In response to the counterclaims asserted by Defendants Newman and Boyce, Plaintiff has asserted the affirmative defenses of failure to state a claim upon which relief could be granted, promissory estoppel, Defendants' breaches of contract, Defendants' failure to mitigate their damages, estoppel, waiver and release. Most specifically, Plaintiff questions Newman's right to seek to enforce the contract when it appears that he did not have the title to the fossils that he 3

Case 1:01-cv-00693-LTB-BNB

Document 222

Filed 10/28/2005

Page 4 of 12

claimed to have. Further, since he failed to produce the accurate and complete ownership record and excavation records, claiming that the latter did not exist, he has not performed the conditions precedent to any contractual right he may claim to final payment under the contract. Plaintiff expects to seek further amendment of its pleadings to include claims arising subsequent to June, 2003. b. Defendants i. Defendants Mark Newman, Japheth Boyce, Trans Union Gem & Mineral,

Inc. and Karen Newman generally deny both the factual and legal predicates of the Plaintiff's allegations and have asserted several affirmative defenses. Defendant Karen Newman specifically states that this Court does not have personal jurisdiction over her with regard to the matters at issue. All of these Defendants assert that the Plaintiff has waived its claims against them and is otherwise estopped from recovering upon such claims as a result of its own actions and the actions of its principals, to include its own contractual breaches and negligence. All of these Defendants assert that the Plaintiff has failed to mitigate its damages. All of these Defendants assert that they are entitled to a setoff in amounts reflective of the damages caused to them by the Plaintiff's contractual breaches and the Plaintiff's abuse of process through the assertion of its claims in this action. These Defendants further assert that the Plaintiff has discharged any indemnification rights it may have held from any of these Defendants. Finally, these Defendants have asserted that the Plaintiff's claims lack substantial justification, entitling these Defendants to an award of their attorneys fees under applicable state law. These Defendants have, further submitted a Motion for Partial

Summary Judgment addressing several issues pertinent to the legal bases for the Plaintiff's claims. Defendant Mark Newman has also asserted a counterclaim against the Plaintiff and a Third Party Complaint against Jeffrey Miller, as assignor to the Plaintiff, for breach of contract regarding the purchase and sale of the referenced Tyrannosaurus Rex fossils. Defendant Japheth Boyce has asserted an additional counterclaim and Third Party Complaint against the same parties for recovery of specified agreed fossil restoration expenses. 4

Case 1:01-cv-00693-LTB-BNB

Document 222

Filed 10/28/2005

Page 5 of 12

In response to the Third Party counterclaims of Jeffrey Miller, Defendants Mark Newman and Japheth Boyce have generally denied Miller's allegations. They have also pled affirmative defenses of estoppel and waiver based upon Miller's own tortious actions and contractual breaches, failure to Miller to mitigate his own damages, setoff reflective of Mark Newman's and Japheth Boyce's damages incurred as a result of the actions of Miller and a claim for attorneys fees under applicable state law due to the lack of substantial justification for Miller's Third Party counterclaim. Defendants Mark Newman, Japheth Boyce, Karen Newman and Trans Union will seek leave to amend and supplement their pleadings to reflect events that have occurred subsequent to June 2003.. ii. lawsuit.. iii. Defendants Robert L. Stoddard and Gail L. Stoddard moved for dismissal Defendant John C. Bolan, as stated above, has been dismissed from the

of all claims against them in May 2002. If that motion is denied, the Stoddards will file an answer generally denying the material allegations in the Complaint and further requesting an award of attorneys' fees and costs. c. Other Parties: Third-Party Defendant Jeffrey Miller ("Miller") denies the allegations

of the Third-Party Plaintiffs and asserts cross-claims against them based upon fraud and misrepresentation, Colorado Deceptive Trade Practices Act and exemplary damages. 3. UNDISPUTED FACTS As the Stoddards have only filed a motion to dismiss to date and have not stated positions regarding the allegations of the Amended Complaint, the following undisputed facts relate solely to the pleadings of the Plaintiff and the Defendants Mark Newman, Japheth B. Boyce, individually and dba RJB Rock Shop, Trans Union Gem & Mineral, Inc. and Karen Newman. The following facts are undisputed: 1. Defendant Mark Newman is a citizen of the State of New York.

5

Case 1:01-cv-00693-LTB-BNB

Document 222

Filed 10/28/2005

Page 6 of 12

2.

Defendant Japheth B. Boyce, individually and dba RJB Rock Shop, is a citizen of

the State of South Dakota. 3. Defendant Trans Union Gem & Mineral, Inc. is a for-profit corporation organized

under the laws of the State of New York, with its principal place of business located in the County of Suffolk, State of New York. 4. Defendant Karen Newman is a citizen of the State of New York and CEO of Trans

Union Gem & Mineral, Inc. 5. Defendant Boyce is a geologist and amateur paleontologist and fossil dealer doing

business under the name RJB Rock Shop in Rapid City, South Dakota. 6. At all times relevant to this action, Mark Newman and Karen Newman were officers,

directors and principal employees and shareholders of Trans Union Gem & Mineral, Inc. 4. COMPUTATION OF DAMAGES a. Re: Plaintiff Ty Rex LLC and Third-Party Counterclaimant Jeffrey Miller. These parties take the position that they are entitled to recover on their claims based upon breach of contract, fraud and misrepresentation, tortious interference with business, for the losses suffered from Defendants' actions and failure to fulfill their contractual obligations for the damages incurred as a result. Additionally, Plaintiff and Miller have asserted claims for exemplary damages and under the Colorado Deceptive Trade Practices Act for treble damages and attorneys fees. Plaintiff and Miller believe their damages exceed the sum of $1,000,000 including the appraised value of the fossil, attorneys' fees, costs, interest and miscellaneous expenses incurred. b. Re: Mark Newman, Japheth B. Boyce, individually and dba RJB Rock Shop, Trans Union Gem & Mineral, Inc. and Karen Newman. With regard to claims which have been asserted by these Defendants as of this date, Defendant and Third Party Plaintiff Mark Newman requests the sum of $350,000, together with appropriate 6

Case 1:01-cv-00693-LTB-BNB

Document 222

Filed 10/28/2005

Page 7 of 12

interest, costs of collection and reasonable attorney fees from the Plaintiff and Third Party Defendant Miller under the terms of the referenced promissory note. Defendant and Third Party Plaintiff Japheth Boyce requests the sum of $1,371.25, together with appropriate interest, costs of collection and reasonable attorneys fees from the Plaintiff and Third Party Defendant Miller for the referenced restoration costs. 5. REPORT OF PRE-CONFERENCE DISCOVERY & MEETING UNDER FED.R. Civ. P. 26(f) a. There was no formal Rule 26(f) meeting,. However, counsel for Plaintiff and ThirdParty Defendant and counsel for Mark Newman, Japheth Boyce, Trans Union Gem & Mineral and Karen Newman have had discussions from the inception of the lawsuit up to the present, regarding the informal exchange of information, settlement discussions and matters regarding the preparation of this Order. b. As stated above, Joe T. Reece, counsel for Plaintiff and Miller and Ed Ramey, counsel for the Newmans, Boyce and Trans Union have been the ones participating in these efforts. Justin Cumming, attorney for the Stoddards, has provided such information for his clients as has been requested at this time. c. Rule 26(a)(1) disclosures were previously submitted between the Ty Rex and the Trans Union parties. The Stoddards have not filed an answer or submitted

disclosures, pending resolution of their motion to dismiss. d. e. May 15, 2002. There have been no agreements to conduct informal discovery. 6. CONSENT

All parties have not consented to the exercise of jurisdiction of a Magistrate Judge. 7. CASE PLAN AND SCHEDULE a. Deadline for Joinder of Parties and Amendment of Pleadings: January 30, 2006.

7

Case 1:01-cv-00693-LTB-BNB

Document 222

Filed 10/28/2005

Page 8 of 12

b. Discovery Cut-off: June 30, 2006. c. Dispositive Motion Deadline: July 31, 2006. d. Expert Witness Disclosures: (1) (a) Plaintiff and Miller anticipate using experts in the fields of valuation of paleontological specimens, economics and auction practices and customs. (b) The Newmans, Boyce and Trans Union anticipate using an expert regarding fossil valuation. (2) (3) The parties propose limiting the number of expert witnesses to two per side. The parties shall designate all experts and provide opposing counsel and any pro se party with all information specified in Fed. R. Civ. P. 26(a)(2) on or before March 15, 2006. (4) The parties shall designate all rebuttal experts and provide opposing counsel and any pro se party with all information specified in Fed. R. Civ. P. 26(a)(2) on or before April 14, 2006. (5) Notwithstanding the provisions of Fed. R. Civ. P. 26(a)(2)(B), no exception to the requirements of the rule will be allowed by stipulation of the parties unless the stipulation is approved by the court. e. Deposition Schedule:
Name of Deponent Date Deposition of Time of Deposition Expected Length of Deposition

Mark Newman_ Japheth Boyce__ Mark Zimmerman John Bolan____ Robert Stoddard Bruce Lien Jeffrey Miller___

___________ ___________ ___________ ___________ ___________ ___________ ___________

___________________ ___________________ ___________________ ___________________ ___________________ ___________________ ___________________

_________________________ _________________________ _________________________ _________________________ _________________________ _________________________ _________________________

8

Case 1:01-cv-00693-LTB-BNB

Document 222

Filed 10/28/2005

Page 9 of 12

___________ ___________ ___________ ___________ ___________ Representative of ___________ Butterfield's________ ___________ Representative of ___________ Black Hills Institute__ ___________ Others as they ___________ become known. ___________ Ron Charlin____ Christine Bolan_ Mark Michels__ Mike Grano____ Paul Swedlund_

___________________ ___________________ ___________________ ___________________ ___________________ ___________________ ___________________ ___________________ ___________________ ___________________ ___________________

_________________________ _________________________ _________________________ _________________________ _________________________ _________________________ _________________________ _________________________ _________________________ _________________________ _________________________

f. g.

Interrogatory Schedule: Deadline to submit interrogatories: January 16, 2006. Schedule for Request for Production of Documents: Deadline to submit requests for production of documents and requests for admissions: January 16, 2006.

h.

Discovery Limitations: (1) Plaintiff anticipates that, due to the history of this case and the large number of people with knowledge of relevant facts, that it will be necessary to take several depositions and that the provisions of Fed. R. Civ. P. 30(a)(2)(A) should apply. (2) The parties do not desire to set limits on the length of depositions. They do agree to attempt to limit most depositions to one day at most and anticipate that most depositions will not take longer than one-half day. Plaintiff does, however,

anticipate that its deposition of Japheth Boyce will take two days. (3) The parties do not propose alterations to the presumptive limitations on depositions or interrogatories set forth in the federal rules. (4) The parties do not propose alterations to the presumptive limitations on the requests for production of documents and/or requests for admissions set forth in the federal rules. 9

Case 1:01-cv-00693-LTB-BNB

Document 222

Filed 10/28/2005

Page 10 of 12

(5)

Other Planning or Discovery Orders. None. 8. SETTLEMENT

Ty Rex, LLC, Miller, Newman and Boyce have engaged in extensive settlement discussions to date. 9. OTHER SCHEDULING ISSUES a. With respect to the parties participating in the preparation of this Scheduling Order, there are no discovery or scheduling issues on which counsel have been unable to agree. b. This is a trial to the Court. The parties believe it can be concluded within five days. 10. DATES FOR FURTHER CONFERENCES a. A settlement conference will be held on ___________ at ________o'clock ___.M.

It is hereby ordered that all settlement conferences that take place before the magistrate judge shall be confidential ( ) ( ) Pro se parties and attorneys only need be present. Pro se parties, attorneys and client representatives with authority to settle must be present. (NOTE: This requirement is not fulfilled by the presence of counsel. If an insurance company is involved, an adjustor authorized to enter into settlement must also be present.) ( ) Each party shall submit a Confidential Settlement Statement to the magistrate judge on or before _______ outlining the facts and issues in the case and the party's settlement position. b. Status conferences will be held in this case at the following dates and times: ___________________________________________________________ ___________________________________________________________ c. A final pretrial conference will be held in this case on _____________ at _____ o'clock ____. M. A final Pretrial Order shall be prepared by the parties and

submitted to the court no later than five days before the final pretrial conference. 10

Case 1:01-cv-00693-LTB-BNB

Document 222

Filed 10/28/2005

Page 11 of 12

11. OTHER MATTERS In addition to filing an appropriate notice with the clerk's office, counsel must file a copy of any notice of withdrawal, notice of substitution of counsel, or notice of change of counsel's address or telephone number with the clerk of the united states magistrate judge assigned to this case. In addition to filing an appropriate notice with the clerk's office, a pro se party must file a copy of a notice of change of his or her address or telephone number with the clerk of the united states magistrate judge assigned to this case. With respect to discovery disputes, parties must comply with D.C. Colo. L.R.7.1. The parties filing motions for extension of time or continuances must comply with D.C. Colo. L.C. 6.1(D) by submitting proof that a copy of the motion has been served upon the moving attorney's client, all attorneys of record, and all pro se parties. There is currently pending a Motion for Partial Summary Judgment filed by Defendants Mark Newman, Japheth B. Boyce, individually and dba RJB Rock Shop, Trans Union Gem & Mineral, Inc. and Karen Newman. The Stoddard Defendants filed a Motion to Dismiss in May 2002 that is still pending (assuming the Stipulation of Settlement is not enforced by the Court.) 12. AMENDMENTS TO SCHEDULING ORDER The Scheduling Order may be altered or amended only upon a showing of good cause. DATED this ____ day of ____________, 2005. BY THE COURT:

______________________________ United States Magistrate Judge

11

Case 1:01-cv-00693-LTB-BNB

Document 222

Filed 10/28/2005

Page 12 of 12

APPROVED:

__s/Joe T. Reece______________________ Joe T. Reece Reece & Baker, LLC P.O. Box 6670 Denver, CO 80206 303-321-2222 Attorneys for Plaintiff and Third-Party Defendant

__s/Edward T. Ramey__________________ Edward T. Ramey Isaacson, Rosenbaum, Woods & Levy P.C. 633 17th Street, Suite 2200 Denver, CO 80202 (303) 292-5656 Attorney for Defendants Mark Newman, Japheth Boyce, individually and dba RJB Rock Shop, Karen Newman, Trans Union Gem & Mineral, Inc.

___s/Justin Cumming___________________ Justin Cumming Lars Fuller Rothgerber Johnson & Lyons LLP 1200 17th Street, Suite 3000 Denver, CO 80202 303-623-9000 Attorney for Defendants Robert L. Stoddard And Gail L. Stoddard

12