Free Response to Motion - District Court of Colorado - Colorado

Case 1:04-cv-01362-LTB-MJW

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Filed 06/30/2005

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 04-WY-1362 ABJ (MJW)
QUALMARK CORPORATION,

Plaintiff, v.
GREGG K. HOBBS and HOBBS ENGINEERING CORPORATION, Defendants.

_________________________________________________________________

DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION FOR STAY PENDING COMPLETION OF BRIEFING ON PLAINTIFF'S MOTION TO COMPEL AND EXTEND DEADLINES; DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION FOR REVISED SCHEDULING ORDER
________________________________________________________________________ Defendants Gregg K. Hobbs and Hobbs Engineering, by and through their attorneys James R. Benson, Jr., and Jack M. Merritts, hereby respond to Plaintiff's Motion as described above, as follows:
RESPONSE TO ALLEGATIONS REGARDING PROCEDURAL BACKGROUND 1. Defendants generally agree with the matters alleged in paragraphs 1, 2 and 4 of the Motion. 2. The inclusion of the matters alleged in paragraph 3 of the Motion is a clear and intentional violation of F.R.E. 408, since it contains statements concerning settlement discussions, which counsel for Plaintiff knows are not admissible nor capable of consideration by this Court pursuant to that Rule. Plaintiff's purpose in including these statements is a clear and blatant attempt to violate F.R.E. 408 with the sole and only goal of prejudicing this Court against the Defendants. Defendants therefore ask that paragraph
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Case 1:04-cv-01362-LTB-MJW

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3 be stricken, that appropriate sanctions be entered against counsel for Plaintiff and that the Court enter an order prohibiting Plaintiff from referring to settlement discussions in any context in this proceeding, except under the narrow exception contained in the F.R.E. 408. RESPONSE TO ARGUMENT 3. Defendants generally agree with the matters stated in paragraphs 5, 6 4. With regard to paragraph 7 of the Motion, Plaintiff's assertion that Defendants' alleged failure to produce requested documents resulted in the cancellation of Defendant Hobbs's deposition is specious. Plaintiff's assertion that its expert does not have sufficient documentation to prepare a report also rings hollow. All documents that are discoverable in this case have been provided to Plaintiff, either in the context of this case or Civil Action No. 03-CV-198 AJ (MJW). Magistrate Judge Watanabe has ordered that discovery in these two related cases not be duplicated yet this is exactly what Plaintiff seeks to have this Court compel Defendants to do. In addition, Plaintiff continues to seek documents relating to profits made by Defendants in the conduct of seminars allegedly using Plaintiff's seminar materials. Counsel for Plaintiff stipulated in a telephone conference that Plaintiff is seeking damages for the use of its alleged copyrighted materials in the form of license fees and royalties only. Magistrate Judge Watanabe made this stipulation an order of the Court during this telephone conference. Almost since the day after such telephone conference during which the stipulation was made, counsel for Plaintiff has tried to renege on this stipulation, with the latest such evasive effort coming during the pre-trial conference held on June 22, 2005, during which he offered false and frivolous excuses for entering into the stipulation. There is nothing preventing Plaintiff from taking Dr. Hobbs's deposition except for its and its counsel's failure to properly prepare for such deposition and to review documents
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Case 1:04-cv-01362-LTB-MJW

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that have been in their possession for over a year. None of the information or documents to which Plaintiff claims it is now entitled, and which have not already been produced, are discoverable pursuant to Fed.R.Civ.P. 26(b), nor will it assist Plaintiff in preparing for the issues left in this case. 5. Defendants have no objections to resetting deadlines in this case so long as they are reasonably related to any trial date to be set. WHEREFORE, Defendants request that the Court enter an Order requiring that if Plaintiff wishes to file any reply to Defendants' Response to Motion to Compel, that such reply be filed within 10 days from the entry of its Order pursuant to the Motion and that Plaintiff's Motion otherwise be denied. Dated: June 30, 2005 /s/ James R. Benson, jr. James R. Benson, Jr. Co-Counsel for Plaintiff 303 East 17th Avenue, Suite 800 P.O. Box 18948 Denver, CO 80218 Phone: 303-832-5931 Fax: 303-832-2337 BURNS WALL SMITH & MUELLER PC DATED: June 30, 2005 By: /s/ Jack M. Merritts Jack M. Merritts Co-Counsel for Plaintiff 303 East 17th Avenue, Suite 800 Denver, CO 80203 Phone: 303-830-7000 Fax: 303-830-6708

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Case 1:04-cv-01362-LTB-MJW

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Filed 06/30/2005

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CERTIFICATE OF SERVICE

I hereby certify that on the 30th day of June 2005 I delivered by facsimile transmission a true and correct copy of the above and foregoing DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION FOR STAY PENDING COMPLETION OF BRIEFING ON PLAINTIFF'S MOTION TO COMPEL AND EXTEND DEADLINES; DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION FOR REVISED SCHEDULING ORDER to counsel for Qualmark Stephen D. Bell, Esq. /s/ James R. Benson, Jr.

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