Free Pretrial Order - District Court of Colorado - Colorado

Case 1:04-cv-01334-EWN-MEH

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Judge Edward W. Nottingham Civil Action No. 04-cv-01334-EWN-MEH

AT&T CORP., a New York Corporation, Plaintiff, v. GENERAL STEEL DOMESTIC SALES, LLC d/b/a GENERAL STEEL CORPORATION, Defendant.

FINAL PRETRIAL ORDER

1.DATE AND APPEARANCES The Final Pretrial Conference is to be held April 28, 2006, at the hour of 2:45 p.m. before The Honorable Edward W. Nottingham. The following are counsel of record in this matter: For Plaintiff: Paul R. Frank, III, Esq. William H. Eikenberry 1228 Fifteenth Street, Second Floor Denver, Colorado 80202 Telephone: (303) 623-4500 Richard F. Taub, Esq. Christopher Dopke, Esq. 1075 S. Yukon Avenue, Suite 280 Lakewood, Colorado 80226 Telephone: (720) 963-4954

For Defendant:

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2.JURISDICTION This Court has subject matter jurisdiction pursuant to 28 U.S.C. §1332(a), in that the matter in controversy exceeds the sum or value of $75,000.00, exclusive of interest and costs, and is between parties that are citizens of different states.

3.CLAIMS AND DEFENSES a. Plaintiff(s):

The parties signed contracts for voice/data and local services. Three separate accounts were set up to bill these services. The Plaintiff' Complaint alleges breach of s contract for nonpayment of $118,141.21 for voice services provided to the Defendant, $23,035.80 for data services provided to the Defendant and $3,468.40 for local services provided to the Defendant. The Court has already ruled that Plaintiff is entitled to summary judgment on its $118,141.21 breach of contract claim for voice services. Plaintiff believes that the summary judgment also clearly included judgment as to the merits of the Defendant' negligent misrepresentation claim. s The Defendant' claim that it was fraudulently induced into signing the voice/data s contract is still pending. The Plaintiff' defenses to that claim are: (1) the Defendant s lacks evidentiary support for all elements of fraudulent inducement; (2) the claim would have accrued more than three years before Plaintiff' Complaint was filed and therefore s the claim is barred by the three year statute of limitations set forth under C.R.S. §13-80101; and (3) the claim is barred by application of the filed rate doctrine. Regarding the Plaintiff' $23,035.80 data services claim, the Defendant s acknowledges that it owes $20,378.21. The Defendant claims that the difference is attributable to payment not being credited to the data account by Plaintiff. To date,

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Plaintiff has no reason to believe that its accounting on this account is inaccurate. Regarding the Plaintiff' $3,468.40 local services claim, the Defendant claims that the s Plaintiff actually owes the Defendant $2,323.86 due to over payment of the account. To date, Plaintiff has no reason to believe that its accounting on this account is inaccurate. Regarding both the data and local services accounts, the parties do not dispute the rates charged or the duration of services charged, only that the Defendant may not have been credited for certain payments on the accounts. Regarding the Defendant' unjust s enrichment claim, Defendant acknowledges it would still owe AT&T money for voice service, even if the Defendant could undo the Contract by its fraudulent inducement claim. Plaintiff is also seeking recovery of its collection costs, including reasonable attorneys' fees, and interest on unpaid amounts, pursuant to Article 2.3 of the Master Agreement signed by the parties.

b.

Defendant(s):

General Steel Domestic Sales d/b/a General Steel Corporation' claims against s AT&T Corp. are for unjust enrichment, fraud in the inducement and negligent misrepresentation. General Steel is seeking recission of the contract, damages for overpayment of monies, interest, punitive damages, attorneys' fees and costs. The Court granted in part and denied in part AT&T' Motion for Partial Summary Judgment. s Specifically, the Court granted summary judgment in favor of AT&T' breach of contract s claim and General Steel' Colorado Consumer Protection Act claim. General Steel has s pending its Motion for Reconsideration asking the Court to reconsider its decision in not

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striking the briefs and permit their refilling or, in the alternative, to deny summary judgment on AT&T' breach of contract claim. s The facts of this case are fairly straightforward. AT&T Corp.' authorized s representative, Ginger Whitefield convinced General Steel to enter into a long-term telecommunications services contract with AT&T Corp. at a presentation that she made to executives of General Steel in March, 2001. General Steel informed Ms. Whitefield of its present telecommunications rates and costs in detail and was trying to lower said rates and costs. Ms. Whitefield assured General Steel that its rates and costs would be lower than those it was presently paying based upon its telecommunications history. More specifically, Ms. Whitefield convinced General Steel that based upon AT&T Corp.' telecommunications rate system of " s partially-connected"versus " fullyconnected"calls, General Steel would clearly receive lower rates and lower total telecommunications costs if General Steel would " switch"to AT&T Corp. Ms. Whitefield misrepresented to General Steel that it would receive a rate of .033 per minute for 80%90% of all of its calls and the higher rate of approximately .042 would apply to 20% of all of its calls. General Steel personnel accepted Ms. Whitefield' representations and s believed that General Steel would receive lower rates and total lower costs with respect to its telecommunications use than previously provided. General Steel was invoiced for exceptionally and substantially higher rates and total telecommunications costs than promised by Ms. Whitefield and invoiced previously by its former telecommunications provider. However, initially, invoicing by AT&T Corp. was not so considerably higher than General Steel' previous telecommunications s provider' invoiced total costs to place General Steel on notice of AT&T Corp.' s s

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misrepresentations with respect to said costs and expenses. As soon as General Steel became aware that AT&T Corp.' representative had committed fraud or negligently s misrepresented those rates, General Steel began paying its invoices at the telecommunications rates that General Steel' former provider had charged General s Steel. Since AT&T Corp. had represented that its rates would be lower than General Steel' former telecommunications provider had charged, General Steel overpaid for the s telecommunications services it received from AT&T Corp. AT&T' actions alternatively constitute fraud or negligent misrepresentation to s induce General Steel to abandon its business relationship with its prior carrier in favor of contracting with AT&T. Fraud and Negligent misrepresentation in the inducement require proof that the defendant supplied false information in a business transaction and failed to exercise reasonable care or competence (or intentionally supplied false information in the case of fraudulent misrepresentation) in obtaining or communicating the information upon which plaintiff justifiably relied. Bedard v. Martin, 2004 WL 2005973 (Colo. App. 2004). As previously outlined, AT&T Corp. either intentionally or negligently communicated to General Steel that it would receive an 80/20 split of " partially-connected"and " fully-connected"calls such that application of its telecommunications rates would result in lower costs than General Steel' previous s carrier. Therefore, AT&T' liability is based on simple proof of the above, supported by s several General Steel witnesses. AT&T Corp.' stated defense is that the filed rate doctrine precludes claims s sounding in fraud. However, the filed rate doctrine contends that an aggrieved customer cannot enforce contract rights at issue with the filed tariff. Plaintiff

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misunderstands that the gravamen of the filed rate doctrine is that claims cannot be based on a variance of the rates that are filed as tariffs with the Federal Communications Commission; it does not bar claims based upon misrepresentations that do not implicate the filed rates at issue. General Steel' claims are based upon s AT&T Corp.' misrepresentations regarding the total costs that AT&T Corp. determined s based upon General Steel' telecommunications needs and usage. AT&T Corp. did not s merely misrepresent that its rates were at a variance with its tariffs; AT&T Corp. misrepresented that, as its rates applied, based upon General Steel' s telecommunications needs, General Steel would gain the benefit of overall lower costs. Therefore, the circumstances at issue do not implicate the filed rate doctrine and General Steel will prevail in establishing the various misrepresentations at issue. Additionally, the filed rate doctrine was created under circumstances where telecommunications providers were required to file said tariffs under Federal Communications Commission (FCC) Regulations. Several years ago, the FCC had amended its regulations to repeal its mandatory tariff filing requirements. In order to perpetuate its fraudulent conduct against consumers, AT&T Corp. has continued to voluntarily file its tariffs with the FCC. General Steel contends that the voluntary filing of said tariffs with the FCC does not implicate the filed rate doctrine and does not permit AT&T Corp. to avoid justice for its systematic deception of its consumers. 4.STIPULATIONS A. The parties signed Master Agreement 104416.

5.PENDING MOTIONS

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Defendant' Motion for Reconsideration of Certain Aspects of Order and s Memorandum Decision on Plaintiff' Motion and Memorandum of law for Partial s Summary Judgment is currently pending before this Court. Plaintiff' motion was filed s on April 6, 2006. The Plaintiff' deadline to respond to the Motion is April 26, 2006. s Plaintiff believes it has twenty days to respond to the motion and plans to file its response on or before April 26, 2006.

6.WITNESSES a. Nonexpert Witnesses 1. Witnesses who will be present at trial A. Plaintiff(s) 1.

Jeff Kerley AT&T ­ National Escalations Director 6159 BERLIN CIRCLE ARVADA, CO 80004 303-940-0474 (in person) Mr. Kerley will testify regarding terms and conditions of the parties Contract, as well as rates billed for services. Mr. Kerley will also testify regarding the Defendant' breach of s Contract and the Plaintiff' damages in this case. s B. Defendant(s) 1. Jeffrey Knight, General Steel. Mr. Knight will testify in person regarding General Steel' s decision to contact AT&T and the resulting attempts by General Steel to correct billing errors.

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2.

Carla Montoya, General Steel. 2181 W. 73rd Ave., Denver, CO 80221. Ms. Montoya will testify in person regarding the differences between the rates AT&T initially represented it would charge General Steel and the rates that were actually charged.

1. Witnesses who may be present at trial if the need arises A. Plaintiff(s) 1. Pam Gritchen 7300 E. Hampden Avenue Mesa, AZ 85208 (480) 854-6176 (in person) Ms. Gritchen would testify regarding terms and conditions of the parties Contract, as well as rates billed for services. Ms. Gritchen would also testify regarding the Defendant' breach of Contract and the Plaintiff' damages in this case. s s

2. Regina Whitefield 20608 E. Kenyon Place Aurora, CO 80013-6640 (303) 248-3122 (in person) Ms. Whitefield would testify regarding her knowledge of events leading up to Contract signing. A. Defendant(s) 1. Bill Davis, General Steel. Mr. Davis may testify in person regarding the initial contract negotiation, including the rates AT&T represented would be charged, and the actual rates charged by AT&T. Pam Gritchen, AT&T. Ms. Gritchen may testify in person regarding AT&T' billing procedures in s general and specifically as they relate to the contract with General Steel. Jeff Salazar, AT&T. Mr. Salazar may testify in person regarding the rates AT&T charged General Steel.

2.

3.

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4.

Regina Whitefield, AT&T. Ms. Whitefield may testify in person regarding the initial contract negotiations between General Steel and AT&T including the representations she made to General Steel with respect to phone rates. Eric Morgenthaler, General Steel. Mr. Morgenthaler may testify in person regarding the initial contract negotiation, including the rates AT&T represented would be charged, the actual rates charged by AT&T. All witnesses listed by Plaintiff General Steel reserves the right to call any rebuttal witnesses.

5.

6. 7.

1. Witnesses where testimony is expected to be presented by means of a deposition and, if not taken stenographically, a transcript of the pertinent portions of the deposition testimony. A. B. Plaintiff(s) Defendant(s) 1. Jeff Salazar, AT&T. Portions of Mr. Salazar' s deposition transcript may be presented regarding the rates AT&T charged General Steel.

a. Expert Witnesses 1. Witnesses who will be present at trial A. 1. B. 1. Plaintiff(s) None. Defendant(s) None.

2. Witnesses who may be present at trial if the need arises

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A. 1. B. 1.

Plaintiff(s) None. Defendant(s) None.

3. Witnesses where testimony is expected to be presented by means of a deposition and, if not taken stenographically, a transcript of the pertinent portions of the deposition testimony. A. 1. B. Plaintiff(s) None. Defendant(s) 1. None. 7.EXHIBITS a. See attached lists. Plaintiff' attached hereto as Exhibit A; Defendant' s s attached hereto as Exhibit B. b. Copies of listed exhibits must me provided to opposing counsel no later than five days after the final pretrial conference. The objections contemplated by Fed. R. Civ. P. 26(a)(3) shall be filed with the clerk and served by hand delivery of facsimile no later than 11 days after the exhibits are provided. 8.REMAINING DISCOVERY Discovery has been completed.

9.SPECIAL ISSUES

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Defendant reserves the right to request the Court amend this Final Pretrial Order based upon the Court' ruling on Plaintiff' Motion for Reconsideration of Certain s s Aspects of Order and Memorandum Decision on Plaintiff' Motion and Memorandum of s law for Partial Summary Judgment. 10.SETTLEMENT The undersigned counsel for the parties hereby certify that: a.a They met by telephone on April 18, 2006, before the Court, to discuss in good faith the settlement of this case. a.b The following persons participated in the settlement conference: For plaintiff(s): Counsel: William H. Eikenberry For defendant(s): Counsel: Richard Taub a.c a.d The parties were promptly informed of all offers of settlement. Counsel for the parties do not intend to hold future settlement conferences. a.e It appears from the discussion by all counsel that there is little possibility of settlement. a.f The date of the next settlement conference before the magistrate judge is N/A. a.g Counsel for the parties considered ADR in accordance with D.C.COLO.LCivR.16.6.

11.OFFER OF JUDGMENT

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Counsel acknowledge familiarity with the provision of rule 68 of the Federal Rules of Civil Procedure. Counsel have discussed it with the clients against whom claims are made in this case. 12.EFFECT OF FINAL PRETRIAL ORDER Hereafter, this Final Pretrial Order will control the subsequent course of this action and trial, and may not be amended except by consent of the parties and approval by the court or by order of the court to prevent manifest injustice. The pleadings will be deemed merged herein. This Final Pretrial Order supersedes the Scheduling Order. In the event of ambiguity in any provision of this Final Pretrial Order, reference may be made to the record of the pretrial conference to the extent reported by stenographic notes to the pleadings.

13.TRIAL AND ESTIMATED TRIAL TIME 1. 2. 3. The trial in this matter is to a jury. The estimated trial time is two days. Situs of trial is the United States District Court for the District of Colorado located in Denver, Colorado. 4. 5. 6. There are no other orders pertinent to the trial proceedings. Trial is scheduled for Tuesday, May 30, 2006. The trial preparation conference is scheduled for Thursday, May 18, 2006, at 4:30 o' clock p.m.

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***** DATED this 28 day of April, 2006.
th

BY THE COURT:

s/ Edward W. Nottingham EDWARD W. NOTTINGHAM United States District Judge FINAL PRETRIAL ORDER TENDERED FOR REVIEW:

/s/_William H. Eikenberry__________ Paul R. Franke, III William H. Eikenberry Murray Franke Greenhouse List & Lippitt, LLP 1228 Fifteenth Street, Second Floor Denver, CO 80202 303-623-4500 303-623-0960 fax [email protected] [email protected] ATTORNEYS FOR PLAINTIFF

/s/_Richard F. Taub___________________ Richard F. Taub Christopher C. Dopke 1075 S. Yukon Street, Suite 280 Denver, CO 80226 303-904-4837 720-963-4995 fax [email protected] ATTORNEYS FOR DEFENDANT

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EXHIBIT LIST OF GENERAL STEEL DOMESTIC SALES, LLC d/b/a GENERAL STEEL CORPORATION CASE NUMBER 04-N-1334-EWN-MEH
(Name of Party)

CASE CAPTION

AT&T CORP.

v. GENERAL STEEL DOMESTIC SALES, LLC d/b/a GENERAL STEEL CORP.

EX. NO./LTR.

DESCRIPTION

STIP?

REC

REJ

RUL. RES.

COMMENTS

EXHIBIT B A-1 A-2 A-3 A-4 A-5 A-6 A-7 A-8 A-9 A-10 Fax from Bob Burke to Bill Davis dated 2/9/01 Email from Regina Whitefield dated 2/16/01 Email from T Tochihara-Dirks dated 7/23/01 Letter from Eric Morgenthaler to Will Den Ouden dated 8/5/02 Email from Will Den Ouden dated 8/7/02 Email from Gregory T. Gronseth dated 12/26/02 Letter from Eric Morgenthaler to Dianne Hanson dated 2/25/03 Letter from Eric Morgenthaler to Dianne Hanson dated 2/28/03 Email from Dianne Hanson to David Fein dated 3/1/03 Email from Dianne Hanson to David Fein dated 3/3/03

INSTRUCTION NOTE TO USERS OF THIS FORM: Everything above the bottom of the double-underlined boxes constitutes a header. To complete the information in the header, you will need to edit it, by clicking on it or otherwise getting access to it. After exiting the header, you can start completing the exhibit list, which is simply a table. Place the cursor in the far-left cell for the first exhibit. The TAB button moves horizontally along the row and, at the end of a row, inserts a new row for the next exhibit. The form was created in WordPerefect Version 9 and probably works best in that program and format.

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EXHIBIT LIST OF GENERAL STEEL DOMESTIC SALES, LLC d/b/a GENERAL STEEL CORPORATION CASE NUMBER 04-N-1334-EWN-MEH
(Name of Party)

CASE CAPTION

AT&T CORP.

v. GENERAL STEEL DOMESTIC SALES, LLC d/b/a GENERAL STEEL CORP.

EX. NO./LTR.

DESCRIPTION

STIP?

REC

REJ

RUL. RES.

COMMENTS

A-11 A-12

A-13 A-14

Master Agreement reference number 104416 AT&T proposal for General Steel Corporation prepared by Ginger Whitefield Reconciliation of AT&T invoices to General Steel Corporation Any documents necessary for rebuttal

INSTRUCTION NOTE TO USERS OF THIS FORM: Everything above the bottom of the double-underlined boxes constitutes a header. To complete the information in the header, you will need to edit it, by clicking on it or otherwise getting access to it. After exiting the header, you can start completing the exhibit list, which is simply a table. Place the cursor in the far-left cell for the first exhibit. The TAB button moves horizontally along the row and, at the end of a row, inserts a new row for the next exhibit. The form was created in WordPerefect Version 9 and probably works best in that program and format.

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EXHIBIT LIST OF GENERAL STEEL DOMESTIC SALES, LLC d/b/a GENERAL STEEL CORPORATION CASE NUMBER 04-N-1334-EWN-MEH
(Name of Party)

CASE CAPTION

AT&T CORP.

v. GENERAL STEEL DOMESTIC SALES, LLC d/b/a GENERAL STEEL CORP.

EX. NO./LTR.

DESCRIPTION

STIP?

REC

REJ

RUL. RES.

COMMENTS

EXHIBIT A
Data Invoice Summary 1 2 3 4 5 6 7 8 9 Data Invoices November 2002-May 2003 Local Service Invoice Summary Local Service Invoices June 2002-January 2003 Local Service Agreement dated March 19, 2001 Master Agreement 104416 dated March 26, 2001, with service order attachments June 11, 2001 Invoice fee Voice Account No. 171-7858441-874 AT&T Business Network Proposal dated February 26, 2001 from Ginger Whitefield AT&T Business Network Proposal dated August 5,

INSTRUCTION NOTE TO USERS OF THIS FORM: Everything above the bottom of the double-underlined boxes constitutes a header. To complete the information in the header, you will need to edit it, by clicking on it or otherwise getting access to it. After exiting the header, you can start completing the exhibit list, which is simply a table. Place the cursor in the far-left cell for the first exhibit. The TAB button moves horizontally along the row and, at the end of a row, inserts a new row for the next exhibit. The form was created in WordPerefect Version 9 and probably works best in that program and format.

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EXHIBIT LIST OF GENERAL STEEL DOMESTIC SALES, LLC d/b/a GENERAL STEEL CORPORATION CASE NUMBER 04-N-1334-EWN-MEH
(Name of Party)

CASE CAPTION

AT&T CORP.

v. GENERAL STEEL DOMESTIC SALES, LLC d/b/a GENERAL STEEL CORP.

EX. NO./LTR.

DESCRIPTION

STIP?

REC

REJ

RUL. RES.

COMMENTS

10 11 12 13 14 15 16 17

2002 from Wilbert Den Ouden AT&T Business Network Proposal dated April 7, 2004 from Wyatt Doyle February 28, 2001 Fax from Ginger Whitefield to Bill Davies Defendant' Responses to First Set of Combined Written s Discovery Defendant' Responses to Second Set of Combined s Written Discovery Rate Information Payment Register for Data Account Payment Register for Local Account Any documents necessary for rebuttal

INSTRUCTION NOTE TO USERS OF THIS FORM: Everything above the bottom of the double-underlined boxes constitutes a header. To complete the information in the header, you will need to edit it, by clicking on it or otherwise getting access to it. After exiting the header, you can start completing the exhibit list, which is simply a table. Place the cursor in the far-left cell for the first exhibit. The TAB button moves horizontally along the row and, at the end of a row, inserts a new row for the next exhibit. The form was created in WordPerefect Version 9 and probably works best in that program and format.