Free Response to Motion - District Court of Colorado - Colorado

Case 1:04-cv-01185-WDM-PAC

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-CV-1185-WDM-PAC GREG FELDMAN, Plaintiff, v. JOBSON PUBLISHING, LLC, a Delaware Corporation, POSTGRADUATE INSTITUTE FOR MEDICINE, INC., a member of the Jobson Education Group, a Delaware corporation, INTERNATIONAL CENTER FOR POSTGRADUATE MEDICAL EDUCATION, a member of the Jobson Education Group, a Delaware corporation, Defendants.

DEFENDANTS' RESPONSE TO PLAINTIFF'S MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT

Defendants Jobson Publishing L.L.C. ("Employer Jobson") and Postgraduate Institute for Medicine, Inc. ("PIM") (collectively, "Defendants"), by and through counsel, Hall & Evans, L.L.C., respond to Plaintiff's Motion for Leave to File Second Amended Complaint (the "Motion to Amend") as follows: 1. The Original Complaint and Jury Demand (the "Original Complaint") was filed in

this matter on June 9, 2004. On July 14, 2004, prior to the submission of any defense response, an Amended Complaint (the "Amended Complaint") was filed. The Amended Complaint set out claims under Title VII and 42 U.S.C. §1981 but included no state law claims. Employer Jobson,

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PIM, and the International Center for Postgraduate Medical Education ("ICPME") are named defendants in the Amended Complaint. 2. On January 6, 2006, Plaintiff filed the pending Motion to Amend, asking to

remove Employer Jobson, PIM, and ICPME as Defendants, to substitute XJP, LLC and Jobson Publishing, LLC ("Purchaser Jobson") as Defendants, and to add a state law claim for outrageous conduct. 3. Defendants join in Plaintiff's request to remove Employer Jobson, PIM, and

ICPME as Defendants, substituting XJP, LLC as the only proper Defendant following events subsequent to Plaintiff's employment with Employer Jobson. The Defendants' Response to Plaintiff's Expedited Motion to Extend Deadline for Amending Complaint to Include Proper Defendants or Alternatively, to Shorten Defendants' Time to Respond to Plaintiff's 30(B)(6) Notice of Deposition and Request for Production of Documents (the "Response to Expedited Motion"), establishes the sequence of events and provides the documentation that demonstrates that XJP, LLC is the current name of Employer Jobson, the only entity that employed Plaintiff in relation to any events alleged in this case and therefore the only proper Defendant in this matter. [See Response to Expedited Motion, at ¶6 and Attachments 1 and 2]. 4. Defendants do not object to an effort by Plaintiff to clarify his claims under Title

VII and 42 U.S.C. §1981, to the extent that may be reflected in his proposed Second Amended Complaint. 5. Defendants do object to any effort by Plaintiff to add Purchaser Jobson as a

Defendant here. That entity never employed Plaintiff, none of the prerequisites to pursuing a claim against that entity pursuant to Title VII were ever undertaken or satisfied by Plaintiff in

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relation to Purchaser Jobson, and that entity never assumed any liability whatsoever for Plaintiff's claim at any time, either before, during or after the purchase of certain Employer Jobson assets. The proposed Second Amended Complaint attached to the Motion to Amend appears intended to apply some theory of successor liability to Purchaser Jobson, whether under the 9-part test described in Trujillo v. Longhorn Manufacturing Co., Inc., 694 F.2d 221, 225 n.3 (10th Cir. 1982), or otherwise. [See Second Amended Complaint, at ¶46 (claiming Purchaser Jobson does substantially the same business as Employer Jobson, with substantially the same work force, jobs, working conditions, business machinery, equipment, and methods of production as Employer Jobson)]. No such effort could succeed because of the proof already on record in this case, and the amendment proposed is a futile undertaking. [See Motion to File Second Amended Complaint, at p.3 (acknowledging that futile amendment efforts should be refused)]. The purchase agreement at issue contains an express provision stating that the

purchaser assumes no liability for a specified claim. Purchaser Jobson knew of the EEOC complaint against Employer Jobson and expressly provided for the non-assumption of any liability for such claim in the purchase documentation. [See Response to Expedited Motion, at Attachment 2]. These facts bar any claim that Purchaser Jobson is liable to Plaintiff, regardless of whether one or more of the Trujillo factors may be satisfied. See Trujillo, 694 F.2d at 225 ("We are not persuaded that imposing liability on the defendant as a successor corporation works an unfair hardship on the company. It had notice of the EEOC complaint and could have provided for its nonliability or indemnification in the sale agreement." (emphasis added)); see also Scott v. Sopris Imports Ltd., 962 F.Supp. 1356, 1360 (D. Colo. 1997) ("Indeed, the court in Trujillo specifically relied upon the defendant's notice to justify its decision against an argument

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of undue hardship because the defendant had an opportunity to contract around its liability."). Further, there is no point in including Purchaser Jobson in this dispute given such facts, as the purchase documents themselves make it clear that nothing Plaintiff could seek or attain in relation to this matter would be available or attainable from Purchaser Jobson. 6. Defendants further object to Plaintiff's belated attempt to add a tardy state law

claim for outrageous conduct through a Second Amended Complaint. Plaintiff asserts that his outrageous conduct claim is based upon the facts already stated in the Amended Complaint, [see Second Amended Complaint, at p.5], but he never explains why this claim was not included in the Original Complaint or the Amended Complaint. Further, no explanation whatever is offered for the eighteen-month delay, following submission of his Original Complaint, in making any attempt to add this claim. Plaintiff also offers no basis whatever for this request that the Court exercise supplemental jurisdiction over a claim under Colorado law. Plaintiff agrees that a futile amendment to a Complaint is not appropriate. [See Motion to File Second Amended Complaint, at p.3]. In this instance, the futility of the proposed amendment is obvious. The statute of limitations bars any claim of outrageous conduct Plaintiff attempts. Under Colorado law,

outrageous conduct claims are subject to the two-year general limitation of actions. See C.R.S. §13-80-102(1) ("The following civil actions, regardless of the theory upon which suit is brought, or against whom suit is brought, shall be commenced within two years after the cause of action accrues, and not thereafter: (a) Tort actions, including but not limited to actions for . . . outrageous conduct . . .."). Plaintiff's position with Employer Jobson was eliminated in August of 2003, [see Amended Complaint, at ¶10], and all of his claims arose on or before that date. Any present attempt to add an outrageous claim comes well over two years after any conceivable

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event that generated such a claim, and any such claim is futile because it is barred by the statute of limitations. WHEREFORE, Defendants Jobson Publishing L.L.C. and Postgraduate Institute for Medicine, Inc. respectfully request that this Court permit amendment of Plaintiff's Amended Complaint to substitute XJP, LLC for all other Defendants identified in that Amended Complaint, and deny Plaintiff's requests to name Jobson Publishing LLC as a Defendant and to add a state law claim for outrageous conduct. Defendants request that Plaintiff be required to submit a revised proposed Second Amended Complaint to reflect such orders. Dated this 18th day of January, 2006. Respectfully submitted,

s/ Gillian Dale . Thomas J. Lyons, Esq. Gillian Dale, Esq. Attorneys for Defendants Hall & Evans, L.L.C. 1125 17th Street, Suite 600 Denver, CO 80202-2052 (303) 628-3300 phone (303) 628-3368 fax [email protected] [email protected]

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CERTIFICATE OF MAILING I hereby certify that on the 18th day of January, 2006, I served a true and correct copy of the foregoing DEFENDANTS' RESPONSE TO PLAINTIFF'S MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following e-mail address: Julie M. Schmidt Ari Krichiver Nantiya Ruan Laura L. Rovner Student Law Office University of Denver Sturm College of Law 2255 E. Evans Avenue Denver, CO 80208 [email protected] [email protected]

s/ Denise Gutierrez . Thomas J. Lyons, Esq. Gillian Dale, Esq. Attorneys for Defendants Hall & Evans, L.L.C. 1125 17th Street, Suite 600 Denver, CO 80202-2052 (303) 628-3300 phone (303) 628-3368 fax [email protected] [email protected]

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