Free Reply to 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, INTERNTATIONAL CENTER FOR POSTGRADUATE MEDICAL EDUCATION, a member of the Jobson Education Group, a Delaware corporation, Defendants.

PLAINTIFF'S REPLY TO 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

Plaintiff Greg Feldman, by and through his attorneys, the Student Law Office at the University of Denver, submits this reply to 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, as follows: 1) On November 30, 2005, at 3:27 p.m., Defendants' counsel notified

Plaintiff's counsel via electronic mail that they were refusing to produce a client representative for the 30(b)(6) deposition noticed for the following day, December 1, at 10:00 a.m. (See Pltf's Exh. 1 (E-mail msgs. 11/29/05-11/30/05)).

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2)

At the Scheduling Conference held before this Court on November

15, 2005, the Court set a deadline of December 6, 2005, for Plaintiff to amend his complaint with respect to the proper party defendant(s), and directed that the parties either stipulate to the proper defendant(s) in this case or, if that was not possible, that Defendants produce designee(s) for a 30(b)(6) deposition to permit Plaintiff to ascertain the information necessary to name the proper defendants. 3) On November 16, 2005, Plaintiff's counsel held a telephone

conference with Defendants to discuss whether stipulation as to the proper defendant might be possible, and in the alternative, to schedule the 30(b)(6) deposition. During that conversation, defense counsel, Mr. Lyons, stated his opinion that the only proper defendant in this action was XJP, LLC, but provided no explanation or documentation for this conclusion. Mr. Lyons also refused to discuss the scheduling of the 30(b)(6) deposition. (See Pltf's Exh. 5, Schmidt Declaration at ¶ 2). 4) Because Defendants' counsel was unwilling to provide any

information or documentation to substantiate his claim that XJP, LLC was the only proper defendant in this case, and because Defendants' counsel was unwilling to discuss scheduling the 30(b)(6) deposition, Plaintiff's counsel, cognizant of the Court's December 6 deadline for amending the complaint, served a Notice of 30(b)(6) deposition on November 21, 2005. To facilitate the timely scheduling of this deposition, Plaintiff's counsel also communicated to Defendants that if the stated time and date was not agreeable, Plaintiff was willing to discuss a more agreeable date and time. In the cover message

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accompanying that Notice, Plaintiff's counsel expressly stated: "Because of the December 6 deadline to file Plaintiff's Amended Complaint, we have scheduled this deposition for December 1 at 10:00 a.m. In the event that your client's designee(s) are unable to appear at that time, please advise immediately." (See Pltf's Exh. 2 (Cover Msg.)). 5) Despite Plaintiff's counsel's repeated requests and good faith

attempts to resolve this matter, between November 21 and November 30 at 4:23 p.m., Defendants' counsel refused to provide any information to substantiate its position that XJP, LLC is the only proper defendant in this matter. Additionally, Defendants' counsel at no time prior to November 28, indicated in any way that the December 1 date for the 30(b)(6) deposition was not convenient for counsel or their clients. (See Pltf's Exh. 5, Schmidt Declaration at ¶ 4). 6) Instead, less than an hour before filing its response with the Court

on November 30, and in response to Plaintiff's counsel's numerous requests for information, Defendants' counsel provided the information contained in the Exhibits to its Response to Plaintiff's counsel. Approximately 20 minutes later, at 4:45 p.m. on November 30, Defendants' counsel notified Plaintiff's counsel that if Plaintiff's counsel did not agree on the basis of this information to stipulate that XJP, LLC is the only proper defendant by the following morning, Defendants' counsel intended to file a protective order with respect to the 30(b)(6) deposition. (See Pltf's Exh. 1). 7) Defendants' demand that Plaintiff stipulate to XJP, LLC as the sole

proper defendant in this action and its subsequent request that this Court enter

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an order to the same effect flies in the face of both the economic reality of the purchase and sale of Jobson Publishing and a well-established line of precedent. The Purchase Agreement, even in the heavily redacted form provided by Defendants, reveals that the vast majority, if not all of, the assets of Jobson Publishing have been sold while a significant number of liabilities and contingent liabilities, including any potential liability resulting from this action, were specifically excluded from the sale. See Def's Attachment 2 to its Response to Pltf's Motion (Exh. A at sec. 2.3 (Purchase Agreement- Assumption of Liabilities); Exh. D (Litigation exclusions from liability)). In short, the evidence provided by Defendants lends credence to Plaintiff's concern that XJP, LLC is merely a shell corporation brimming with liabilities but bereft of the assets necessary to satisfy them. 8) In order to ascertain the proper defendant(s) in this case, Plaintiff

must be permitted to conduct discovery that will enable him to determine whether XJP, LLC is sufficiently capitalized, the nature/extent of the liabilities and contingent liabilities assigned to XJP, LLC, the relationship of the Wicks Group to XJP, LLC and the named Defendants--in short, the information specified in Plaintiff's 30(b)(6) Notice of Deposition and accompanying Rule 34 request. 9) Plaintiff has repeatedly requested information regarding the

acquisition of Defendants by the Wicks Group. (Pltf's Exh. 3 (Email msg. 11/23/05)). Indeed, the request for production of documents which accompanied the Notice of Deposition specifically requested documents pertaining to the relationship between Jobson Publishing, LLC and the Wicks Group. To this

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point, Defendants have provided no information regarding this acquisition. In addition, the documents provided by Defendants in their Response do not satisfy Plaintiff's request for production of documents. 10) The Notice of Deposition was accompanied by a request to

produce documents because certain documents pertaining to the relationship between these companies (including the Wicks Group) are necessary to ascertain the identity of all proper defendants. Therefore, the request was narrowly tailored to documents necessary to ascertain the identity of all proper defendants. While FRCP 34 does allow for 30 days to respond to such a request, the rule also states a, "shorter or longer time may be directed by the court...." FRCP 34(b). This Court's own deadline of December 6, 2005, to ascertain the identity of the proper defendants leaves less than 30 days from the date of the Scheduling Conference to the deadline. The court-imposed deadline necessarily required Defendants to produce a witness and accompanying documents in less than 30 days. 11) Defendants' Response to Plaintiff's Motion is replete with

mischaracterizations of Plaintiff's counsel's conduct and his efforts to resolve the issues that are the subject of this motion. Although not relevant to this Motion, Defendants assert in their Response that Plaintiff never provided a computation of damages to Defendants. Plaintiff explicitly disputes that the Computation of Damages was never provided to Defendants. Plaintiff submitted the computation of damages to Defendants, through their counsel, by mail on November 21,

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2005. The document submitted to Defendants on said date is attached hereto as Attachment 4. (Pltf's Exh. 4 (Computation of Damages)). 12) Because Defendants have refused to produce a deponent in

response to Plaintiff's 30(b)(6) Notice of Deposition and have refused to respond to Plaintiff's accompanying Request for Production of Documents, Defendants have willfully prevented Plaintiff from obtaining the information necessary to comply with this Court's order to amend his complaint with respect to the proper employer by November 6, 2005. 13) Plaintiff therefore requests that his Motion be granted such that the

deadline for amending the complaint be extended to allow sufficient time to receive and review the appropriate documents from Defendants necessary to ascertain the identity of the proper defendant, or in the alternative, shorten Defendants' time to respond to Plaintiff's 30(b)(6) notice of deposition and request for production of documents such that Plaintiff is able to receive such documents and conduct such deposition in time to comply with the December 6, 2005 deadline for amending the complaint. WHEREFORE, Plaintiff respectfully requests that this Court: 1. grant Plaintiff's Motion to extend deadline to January 6, 2005, to

amend his complaint; 2. 3. compel Defendants to produce a 30(b)(6) deponent; compel Defendants to respond to Plaintiff's Request for Production

of Documents;

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4.

assess fees and costs of the deposition preparation against

Defendants; and 5. assess fees and costs of this Motion against Defendants.

Dated this 1st day of December, 2005.

Respectfully Submitted, s/Nantiya Ruan Nantiya Ruan STUDENT LAW OFFICE University of Denver Sturm College of Law 2255 E. Evans Ave., Suite 335 Denver, CO 80208 Telephone: 303.871.6140 Fax: 303.871.6847 E-mail: [email protected] s/ Ari Krichiver Ari Krichiver, Student Attorney STUDENT LAW OFFICE University of Denver Sturm College of Law 2255 E. Evans Ave., Suite 335 Denver, CO 80208 Telephone: 303.871.6140 Fax: 303.871.6847 s/ Julie Schmidt Julie Schmidt, Student Attorney STUDENT LAW OFFICE University of Denver Sturm College of Law 2255 E. Evans Ave., Suite 335 Denver, CO 80208 Telephone: 303.871.6140 Fax: 303.871.6847

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CERTIFICATE OF SERVICE

I hereby certify that on this 1st day of December, 2005, I electronically filed the above and foregoing PLAINTIFF'S REPLY TO 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 with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following email addresses: Thomas J. Lyons Gillian Dale Hall & Evans, L.L.C. 1125 17th Street, Suite 600 Denver, CO 80202-2052 Telephone: 303.628.3300 Fax: 303.628.3368 [email protected] [email protected]

_____s/ Nantiya Ruan______________ Nantiya Ruan University of Denver Sturm College of Law 2255 E. Evans Ave., Suite 335 Denver, CO 80208 Telephone: 303.871.6140 Fax: 303.871.6847 E-mail: [email protected] Attorney for Plaintiff Greg Feldman