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Case 1:07-cv-00097-SLR

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United States District Court
Eastern District of Missouri 111 South 10th Street St. Louis, Missouri 63102
James G. Woodward Clerk of Court 314-244-7900

April 17, 2006

John T. Carroll, III Chase Manhattan Center 1201 North Market Street, Suite 1400 Wilmington, Delaware 19801 RE: Gordon Quick, et al. vs. Viziqor Solutions, Inc., et al. Case # 4:06cv637SNL Dear : Mr. Carroll, Please refer to Local Rule 12 of the Local Rules for the Eastern District of Missouri concerning nonresident attorneys and the procedure to follow to practice in this Court. All pertinent information can be obtained from our website at www.moed.uscourts.gov, including the Verified Motion for Admission Pro Hac Vice form and the E-Filing registration form. Please note Local Rule 12.01(E) requires the payment of a prescribed fee. The fee is currently set at $25.00 payable upon filing of the motion. Please Note: This fee increases to $100.00 on May 1, 2006. Please include your check made payable to Clerk, U.S. District Court with your Verified Motion to expedite processing. If you would like to apply for permanent admission in lieu of filing the motion for admission pro hac vice, that form can also be found on our website. If you have any questions, please do not hesitate to contact our office. Sincerely, JAMES G. WOODWARD, CLERK

By: Cynthia Davis Deputy Clerk

Case 1:07-cv-00097-SLR Document 37-15 Filed 04/19/2006 Page 1 of 3 3 Filed 02/20/2007 Page 1 of Case 4:06-cv-00637-SNL Document 6

UNITED STATES DISTRICT FOR THE EASTERN DISTRICT OF MISSOURI EASTERN DIVISION GORDON QUICK, WILLIAM MCCAUSLAND and JOHN TRECKER, Plaintiffs, v. VIZIQOR SOLUTIONS, INC., WOODMONT HOLDINGS, INC., MICHAEL HUBER, and QUADRANGLE GROUP, LLC. Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) )

No.: 4 06 CV 00637 SNL

UNCONTESTED MOTION FOR ADDITIONAL TIME TO RESPOND TO COMPLAINT Separate defendants Quadrangle Group LLC and Michael Huber request additional time up to and including April 28, 2006 within which to move, answer or otherwise respond to Plaintiffs' Complaint (Petition). Defendants' undersigned attorney represents that he has spoken with Plaintiffs' attorney and Plaintiffs' consent to this motion. Defendants make this motion without prejudice to assert, and without waiving, any defense, including without limitation, lack of personal jurisdiction.

2338934.1

Case 1:07-cv-00097-SLR Document 37-15 Filed 04/19/2006 Page 2 of 3 3 Filed 02/20/2007 Page 2 of Case 4:06-cv-00637-SNL Document 6

BRYAN CAVE LLP

By

/s/ Charles A. Weiss Charles A. Weiss 211 N. Broadway, Suite 3600 St. Louis, MO 63102 (314) 259-2215 Facsimile: (314) 259-2020 Attorney for Defendant James L. Messenger Weil, Gotshal & Manges 100 Federal Street, Floor 34 Boston, Massachusetts 02110 Of Counsel Attorneys for Quadrangle Group LLC and Michael Huber

2338934.1

Case 1:07-cv-00097-SLR Document 37-15 Filed 04/19/2006 Page 3 of 3 3 Filed 02/20/2007 Page 3 of Case 4:06-cv-00637-SNL Document 6

CERTIFICATE OF SERVICE I hereby certify that on April 19, 2006, the foregoing was filed electronically with the Clerk of the Court to be served by operation of the Court's electronic filing system upon the following. Martin M. Green [email protected] Michael A. Clithero [email protected] and by facsimile and First Class U.S. Mail to: John T. Carroll, III Cozen O'Conner Chase Manhattan Center 1201 North Market Street Suite 1400 Wilmington, Delaware 19801 (302) 295-2013 (Facsimile)

/s/ Charles A. Weiss

2338934.1

Case 1:07-cv-00097-SLR Document 37-16 Filed 04/21/2006 Page 1 of 2 2 Filed 02/20/2007 Page 1 of Case 4:06-cv-00637-SNL Document 7

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Case 1:07-cv-00097-SLR Document 37-19 Filed 04/24/2006 Page 1 of of 1 Filed 02/20/2007 Page 1 1 Case 4:06-cv-00637-SNL Document 10

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION GORDON QUICK, et al., Plaintiffs, vs. VIZIQOR SOLUTIONS, INC., et al., Defendants. ) ) ) ) ) ) ) ) )

No. 4:06CV637-SNL

ORDER OF DISMISSAL IT IS HEREBY ORDERED that leave is GRANTED to plaintiffs to dismiss defendant Woodmont Holdings, Inc., f/k/a Viziqor Holdings, Inc. without prejudice. Dated this 24th day of April, 2006.

SENIOR UNITED STATES DISTRICT JUDGE

Case 1:07-cv-00097-SLR Document 37-20 Filed 04/26/2006 Page 1 of of 3 Filed 02/20/2007 Page 1 3 Case 4:06-cv-00637-SNL Document 11

UNITED STATES DISTRICT FOR THE EASTERN DISTRICT OF MISSOURI EASTERN DIVISION GORDON QUICK, WILLIAM MCCAUSLAND and JOHN TRECKER, Plaintiffs, v. VIZIQOR SOLUTIONS, INC., WOODMONT HOLDINGS, INC., MICHAEL HUBER, and QUADRANGLE GROUP, LLC. Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) )

No.: 4 06 CV 00637 SNL

CONSENT MOTION FOR ADDITIONAL TIME TO RESPOND TO COMPLAINT Separate defendants Quadrangle Group LLC and Michael Huber request additional time up to and including May 3, 2006 within which to move, answer or otherwise respond to Plaintiffs' Complaint (Petition). Defendants' undersigned attorney represents that he has spoken with Plaintiffs' attorney and Plaintiffs' consent to this motion. Defendants make this motion without prejudice to assert, and without waiving, any defense, including without limitation, lack of personal jurisdiction.

2338934.1

Case 1:07-cv-00097-SLR Document 37-20 Filed 04/26/2006 Page 2 of of 3 Filed 02/20/2007 Page 2 3 Case 4:06-cv-00637-SNL Document 11

BRYAN CAVE LLP

By

/s/ Charles A. Weiss Charles A. Weiss 211 N. Broadway, Suite 3600 St. Louis, MO 63102 (314) 259-2215 Facsimile: (314) 259-2020 Attorney for Defendant James L. Messenger Weil, Gotshal & Manges 100 Federal Street, Floor 34 Boston, Massachusetts 02110 Of Counsel Attorneys for Quadrangle Group LLC and Michael Huber

2338934.1

Case 1:07-cv-00097-SLR Document 37-20 Filed 04/26/2006 Page 3 of of 3 Filed 02/20/2007 Page 3 3 Case 4:06-cv-00637-SNL Document 11

CERTIFICATE OF SERVICE I hereby certify that on April 26, 2006, the foregoing was filed electronically with the Clerk of the Court to be served by operation of the Court's electronic filing system upon the following. Martin M. Green [email protected] Michael A. Clithero [email protected] and by facsimile and First Class U.S. Mail to: John T. Carroll, III Cozen O'Conner Chase Manhattan Center 1201 North Market Street Suite 1400 Wilmington, Delaware 19801 (302) 295-2013 (Facsimile)

/s/ Charles A. Weiss

2338934.1

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Case 1:07-cv-00097-SLR Document 37-22 Filed 05/02/2006 Page 1 of of 2 Filed 02/20/2007 Page 1 2 Case 4:06-cv-00637-SNL Document 13

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MISSOURI GORDON QUICK, WILLIAM MCCAUSLAND and JOHN TRECKER, Plaintiffs, v. VIZIQOR SOLUTIONS, INC., WOODMONT HOLDINGS, INC., MICHAEL HUBER, and QUADRANGLE GROUP, LLC, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) )

Case No. 06CV-00637 SNL

ENTRY OF APPEARANCE COMES NOW the law firm Blackwell Sanders Peper Martin LLP, by Christopher A. Perrin, and enters its appearance on behalf of Formula Telecom Solution, Inc., f/k/a Viziqor Solutions, Inc. in the above-referenced cause. BLACKWELL SANDERS PEPER MARTIN LLP

By

/s/ Christopher A. Perrin Christopher A. Perrin, #502086 720 Olive Street, 24th Floor St. Louis, MO 63101 (314) 345-6000 (314) 345-6060 (facsimile)

STLD01-1232118-1

Case 1:07-cv-00097-SLR Document 37-22 Filed 05/02/2006 Page 2 of of 2 Filed 02/20/2007 Page 2 2 Case 4:06-cv-00637-SNL Document 13

CERTIFICATE OF SERVICE I hereby certify that on May 2, 2006, I electronically filed a copy of the foregoing ENTRY OF APPEARANCE to be served by operation of the Court's electronic filing system upon the participants on the electronic filing system list. /s/ Christopher A. Perrin

STLD01-1232118-1

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION GORDON QUICK, et al. ) ) Plaintiffs, ) ) v. ) ) VIZIQUOR SOLUTIONS, INC., et al. ) ) Defendants. )

No.:

4:06CV637-SNL

PLAINTIFFS' UNOPPOSED MOTION FOR EXTENSION OF TIME TO FILE MEMORANDUM OPPOSING DEFENDANTS' MOTIONS TO DISMISS AND FOR TRANSFER OR STAY Viziquor Solutions has filed a motion to dismiss. Quadrangle Group and Huber have filed a joint motion to dismiss, or alternatively, motion to transfer or stay. These motions were filed on May 3, 2006. Plaintiffs' responses are due on May 15, 2006. Because of obligations in other cases, plaintiffs request that the Court extend the deadline for filing a response to defendants' motions up to and including May 22, 2006. The defendants do not object to the relief sought in this motion. GREEN JACOBSON & BUTSCH, P.C.

By:

/s/ Fernando Bermudez__ Martin M. Green, 3265 Fernando Bermudez, 79964 James J. Simeri, 102201 Attorneys for Plaintiffs 7733 Forsyth Boulevard, Suite 700 Clayton, Missouri 63105 Phone: (314) 862-6800 Fax: (314) 862-1606 [email protected] [email protected] [email protected]

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Filed 02/20/2007 Page of Filed 05/10/2006 Page 22of 22

CERTIFICATE OF SERVICE I certify that on May 10, 2006, the foregoing was filed electronically with the Clerk of the Court to be served by operation of the Court's electronic filing system, upon the following named counsel of record: Michael A. Clithero, Christopher A. Perrin, and Charles A. Weiss. I certify that on May 10, 2006 copies of the foregoing were mailed to each of the following named non-participants in Electronic Case Filing: John L. Messenger, Weil, Gotshal & Manges LLP, 100 Federal Street, Floor 34, Boston, MA 02110.

___/s/ Fernando Bermudez

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION GORDON QUICK, et al. ) ) Plaintiffs, ) ) v. ) ) VIZIQUOR SOLUTIONS, INC., et al. ) ) Defendants. )

No.:

4:06CV637-SNL

PROPOSED ORDER Plaintiffs' unopposed motion for extension of time to file memorandum opposing defendants' motions to dismiss and for transfer or stay is granted. Plaintiffs granted up to and including May 22, 2006 to file their response. SO ORDERED:

_______________________________ Stephen N. Limbaugh United States District Judge

Dated: ____________________

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION GORDON QUICK, et al. Plaintiffs, v. VIZIQOR SOLUTIONS, INC., et al. Defendants. ) ) ) ) ) ) ) ) )

No.:

4:06CV637-SNL

PLAINTIFFS' MEMORANDUM IN OPPOSITION TO MOTION TO DISMISS, TRANSFER AND STAY

Viziqor Solutions, Michael Huber and Quadrangle Group (collectively "defendants") filed two motions making similar arguments and seeking similar relief. This memorandum by plaintiffs address both motions. Essentially, defendants seek any type of relief that would prevent this Court from ruling on the merits of the complaint. They seek a stay, dismissal or transfer of venue because Woodmont Holdings, a former defendant now dismissed, filed for bankruptcy in Delaware. The defendants are not entitled to relief and this Court should proceed with adjudicating the breach of contracts and fraud claims against defendants. I. Facts Gordon Quick, William McCausland and John Trecker (collectively "plaintiffs") sued defendants and Woodmont Holdings in a Missouri state court. They alleged that Viziqor and Woodmont breached their Employment Agreements and their Retention Bonus Agreements (collectively the "Agreements) by failing to pay them their severance

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pay. Woodmont was a party to the Agreements and Viziqor was alleged to be an alterego of Woodmont because Viziqor was the operating entity while Woodmont was merely the holding company for Viziqor stock. They also alleged that Quadrangle breached a separate contract with them that guaranteed the payments under the Agreements. Alternatively, they alleged that Huber and Quadrangle committed fraud by falsely representing to plaintiffs that Quadrangle would guarantee the payments under the Agreements. Immediately after plaintiffs filed their lawsuit, Woodmont filed its bankruptcy petition in Delaware. Plaintiffs then moved to dismiss Woodmont. The remaining defendants timely removed the case to this Court and the Court allowed the dismissal. The defendants now seek to have this case stayed, dismissed or transferred to Delaware to prevent the plaintiffs from obtaining a just and orderly trial on the merits. II. Defendants are not entitled to a stay. The defendants request a stay of this case until Woodmont's liability is established in the bankruptcy court. This relief is frequently requested by defendants when a codefendant files for bankruptcy. Courts have uniformly rejected relief. For example, in Lynch v. Johns-Manville, 710 F.2d 1194 (6th Cir 1983) a defendant requested a stay after a co-defendant filed for bankruptcy. As here, the defendant invoked every conceivable basis for a stay including the designation of the bankrupt co-defendant as an indispensable party under Rule 19. The court summarily rejected the arguments finding

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that parties that are jointly liable are permissive, not indispensable, parties and therefore refused to grant a stay. Id. at 1198. It also rejected the argument that failure to grant a stay may result in duplicative litigation with possibly inconsistent verdicts. The court found that "any duplicative or multiple litigation which may occur is a direct by-product of bankruptcy law. As such, the duplication, to the extent that it may exist, is congressionally created and sanctioned." Id. at 1199. As in Lynch, there is no basis for defendants' request for a stay pending the resolution of Woodmont's bankruptcy which could go on for years. Furthermore, a plaintiff is the master of his complaint and may choose who to sue, who not to sue and where to sue. Lincoln Prop. Co. v. Roche, __ U.S. __, 126 S.Ct. 606 (2005). Defendants' suggestion that this Court issue a stay and force plaintiffs to adjudicate Woodmont's liability in Delaware squarely violates plaintiffs' choice of who to sue and where to sue them. At this stage, plaintiffs have chosen to sue the defendants in Missouri. They have not chosen to sue Woodmont in Delaware. This choice should be respected. For this reason, courts have found that a plaintiff would be prejudiced by a stay to force a plaintiff to sue another party in another jurisdiction. Although district courts have broad power to stay pending proceedings, a stay is inappropriate here. Contrary to [defendant's] claim, [plaintiff] will be prejudiced by a stay. Even if a state court provides [plaintiff] with a forum to raise all of its claims relating to this dispute, it is not the forum that [plaintiff] chose. [Plaintiff] is entitled to enforce its rights as it chooses ....

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Hedman, Gibson, Costigan & Hoarse v. Sullivan, 775 F. Supp. 658, 659 (N.Y.S.D. 1991). Similarly, defendants' suggestion that this Court should issue a stay to force plaintiffs to adjudicate their claim against Woodmont in Delaware should be denied. III. Defendants are not entitled to dismissal for failure to join an allegedly indispensable party. In a related point, defendants request that the Court dismiss the case under Rule 12(b)(7) for plaintiff's failure to join an indispensable party. Rule 12(b)(7) explicitly incorporates Rule 19 concerning who is an indispensable party. Determining who is an indispensable party is a two step process. First, the court must determine whether the party is a necessary party under Rule 19(a). If the party is not deemed a necessary party, the analysis ends and relief is denied. Gwartz v. Jefferson Memorial Hosp., 23 F.3d 1426, 1428 (8th Cir. 1994)("If the person is not necessary, then the case must go forward without him and there is no need to make a Rule 19(b) inquiry."). If the party is deemed a necessary party, it should be joined in the litigation. If the necessary party cannot be joined, the court must determine whether the party is indispensable under Rule 19(b). If the party is deemed an indispensable party, the action should be dismissed. Janney Montgomery Scott, Inc. v. Shepard Niles, 11 F.3d 399 (3rd Cir. 1993). A. Woodmont is not a necessary party. Woodmont is a necessary party under Rule 19(a) only if:

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(1) in [Woodmont's] absence complete relief cannot be accorded among [plaintiffs and defendants], or (2) [Woodmont] claims an interest relating to the subject of the action and is so situated that the disposition of the action in [Woodmont's] absence may (i) as a practical matter impair or impede [Woodmont's] ability to protect that interest or (ii) leave [plaintiffs or defendants] subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of the claimed interest.

Rule 19(a). It is impossible to determine which of the criteria in Rule 19(a) the defendants believe has been satisfied because their memoranda fails to apply the criteria to the facts of this case.1 Nevertheless, even a cursory analysis shows that Woodmont does not meet any of the criteria to be deemed a necessary party. Rule 19(a)(1) Rule 19(a)(1) concerning complete relief "relates to those persons already parties and does not concern any subsequent relief via contribution or indemnification for which the absent party might later be responsible." Bedel v. Thompson, 103 F.R.D. 78, 80 (S.D. Ohio 1984). Here, as in Bedel, a bankrupt company was not joined as a defendant even though it was jointly and severally liable to the plaintiff. The court concluded, however,

For example, citing two old cases, Viziqor summarily states that the general rule is that all parties to a contract must be joined. (Viziqor memorandum at 3). Amazingly, neither case deals with Rule 19 which was completely rewritten 13 years after the more recent of the two cited cases or even with the old version of the Rule. More amazing, the only place that the court in Greer v. Scearce, 53 F. Supp. 807, 811 (W.D. Mo. 1944) cites the "rule" is when it was reciting the argument made by one of the parties. In the court's analysis, it rejected the "rule". Id.
5

1

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that "[a] plaintiff is under no requirement to join all parties who might be jointly and severally liable." Id. at 81. The Court can easily grant plaintiffs full relief if they win any of their claims. The Court can simply issue a routine money judgment against the defendants. Unlike, for example, cases where the court is asked to issue specific performance against a non-party, this Court faces no obstacle in ordering all of the relief that plaintiffs seek.2 Rule 19(a)(2)(i) Rule 19(a)(2)(i) concerns whether, as a practical matter, Woodmont's interests will be compromised by not being included in this case. In the Delaware bankruptcy, Woodmont has already admitted that it owes the plaintiffs the money that they seek under the Agreements. (Exhibit 1; transcript of May 2006 hearing which will be filed as soon as it is available). Thus, from Woodmont's perspective there is no real issue concerning liability or damages. From the perspective of the defendants in this case, the only real issue will be whether plaintiffs can prove their alter-ego allegations against Viziqor or, alternatively, whether they can prove the breach of the separate contract or fraudulent

Defendants' exposition about the public's interest in avoiding multiple lawsuits is largely taken out of context. (Quadrangle and Huber memorandum at 4-5). Rule 19 explicitly contemplates the possibility of multiple lawsuits. The advisory committee notes quoted by Quadrangle and Huber do not condemn multiple lawsuits generally. They condemn multiple lawsuits if the first lawsuit grants "partial or hollow" relief to the parties before the court. Advisory committee notes to Rule 19(a)(1). As plaintiffs have just explained, this Court's judgment will grant complete relief to the parties before it. Rule 19 does not condemn subsequent contribution or indemnification lawsuits.
6

2

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statements by Quadrangle and Huber. In no way will Woodmont's interests be compromised by a judgment against the defendants in this case. Woodmont filed for bankruptcy, not Viziqor. Regardless of what happens in this Court, Woodmont's assets are protected by the bankruptcy. A finding of alter-ego would allow plaintiffs to pursue Viziqor's assets but those of Woodmont would still be protected by the bankruptcy court. Should defendants seek contribution or indemnification from Woodmont, they can do so in Delaware. Because Woodmont is not a party here, the defendants cannot use offensive collateral estoppel or res judicata against Woodmont in Delaware if the defendants were found liable in Missouri. Likewise, plaintiffs could not use any preclusive effect of a judgment in this case against Woodmont if they later choose to pursue those claims. In short, Woodmont's legal interests and financial obligations cannot be affected, in any way, by what happens in this Court. See Bedel, 103 F.R.D. at 81. If plaintiffs or defendants later choose to go after Woodmont's assets, they will have to go through the bankruptcy court without the benefit of any preclusive effect by this Court's judgment. "[A] defendant's right to contribution or indemnity from an absent party who may be jointly liable to the plaintiff does not render the absentee an indispensable party under Rule 19." Standard Chlorine v. Sinibaldi, 821 F. Supp. 232, 260 (D. Del. 1992).

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Rule 19(a)(2)(ii) Rule 19(a)(2)(ii) addresses whether there is a substantial risk of double, multiple or inconsistent obligations to the defendants. As mentioned earlier, Woodmont has judicially admitted its liability to plaintiffs thus there is little risk of inconsistent verdicts to the defendants. Regardless, the small, hypothetical chance of inconsistent verdicts is not enough to meet Rule 19(a)(2)(ii) requirements. "Rule 19 does not speak of inconsistent `results.' Rather, it speaks of inconsistent `obligations.'" Bedel, 103 F.R.D. at 81. "A finding of liability in this action coupled with a determination by the Bankruptcy Court of no entitlement to contribution or indemnification would subject defendant [] to but one judgment `obligation.' ... [A] determination in the Bankruptcy Court of no liability on the part of the [bankrupt] would impose no `obligation' on the part of the defendant ...." Id. (Denying motion to dismiss under Rule 19 and motion for stay due to bankruptcy of co-defendant.) Defendants have failed to meet any of the criteria in Rule 19(a) and Woodmont is not a necessary party. As such, this Court's analysis should end and defendants' motion to dismiss should be denied. If for some reason this Court were to address whether Woodmont is an indispensable party under Rule 19(b), it would find that it is not.3

For purposes of this motion, plaintiffs will assume that Woodmont cannot be joined in this case because of the bankruptcy stay.
8

3

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B. Woodmont is not an indispensable party under Rule 19(b). Rule 19(b) outlines four non-exhaustive factors to determine whether a necessary party is also an indispensable party. Those factors are the possible prejudice to the parties in the case and the parties not in the case, the ability of the Court to minimize the prejudice, the adequacy of the judgment and whether dismissal leaves the plaintiff with an adequate remedy. These factors are not analyzed mechanically but rather inform the court's decision about whether dismissal can be ordered in good conscience. Colorado Nat. Bank v. Adventura Assoc., 757 F. Supp. 1167, 1169 (D. Colo. 1991). As discussed earlier, there is no prejudice in allowing this case to proceed as the Court can issue complete and effective relief. Defendants are under the mistaken notion that because this Court will address whether Woodmont has failed to meet its obligations under the Agreements, Woodmont is a necessary and indispensable party. It is not. It is a rare case where a court is not asked to look at the conduct of a nonparty to determine whether a defendant is liable. In a construction case, the court may look to the performance/nonperformance of a subcontractor to determine whether a contractor is liable to a property owner. In an automobile accident case, the court usually looks to the responsibility of an employee to determine whether the employer is liable to the victim. Yet, in neither case is the subcontractor or employee an indispensable party. In fact, it is typically the defendant who chooses whether to bring in the third party by filing a crossclaim.

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For these reasons, the vast majority of courts that have determined whether absent parties are indispensable have found that they are not. Bendel provides an indistinguishable parallel. In that case, plaintiffs filed a case against corporate directors, an accounting firm and underwriters of an initial public offering alleging securities violations. The plaintiffs did not sue the corporation whose securities underlay the action because the corporation filed for bankruptcy. As here, the defendants asked the court to dismiss the action claiming that the corporation was an indispensable party. The court did not reach the issue of whether the corporation was an indispensable party under Rule 19(b)(2) because it found that the corporation was not even a necessary party under Rule 19(b)(1). Bedel, 103 F.R.D. at 80-81. The fact that the bankrupt corporation's conduct would be considered by the court did not make the corporation an indispensable party. See also Adventura, 757 F. Supp. at 1168-69 (bankrupt guarantor not a necessary or indispensable party in a loan default case). Another analogous case is FinanceAmerica Credit Corp. v. Kruse Classic Auction Co., 428 F. Supp. 135 (E.D. Penn. 1977). In that case, Kruse guaranteed payment on a debt that the borrower, Egidi, owed to FinanceAmerica. FinanceAmerica alleged that Egidi defaulted on the loan and that Kruse failed to make good on the guarantee. FinanceAmerica sued Kruse but not Egidi. As with the defendants in this case, Kruse moved to dismiss, transfer or stay the action. The court denied all relief. It found that "a surety can be sued separately from the principal and that the principal is not an

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indispensable party ... FinanceAmerica may pursue its remedies against Kruse without concern as to any available remedies against Egidi." Id. at 137. These facts are indistinguishable from the facts before this Court. In both cases, the default of an absent party is a prerequisite to recovery against the defendants. That fact, however, does not make the absent party an indispensable party. See also Hedman, Gibson, Costigan & Hoare v. Sullivan, 775 F. Supp. 658 (S.D.N.Y. 1991)(Rule 19 does not require a plaintiff to sue the principal or even all of the guarantors of a debt. Plaintiff "is entitled to enforce its rights as it chooses."); Southern Railway System v. Leyden Shipping, 290 F. Supp. 742, 744 (S.D.N.Y. 1968)("Thus, even if the plaintiff here, for business reasons, sought collection from [a secondarily liable party] rather than from parties who might be primarily liable, [] joinder of the [primarily liable party] is not dictated by Rule 19.") Thus, both in the context of a co-defendant seeking bankruptcy protection and in the context of a plaintiff suing defendants that are not primarily liable, courts have not required that plaintiffs join the missing party and have allowed the cases to proceed. IV. This case should not be transferred to Delaware. Although defendants cite 28 U.S.C. §§1404(a) and 1412 as statutory support for transferring this case to Delaware, they spend their whole analysis on 28 U.S.C. §1404(a). "Because of [sic] the higher transfer standard under section 1404(a) is unequivocally met in this matter, this memorandum focuses on this standard." (Huber and Quadrangle memorandum at 8). That section provides that "[f]or the convenience of

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the parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it may have been brought." (Emphasis added.] Defendants properly point out that there is complete diversity between the plaintiffs and defendants so the federal courts have subject matter jurisdiction under 28 U.S.C. §1332. Defendants err, however, in not properly considering venue. A civil action may only be brought in (and therefore transferred to) a district where venue is proper. FinanceAmerica, 428 F. Supp. at 137. In a diversity case, venue is proper only in a district 1) where all defendants reside; 2) where a substantial part of the events or omissions giving rise to the claim occurred; or 3) where a defendant is subject to jurisdiction if no other district exists where the action may otherwise be brought. 42 U.S.C. §1391(a). Because Huber and Quadrangle are New York residents, not all of the defendants reside in Delaware therefore it is not a proper venue under the first option. Because a substantial part of the events or omissions giving rise to the claim did not occur in Delaware, it is not a proper venue under the second option. The contracts were not negotiated in Delaware. Plaintiffs employment obligations were primarily in Missouri with some duties in Florida. Defendants had no obligations to plaintiffs in Delaware. None of the contemplated witnesses live in Delaware. The bulk of the documents relevant to this litigation are in Florida and Missouri not in Delaware. In short, nothing relevant to this case occurred in Delaware. Because defendants do not

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challenge this Court's venue over the case, they implicitly acknowledge (and waive any objection to) this Court's venue. Accordingly, Delaware is not a proper venue under the third option because the case could have been brought in Missouri. Defendants' argument that the case could have been brought in Delaware because it is the "home court" venue for any bankruptcy related matters misses the point. The argument is flawed because it ignores the tense of 28 U.S.C. §1404(a). That section is written in the past tense and provides for transfer to a "district or division where it might have been brought." (Emphasis added.) It does not provide for transfer to a "district or division where it can now be brought." When plaintiffs filed their lawsuit, there was no bankruptcy proceeding. Woodmont filed for bankruptcy after plaintiffs filed their case. There was no "home court" bankruptcy venue when plaintiffs filed their case. The Woodmont bankruptcy plays no role in determining where the case could have been brought for purposes of 28 U.S.C. §1404(a). In Hoffman v. Blaski, 363 U.S. 340 (1960), the Supreme Court rejected an interpretation that "might have been brought" is equivalent of "could now be brought." "But we do not see how the conduct of a defendant after suit has been instituted can add to the forums where `it might have been brought.' In the normal meaning of words this language of Section 1404(a) directs the attention of the judge who is considering a transfer to the situation which existed when suit was instituted." Id. at 343. When

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plaintiffs filed their suit, Delaware was not a jurisdiction where they could have brought their suit and it is not now a jurisdiction where this Court can transfer the case. As discussed earlier, defendants refer to but spend very little time analyzing 28 U.S.C. §1412 as independent statutory authority for change of venue. It provides that "[a] district court may transfer a case or proceeding under title 11 to a district court for another district, in the interest of justice or for the convenience of the parties." It is not surprising that defendants spent little effort analyzing this section because it does not apply to the case before this Court. This is not a case "under title 11." Federal bankruptcy courts have jurisdiction over: 1) proceedings under title 11; 2) proceedings arising under rule 11; 3) proceedings "arising in" a case under title 11; and 4) proceedings "related to" a case under title 11. Sosna v. Iowa, 419 U.S. 393 (1975). Assuming for the moment that, as suggested by defendants, the Delaware bankruptcy court could have "related to"4 jurisdiction over this case, the transfer statute, by its very terms, only applies to proceedings "under title 11" and not those "related to" title 11. Rumore v. Wamstad, No. 01:2997, 2001 U.S. Dist. LEXIS 19064 at 6-8 (E.D. La. Nov. 13, 2001). Proceedings involving the bankruptcy petition itself are the only proceedings

Of course the bankruptcy court does not have jurisdiction over this case because, as explained earlier, nothing that this Court does can affect the assets or legal rights of Woodmont therefore this action is not "related to" the bankruptcy. In re Bass, 171 F.3d 1016, 1022 (5th Cir. 1999).
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"under title 11" and thus subjet to transfer of venue under 28 U.S.C. §1412. Id. Thus, the statute provides no statutory authority for transfer of venue.5 For all of these reasons, defendants effort to derail this litigation fails. The Court should deny all motions and proceed with adjudicating this case on its merits.
GREEN JACOBSON & BUTSCH, P.C.

By:

/s/ Fernando Bermudez__ Martin M. Green, 3265 Fernando Bermudez, 79964 James J. Simeri, 102201 Attorneys for Plaintiffs 7733 Forsyth Boulevard, Suite 700 Clayton, Missouri 63105 Phone: (314) 862-6800 Fax: (314) 862-1606 [email protected] [email protected] [email protected]

CERTIFICATE OF SERVICE I certify that on May 22, 2006, the foregoing was filed electronically with the Clerk of the Court to be served by operation of the Court's electronic filing system, upon the following named counsel of record: Michael A. Clithero, Christopher A. Perrin, and Charles A. Weiss. I certify that on May 22, 2006, copies of the foregoing were mailed to each of the following named non-participants in Electronic Case Filing: John L. Messenger, Weil, Gotshal & Manges LLP, 100 Federal Street, Floor 34, Boston, MA 02110.

Even if the court were to apply the criteria in the statute, it would find that transfer is inappropriate. None of the parties or witnesses live in Delaware while all of the plaintiffs live in Missouri. The majority of the relevant documents are in Missouri and Florida not Delaware. None of the relevant conduct occurred in Delaware.
15

5

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___/s/ Fernando Bermudez

16

Case 1:07-cv-00097-SLR Document 37-31 Filed 05/30/2006 Page 1 of of 3 Filed 02/20/2007 Page 1 3 Case 4:06-cv-00637-SNL Document 20

UNITED STATES DISTRICT FOR THE EASTERN DISTRICT OF MISSOURI EASTERN DIVISION GORDON QUICK, WILLIAM MCCAUSLAND and JOHN TRECKER, Plaintiffs, v. VIZIQOR SOLUTIONS, INC., WOODMONT HOLDINGS, INC., MICHAEL HUBER, and QUADRANGLE GROUP, LLC. Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) )

No.: 4 06 CV 00637 SNL

UNCONTESTED MOTION FOR ADDITIONAL TIME TO FILE REPLY MEMORANDUM IN SUPPORT OF MOTION TO DISMISS PURSUANT TO RULE 12(b)(7) OR, ALTERNATIVELY, TO TRANSFER OR STAY Defendants Quadrangle Group LLC and Michael Huber request one additional week, up to and including Thursday, June 8, 2006, within which to file their reply memorandum in support of their motion to dismiss or, alternatively, to transfer or stay. Defendants' undersigned attorney represents that he has spoken with plaintiffs' attorney and plaintiffs consent to this motion.

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BRYAN CAVE LLP

By

/s/ Charles A. Weiss Charles A. Weiss 211 N. Broadway, Suite 3600 St. Louis, MO 63102 (314) 259-2215 Facsimile: (314) 259-2020 Attorney for Defendant James L. Messenger Weil, Gotshal & Manges 100 Federal Street, Floor 34 Boston, Massachusetts 02110 Of Counsel Attorneys for Quadrangle Group LLC and Michael Huber

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CERTIFICATE OF SERVICE I hereby certify that on May 30, 2006, the foregoing was filed electronically with the Clerk of the Court to be served by operation of the Court's electronic filing system upon the following. Martin M. Green [email protected] Fernando Bermudez [email protected] Michael A. Clithero [email protected] Christopher A. Perrin [email protected] and by facsimile and First Class U.S. Mail to: John T. Carroll, III Cozen O'Conner Chase Manhattan Center 1201 North Market Street Suite 1400 Wilmington, Delaware 19801 (302) 295-2013 (Facsimile)

/s/ Charles A. Weiss

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Case 1:07-cv-00097-SLR Document 37-32 Filed 05/30/2006 Page 1 of of 2 Filed 02/20/2007 Page 1 2 Case 4:06-cv-00637-SNL Document 21

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION GORDON QUICK, et al. ) ) Plaintiffs, ) ) v. ) ) VIZIQUOR SOLUTIONS, INC., et al. ) ) Defendants. )

No.:

4:06CV637-SNL

NOTICE OF NAME CHANGE Green Schaaf & Jacobson, P.C., attorneys for plaintiffs Gordon Quick, et al. has changed its name. The new name is: Green Jacobson & Butsch, P.C. Our address and telephone numbers are unchanged. We request that the Clerk and all parties update their records to reflect this change. GREEN JACOBSON & BUTSCH, P.C.

By:

/s/ Fernando Bermudez Martin M. Green, 3265 Fernando Bermudez, 79964 James J. Simeri, 102201 Attorneys for Plaintiffs 7733 Forsyth Boulevard, Suite 700 Clayton, Missouri 63105 Phone: (314) 862-6800 Fax: (314) 862-1606 [email protected]

Case 1:07-cv-00097-SLR Document 37-32 Filed 05/30/2006 Page 2 of of 2 Filed 02/20/2007 Page 2 2 Case 4:06-cv-00637-SNL Document 21

CERTIFICATE OF SERVICE I certify that on May 30, 2006, the foregoing was filed electronically with the Clerk of the Court to be served by operation of the Court's electronic filing system, upon the following named counsel of record: Michael A. Clithero, Christopher A. Perrin, and Charles A. Weiss. I certify that on May 30, 2006 copies of the foregoing were mailed to each of the following named non-participants in Electronic Case Filing: John L. Messenger, Weil, Gotshal & Manges LLP, 100 Federal Street, Floor 34, Boston, MA 02110.

___/s/ Fernando Bermudez

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Case 1:07-cv-00097-SLR Document 37-34 Filed 06/02/2006 Page 1 of of 2 Filed 02/20/2007 Page 1 2 Case 4:06-cv-00637-SNL Document 23

UNITED STATES DISTRICT FOR THE EASTERN DISTRICT OF MISSOURI EASTERN DIVISION GORDON QUICK, WILLIAM MCCAUSLAND and JOHN TRECKER, Plaintiffs, v. VIZIQOR SOLUTIONS, INC., WOODMONT HOLDINGS, INC., MICHAEL HUBER, and QUADRANGLE GROUP, LLC. Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) )

No.: 4 06 CV 00637 SNL

ENTRY OF APPEARANCE Comes now Timothy C. Mooney, Jr., of the law firm Bryan Cave LLP, and enters his appearance on behalf of defendants Quadrangle Group LLC and Michael Huber. BRYAN CAVE LLP

By

/s/ Timothy C. Mooney, Jr. Charles A. Weiss Timothy C. Mooney, Jr. 211 N. Broadway, Suite 3600 St. Louis, MO 63102 (314) 259-2000 Facsimile: (314) 259-2020 James L. Messenger Weil, Gotshal & Manges 100 Federal Street, Floor 34 Boston, Massachusetts 02110 Of Counsel Attorneys for Quadrangle Group LLC and Michael Huber

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1

Case 1:07-cv-00097-SLR Document 37-34 Filed 06/02/2006 Page 2 of of 2 Filed 02/20/2007 Page 2 2 Case 4:06-cv-00637-SNL Document 23

CERTIFICATE OF SERVICE I hereby certify that on June 2, 2006, the foregoing was filed electronically with the Clerk of the Court to be served by operation of the Court's electronic filing system upon the following. Martin M. Green [email protected] Fernando Bermudez [email protected] Michael A. Clithero [email protected] Christopher A. Perrin [email protected]

/s/ Timothy C. Mooney, Jr.

2368813.1

2

Case 1:07-cv-00097-SLR Document 37-35 Filed 06/08/2006 Page 1 of of 4 Filed 02/20/2007 Page 1 4 Case 4:06-cv-00637-SNL Document 24

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MISSOURI GORDON QUICK, WILLIAM MCCAUSLAND and JOHN TRECKER, Plaintiffs, v. VIZIQOR SOLUTIONS, INC., WOODMONT HOLDINGS, INC., MICHAEL HUBER, and QUADRANGLE GROUP, LLC, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) )

Case No. 06CV-00637 SNL

DEFENDANT FORMULA TELECOM SOLUTIONS, INC.'S REPLY MEMORANDUM IN FURTHER SUPPORT OF MOTION TO DISMISS In opposing Defendant Formula Telecom Solutions, Inc., f/k/a Viziqor Solutions, Inc. ("FTS")'s Motion to Dismiss, Plaintiffs Gordon Quick, William McCausland, and John Trecker ("Plaintiffs") ignore the significance of their allegation that FTS is an alter-ego of bankrupt Woodmont Holdings, Inc. f/k/a Viziqor Holdings, Inc. ("Woodmont Holdings"). Because Plaintiffs allege that FTS is an alter ego of Woodmont Holdings, Woodmont Holdings/the bankruptcy trustee must be a party to this action under Rule 19. As one court has explained in similar circumstances: [I]mplicit in a determination that the defendants are the alter ego of the bankrupt would be a finding that the defendants have assets which are indistinguishable from those of the bankrupt or have assets which belong to the bankrupt. Examining subdivision (a)(1)-(2) of Rule 19, it appears that the Court may not be able to fashion full relief among the parties without the presence of the trustee. Steyhr Daimler Puch of Amer. v. Pappas, 35 B.R. 1001, 1003 (E.D. Va. 1983). Plaintiffs concede that if they "choose to go after Woodmont [Holdings]'s assets, they will have to go through the bankruptcy court." (Plaintiffs' Memorandum in Opposition to
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Motion to Dismiss, Transfer and Stay ("Opp. Memo") at page 7 (emphasis added).) The upshot of their allegation that FTS is the alter ego of Woodmont Holdings is, however, that FTS and Woodmont should be treated as a single entity. If FTS is the alter ego of Woodmont Holdings, then FTS's assets are property of the Woodmont Holdings bankruptcy estate. See, e.g., In re Estate of Graven, 64 F.3d 453, 455 (8th Cir. 1995) (affirming district court order for alter egos to turn over their assets to the bankruptcy estate); In re Americana Services, Inc., 173 B.R. 650, 653 (Bkrtcy. W.D.Mo. 1994) (noting that bankruptcy trustee can bring alter ego action to bring assets into the bankruptcy estate); In re Schimmelpenninck, 183 F.3d 347, 366 (5th Cir. 1999) (holding that "any veil-piercing action vis-à-vis [debtor] and its affiliated companies to be `property of the estate' for purposes of [debtor's] bankruptcy proceedings"). Accordingly, based on Plaintiffs' alter ego allegations, this action as against FTS should be maintained as part of the Woodmont Holdings bankruptcy. Still further, Plaintiffs concede that their only link to FTS is through these alter ego allegations. Specifically, aside from the allegations in their original Petition, Plaintiffs assert that "[f]rom the perspective of the defendants in this case, the only real issue will be whether plaintiffs can prove their alter-ego allegations against Viziqor [FTS] or, alternatively, whether they can prove the breach of the separate contract or fraudulent statements by [the other defendants]." (Opp. Memo. at pages 6-7 (emphasis added).) Thus, there appear to be only two options with respect to Plaintiffs' claim against FTS: (i) FTS is the alter ego of Woodmont, and Plaintiffs need to proceed in the bankruptcy action; or (ii) FTS is not the alter ego of Woodmont, and Plaintiffs have no claim against FTS. *****

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WHEREFORE, Defendant Formula Telecom Solutions, Inc. prays that this Court enter its order dismissing the case pending before this Court1 and granting such other and further relief as is just and proper under the circumstances of this case.

BLACKWELL SANDERS PEPER MARTIN LLP

By

/s/ Christopher A. Perrin Michael A. Clithero, #2829 Christopher A. Perrin, # 502086 720 Olive Street, 24th Floor St. Louis, MO 63101 (314) 345-6000 (314) 345-6060 (facsimile)

1

Alternatively, this court should stay this action, as numerous other courts have done where a plaintiff has sued a non-debtor defendant when that defendant is allegedly the debtor's alter ego. See, e.g., In re Schimmelpenninck, 183 F.3d 347 (5th Cir. 1999) (citing numerous cases). Or, as another alternative, this Court could order that the Woodmont Holdings bankruptcy trustee be added as a plaintiff and transfer the case to the bankruptcy court. Plaintiffs assertion that "Delaware was not a jurisdiction where they could have brought their suit"--in an effort to avoid transfer under 28 U.S.C. § 1404--is overstated. Both Woodmont Holdings and FTS are Delaware corporations and as such, are subject to jurisdiction in Delware. A suit as against FTS could have been brought in Delaware under 28 U.S.C. § 1391, and therefore, transfer to Delaware under § 1404 is permissible.

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Case 1:07-cv-00097-