Free Motion to Strike - District Court of Colorado - Colorado

Case 1:01-cv-02315-LTB-CBS

Document 490

Filed 10/14/2005

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 01- CV- 2315- REB- CBS

HARVEY SENDER, TRUSTEE OF THE LIFEBLOOD BIOMEDICAL , INC. LIQUIDATION
TRUST , and

HARVEY SENDER, TRUSTEE OF THE LIFEBLOOD BIOMEDICAL , INC. OPT- IN- TRUST
Plaintiffs

MANN , an individual; JEFFREY FREEBORN & PETERS , an Illinois partnership; MICHAEL SABlAN , an individual; DARWIN 1. POYFAIR, an individual; JAMES R. LEONE , P. , a Florida professional association; JAMES R. LEONE , an individual
WILLIAM

Defendants.

FREEBORN DEFENDANTS' SUPPLEMENT TO MOTION TO STRIKE PLAINTIFF' FIFTH SUPPLEMENTAL DISCLOSURES PURSUANT TO RULE 26(a)(I) TO ALSO STRIKE PLAINTIFF' S SUPPLEMENTAL EXPERT DISCLOSURE
Defendants Darwin 1. Poyfair , Michael Sabian and Freeborn & Peters (the " Freeborn
Defendants ) hereby supplement their Motion to Strike Plaintiff
Disclosures Pursuant to Rule
26( a)(

Fifth Supplemental

1) (the " Motion

to Strike

) to

also strike Plaintiff

Supplemental Expert Disclosure , filed on September 20 , 2005 , as follows:

The Freeborn Defendants filed their Motion to Strike on July 28 , 2005. In the
Motion to Strike , the Freeborn Defendants requested that the Court strike a certain disclosure
made by Plaintiff, to preclude Plaintiff from increasing the amount of his Opt- In Trust claims by

, "

Case 1:01-cv-02315-LTB-CBS

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introducing an additional assignment not identified in the Pretrial Order. The Motion to Strike is
set for hearing on October 19 2005.

On September 20 ,
copy of which is attached as

2005 ,

Plaintiff served a Supplemental Expert Disclosure ,

a

Exhibit 1. In the Supplemental Expert Disclosure , Plaintiff s expert

indicates that

Since the date of our first supplemental report (i. , May 4 , 2005), we have

become aware that certain additional promissory note creditors elected to assign their individual

litigation claims "

to the Opt-

In Trust. Exh. 1.

The

additional assignments identified in the

Supplemental Expert Disclosure include the Irrevocable Assignment of Claims executed by
Donnie Webster as Executor of Estate of Mack Webster - i. , the same assignment at issue in

the Motion to Strike.
In addition ,

and as predicted in the Freeborn Defendants ' reply brief, Plaintiff is

now seeking to add eight additional assignors ' claims and damages to the Opt- In Trust after the

execution of the Final Pretrial Order. As with Mr. Webster , Plaintiff s apparently did not have
standing to assert the claims of the eight additional assignors at the time the Final Pretrial Order
was entered. l And as with Mr. Webster , Plaintiff s October 31 , 2003 expert report indicates
these eight investors were not members of the Opt- In Trust.
Reply in Support of Motion to Strike , pp. 1See

Exh. A to Freeborn Defendants

The Freeborn Defendants are equally surprised and prejudiced by these additional

assignments as they were with Plaintiff s Fifth Supplemental Disclosures - only now Plaintiff s

of the most recent assignments obtained by Plaintiff despite repeated requests to Plaintiff s counsel for such copies.

1 The Freeborn Defendants do not have copies

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Supplemental Expert Disclosure seeks to add claims valued at $432

161.25 in principal along
Defendants

with related interest amounts. For all of

the reasons presented in the Freeborn

Motion to Strike and reply in support , the Freeborn Defendants request that the Court strike the
Supplemental Expert Disclosure , along with the claims purportedly described therein.

WHEREFORE , the Freeborn Defendants request that the Court strike Plaintiff s Fifth

Supplemental Disclosures Pursuant to Rule 26(a)(1) and Plaintiffs Supplemental Expert
Disclosure.

Respectfully submitted this 14th day of October , 2005.

Is Julie M. Walker
Michael L. O' Donnell Julie M. Walker Carolyn 1. Fairless Wheeler Trigg Kennedy LLP 1801 California Street , Suite 3600 Denver , Colorado 80202 tele: (303) 292- 2525 fax: (303) 294- 1879

ATTORNEYS FOR DEFENDANTS DARWIN J. POYFAIR, MICHAEL SABlAN AND FREEBORN & PETERS

Case 1:01-cv-02315-LTB-CBS

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CERTIFICA TE OF SERVICE CM/ECF
I hereby certified that on October - 2005 , I electronically filed the foregoing FREEBORN DEFENDANTS' SUPPLEMENT TO MOTION TO STRIKE PLAINTIFF'
FIFTH SUPPLEMENTAL DISCLOSURES PURSUANT TO RULE 26(a)(I)

of the Court using the

CM/ECF system which will send

notification of such filing to

with the Clerk the

following e-mail addresses:

Herbert Anthony Delap
cdelap~duffordbrown. com ccarlson~duffordbrown. com
David W.

Furgason

dfurgason~duffordbrown. com ccarlson~duffordbrown. com
James R. Leone j rleoneattorney~yahoo. com

John C. Smiley

j smiley~lindquist. com stoms~lindquist. com

and I hereby certify that I have mailed or served the document or paper to the following non
CM/ECF participants via U. S. Mail , postage prepaid and addressed to the following:

Daniel N. Brodersen Miller , South & Michaussen , P. 2699 Lee Road , # 120 Winter Park , FL 32789

Kristi J. Livedalen
Fleishman & Shapiro , PC 1600 Broadway, #2600 Denver , CO 80202- 4926

Ward Meythaler Merkle & Magri , P. 550 North Reo Street , #301 Tampa , FL 33609

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William Wells, II
14 Flicker Drive Greenville , SC 29609- 6644

Is Julie M. Walker by Deborah McGuire

Julie M. Walker