Free Motion to Strike - District Court of Colorado - Colorado

, "

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

Document 480

Filed 07/28/2005

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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

WILLIAM JEFFREY MANN , an individual; 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
Defendants.

FREEBORN DEFENDANTS' MOTION TO STRIKE PLAINTIFF' S FIFTH SUPPLEMENTAL DISCLOSURES PURSUANT TO RULE 26(a)(I)
Defendants Darwin 1. Poyfair , Michael Sabian and Freeborn & Peters (the " Freeborn
Defendants ) respectfully move this Court to strike Plaintiff s Fifth Supplemental Disclosures

Pursuant to Rule 26(a)(1) as beyond the scope of the Final Pretrial Order. In support of their
motion , the Freeborn Defendants state:

The Court entered the Final Pretrial Order in this case on June 3 , 2005.

The Final Pretrial Order states , on page 60 and in pertinent

part

this Final

Pretrial Order will control the subsequent course of this action and the trial , and may not be
amended except by consent of the parties and approval by the court or by order of the court to

,"

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prevent manifest injustice.
16( e).

This statement comports with the requirements of Fed. R. Civ. P.

On July 6 , 2005 , Plaintiff filed his Fifth Supplemental Disclosures Pursuant to
Rule 26(a)(1). See

copy attached as Exhibit A. In his pleading, Plaintiff discloses an additional

document , the Irrevocable Assignment of Claims executed by Donnie Webster as Executor of

Estate of Mack Webster. While the first paragraph of the document reads

(tJhis Assignment of

Claims is executed as of June 2001 by Donnie Webster " the signature actually bears a date of
May 2 2005 and the name " James D. Webster.

Plaintiff did not seek

consent from the Freeborn Defendants to

include this

disclosure in the Final Pretrial Order , nor has Plaintiff sought leave of the Court to do so.
Plaintiff has not designated Mr. Webster as a witness in his witness lists incorporated into the
Final Pretrial Order. Nor is the Irrevocable Assignment of Claims for Mr. Webster listed on
Plaintiff s exhibit list.

Plaintiff apparently intends to offer Mr. Webster s Irrevocable Assignment of
Claims as evidence that Mr. Webster is a beneficiary of the Opt- In Trust , that he has assigned his

purported claims to Plaintiff and therefore , Plaintiff will seek

to include the value of any
Trust.

investment by Mr. Webster in the damages Plaintiff is seeking on behalf of the Opt- In

The inclusion of this Irrevocable Assignment of Claims is prejudicial

to the

Freeborn Defendants. Prior to the execution of the Final Pretrial Order , the Freeborn Defendants

had no notice that Plaintiff intended

to seek Opt- In Trust damages on behalf of Mr. Webster.

Moreover , given there is no trial date set for this case , if Plaintiff is permitted to seek damages on

behalf of Mr. Webster as a beneficiary of the Opt- In

Trust ,

there is nothing to prevent Plaintiff

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from seeking out and obtaining Irrevocable Assignments of Claim from any other Lifeblood
investors not already included in the Opt-In Trust as of the execution of the Final Pretrial Order.
See

Final Pretrial Order , p. 5 , noting only 103 of the 200 Lifeblood investors are beneficiaries of
Trust.

the Opt- In

This Court has the discretion to strike Plaintiff s disclosure. As explained by the
Fifth Circuit:

(WJhere . . . the evidence and the issue were known at the time of the original pretrial conference , amendments (to the Final Pretrial
Order J may generally be refused. Each party has an affirmative

duty to allege at the pretrial conference all factual and legal bases upon which the party wishes to litigate the case.
Quick Technologies, Inc.
Century Refining Company v.

Sage Group PLC 313 F. 3d
v.

338 ,

346 (5th Cir. 2002).

See also

Hall 316 F.2d 15 (lOth Cir. 1963). There can be no dispute that

Plaintiff knew of Mack Webster as a Lifeblood investor at the time of the original (and several
subsequent) pretrial conferences in this case. See

Plaintiffs Initial Disclosures Pursuant to Rule

26(a)(1), attached as Exhibit B , identifying all Lifeblood Investors on an exhibit A attached to
the disclosures ,

and specifically identifying Mack Webster on p. 7 of that exhibit A. Because
s assignment , and therefore his alleged Opt- In Trust
Order , the Court

Plaintiff failed to include Mr. Webster
damages , as

part of the Final Pretrial

should strike Plaintiff s

Fifth

Supplemental Disclosures.

Pursuant to Local Rule 7. 1(a), the undersigned has conferred with counsel for
Plaintiff who objects to this Motion.

Pursuant to Local Rule 6. 1(d), as set forth in the Certificate of Service , a copy of
this Motion has been served on all attorneys of record and on the undersigned' s clients.

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WHEREFORE , the Freeborn Defendants request that the Court strike Plaintiff s Fifth
Supplemental Disclosures Pursuant to Rule 26(a)(1).

Respectfully submitted this 28th day of July, 2005.

sf 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

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CERTIFICA TE OF SERVICE CM/ECF
I hereby certified that on July 28 th 2005 , I electronically filed the foregoing

FREEBORN

DEFENDANTS' MOTION TO STRIKE PLAINTIFF' S FIFTH SUPPLEMENTAL
DISCLOSURES PURSUANT TO RULE
26(a)(I)

with the Clerk of the Court using the

CM/ECF system which will send notification of such filing to 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

sf Julie M. Walker by Deborah 1. McGuire 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