Free Reply to Response to Motion - District Court of Colorado - Colorado

Case 1:01-cv-01807-MSK-MJW

Document 503

Filed 10/10/2007

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No.: 01-cv-01807-MSK-MJW BANK ONE, COLORADO, N.A. and, BANK ONE TRUST COMPANY, N.A., As Trustee of the Frank G. Jamison Marital Trust and the Frank G. Jamison Family Trust, Plaintiffs, v. C.V.Y. CORPORATION, d/b/a Your Valet Cleaners; and, JOHNNY ON THE SPOT, INC. Defendants.

BOULDER CLEANERS, INC. and, JOHN'S CLEANER'S, INC., Cross-Plaintiffs, v. C.V.Y. CORPORATION, d/b/a Your Valet Cleaners, Cross-Defendant. ______________________________________________________________________________ CVY'S AND JOS' REPLY IN SUPPORT OF JOINT MOTION FOR APPROVAL OF SETTLEMENT AGREEMENT WITH CONTRIBUTION PROTECTION ______________________________________________________________________________ COME NOW, Defendant and Cross-Defendant C.V.Y. Corporation ("CVY"), and Defendant Johnny On The Spot, Inc. ("JOS"), and for their Reply in support of Joint Motion for Approval of Settlement Agreement with Contribution Protection, state as follows: The following two motions are pending before the Court: (1) Joint Motion for Approval of Settlement Agreement with Contribution Protection ("Contribution Motion") and (2) Joint Motion for Filing Exhibit 1 to the Joint Motion for Approval of Settlement Agreement with Contribution

Case 1:01-cv-01807-MSK-MJW

Document 503

Filed 10/10/2007

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Protection Under Seal Pursuant to D.C.Colo.L.CivR 7.2 ("Motion to Seal"). Cross-Plaintiffs Boulder Cleaners, Inc. and John's Cleaners, Inc. (collectively "BCI/JCI") have objected to both motions and filed responses to the same. CVY and JOS filed a detailed Reply in support of the Motion to Seal. For the sake of brevity, CVY and JOS incorporate by reference that Reply. BCI/JCI argue in their response to the Contribution Motion that since they have not had the opportunity to see the Settlement Agreement, they are unable to adequately respond to the Contribution Motion. They then go on to make arguments and cite law related to their cross-claims against CVY and their state court action against, inter alia, the officers, directors and stockholders of CVY. As with their response to the Motion to Seal, BCI/JCI's response to the Contribution Motion goes far afield and does not address the pending issues. Instead, BCI/JCI argue that: i.) if contribution protection is granted, it should not bar their cross-claims or state court claims; and ii.) that the Settlement Agreement may attempt to establish "facts," through the Court's approval of it, that are prejudicial to BCI/JCI's cross-claims and state court claims. Based on these two premature fears, they object to the Contribution Motion. Whether BCI/JCI's cross-claims or state court claims are affected by CVY and JOS obtaining contribution protection is not before the Court. Again, BCI/JCI have placed the cart before the horse. Once CVY and JOS obtain contribution protection, they may indeed argue that such contribution protection bars BCI/JCI's cross-claims and/or bars BCI/JCI's state court claims. At that time, the effect of contribution protection on each such claim that has been asserted by BCI/JCI can be fully briefed and argued. However, whether contribution protection has any effect on BCI/JCI's cross2

Case 1:01-cv-01807-MSK-MJW

Document 503

Filed 10/10/2007

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claim or state court claims is irrelevant to the sole issue which presently is before the Court, namely whether the Settlement Agreement is fair, reasonable, and faithful to the objectives of CERCLA. BCI/JCI do not state any concise reason why this Honorable Court should not approve the Settlement Agreement with contribution protection. BCI/JCI's request for an order limiting the use and effect of contribution protection is not justified at this time. Accordingly, for the reasons outlined in the Joint Motion, CVY and JOS' Reply in Support of Motion to Seal, and those set forth above, the Court should approve the settlement with contribution protection and enter the proposed order submitted with the Joint Motion. DATED: October 9, 2007. Respectfully submitted, MONTGOMERY, KOLODNY, AMATUZIO & DUSBABEK, L.L.P.

s/ Max K. Jones, Jr. C. Michael Montgomery Max K. Jones, Jr. Ryan C. Gill 1775 Sherman St., 21st Floor Denver, Colorado 80203 Phone: 303-592-6600 [email protected] [email protected] [email protected] ATTORNEYS FOR THE DEFENDANTS C.V.Y. CORPORATION, d/b/a YOUR VALET CLEANERS, and JOHNNY ON THE SPOT, INC.

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Case 1:01-cv-01807-MSK-MJW

Document 503

Filed 10/10/2007

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CERTIFICATE OF MAILING I hereby certify that on October 9, 2007 a true and correct copy of the CVY'S AND JOS' REPLY IN SUPPORT OF JOINT MOTION FOR APPROVAL OF SETTLEMENT AGREEMENT WITH CONTRIBUTION PROTECTION was filed with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: Scott Jurdem, Esq. Buchanan Jurdem & Cederburg, P.C. 1621 18th Street, Suite 260 Denver, Colorado 80202 [email protected] Laura J. Riese, Esq. Jonathan W. Rauchway, Esq. Davis Graham & Stubbs LLP 1550 Seventeenth Street, Suite 500 Denver, CO 80202 [email protected] [email protected]

s/ Karen Wood Karen Wood Montgomery, Kolodny, Amatuzio & Dusbabek 1775 Sherman Street, 21st Floor Denver, CO 80203 Telephone: 303-592-6600 [email protected]

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