Free Response to Order to Show Cause - District Court of Colorado - Colorado

Case 1:01-cv-00917-ABJ-PAC

Document 428

Filed 09/22/2005

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 01-WY-0917-AJ (PAC) BROWN GROUP RETAIL, INC., Plaintiff, v. DABLAM, LTD., et al., Defendants. PLAINTIFF'S RESPONSE TO ORDER TO SHOW CAUSE Plaintiff Brown Group Retail, Inc. ("Brown") provides the following Response to this Court's Order to Show Cause dated August 24, 2005. In the Order, the Court ordered the parties to show cause why the action should not be dismissed with prejudice. As shown below, the Court has previously received and granted motions to dismiss for the following defendants: Defendant Hathaway Corporation Claims Dismissed Order Granting Joint Motion for Approval of Settlement Agreement Between Plaintiff and Defendant Hathaway Corporation [with prejudice], entered October 24, 2002 [Court document no. 309] Order Granting Joint Motion for Dismissal of All of Plaintiff's Claims Against Lionel, LLC and Wellspring Capital Management, LLC Without Prejudice, entered May 2, 2002 [Doc. No. 244] Order Granting Joint Motion for Dismissal of All of Plaintiff's Claims Against Lionel, LLC and Wellspring Capital Management, LLC Without Prejudice, entered May 2, 2002 [Doc. No. 244]

Lionel L.L.C.

Wellspring Capital Management LLC

DGS-W-661127_2.DOC 9/22/2005 3:33 PM

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IBM Corporation

Order Granting Joint Motion for Approval of Settlement Agreement Between Plaintiff and Defendant International Business Machines Corp. [with prejudice], signed August 14 and filed August 20, 2002 [Doc. No. 301] Order Granting Joint Motion for Approval of Settlement Agreement Between Plaintiff and Defendants Dablam Ltd [and others, with prejudice], entered June 17, 2004 [Doc. No. 367] Order Granting Joint Motion for Approval of Settlement Agreement Between Plaintiff and Defendant Pumori Corp. [and others, with prejudice], entered June 17, 2004 [Doc. No. 367] Order Granting Joint Motion for Approval of Settlement Agreement Between Plaintiff and Defendant Joy R. Hilliard [and others, with prejudice], entered June 17, 2004 [Doc. No. 367] Order Granting Joint Motion for Approval of Settlement Agreement Between Plaintiff and Defendant G. Michael Wilfley [and others, with prejudice], entered June 17, 2004 [Doc. No. 367] Order Granting Joint Motion for Approval of Settlement Agreement Between Plaintiff and Defendant Thomas Swanson [and others, with prejudice], entered June 17, 2004 [Doc. No. 367] Order Approving Settlement Agreement Between Plaintiff and Defendant Redfield Rifle Scopes, Inc. and Dismissing Claims with Prejudice, entered April 20, 2005 [Doc. No. 425] Order Re: Joint Motion for Approval of Settlement Agreement Between Plaintiff and Defendant Royal Farm Dairy, Inc. [with prejudice], signed August 14 and filed August 20, 2002 [Doc. No. 300] Order Granting Joint Motion for Approval of Settlement Agreement Between Plaintiff and Defendant Loretta Mishanec, d/b/a Polka Dot Cleaners [with prejudice], entered December 8, 2004 [Doc. No. 411]

Dablam, Ltd

Pumori Corp.

Joy R. Hilliard

G. Michael Wilfley

Thomas Swanson

Redfield Rifle Scopes, Inc.

Royal Farm Dairy, Inc.

Loretta Mishanec d/b/a Polka Dot Cleaners

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In its initial Complaint, Brown named four individual defendants--Donald Burris, John B. Tweedy, H. Benjamin Duke, Jr. and Keith Anderson--in their capacity as trustees of a trust that was a partner in Dablam. Subsequently, Brown learned that those individuals had been replaced by Messrs. Swanson and Wilfley. In its Motion for Leave to File Second Amended Complaint, filed on December 26, 2001, Brown moved that Messrs. Burris, Tweedy, Duke and Anderson be dismissed without prejudice pursuant to F.R.C.P. 41(a). In granting Brown's Motion for Leave to File Second Amended Complaint, the Court did not grant Brown's motion to dismiss these four individuals. See December 31, 2001 Order [Doc. No. 140]. Plaintiff's Second Amended Complaint, filed on January 4, 2002, omitted Messrs. Burris, Tweedy, Duke and Anderson as defendants. See Plaintiff's Second Amended Complaint, filed January 4, 2002 [Doc. No. 142]. Also in its Second Amended Complaint, Brown asserted claims against Eugene Nault d/b/a Polka Dot Cleaners and Loretta Nault d/b/a Polka Dot Cleaners. Brown moved to dismiss Mr. and Ms. Nault in the Joint Motion for Approval of Settlement Agreement Between Plaintiff and Defendant Loretta Mishanec, d/b/a Polka Dot Cleaners, filed on November 5, 2004 [Doc. No. 386]. The Court granted the motion as to Ms. Mishanec in an order dated December 8, 2004, but did not dismiss either of the Naults [Doc. No. 411]. Finally, Brown named Lionel Corporation as an additional defendant in Plaintiff's Second Amended Complaint. Lionel Corporation was served through service on its registered agent on January 14, 2002, and the return of service was filed with this Court on January 24, 2002. Lionel Corporation never filed a responsive pleading. Brown never moved to dismiss its claims against Lionel Corporation, but does so in the accompanying Motion to Dismiss. In addition to the claims asserted by Brown, three defendants asserted counterclaims against Brown--Ms. Mishanec d/b/a Polka Dot Cleaners, Redfield Rifle Scopes, Inc. and the

Case 1:01-cv-00917-ABJ-PAC

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Dablam parties. In addition, Ms. Mishanec d/b/a Polka Dot Cleaners brought third-party claims against Eugene Nault d/b/a Polka Dot Cleaners, Loretta Nault d/b/a Polka Dot Cleaners, and a number of "John Does". The counterclaims against Brown were dismissed in each of the orders dismissing Brown's claims against each of those three defendants. Ms. Mishanec's third-party claims against Eugene Nault were dismissed without prejudice in this Court's Order Granting Motion on Stipulation to Dismiss Without Prejudice the Third Party Complaint Against Eugene Nault, entered December 27, 2004. Ms. Mishanec's third-party claims against Loretta Nault were dismissed without prejudice in this Court's Dismissal of Third-Party Complaint Against Loretta Nault, entered on December 27, 2004. The "John Does" never were identified. In a separate motion submitted concurrently with this Response, Brown is requesting this Court to dismiss all remaining claims pending in this action, including without limitation Brown's claims against Donald Burris, John B. Tweedy, H. Benjamin Duke, Jr., Keith Anderson, Eugene Nault d/b/a Polka Dot Cleaners, Loretta Nault d/b/a Polka Dot Cleaners, and Lionel Corporation. Respectfully submitted this _____ day of September 2005. s/ Susan J. Geer Susan J. Geer Davis Graham & Stubbs LLP 1550 Seventeenth Street, Suite 500 Denver, Colorado 80202 (303) 892-9400 303-893-1379 (fax) E-mail: [email protected] Attorneys for Plaintiff and Counterclaim Defendant Brown Group Retail, Inc.

Case 1:01-cv-00917-ABJ-PAC

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CERTIFICATE OF SERVICE I hereby certify that on September 22, 2005, I electronically filed the foregoing PLAINTIFF'S RESPONSE TO ORDER TO SHOW CAUSE with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected],

and I hereby certify that I have served PLAINTIFF'S RESPONSE TO ORDER TO SHOW CAUSE on the document to the following non CM/ECF participants by U.S. Mail, postage prepaid, on September 22, 2005: Eugene Nault, pro se P.O. Box 51 Berthoud, CO 80513 John Mason, Jr. John Mason, Jr. & Associates 940 Logan Street Denver, CO 80203 Chad Anthony Trulli Baker & Hostetler-Colorado District Court Box Number 17 303 E 17th Avenue #1100 Denver, CO 80203 Philippe Zimmerman Moses & Singer LLP 1301 Avenue of the Americas New York, NY 10019-6076 s/Susan J. Geer Susan J. Geer Davis, Graham & Stubbs, P.C. 1550 17th Street, Suite 500 Denver, CO 80233 303-892-7539 [email protected]