Free Response to Motion - District Court of Colorado - Colorado

Case 1:04-cv-01258-LTB-BNB

Document 96

Filed 06/28/2005

Page 1 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-CV-1258-LTB-BNB STUDENT MARKETING GROUP, INC., Plaintiff, v. COLLEGE PARTNERSHIP, INC., f/k/a COLLEGE BOUND STUDENT ALLIANCE, INC., Defendant. STUDENT MARKETING GROUP, INC.'S RESPONSE IN OPPOSITION TO DEFENDANT'S MOTION TO CONTINUE TRIAL AND TRIAL PREPARATION CONFERENCE

Plaintiff Student Marketing Group, Inc. ("SMG"), by and through its counsel, hereby files this Response in Opposition to Defendant's Motion to Continue Trial and Trial Preparation Conference and in support thereof states as follows: 1. College Partnership, Inc. ("CPI") seeks to delay the trial preparation

conference and the trial date, both of which have been set since August 18, 2004. The sole basis for CPI's motion is that SMG's motion to compel is scheduled to be argued on July 15, 2005. SMG opposes CPI's Motion to Continue Trial and Trial Preparation Conference for at least three reasons. 2. provide discovery. First, CPI should not be permitted to benefit from its own failure to

Case 1:04-cv-01258-LTB-BNB

Document 96

Filed 06/28/2005

Page 2 of 4

3.

The sole basis for CPI's assertion that a continuance is necessary is the

fact that an argument on SMG's Motion to Compel is scheduled to be heard by Magistrate Judge Boland on July 15, 2005, the day after the trial preparation conference. 4. If, as CPI apparently contends, it has satisfied its discovery obligations,

there will be no reason to delay trial as a result of SMG's motion to compel. If CPI has not satisfied its discovery obligations, then it cannot fairly claim that its own failures justify further delay. To the contrary, SMG is the party most likely to be prejudiced by the timing of CPI's belated discovery responses, and SMG desires the trial to go forward as soon as possible. 5. Second, postponement of the trial in this matter would prejudice SMG

because of the rapidly deteriorating financial condition of CPI. 6. According to CPI's public filings and as evidenced during the course of

discovery in this case, CPI's financial situation is tenuous at best. See Exhibits 1 and 2 (CPI's Quarterly SEC filings dated March 28, 2005 and June 20, 2005, respectively, which show that CPI will require "a minimum of another $500,000 in capital" by the end of each quarter to get CPI through its period of expected losses. "If the Company is unable to raise such additional financing, it would have a materially adverse effect upon the Company's ability to implement its business plan and may cause the Company to curtail or scale back its current operations, and raise substantial doubt about the Company's ability to continue as a going concern." 7. As time passes, the likelihood of CPI continuing as a going-concern

diminishes even further. Compare Exhibit 1 with Exhibit 2 (demonstrating, for example, that CPI's available cash decreased 87% from $218,207 on January 31, 2005 to $28,856 on April 30, 2005).

2

Case 1:04-cv-01258-LTB-BNB

Document 96

Filed 06/28/2005

Page 3 of 4

8.

Given CPI's deteriorating financial condition, delaying the trial in this

matter will prejudice SMG by reducing the likelihood of SMG being able to collect on any judgment. 9. Third, CPI's request for a continuance of the trial and trial preparation

conference in this matter is part of its consistent, ongoing pattern of delay throughout the entire course of this litigation. See SMG's Motion to Strike CPI's Response to SMG's Motion for Summary Judgment at Paragraphs 10, 11. WHEREFORE, SMG respectfully requests this Court to deny CPI's Motion to Continue Trial and Trial Preparation Conference. Dated: June 28, 2005 Respectfully submitted, s/R. Daniel Scheid LEWIS SCHEID LLC R. Daniel Scheid River Point Building 2300 Fifteenth Street, Suite 320 Denver, CO 80202 Telephone: (303) 534-5040 Facsimile: (303) 534-5039 KIRKPATRICK & LOCKHART NICHOLSON GRAHAM LLP Patrick J. McElhinny, Esquire Dianna S. Karg, Esquire 535 Smithfield Street Henry W. Oliver Building Pittsburgh, PA 15222 Telephone: (412) 355-6500 Facsimile: (412) 355-6501 Counsel for Plaintiff, Student Marketing Group, Inc.

3

Case 1:04-cv-01258-LTB-BNB

Document 96

Filed 06/28/2005

Page 4 of 4

CERTIFICATE OF SERVICE I hereby certify that on this 28th day of June, 2005, I electronically filed the foregoing STUDENT MARKETING GROUP, INC.'S RESPONSE IN OPPOSITION TO DEFENDANT'S MOTION TO CONTINUE TRIAL AND TRIAL PREPARATION CONFERENCE with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: Rosemary Orsini, Esquire Brian Matise, Esquire BURG, SIMPSON, ELDREDGE, HERSH, JARDINE, P.C. [email protected] [email protected]

s/Claudia Cooper