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

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

Document 95

Filed 06/28/2005

Page 1 of 5

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 REPLY TO DEFENDANT'S RESPONSE IN OPPOSITION TO PLAINTIFF'S MOTION TO STRIKE

Plaintiff Student Marketing Group, Inc. ("SMG"), by and through its counsel, hereby files this Reply to Defendant's Response in Opposition to Plaintiff's Motion to Strike and in support thereof states as follows: 1. In light of Defendant College Partnership, Inc.'s ("CPI's") Response in

Opposition to Plaintiff's Motion to Strike, SMG brings the following facts to the attention of the Court, which squarely contradict the assertions made in CPI's Response. 2. First, the timing of events and various orders regarding the summary

judgment papers belies CPI's assertion that its failure to file a timely response is attributable to the vacation of a legal assistant assigned to this case.

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

Document 95

Filed 06/28/2005

Page 2 of 5

3.

The briefing schedule for dispositive motions in this case was set on

February 3, 2005, when this Court entered an Order stating that dispositive motions shall be filed by April 15, 2005. Pursuant to local Rule and the Final Pre-Trial Order in this case, CPI would have 20 days, or until May 9, 2005, to file a response. 4. On May 6, 2005, CPI, clearly aware of the impending response date, filed

a motion requesting an extension until May 16, 2005 to file its Response. 5. The Court immediately granted CPI's request for an extension on May 6,

2005. See Exhibit 1 to SMG's Motion to Strike. 6. CPI did not file an affidavit of counsel but instead, CPI asserts through an

affidavit of a legal assistant who was responsible for calendaring deadlines, that the legal assistant was on vacation for a period including May 9 to May 16 (after the extension was granted). There is no indication in CPI's reply as to precise dates of the legal assistant's vacation or the availability of the attorneys assigned to the case during the relevant time frame. 7. Under the circumstances, it strains credulity to assert that CPI's failure to

file a timely response is attributable to a Burg Simpson legal assistant, particularly when four separate Burg Simpson attorneys have appeared on behalf of CPI at court proceedings or at depositions in this case (namely, Michael Burg, Matthew McElhiney, Rosemary Orsini and Brian Matise). 8. Second, a contemporaneous email exchange between Attorney Matise and

counsel for SMG appears to contradict CPI's explanation for its untimely filing. 9. On May 18, 2005, counsel for SMG sent an email message to Attorney

Rosemary Orsini and Attorney Brian Matise, pointing out that CPI had failed to file a timely

2

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

Document 95

Filed 06/28/2005

Page 3 of 5

response to SMG's Motion for Summary Judgment. A copy of the email message is attached as Exhibit 1. 10. The May 18, 2005 email message stated, "we have not received your

response to SMG's Motion for Summary Judgment which was due [pursuant to the court-ordered extension] on Monday, May 16th . . . Please advise when we can expect to receive [this] item[]." Id. 11. On May 24, 2005, Attorney Matise responded to the May 18, 2005 email

message by stating that the "[r]esponse to MSJ will be finalized and submitted to you by tomorrow." Attorney Matise sent a copy of this response to Attorney Orsini. Id. 12. This email exchange appears to contradict the explanation offered in CPI's

response as to why its response was untimely.1 13. Third, SMG has been prejudiced by CPI's delay in filing its response to

SMG's Motion for Summary Judgment. 14. According to CPI's public filings and as evidenced during the court of

discovery in this case, CPI's financial condition is rapidly deteriorating. See SMG's Response in Opposition to Defendant's Motion to Continue Trial and Trial Preparation Conference, paragraphs 6-8 and Exhibits 1 and 2. 15. During the period from January 31, 2005 to April 30, 2005, CPI's

available cash decreased 87% from $218,207 to $28,856. Id., paragraph 7 and Exhibits 1 and 2.

It is also noteworthy that notwithstanding the affidavit and the certificate of service on the untimely Response to SMG's Motion for Summary Judgment, neither SMG's counsel in Denver nor SMG's counsel in Pittsburgh received the Response.

1

3

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

Document 95

Filed 06/28/2005

Page 4 of 5

16.

Accordingly, SMG has been prejudiced by the passage of time given the

deteriorating financial condition of CPI and the reduced likelihood of SMG being able to collect in any judgment against CPI. WHEREFORE, SMG respectfully requests this Court to grant its Motion to Strike CPI's Untimely Response to SMG's Motion for Summary Judgment.

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 [email protected] 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.

4

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

Document 95

Filed 06/28/2005

Page 5 of 5

CERTIFICATE OF SERVICE I hereby certify that on this 28th day of June, 2005, I electronically filed the foregoing STUDENT MARKETING GROUP, INC.'S REPLY TO DEFENDANT'S RESPONSE IN OPPOSITION TO PLAINTIFF'S MOTION TO STRIKE 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