Free Brief in Support of Motion - District Court of Colorado - Colorado

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

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Filed 02/24/2006

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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. ______________________________________________________________________________ REPLY BRIEF IN SUPPORT OF MOTION FOR PROTECTIVE ORDER AND/OR TO QUASH OR MODIFY SUBPOENA ______________________________________________________________________________ Defendant College Partnership, by its undersigned counsel, hereby submits this Reply Brief in support of its Motion for Protective Order and/or To Quash or Modify Subpoena. I. SMG'S RESPONSE BRIEF DOES NOT JUSTIFY ITS REFUSAL TO CONFER AND COOPERATE WITH COLLEGE PARTNERSHIP'S COUNSEL IN SCHEDULING A SECOND DEBTOR'S DEPOSITION.

Disregarding the unnecessary rhetoric in Plaintiff's Response Brief, the facts of the matter before the Court are straightforward and undisputed: · On August 25, 2005, Judgment was entered against College Partnership and in favor of SMG for $127,462.59. · SMG noticed, and conducted, a deposition pursuant to Fed. R. Civ. P. 69 on October 12, 2005.

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·

SMG also took other actions to collect on the judgment, including garnishing one account.

· ·

College Partnership paid the outstanding judgment in full in October 2005. SMG did not request supplementation of responses, or take any other action, after October 2005 and continuing until January 2006. The judgment had been paid, and there was no outstanding judgment.

·

SMG obtained a second judgment for attorney fees of $284,716.30 on January 3, 2006.

·

Following the automatic stay pursuant to Fed. R. Civ. P. 62(a), SMG submitted an informal written demand for supplemental information on January 24, 2006 seeking the information by January 27, 2006;

·

Without waiting for a response to the January 24, 2006 informal demand by the January 27, 2006 deadline, SMG subpoenaed College Partnership for a second Rule 69 deposition duces tecum on January 25, 2006 at 1:46 p.m., for an examination to be conducted 9:00 a.m. February 1, 2006 - four and a half business days later.

·

SMG did not consult with counsel for College Partnership, or make any attempt to clear the date for the deposition on their calendar, prior to the deposition.

·

College Partnership's counsel was not available to attend the February 1, 2006 deposition due to a scheduling conflict.

·

College Partnership's counsel sought to reschedule the date of the deposition to a mutually convenient time; SMG refused to do so unless College Partnership -2-

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immediately disclose, by the end of the day, all bank records. · College Partnership's counsel did not have those records available, did not have authority from its client at that time to make any agreements, and had other commitments that afternoon. When informed of this, counsel for SMG still refused to reschedule the deposition even for a day or two. · College Partnership, therefore, was obligated to file this Motion for Protective Order due to SMG's refusal to confer and set the deposition for a mutually agreeable date. · Subsequently, in response to College Partnership's Fed. R. Civ. P. 59 motion to alter or amend the judgment, SMG has admitted that the judgment entered on January 3, 2006 is incorrect and must be reduced to $279,549.98 because of an error. Nonetheless, SMG continues its efforts to execute on the full amount of the judgment, including the incorrect, excess $5,169.32. Even if SMG has a right to the information sought and to execute on the judgment, this Court's local rules as well as Colorado's rules of civil procedure for debtor's examinations require reasonable attempts to confer to set a deposition, and reasonable advance notice of a deposition. SMG could have avoided the need for the Motion for Protective Order by simply agreeing to delay the deposition by a couple of days. The rule in this District is that the parties must provide reasonable notice for depositions, and confer with opposing counsel before scheduling a deposition. See Local Rule D.C.Colo. LcirR 30.1. Eleven days is normally considered reasonable notice. SMG did not allow reasonable notice, nor did SMG make any attempt to confer before scheduling. -3-

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II.

SMG'S ADMITS THAT THE JUDGMENT MUST BE CORRECTED; THEREFORE ATTEMPTS AT EXECUTION ON A JUDGMENT KNOWN TO BE ERRONEOUS IS IMPROPER

On February 9, 2006, after College Partnership filed the Motion for Protective Order, SMG filed a response brief to College Partnership's Motion for New Trial or to Alter or Amend the Judgment agreeing that the judgment must be corrected because it incorrectly included costs that already had been taxed, and paid by College Partnership, as part of the August 2005 judgment. A decision by Judge Babcock as to whether to reduce the judgment by that amount, or to vacate the judgment and grant College Partnership a hearing, is expected forthwith. Despite acknowledging that the judgment is incorrect, SMG continues its efforts to execute on a the $284,716.30 judgment that it acknowledges to be incorrect. The parties agree that Judge Babcock must at a minimum correct the judgment. At a minimum, SMG should not be permitted to execute on the full amount of the judgment. III. THE SCOPE OF THE REQUESTS FOR PRODUCTION ARE BEYOND THE PERMISSIBLE LIMITS OF DISCOVERY IN AID OF EXECUTION

SMG's requests for production of documents goes well beyond the permissible scope of discovery in aid of post-judgment remedies, and can only be viewed as harrassing. SMG makes no attempt to justify why it needs credit card records from years past, assets of other parties that are leased by College Partnership, or other documents that do not disclose current assets upon which SMG could execute. SMG's only attempt to justify this information is that it "is not interested in seizing assets owned by other parties." If this were the case, SMG could simply seek to execute on College Partnership's assets, and require College Partnership to do the "sorting" for it.

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SMG admits in its response that what it really seeks is just a list of bank accounts. If that is what SMG seeks, then that is what it should request in its Request for Production without the unnecessary additional burdens. IV. SMG HAS NOT JUSTIFIED A SECOND DEPOSITION

Ordinarily, a party is limited to a single deposition unless good cause is shown. SMG has conducted one deposition on October 12, 2005. SMG contends that the current deposition is a "continuation" of the October 2005 deposition because College Partnership did not supplement the additional document requests made at the deposition. Initially, the Court should note that SMG never filed any motion to compel production of these additional documents, and before serving the January 25, 2006 subpoena, it informally only requested that the documents be provided by January 27, 2006. SMG provides no explanation for why providing the supplemental information requested at the deposition, reasonably limited in scope, would not suffice. Respectfully submitted,

BURG SIMPSON ELDREDGE HERSH & JARDINE, P.C.

s/ Rosemary Orsini Rosemary Orsini 40 Inverness Drive East Englewood, Colorado 80112 Telephone: (303) 792-5595 Facsimile: (303) 708-0527 ATTORNEYS FOR DEFENDANT COLLEGE PARTNERSHIP, INC. -5-

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CERTIFICATE OF SERVICE I hereby certify that on this 24th day of February 2006, I filed and/or served a true and complete copy of the foregoing REPLY BRIEF IN SUPPORT OF MOTION FOR PROTECTIVE ORDER AND/OR TO QUASH OR MODIFY SUBPOENA by CM/ECF filing, to the following:

Gary Parish, Esq. R. Daniel Scheid, Esq. Sander, Scheid, Ingebretsen, Miller & Parish P.C. 700 17th St., Suite 2200 Denver, CO 80202 Patrick J. McElhinny, Esq. Dianna S. Karg, Esq. Kirkpatrick & Lockhart LLP 535 Smithfield St. Henry W. Oliver Building Pittsburgh, PA 15222 s/ Sharla Sheeks Sharla Sheeks

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