Free Response to Motion - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 1:04-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 COLLEGE PARTNERSHIP, INC.'S MOTION FOR NEW TRIAL Plaintiff Student Marketing Group, Inc. ("SMG"), by and through its counsel, files this Response in Opposition to Motion for College Partnership, Inc.'s Motion for New Trial and in support thereof states as follows: INTRODUCTION College Partnership, Inc.'s ("CPI's") Motion for New Trial or to Alter or Amend Judgment Awarding Attorney Fees and to Stay Enforcement of Judgment ("Motion for New Trial") fails to demonstrate, as it must, that a new trial is necessary to prevent substantial injustice on the issue of attorney fees. The Court had more than enough information before it to decide SMG's Motion for Approval and Award of Fees ("Motion for Fees") on the written submissions of the parties. Similarly, CPI fails to demonstrate that the Court made an error of law such that an alteration or amendment of the judgment would be required. While both parties acknowledge that there was a clerical error such that the amount already taxed as part of the bill of costs on the first judgment should be excluded from the judgment on attorney fees, that error is easily rectified pursuant to Fed. R. Civ. P. 60. Accordingly, the Court should deny CPI's

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Motion for New Trial, take the necessary steps to correct the amount of the January 3, 2006 Judgment from $284,716.30 to 279,546.98, and award SMG its attorneys fees and costs for responding to this Motion for New Trial (to which SMG is contractually entitled). FACTUAL BACKGROUND A. SMG's Efforts to Obtain its Attorneys Fees and Costs in this Matter. SMG initiated this suit for breach of contract against CPI for violating the terms of the List Rental Agreement ("Agreement"). In the course of the litigation, CPI filed counterclaims against SMG for an amount in excess of $1.5 Million. After briefing on SMG's Motion for Summary Judgment, on August 22, 2005, the Court granted summary judgment to SMG in its breach of contract claim against CPI and denied CPI's counterclaims against SMG. On August 25, 2005, the Court entered judgment against CPI in favor of SMG in the amount of $127,462.59.1 Under the express terms of the Agreement and as recognized by the August 22, 2005 decision on the summary judgment filings, SMG was also entitled to recover its attorney fees and costs incurred in this matter from CPI. On September 2, 2005, SMG filed its Motion for Fees. Both parties briefed the attorney fees issue extensively, including three different submissions each, numerous affidavits and 85 pages of detailed daily time entries. SMG's Supplement to Motion for Fees was one of the submissions; in that filing, SMG requested the Court, inter alia, to reduce the costs previously requested by SMG by the $5,169.32 which was taxed as costs against CPI on September 28. 2005 (which was after SMG's original Motion for Fees was filed but before the Court ruled on the Motion for Fees). CPI filed a response to this supplemental Motion in which
On September 28, 2005, after submissions and arguments by the parties on SMG's bill of costs, the Deputy Clerk entered a Bill of Costs against CPI totaling $5,169.32. This brought the amount of the first judgment to $132,631.91. Eventually, after some successful garnishment efforts by SMG, CPI paid SMG the balance outstanding on the first judgment.
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it agreed that the requested fees should be reduced by the $5,169.32 already taxed as costs against CPI as part of the earlier judgment. In late October, it appeared that the parties had reached a settlement on the amount of attorney fees and costs CPI was to pay to SMG. Accordingly, the Court issued an order staying SMG's Motion for Fees while the parties finalized the terms of their settlement. The settlement regarding the amount of attorney fees and costs required CPI to make three payments to SMG totaling $167,200.2 The settlement dissolved after CPI failed to make the first of its settlement payments. Thereafter, SMG filed a motion requesting the Court to vacate the stay to permit CPI to file its sur-reply and ultimately rule on SMG's Motion for Fees. The Court issued an Order on December 9, 2005 vacating the stay and permitting CPI to file its sur-reply. On December 16, 2005, CPI filed its sur-reply on the fee issue (the 6th pleading by the parties), in which it challenged SMG's Motion for Fees and requested an evidentiary hearing on SMG's Motion for Fees. B. After Full Briefing, the Submission of Affidavits and CPI's Opportunity for Filing a Sur-Reply, the Court Granted SMG's Motion for Fees. On December 28, 2005, the Court issued its Order Granting Attorney Fees and denying CPI's request for an evidentiary hearing. In a twelve (12) page Order, the Court considered the submissions of both parties, including supporting affidavits and CPI's request for an evidentiary hearing. The Court concluded SMG was entitled to its attorney fees and costs. The Court also determined that there was sufficient information to make a determination of attorney fees without an evidentiary hearing. Accordingly, the Court directed that judgment be entered in favor of SMG and against CPI for attorney fees and costs in the sum of $284,716.30. Judgment was entered in this amount on January 3, 2006.
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Under the settlement, CPI's failure to make a settlement payment entitled SMG to return to the Court to request that the stay be vacated and the Court issue its decision on SMG's Motion for Fees.

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It appears that there was a clerical error in the amount of the attorney fees award issued by the Court. Specifically, it appears that the amount of $5,169.32 which was taxed as costs against CPI on September 28. 2005 was included in the attorney fees award. Both SMG and CPI agree that the $5,169.32 which was taxed as costs against CPI as part of the first judgment should not be included in the judgment on attorney fees. See SMG's Supplement to Motion for Approval and Award of Fees and CPI's response thereto. Accordingly, the amount of the judgment on the Motion for Fees should have been reduced by $5,169.32 for a total of $279,546.98. ARGUMENT A. CPI is Not Entitled to A New Trial on SMG's Motion for Fees Because It Has Failed to Show a Manifest Error of Law or Fact. 1. Legal Standard for Motion for New Trial. The trial court has broad discretion in determining whether to grant a motion for a new trial. Whiteley v. OKC Corp., 719 F.2d 1051, 1058 (10th Cir. 1983); Plaut v. Estate of Rogers, 59 F. Supp. 1302, 1305 (D. Colo. 1997). "Generally stated, a `court should exercise its discretion to grant a new trial whenever, it its judgment, this action is required in order to prevent injustice.'" Id. at 1304-05 (quoting Whalen v. Roanoke County Bd. of Sup'rs, 769 F.2d 221, 226 (4th Cir. 1985)). In general, the grounds for granting a new trial are that the verdict is against the weight of the evidence, that the damages are excessive, or that for other reasons the trial was not fair. Id. at 1305; see also WRIGHT & MILLER, FEDERAL PRACTICE AND PROCEDURE § 2805. "A motion for a new trial in a nonjury case or a petition for rehearing should be based upon manifest error of law or mistake of fact, and a judgment should not be set aside except for substantial reasons." WRIGHT & MILLER, FEDERAL PRACTICE AND PROCEDURE § 2804; see also 12 MOORE'S FEDERAL PRACTICE § 59.13[3][a] (3d ed. 2005). A showing of prejudice is essential before a new trial will be granted. Plaut, 59 F. Supp. at 1305. The decision of the trial court on

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whether to grant a motion for new trial will not be disturbed on appeal absent a gross abuse of discretion. Whiteley, 719 F.2d at 1058. 2. An Evidentiary Hearing is Not or Required to Prevent Injustice as the Court had Sufficient Information Before It To Decide SMG's Motion for Fees. The role of the trial court in determining an award of attorney fees in a contractual fee award case is to enforce the benefit of the bargain between the parties and "to make the nonbreaching party whole." U.S. for the Use of C.J.C., Inc. v. Western States Mechanical Contractors, Inc., 834 F.2d 1533, 1549 (10th Cir. 1987). "Normally, where the court is merely enforcing a contractual provision authorizing attorney's fees, the fees are routinely awarded." Id. at 1548. The trial court should only reject attorney fees based on a contract if they are "unreasonable or inequitable." Id. at 1550. As acknowledged by the Court, "a district court may determine attorney fees without a hearing if the district court determines `it has sufficient knowledge to make a decision without a hearing based on its experience with the case, and briefs and affidavits submitted by the parties.'" Order Granting Attorney Fees, p. 11 (quoting Michael A. Cramer, MAI, SRPA, Inc. v. United States, 47 F.3d 379, 383 (10th Cir. 1995)). That is exactly what the Court did here: The Court considered the submissions of the parties, including the numerous affidavits and the detailed daily time entries, and, applying the standard of review for contractual attorney fees, determined that there were no factual disputes that would require an evidentiary hearing. Despite this reasoned conclusion by the Court, CPI argues that should grant a new trial by evidentiary hearing for three reasons: (a) to resolve claimed factual disputes that CPI did not bother to address when it had the final word on the fee issue; (b) to fully develop the record; and (c) to be consistent with Colorado state law. Each of these arguments, however, is deficient and fails to demonstrate that a "new trial" is necessary to "prevent injustice."

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a.

As Recognized by the Court, CPI's Challenges to the Efficiency and Cost of SMG's Counsel Create Differences of Opinion, Not Factual Disputes.

In response to SMG's Motion for Fees, CPI does not argue that there is any underlying inequity justifying a reduction in the rates charged by SMG's counsel, Kirkpatrick & Lockhart Nicholson Graham LLP ("K&LNG"), but claims that K&LNG's fees are unreasonable because the time expended reflects inefficiency and the hourly rates purportedly were excessive. In support of its position regarding the inefficiency of SMG's counsel, CPI did not offer expert testimony or specifically address any time entries.3 Instead, CPI relied heavily on the number of hours expended by its own counsel in this matter. The Court considered this evidence and found the comparison unpersuasive; as the purported discrepancy between the time spent reflected mere differences of professional judgment as to what was required (a professional judgment that was validated, at least in part, by the fact that SMG prevailed on the merits). As specifically recognized by the Court at page 5 and 6 of its Order Granting Attorney Fees, CPI provided no other evidence to aid in its assessment of the reasonableness of the number of hours billed by K&LNG. Further, the Court's analysis of the affidavits submitted by the parties on the number of hours expended by K&LNG does not raise an issue of fact. Order Granting Attorney Fees, pp. 6, 11. Accordingly CPI is not entitled to a new trial on this issue. CPI's assertions regarding the purported unreasonableness of K&LNG's rates were likewise thinly supported at best. CPI provided evidence of the hourly rates of its own counsel and the conclusory affidavit of Bennett Aisenberg stating that rates charged by certain of K&LNG's timekeepers are in excess of the prevailing rates charged by attorneys in Colorado. CPI provided no specific evidence that K&LNG's rates were unreasonable for the Denver,
Although CPI represented to the Court that it intended to have an audit of K&LNG's billing entries conducted by an independent auditing firm to determine if there were "duplicative and excessive billings," see Motion to Extend Time to File Supplement to Sur-Reply filed on October 25, 2005, CPI supplied no evidence of the results of the supposed audit.
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Colorado area. By comparison, SMG not only submitted affidavits that it had discounted its regular rates for this matter and that all of the legal bills had been paid, but also submitted an affidavit of Daniel Reilly, an independent third-party, which sets forth his personal experiences with rates charged by Denver law firms and concluded that K&LNG's rates are consistent with the rates charged by his law firm or large law firms handling commercial litigation in Denver. While the affidavits submitted by the parties may contain differences of opinion, they are not factually inconsistent and CPI has not identified any additional evidence on the subject to be addressed at trial.4 Accordingly, the Court's conclusion that K&LNG's rates are not unreasonable is justified based on the evidence submitted by the parties and the standard for reviewing contractually based fee awards. CPI does not and cannot establish that a new trial on the amount of K&LNG's rates is necessary to prevent an injustice. In support of its Motion for New Trial, CPI incorrectly asserts that the Court raised questions sua sponte with respect to the Aisenberg Affidavit submitted by CPI in opposition to SMG 's Motion for Fees. In fact, however, SMG first pointed out the lack of clarity in CPI's submission in its Reply to CPI's Response in Opposition and accompanying affidavits. SMG specifically pointed out that the only assertion offered by CPI that the hourly rates charged by the K&LNG associates appeared in its concluding paragraph of CPI's response brief and that the Aisenberg Affidavit was not clear as to whether it was challenging the reasonableness of the rates charged by the K&LNG associates. See Reply to CPI's Opposition to SMG's Motion for Fees, p. 5 [Doc 151]. CPI had an opportunity to correct this lack of clarity in its Sur-Reply and it chose not to do so. Likewise, SMG first criticized the lack of specificity in the Aisenberg Affidavit as to K&LNG's hourly rates in SMG's Reply to CPI's Opposition to SMG's Motion for Fees (at
Surely, CPI does not expect that cross examination of Mr. Reilly, a respected member of the Colorado bar, would cast doubt on his testimony about his own billing rates. To the extent that CPI suggests that it could provide additional information at a hearing and/or clarify any ambiguity in Mr. Aisenberg's affidavit, it could have done so in its sur-reply but did not. There is no injustice in requiring CPI to live with the record that it created.
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page 2) and submitted the Affidavit of Daniel M. Reilly. The Reilly Affidavit specifically addressed the hourly rates in the Denver area, particularly as to large law firms handing commercial litigation in the Denver, Colorado area. Again, CPI had the last word on this issue by way of its Sur-Reply. CPI could have provided a responsive affidavit, but it chose not to do so. Accordingly, CPI has not established that a new trial on SMG's Motion for Fees is necessary to prevent injustice. b. CPI Had Sufficient Opportunity to Challenge SMG's Motion for Fees and It Cannot Now Claim That the Record Was Undeveloped.

Although CPI now asserts that the record was undeveloped and deficient, CPI had three opportunities to identify why SMG's Motion for Attorney Fees should be limited or denied. The Court permitted CPI to file a Response in Opposition to SMG's original Motion for Fees, a Response in Opposition to SMG's Supplement to Motion for Fees and a Sur-Reply in Opposition to SMG's Motion for Fees. CPI had sufficient opportunities to provide additional affidavits in opposition to SMG's Motion for Fees and it chose not to do so. "A new trial may not be granted merely because the losing party may be able to present a better case." 12 MOORE'S FEDERAL PRACTICE § 59.13[4]. In an effort to support its position that the record as to SMG's Motion for Fees was not fully developed, CPI incorrectly asserts that neither party submitted an affidavit regarding the reasonableness of certain of the K&LNG costs claimed by SMG. While it is true that CPI submitted no evidence that challenged the reasonableness of SMG's costs, SMG provided evidence that such costs were actually charged and paid. Considering (1) the evidence supplied by SMG, (2) CPI's failure to provide any evidence that certain of the costs claimed by SMG are inappropriate, (3) the standard associated with a contractually based fee award and (4) the role of the district court "to make the non-breaching party whole," CPI is not entitled to a new trial on the issue of costs. For CPI to establish its entitlement to a new trial, it must show

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that a new trial is necessary to prevent an injustice. See, e.g., Whiteley, 719 F.2d at 1058. CPI is not entitled to a new trial simply to rectify the deficiencies contained in its submissions and affidavits. Accordingly, CPI's Motion for New Trial must be denied. c. Colorado State Law Does Not Require an Evidentiary Hearing To Determine a Request for Attorney Fees.

CPI's assertion that Colorado law requires this Court to conduct an evidentiary hearing is incorrect. Under the guise of avoiding "forum shopping," CPI argues that, because Colorado substantive law applies to this dispute, the Court should conduct an evidentiary hearing on the issue of attorney fees because Colorado state court would require such a hearing. This assertion is wrong for at least three reasons. First, application of Colorado Rule of Civil Procedure 121 § 1-22 to this case pending in the United States District Court for the District of Colorado would be improper. This Rule of the Colorado Rules of Civil Procedure has specific provisions regarding the timing for filing a motion for attorney fees and the procedure regarding whether a hearing should be conducted on such a motion. By its very nature, Rule 121 § 1-22 is procedural in nature and, based on the Erie doctrine, does not apply to this dispute. Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938). Second, assuming arguendo that Colorado Rule of Civil Procedure 121 § 1-22 applies to this dispute, CPI's construction of Rule 121 § 1-22 and its reliance upon the decision in Roberts v. Adams, 47 P.3d 690, 700 (Colo. App. 2002), is flawed. CPI provides a very cursory analysis of Rule 121 §1-22 and Roberts and concludes that an evidentiary hearing would have been mandatory if this dispute were pending in Colorado state court. The plain language of Rule 121 §1-22(2)(c), however, reveals that Colorado courts have discretion to determine whether to conduct an evidentiary hearing:

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[W]here a party has made a timely request for a hearing, the court shall hold a hearing if it determines in its discretion that a hearing would materially assist the court in ruling on the motion [for attorney fees]. In exercising its discretion as to whether to hold a hearing in these cases, the court shall consider the amount of fees sought, the sufficiency of the disclosures made by the moving party in its motion and supporting documentation, and the extent and nature of the objections made in response to the motion. Id. (emphasis added). Similarly a fuller reading of Roberts reveals that the decision there relied upon cases wherein attorney fees were provided for as part of the statute articulating a cause of action rather than a contractually based award of fee as we have here. Roberts, 47 P.3d at 699-700 (relying on cases where attorneys' fees were provided as part of statutory based claims for vexatious conduct and claims for attorneys' fees under the divorce code). Accordingly, if Rule 121 §1-22(2)(c) is applicable to this dispute, it is the plain language of the Rule and not the decision in Roberts which should control. Because the Rule clearly provides that it is in the discretion of the trial court to determine whether to conduct an evidentiary hearing, CPI has not shown that the Court abused its discretion and CPI's Motion for New Trial must be denied. Third, regardless of whether the Colorado Rule or the considerations set forth in Michael A. Cramer, MAI, SRPA, Inc., 47 F.3d at 383, were applied to this dispute, the result would be the same--no evidentiary hearing was or is necessary for the Court to decide SMG's Motion for Fees. Both the Colorado Rule and the federal precedent with respect to the necessity of an evidentiary hearing require the court to consider similar factors. The courts in both situations are given discretion to determine whether, based on the submissions of the parties, the supporting documentation and the nature of the objections, an evidentiary hearing would assist the court in ruling on the motion. See Colo.R.Civ.P. 121 § 1-22(2)(c); Michael A. Cramer, MAI, SRPA, Inc., 47 F.3d at 383. The courts also are directed to develop a sufficient record and explanation of its decision so as to allow an appellate court to review the decision of the trial court. See Colo.R.Civ.P. 121 § 1-22(2)(c); Michael A. Cramer, MAI, SRPA, Inc., 47 F.3d at 383.

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The Court in this case has done just that. The Order Granting Attorney Fees enumerated the information it had before it when considering SMG's Motion for Fees and determined that it had sufficient information to make a determination of attorney fees without a hearing. The Court also articulated its considerations in supporting its decision on the Motion for Fees. Accordingly, regardless of whether the Court was to apply Rule 121 § 1-22(2)(c) or the federal standards, CPI's Motion for a New Trial should be denied. B. CPI Should Not Be Permitted to Alter or Amend the Judgment Because It Has Failed to Show a Manifest Error of Law or Present Newly Discovered Evidence. CPI also demands that the judgment be altered or amended because of a $5,169.32 error in the judgment amount. As an initial matter, this clerical error is harmless because SMG already has incurred additional legal fees in excess of this amount after the judgment was entered and is contractually entitled to recover those fees. Nonetheless, SMG does not object to correcting the judgment amount but only if done so under the appropriate Rule of Civil Procedure, i.e., Rule 60, not Rule 59. 1. Legal Standard for Motion for to Alter or Amend a Judgment. "A Rule 59(e) motion to alter or amend the judgment should be granted only to `correct manifest errors of law or to present newly discovered evidence.'" Phelps v. Hamilton, 122 F.3d 1309, 1324 (10th Cir. 1997)(citing Committee for the First Amendment v. Campbell, 962 F.2d 1517, 1523 (10th Cir. 1992)). "Courts have considerable discretion in determining whether to grant or deny a motion to alter or amend." 12 MOORE'S FEDERAL PRACTICE § 59.30[4]. It must be noted, however, that granting "reconsideration of a previous order is an extraordinary remedy, to be used sparingly in the interests of finality and conservation of judicial resources." Id. Appellate courts, when reviewing the decision of a trial court on a motion to alter or amend the judgment apply an abuse of discretion standard and will not disturb the

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decision of the trial court "unless the appellate court has a definite and firm conviction that the lower court made a clear error of judgment or exceeded the bounds of permissible choice in the circumstances." Id. 2. Fed. R. Civ. P. 59(e) Correction of the Clerical Mistake in the Judgment Would Be Incorrect. The purpose of a Rule 59(e) motion is to "`correct manifest errors of law or to present newly discovered evidence.'" Phelps, 122 F.3d at 1324 (citing Committee for the First Amendment, 962 F.2d at 1523). A motion to alter or amend a judgment under Rule 59(e) must seek a substantive alteration of the judgment rather than merely a clerical correction. 12 MOORE'S FEDERAL PRACTICE § 59.30[2][b]. In its Motion for New Trial, however, CPI seeks to Alter or Amend the judgment because of a "mistake." This is not the purpose or intent of a Rule 59(e) motion. See, e.g., Phelps, 122 F.3d at 1324. While CPI correctly identifies a clerical error in the amount of the attorney fees award issued by the Court, CPI does not seek the appropriate remedy for this "mistake." Specifically, it appears that the amount of $5,169.32 which was taxed as costs against CPI on September 28. 2005 was also included in the attorney fees award. The confusion likely arose because the $5,169.32 which was taxed as costs against CPI was not taxed until after SMG filed its Motion for Fees. Once the Bill of Costs was included in the earlier judgment on the merits of SMG's claim, SMG sought to reduce the amount of costs sought in its Motion for Fees by this amount. See SMG's Supplement to Motion for Fees at pp. 1, 3. Both SMG and CPI agree that the $5,169.32 which was taxed as costs against CPI as part of the first judgment should not be included in the judgment on attorney fees. See id. and CPI's response thereto. Accordingly, the amount of the judgment on the Motion for Fees should have been reduced by $5,169.32 for a total of $279,546.98.

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CPI's Motion for New Trial seeks to correct the error in the calculation of costs and fees, but this minor correction cannot be considered as resulting from a manifest error of law or newly discovered evidence. In fact, CPI even characterizes the inclusion of the $5,169.32 previously incorporated in the earlier judgment by way of the Bill of Costs as a "mistake." See CPI's Motion p. 5. Accordingly, the inclusion of the $5,169.32 cannot reasonably be considered a substantive alteration of the judgment, but instead should be properly characterized as a clerical mistake. A clerical error is insufficient to support a motion to alter or amend a judgment. 12 MOORE'S FEDERAL PRACTICE § 59.30[6]. Accordingly, the portion of CPI's Motion for New Trial seeking to alter or amend the judgment must be denied. 3. The Proper Remedy for Correcting a Clerical Error in a Judgment is to Simply Correct the Judgment Under Fed. R. Civ. P. 60. Rule 60(a) of the Federal Rules of Civil Procedure provides that "[c]lerical mistakes in judgments, orders or other parts of the record . . . may be corrected by the court at any time of its own initiative or on the motion of any party. . . . During the pendancy of an appeal, such mistakes may be so corrected before the appeal is docketed in the appellate court, and thereafter, while the appeal is pending may be so corrected with leave of the appellate court." Based on the clear reading of Rule 60 and the recognition by both parties that the judgment contained a clerical error, the appropriate remedy is not to alter or amend the existing judgment under Rule 59(e), but to take appropriate steps to correct the clerical error in the existing judgment entered on January 3, 2006 pursuant to Rule 60. C. CPI's Request for Stay of Execution Should Be Denied Because CPI is Not Entitled to a New Trial and CPI Has Failed to Offer Adequate Security. Because CPI is not entitled to a new trial or an alteration or amendment of the judgment awarding attorney fees, the Court should decline to stay execution pending outcome of CPI's Motion for New Trial. Although CPI makes no offer or reference to the posting of -13-

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security, the requirement of posting adequate security is specifically addressed in Rule 62(b). Accordingly, in the event that the Court would even consider a stay of execution, CPI should first be required to post an appropriate bond to protect SMG's interests in collecting on the judgment. Moreover, the Court has previously considered and denied CPI's earlier request to a stay of execution without the posting of an adequate supersedeas bond. WHEREFORE, Plaintiff Student Marketing Group, Inc. respectfully requests that the Court deny CPI's Motion for New Trial, take the necessary steps to correct the amount of the January 3, 2006 Judgment from $284,716.30 to 279,546.98, and award SMG its attorneys fees and costs for responding to this Motion for New Trial (to which SMG is contractually entitled). Dated: February 9, 2006 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.

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CERTIFICATE OF SERVICE I hereby certify that on this 9th day of February, 2006, I electronically filed the foregoing STUDENT MARKETING GROUP, INC.'S RESPONSE IN OPPOSITION TO COLLEGE PARTNERSHIP, INC.'S MOTION FOR NEW TRIAL with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following email addresses: Rosemary Orsini, Esquire Brian Matise, Esquire BURG, SIMPSON, ELDREDGE, HERSH, JARDINE, P.C. [email protected] [email protected]

s/Claudia Cooper