Free Motion for Leave - District Court of Colorado - Colorado

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

Document 162

Filed 12/27/2005

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 1:04-cv-01258-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 UNOPPOSED MOTION FOR LEAVE TO FILE SUPPLEMENTAL AFFIDAVITS IN SUPPORT OF PLAINTIFF'S MOTION FOR APPROVAL AND AWARD OF FEES Plaintiff Student Marketing Group, Inc. ("SMG"), by and through its counsel, files this Unopposed Motion for Leave to File Supplemental Affidavits in Support of Plaintiff's Motion for Approval and Award of Fees. In support of this Motion, SMG states as follows: Certificate of Compliance Pursuant to Local Rule 7.1, counsel for SMG contacted counsel for Defendant College Partnership, Inc. ("CPI") to determine if this motion would be opposed. CPI does not oppose this motion. Motion 1. On September 2, 2005, SMG filed its Motion for Approval and Award

of Fees pursuant to the August 22, 2005 order granting summary judgment to SMG.

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

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2.

On October 11, 2005, CPI filed its Response in Opposition to Plaintiff's

Motion for Attorney Fees. 3. On October 19, 2005, SMG filed its Reply to Defendant's Response in

Opposition to Plaintiff's Motion for Attorney Fees. 4. This matter was stayed for a period of time while the parties attempted

to negotiate a settlement. The stay was lifted after CPI defaulted on its payment obligations set forth in the settlement agreement between the parties. 5. Accordingly, on December 16, 2005, CPI filed its Surreply in

Opposition to Plaintiff's Motion for Attorney Fees and Request for Hearing ("Surreply") 6. In its Surreply, CPI attempts to cloud the issues associated with SMG's

Motion by asserting that SMG did not identify how its counsel was compensated in this matter and suggesting that SMG's counsel was compensated on a contingency basis. This assertion is false and contrary to the affidavits previously submitted on behalf of SMG. 7. In fact, SMG provided great detail about how its counsel was

compensated in this matter. SMG explained that its counsel was compensated on an hourly basis and described that SMG received discounted hourly rates from Kirkpatrick & Lockhart Nicholson Graham LLP ("K&LNG"). See, e.g., Motion for Approval and Award of Fees, ¶¶ 6, 10 and Ex. 2 thereto, ¶ 10, 12, 13 and 15. 8. In an effort to avoid any confusion with respect to these new unfounded

assertions by CPI, SMG desires to supplement its Motion for Approval and Award of Fees with the Affidavits of Patrick J. McElhinny and R. Daniel Scheid in Response to CPI's Surreply to Plaintiff's Motion for Approval and Award of Fees, copies of which are attached as Exhibits A and B, respectively.

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9.

As set forth more fully in Exhibits A and B, SMG has paid in full all of

the amounts sought from CPI by way of its Motion for Approval and Award of Fees. 10. Accordingly, SMG seeks leave of this Court to file its Supplemental

Affidavits to its Motion for Approval and Award of Fees, copies of which are attached hereto as Exhibits A and B. WHEREFORE, Plaintiff Student Marketing Group, Inc. respectfully requests that the Court grant its Unopposed Motion for Leave to file Supplemental Affidavits to its Motion for Approval and Award of Fees and accept the attached Affidavits of Patrick J. McElhinny and R. Daniel Scheid in Response to CPI's Surreply to Plaintiff's Motion for Approval and Award of Fees (Exhibits A and B) for filing. Dated: December 27, 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.

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CERTIFICATE OF SERVICE I hereby certify that on this 27th day of December, 2005, I electronically filed the foregoing STUDENT MARKETING GROUP, INC.'S UNOPPOSED MOTION FOR LEAVE TO FILE SUPPLEMENT TO MOTION FOR APPROVAL AND AWARD OF FEES 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

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