Free Response to Motion - District Court of Colorado - Colorado

Case 1:04-cv-01185-WDM-PAC

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No. 04-CV-1185-WDM-PAC GREG FELDMAN, Plaintiff, v. JOBSON PUBLISHING, LLC, a Delaware Corporation, POSTGRADUATE INSTITUTE FOR MEDICINE, INC., a member of the Jobson Education Group, a Delaware corporation, INTERNATIONAL CENTER FOR POSTGRADUATE MEDICAL EDUCATION, a member of the Jobson Education Group, a Delaware corporation, Defendants.

DEFENDANTS' RESPONSE TO PLAINTIFF'S EXPEDITED MOTION TO EXTEND DEADLINE FOR AMENDING COMPLAINT TO INCLUDE PROPER DEFENDANTS OR ALTERNATIVELY, TO SHORTEN DEFENDANTS' TIME TO RESPOND TO PLAINTIFF'S 30(B)(6) NOTICE OF DEPOSITION AND REQUEST FOR PRODUCTION OF DOCUMENTS

Defendants Jobson Publishing, LLC ("Jobson") and Postgraduate Institute for Medicine, Inc. ("PIM") (collectively, "Defendants"), by and through their attorneys, Hall & Evans, L.L.C., hereby submit this response to the Plaintiff's Expedited Motion to Extend Deadline for Amending Complaint to Include Proper Defendants Or Alternatively, to Shorten Defendants' Time to Respond to Plaintiff's 30(B)(6) Notice of Deposition and Request for Production of Documents (the "Plaintiff's Motion"), as follows: 1. Plaintiff's Amended Complaint and Jury Demand (the "Complaint") in this matter

names as Defendants Jobson, Plaintiff's employer at the time of the events giving rise to these

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proceedings, PIM, an entity that was never engaged in any employment relation with Plaintiff and was not named in Plaintiff's Charge of Discrimination filed with the Equal Employment Opportunity Commission ("EEOC"), and the International Center for Postgraduate Medical Education ("ICPME"), a department of Jobson. Because ICPME was not a separate legal entity subject to suit and was never served in this matter, the undersigned counsel appeared in this matter solely on behalf of Jobson and PIM, and expressly noted in Defendants' Corporate Disclosure Statement that ICPME was not a separate corporate entity but was instead a part of Jobson's education group. 2. Following the denial of Defendants' Motion to Dismiss, Or Alternatively to

Compel Arbitration and to Stay Case Pending Arbitration (the "Motion to Dismiss") on September 28, 2005, Defendants filed an Answer again explicitly noting the lack of any basis for naming ICPME as a Defendant. Defendants admitted that Plaintiff was employed by Jobson but affirmatively denied that Plaintiff was employed by either PIM or ICPME. 3. Upon Plaintiff's inquiry regarding the effect of a purchase agreement entered into

by Wicks Medical Information, LLC on the entities named in this lawsuit, counsel for Defendants informed counsel for Plaintiff that Jobson changed its name to XJP, LLC on May 25, 2005, and that XJP, LLC assumed responsibility for any liability arising from this lawsuit. [See Declaration of Julie Schmidt, attached to Plaintiff's Motion]. Defense counsel provided counsel for Plaintiff documentation of the name change from Jobson to XJP, LLC. [See id.; see also Certificate of Amendment, 5/25/2005, attached hereto as Attachment 1]. 4. In their Statement of Claims and Defenses in the proposed Scheduling Order

submitted jointly by the parties, Defendants again noted that Plaintiff was employed solely by

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Jobson and not by PIM or ICPME, that PIM was not named as a respondent in Plaintiff's Charge of Discrimination to the EEOC, and that ICPME is a not a separate legal entity capable of being sued. Defendants stated affirmatively that Jobson was the only properly named Defendant in this lawsuit, and noted that since the filing of the lawsuit Jobson changed its name to XJP, LLC. 5. At the Planning/Scheduling Conference held before this Court on November 15,

2005, Plaintiff raised a concern over whether the proper defendant was named in the Complaint. This Court gave Plaintiff until December 6, 2005 to conduct a Fed. R. Civ. P. 30(b)(6) deposition in order to ascertain the proper defendant and to amend his Complaint to name the proper defendant. The Court also expressed skepticism respecting whether any document production was needed to determine the issue, and did not authorize Plaintiff to serve expedited discovery requests to supplement the 30(b)(6) deposition. 6. Defendants have been and remain willing to consent to the amendment of the

Complaint to remove PIM and ICPME as Defendants and to change the name of Jobson to XJP, LLC. Pursuant to discussions with Plaintiff's attorneys, counsel for Defendants worked with their client representatives to seek proof that XJP, LLC is the only proper Defendant in this matter. Attached hereto as Attachment 2 is a Declaration signed by representatives of XJP, LLC and Jobson Publishing LLC, and including as exhibits documents demonstrating that XJP, LLC has assumed all liabilities of Jobson and that no other entity assumed any responsibility for any liability arising from this lawsuit. These documents establish beyond any conceivable doubt that XJP, LLC is the only proper Defendant in this matter, as Defendants have consistently maintained.

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7.

On November 21, 2005, without any effort to coordinate to find a mutually

agreeable date or location as required under this Court's Local Rules, Plaintiff issued a Notice of Deposition setting a 30(b)(6) deposition on December 1, 2005 and demanding that Defendants make a 30(b)(6) representative available at 10:00 a.m. on that date. [See Notice of Deposition, attached to Plaintiff's Motion]. Included within the Notice of Deposition was an exhaustive request for production of documents pursuant to Fed. R. Civ. P. 34, demanding that the 30(b)(6) deponent bring specified documents to the deposition set just ten days later. [See id.] 8. Under Fed. R. Civ. P. 30(b)(1), a party desiring to take a deposition must give

reasonable notice in writing to every other party to the action. Under D.C.COLOLCivR 30.1, "reasonable notice" is defined as not less than 11 days, as computed under Fed. R. Civ. P. 6. Local Rule 30.1 further provides that "[b]efore sending a notice to take a deposition, counsel . . . seeking the deposition shall make a good faith effort to schedule it by agreement at a time reasonably convenient and economically efficient to the proposed deponent [and] all counsel of record . . . ." In this case, Plaintiff's counsel neither gave 11 days notice prior to the deposition, nor made any effort to confer with the undersigned counsel in order to determine a mutually agreeable time or date for the proposed deposition. 9. Defense counsel immediately forwarded the Notice of Deposition to Defendants'

client representatives and has been working diligently with those representatives to determine the person or persons best equipped to address the issues outlined in the notice and to make such person or persons available via telephone for a deposition in Denver on December 1. However, as this process was underway Defendants were able to compile the documents attached hereto as Attachment 2, which documents Defendants believe conclusively address Plaintiff's concerns

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with the proper Defendant and negate the necessity for any 30(b)(6) deposition or associated document requests. 10. Under Fed. R. Civ. P. 30(b)(5), a notice to a party deponent may be accompanied

by a request for production of documents pursuant to Fed. R. Civ. P. 34. The rule states specifically that "[t]he procedure of Rule 34 shall apply to the request." Under Rule 34, the responding party is given 30 days in which to respond to a request for production of documents. Despite these requirements, Plaintiff's Notice of Deposition demands production of certain specified documents at the deposition on December 1, significantly less than 30 days after the notice was issued. Despite these deficiencies, and contrary to Plaintiff's assertion, Defendants did not refuse to provide the documents, [see Plaintiff's Motion, at ¶5], but instead requested from Plaintiff identification of the authority pursuant to which he submitted a request for production of documents within 10 days. [See E-mail message from Thomas J. Lyons to Julie Schmidt, 11/23/2005, attached hereto as Attachment 3 (redacted to remove settlement discussions)]. Plaintiff provided no such authority, stating the intent to file this motion instead. Although the undersigned counsel requested an opportunity to review the proposed motion in order to state Defendants' position, Plaintiff's counsel ignored this request and filed the motion, stating it was opposed by Defendants. 11. The only conceivable documents needed to address the issue of the proper

Defendant in this matter are attached hereto. As a result, the 30(b)(6) deposition and the document production requests have each become entirely unnecessary, and Plaintiff's Motion should be denied as moot. Had Plaintiff's counsel followed the Federal Rules of Civil Procedure and the Local Rules and worked with defense counsel rather than making demands and imposing

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deadlines unauthorized by any rule, this issue could have been addressed without the necessity of any filings by Plaintiff or any involvement by this Court. Therefore, Plaintiff should be directed to review and comply with all such rules in any future proceedings in this matter. 12. Plaintiff's counsel has persistently complained that they began requesting these

documents immediately following the denial of Defendants' Motion to Dismiss, [see, e.g., Plaintiff's Motion, at ¶3; Declaration of Julie Schmidt, attached to Plaintiff's Motion, at ¶3], but never acknowledge that no discovery requests are permitted before a Fed. R. Civ. P. 26(f) meeting has taken place. See Fed. R. Civ. P. 26(d). Further, Defendants did provide to Plaintiff documentation of the name change from Jobson to XJP, LLC, and expressly explained that this was the only relevant document with respect to the proper defendant in this matter. Defendants also made every effort to respond to Plaintiff's sole discovery request actually submitted under the rules. 13. In addition, although Plaintiff complains about some perceived failure to

cooperate with his unauthorized demands and unilaterally imposed deadlines, or to provide documents related to a transaction with absolutely no impact on this lawsuit, he at the same time ignores and refuses to comply with the express order of this Court to provide Defendants, by November 22, 2005, with the calculation of damages that was first required to be included in their initial disclosure statement and in the Scheduling Order. 11/15/2005, at p.7]. 14. The only proper defendant in this matter is XJP, LLC, the only entity that actually [See Scheduling Order,

employed Plaintiff. Satisfactory proof to this effect is provided here to Plaintiff and the Court, prior to this Court's deadline for amending the Complaint with respect to the named defendant,

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and no additional discovery with respect to this issue is necessary or proper.

Defendants

therefore request that Plaintiff's Motion be denied, that Plaintiff's Notice of Deposition be stricken, that Plaintiff be denied any opportunity to re-schedule a 30(b)(6) deposition or to conduct any additional discovery with respect to this issue, that Plaintiff be ordered to refrain from making demands and attempting to impose deadlines unauthorized by any rule, that Plaintiff be ordered to conduct all further proceedings in this matter in compliance with the Federal Rules of Civil Procedure and this Court's Local Rules, and that Plaintiff be ordered to submit an amended complaint naming only XJP, LLC as a defendant in this matter. WHEREFORE, Defendants Jobson Publishing, LLC and Postgraduate Institute for Medicine, Inc. respectfully request that Plaintiff's Expedited Motion to Extend Deadline for Amending Complaint to Include Proper Defendants Or Alternatively, to Shorten Defendants' Time to Respond to Plaintiff's 30(B)(6) Notice of Deposition and Request for Production of Documents be denied. Dated this 30th day of November, 2005. Respectfully submitted,

s/ Gillian Dale . Thomas J. Lyons, Esq. Gillian Dale, Esq. Attorneys for Defendants Hall & Evans, L.L.C. 1125 17th Street, Suite 600 Denver, CO 80202-2052 (303) 628-3300 phone (303) 628-3368 fax [email protected] [email protected]

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CERTIFICATE OF MAILING I hereby certify that on the 30th day of November, 2005, I served a true and correct copy of the foregoing DEFENDANTS' RESPONSE TO PLAINTIFF'S EXPEDITED MOTION TO EXTEND DEADLINE FOR AMENDING COMPLAINT TO INCLUDE PROPER DEFENDANTS OR ALTERNATIVELY, TO SHORTEN DEFENDANTS' TIME TO RESPOND TO PLAINTIFF'S 30(B)(6) NOTICE OF DEPOSITION AND REQUEST FOR PRODUCTION OF DOCUMENTS with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following e-mail address: Julie M. Schmidt Ari Krichiver Nantiya Ruan Laura L. Rovner Student Law Office University of Denver Sturm College of Law 2255 E. Evans Avenue Denver, CO 80208 [email protected] [email protected]

s/ Denise Gutierrez . Thomas J. Lyons, Esq. Gillian Dale, Esq. Attorneys for Defendants Hall & Evans, L.L.C. 1125 17th Street, Suite 600 Denver, CO 80202-2052 (303) 628-3300 phone (303) 628-3368 fax [email protected] [email protected]

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