Free Motion for Extension of Time - District Court of Colorado - Colorado

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

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Filed 11/28/2005

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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 limited liability company, 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.

DECLARATION OF JULIE M. SCHMIDT IN SUPPORT OF PLAINTIFF'S EXPEDITED MOTION TO EXTEND DEADLINE FOR AMENDING COMPLAINT TO INCLUDE PROPER DEFENDANTS OR IN THE ALTERNATIVE, TO SHORTEN DEFENDANTS' TIME TO RESPOND TO PLAINTIFF'S 30(B)(6) NOTICE OF DEPOSITION AND REQUEST FOR PRODUCTION OF DOCUMENTS

Julie M. Schmidt, counsel for Plaintiff Greg Feldman, deposes and says: 1. I am a student attorney at the University of Denver Sturm College of Law

Student Law Office, and I represent the Plaintiff, Greg Feldman, in the above-captioned matter. I entered my appearance in this case on October 4, 2005. 2. On or about August 18, I read two press releases. The first, dated April 7,

2005, stated that Wicks Medical Information, LLC, an affiliate of The Wicks Group of Companies, L.L.C., announced that it had signed a definitive purchase agreement to acquire Jobson Publishing, LLC. The second press release, dated May 25, 2005,

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stated that Jobson Medical Information, LLC, an affiliate of The Wicks Group of Companies, L.L.C., announced its acquisition of Jobson Publishing, LLC on undisclosed terms. 3. Beginning on September 28, 2005, I have made multiple requests of

Defendants' counsel for information regarding the acquisition of Jobson Publishing, LLC by the Wicks Group of Companies, LLC ("Wicks") so as to ascertain the identity of the proper defendants in this case. Specifically, I have made the following attempts to solicit this information from Defendants' counsel: · On September 28, 2005, upon receiving the court's ruling on the Defendants' Motion to Dismiss or to Compel Arbitration, I sent a letter to Thomas Lyons, Defendants' counsel, requesting information about the acquisition of Jobson Publishing, LLC by Wicks. · On September 30, 2005, Mr. Lyons replied via email that Defendants could not offer any information about the acquisition at that point, but would look into our inquiry and respond further as soon as possible. · On October 4, 2005, I again spoke to Mr. Lyons via telephone. Mr. Lyons stated that he knew nothing of the acquisition of Jobson Publishing, LLC by Wicks prior to receiving our letter. He stated that he would provide us relevant information when he received it. · On October 25, 2005, I spoke to Mr. Lyons via telephone to again request information regarding the relationship between Wicks and Defendants. Mr. Lyons stated that Jobson Publishing had changed its name to XJP, LLC, that

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XJP, LLC assumed responsibility for Mr. Feldman's lawsuit, that Jobson Publishing, LLC no longer had any liability for Mr. Feldman's lawsuit, and that the acquisition by Wicks was therefore irrelevant. At my request, Mr. Lyons sent me a copy of the name change certificate later that day. Mr. Lyons provided no further information or documentation as to how either of these companies were affected by the acquisition of Jobson Publishing, LLC by Wicks. · On November 8, 2005, I spoke with Gillian Dale, Defendants' counsel, via telephone. She stated that Defendants' counsel had not obtained any other information regarding the acquisition of Jobson Publishing, LLC by Wicks. · On November 15, 2005, I received from Defendants' counsel a partial statement of disclosures pursuant to Fed. R. Civ. P. 26(a)(1), which did not include any information about the acquisition of Jobson Publishing, or its name change. · On November 21, 2005, I sent Notice of 30(b)(6) Deposition to Defendants' counsel, which also included a Request for Production of Documents for documents containing information about the acquisition of Jobson Publishing, LLC. · On November 23, I received an email from Thomas Lyons, Defendants' counsel, which stated: Please provide the precedent you rely upon as the basis for expecting the defense to respond within eleven days to production requests, given that Rule 30(b)(5) states that the procedure of Rule 34 for shall apply to such a request and Rule 34 (b) states that the party on whom a request is served shall serve a written response within 30 days after the service of the request. Without some basis for understanding why you appear to expect responses to -3-

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production requests without waiting the requisite thirty days, it appears there is no need for the defense to respond to your document production requests until thirty days following receipt of those requests. An earlier message you sent me indicated interest in stipulating to the identity of the proper party defendant. As was earlier indicated, the entity known as XJP, LLC is the appropriate defendant in this matter, as the only entity with a link to the former employer of Mr. Feldman. Is there any reason the plaintiff will not stipulate to this fact? Mr. Lyons provided no further information at that time in support of his assertion that XJP, LLC is the only proper defendant, and provided no information regarding Wicks. · On November 23, 2005, I received a copy of an email message from my supervising attorney, Laura Rovner, to Mr. Lyons, in which Ms. Rovner stated: As mentioned in our earlier correspondence (and by Judge Coan at the scheduling conference), we are certainly amenable to stipulating to the proper party defendant; frankly, we believe it is an unnecessary waste of all parties' resources to spend time conducting discovery on this issue. While we appreciate the document you provided that indicates that Jobson Publishing, LLC changed its name to XJP, LLC on May 25, 2005, what we have repeatedly asked for but never received is information regarding the relationship of Wicks Group to Jobson Publishing, LLC/XJP, LLC, including information about the assumption of liabilities and contingent liabilities of Jobson/XJP when Wicks acquired Jobson/XJP. As the following link to the Wicks Group's press release describes, Wicks Medical Information, LLC signed a purchase agreement to acquire Jobson Publishing, LLC on April 6, 2005. (See www.wicksgroup.com/fund2_news/medical/apr7_2005.html) If you are either willing to stipulate that Wicks is a proper party defendant in this matter or can provide information such as that requested in our 30(b)(6) Notice/Rule 34 request that demonstrates that Wicks is not a proper defendant, we should be able to resolve this issue promptly.

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If stipulation is not possible, please note that with respect to the 30(b)(6) Notice/Rule 34 request, we have been asking for the documents designated in that request for over two months. If you are unwilling to provide these documents at or before the deposition, we will be forced to file a motion with the Court requesting an extension of the deadline to amend Plaintiff's complaint or to shorten the time required for Defendants to respond to the Rule 34 request. Please advise as to your position with respect to the production of these documents and, if necessary, the above-described motion, at your earliest convenience. · On November 28, 2005 I again spoke with counsel for Defendants, who represented that they had no further information regarding the requested information.

I swear, under penalty of perjury, the foregoing is true and correct. s/ Julie Schmidt Julie Schmidt, Student Attorney STUDENT LAW OFFICE University of Denver Sturm College of Law 2255 E. Evans Ave., Suite 335 Denver, CO 80208 Tel: 303.871.6140 Fax: 303.871.6847 Student Attorney for Plaintiff Greg Feldman

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