Free Status Report - District Court of Colorado - Colorado

Case 1:04-cv-01062-ZLW-BNB

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-1062-ZLW-BNB THE QUIZNO'S MASTER LLC and THE QUIZNO'S FRANCHISE COMPANY LLC, Plaintiffs, v. R&B MANAGEMENT GROUP, LLC, an Alabama limited liability company, ROYCE GWIN, an individual, and REBECCA GWIN, an individual Defendants.

STATUS REPORT

The parties, Plaintiff The Quizno's Master LLC and The Quizno's Franchise Company LLC ("Quizno's") and Defendants R&B Management Group, LLC, Royce Gwin and Rebecca Gwin ("Gwin") by and through their respective counsel, hereby file this Status Report pursuant to the Court's November 2, 2005 Order as follows: 1. Any problems, factual or legal, which are not adequately disclosed by the pre-trial order. a. Telephone Testimony. Gwin has indicated it may desire to call some of its

listed witnesses by telephone. Those witnesses are James A. Caudle, Debbie Barley, Algie Hodges, Pete Tyrka and Roger Grieco. Gwin's position. Gwin takes the position that use of modern technology is encouraged in the courts and the witnesses' testimony is relatively short. These

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witnesses live in Alabama, Georgia, and Tennessee and the direct testimony will last no more than 40 minutes. Quizno's position. Quizno's maintans that qualitatively the best evidence is testimony given live and in person and that it is important that the court see the witnesses in person. (Also, Quizno's notes that it has objected to use of evidence relating to other area directors or former area directors, pursuant to a motion in limine and, therefore, generally objects to Pete Tyrka and Roger Grieco as witnesses). b. Order of Proof. Gwin asks to put on its evidence first.

Gwin's position. Gwin maintains that while Quizno's initiated this action, as a declaratory judgment (that it rightfully terminated Gwin) and a damage case, the Court granted partial summary judgment in favor of Gwin on the damage case, ruling that Gwin was entitled to a 1 % royalty on gross sales, even if rightly terminated, with Gwin also proceeding on its other Counterclaims as allowed by the Court. Both parties have a declaratory judgment claim as the termination. Quizno's in the Scheduling Order stated it filed the declaratory judgment action since Gwin threatened litigation. Quizno's position. Quizno's objects and maintains that as Plaintiff it should proceed first in connection with the order of proof. Quizno's notes that most of the witnesses on both parties' witness lists are Quizno's employees and, therefore, the most efficient presentation of their testimony will be through direct examination and then cross examination by Defendants (see 1.c, below).

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c.

Scope of Cross-Examination. The parties have agreed that they will

attempt to accommodate witnesses by not requiring them to come back a second time. Therefore, the parties will not make the objection that a question exceeds the scope of direct when a party covers topics on cross that were not addressed in the direct examination. 2. Any witnesses or exhibits not listed in the pre-trial order which are stipulated or allowed by order of court. a. Gwin has added spreadsheets providing certain calculations of its putative

expert. While Quizno's reserves the right to challenge this exhibit on any basis, including accuracy and/or relevance, it does not object on the basis that the exhibit was provided late. b. The parties have agreed to update certain sales figures and provide those

updated exhibits containing relevant sales figures with mathematical calculations totaling the figures by various time periods. c. The parties have agreed that they may use demonstratives in addition to

the exhibits listed in their respective exhibits lists but reserve all objections each party may have to a particular demonstrative. d. The Final Pretrial Order was signed by the Court August 19, 2005. On

October 4, 2005, Gwin tendered a F.R.C.P. 26 Supplemental Disclosure, adding Carri Bryan, a Quizno's employee as a possible witness on certain matters. Gwin asks she be added as a "MAY CALL" witness. Quizno's does not object to this additional witness being so added.

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3.

Matters which counsel believe can be resolved in advance of trial, including motions in limine.

The parties have agreed to resolve one of the two motions in limine Quizno's has filed. Specifically, the parties agree that Quizno's will withdraw Motion to Strike Expert Report and Exclude the Expert Testimony of Donald Boroian and in turn Gwin will not call Donald D. Boroian as an expert witness. 4. None. 5. Changes which should be made in the estimated length of trial as shown by the pre-trial order. Unusual legal questions which counsel anticipate will arise at trial.

The parties are optimistic that trial will be less than the currently scheduled 4 days. However, because of the number of witnesses and the necessity of coordinating various schedules, the parties would like to keep the currently scheduled 4 days set. 6. Possibilities of settlement.

The parties continue to discuss settlement but, at present are still far apart. Respectfully submitted this 11th day of January 2005

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s/ Eldon E. Silverman___________________ Eldon E. Silverman Attorney for Defendants Preeo Silverman Green and Egle 1401 17th Street, Suite 800 Denver, CO 80202 Telephone: 303-296-4440 Facsimile: 303-296-3330 Email: [email protected]

s/ Leonard H. MacPhee _________________ Leonard H. MacPhee Attorney for Plaintiffs Perkins Coie LLP 1899 Wynkoop Street, Suite 700 Denver, CO 80202 Telephone: (303) 291-2300 Facsimile: (303) 291-2400 Email: [email protected] and Fredric A. Cohen DLA Piper Rudnick Gray Cary 203 North LaSalle Street, Suite 1800 Chicago, IL 60601 (312) 368-4000

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CERTIFICATE OF SERVICE I hereby certify that on January 11, 2006 I electronically filed the foregoing with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following email addresses:
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Gilbert R. Egle [email protected] [email protected] Eldon E. Silverman [email protected] [email protected] [email protected]

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and hereby certify that I have mailed the foregoing to the following non EM/ECF participant via U.S. Mail, postage prepaid: J.E. Sawyer, Jr. Attorney at Law 203 South Edwards Street Enterprise, AL 36330

s/ Leonard H. MacPhee Leonard H. MacPhee Attorney for Plaintiffs Perkins Coie LLP 1899 Wynkoop Street, Suite 700 Denver, CO 80202 Telephone: (303) 291-2300 Facsimile: (303) 291-2400 Email: [email protected]

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