Free Motion to Vacate - District Court of Colorado - Colorado

Case 1:04-cv-00665-RPM

Document 82

Filed 11/08/2005

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No. 04-cv-0665 RPM DAVID HELLER, Individually and on behalf of all others similarly situated, Plaintiff, v. QUOVADX, INC., LORINE R. SWEENEY and GARY T. SCHERPING, Defendants.

QUOVADX, INC.'S MOTION TO VACATE THE SECOND REVISED SCHEDULING ORDER PENDING ENTRY OF A FURTHER REVISED, COORDINATED SCHEDULING ORDER

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Case 1:04-cv-00665-RPM

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Defendant Quovadx, Inc.("Quovadx") respectfully moves that the Court vacate the Second Revised Scheduling Order in anticipation of the Court holding a coordinated scheduling conference as contemplated by the Court's Order Denying Lead Plaintiff's Request To Amend The Second Revised Scheduling Order, entered July 22, 2005 (the "July 22 Order"), and the Court's Order Denying the Motion for Entry of Proposed Consolidated Scheduling Order, entered November 4, 2005 (the "November 4 Order"). CERTIFICATION PURSUANT TO D.C.COLO.L.CIV.R. 7.1(A) The undersigned certify that counsel for Quovadx has conferred with counsel for lead plaintiff David Heller and counsel for defendants Lorine Sweeney and Gary Scherping, and that all parties herein concur with this motion. 1. On July 22, 2005, the Court issued an Order denying lead plaintiff's request for a

December trial date in the instant matter. In so ruling, this Court stated that revising the schedule in the instant matter would be improper because "discovery in [the instant matter] and in Civil Action No. 04-cv-1006 RPM will be consolidated and a joint scheduling conference in both actions after lead counsel has been selected and approved in Civil Action No. 04-cv-10006RPM, is anticipated." July 22 Order at 1. Since the issuance of the July 22 Order, the Court appointed a lead plaintiff and lead plaintiff's counsel in the matter now styled Special Situations Fund III, LLP, et al v. Quovadx, Inc., et al., No 04-cv-1006-RPM (the "Section 11 Action"). See June 29 Order and August 1 Order. 2. On November 4, 2005, the Court issued an Order denying Quovadx's request for

entry of a joint proposed coordinated scheduling order for the instant matter and the Section 11 Action. In so ruling, this Court reiterated that "a joint scheduling conference in these cases is anticipated for the purpose of coordinating discovery." November 4 Order.1 This Court noted

The Court also expressed its dissatisfaction with the movants' use of what the Court referred to as a "consolidated caption" or "joint caption." We wish to inform the Court that our use of a caption that included both this case and the Section 11 Action -- and both case numbers -- was not intended to suggest in any way that the cases were or should be formally consolidated (continued...)

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that such coordination "cannot be accomplished until the question of class certification has been resolved" in the Section 11 Action. Since the issuance of the November 4 Order, and concurrently with the filing of this request, Quovadx and the outside director defendants in the Section 11 Action have filed a Statement of Non-Opposition indicating that they do not oppose the Section 11 Lead Plaintiffs' Motion for Class Certification. 3. At present, the instant matter is managed by the Second Revised Scheduling

Order, entered January 13, 2005, more than eight months ago. The Second Revised Scheduling Order calls for fact discovery in the instant matter to conclude in December 2005, expert discovery to conclude in February 2006, and dispositive motions to be filed in April 2006. 4. The parties' continued adherence to the Second Revised Scheduling Order, with

its fast-approaching discovery deadlines, will make it impossible to coordinate discovery in the instant matter with discovery in the Section 11 Action. First, the Second Revised Scheduling Order is not adequate to accommodate the added demands of the Section 11 Action. It contains no provisions for the Section 11 Action and does not contemplate coordinated discovery between the actions as called for by this Court. Second, the present dates set by the Second Revised Scheduling Order are impractical when applied to the Section 11 Action. For example, the fact discovery cutoff for the instant matter is in December 2005, which will be only four months after the approval of lead counsel in the Section 11 Action and just one month (or less) after certification (if any) of a class in the Section 11 Action. In the event a class is certified, this fastapproaching deadline may not allow sufficient time for the Section 11 plaintiff to "catch up" with the ongoing discovery proceedings in the Section 10(b) Action. Third, given that certain third-party witnesses and documents relevant to this action are based outside the United States in

(...continued from previous page) under a single consolidated case number, but rather was intended solely as a convenience to the Court and clerks' office. We shall abide scrupulously with the Court's instruction to use separate captions as these cases proceed on their separate (but, we request, coordinated) courses toward trial.

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India, the impending discovery deadline may not allow adequate time for the parties to obtain the needed international discovery. 5. In the event that the Court were to grant the pending Motion for Class Certifica-

tion in the Section 11 Action in the near future, it is Quovadx's understanding from the July 22 Order and the November 4 Order that the Court intends to hold a joint scheduling conference thereafter for the purpose of setting a coordinated discovery schedule for both this matter and the Section 11 Action. To that end, the parties have concurred in this Motion to Vacate the Second Revised Scheduling Order, in anticipation of a joint scheduling conference and the entry thereafter of a new, coordinated schedule for the two actions. 6. For the foregoing reasons, Quovadx respectfully requests that the Court vacate the

Second Revised Scheduling Order. Respectfully submitted by, Dated: November 8, 2005 s/ John P. Stigi III John P. Stigi III Wilson Sonsini Goodrich & Rosati One Market Street, Spear Tower, Suite 3300 San Francisco, California 94105 Tel: (415) 947-2000 Fax: (415) 947-2099 Attorneys for Defendant Quovadx, Inc.

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