Free Motion for Leave - District Court of Colorado - Colorado

Case 1:04-cv-01006-RPM

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Lawrence M. Rolnick (LR-0546) Gavin J. Rooney (GR-6251) Marcela A. Kirberger (MK-0529) LOWENSTEIN SANDLER PC Attorneys At Law 65 Livingston Avenue Roseland, New Jersey 07068 973.597.2500 Attorneys for Special Situations Fund III, L.P. Special Situations Cayman Fund, L.P., Special Situations Technology Fund New, L.P., and Special Situations Technology Fund II, L.P. UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

SPECIAL SITUATIONS FUND III, L.P., SPECIAL SITUATIONS CAYMAN FUND, L.P., SPECIAL SITUATIONS TECHNOLOGY FUND NEW, L.P., AND SPECIAL SITUATIONS TECHNOLOGY FUND II, L.P., ON BEHALF OF THEMSELVES AND OTHERS SIMILARLY SITUATED, Plaintiffs, v. QUOVADX, INC., LORINE R. SWEENEY, GARY T. SCHERPING, JEFFREY M. KRAUSS, FRED L. BROWN, J. ANDREW COWHERD, JAMES B. HOOVER, CHARLES J. ROESSLEIN, and JAMES A. GILBERT. Defendants.

Civil Action No. 1:04-cv-01006-RPM DOCUMENT ELECTRONICALLY FILED

______________________________________________________________________________ SPECIAL SITUATIONS FUND III, L.P., SPECIAL SITUATIONS CAYMAN FUND L.P., SPECIAL SITUATIONS TECHNOLOGY FUND NEW, L.P., AND SPECIAL SITUATIONS TECHNOLOGY FUND II, L.P.'S MOTION FOR LEAVE TO FILE SUPPLEMENTARY MEMORANDUM OF LAW IN FURTHER SUPPORT OF THEIR MOTION FOR PARTIAL SUMMARY JUDGMENT ______________________________________________________________________________

S5313/68 10/11/2006 2044018.01

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Pursuant to Federal Rules of Civil Procedure 23(d) and D.C.Colo.LCiv.R 6.1B, 7.1E, and 16.2, Lead Plaintiffs Special Situations Fund III, L.P. Special Situations Cayman Fund, L.P., Special Situations Technology Fund New, L.P., and Special Situations Technology Fund II, L.P. (collectively "Lead Plaintiffs"), hereby move this Court for an order granting leave to file a Supplementary Memorandum of Law in Further Support of Their Motion for Partial Summary Judgment, attached hereto as Exhibit 1, in response to the August 29, 2006 filing by defendant Quovadx, Inc. ("Defendant" or "Quvoadx") of its Notice of Submission of Affidavit of Jeffrey M. Krauss. This motion is based on the grounds stated below. CERTIFICATION PURSUANT TO D.C.COLO.LCIV.R 7.1A Pursuant to D.C.Colo.LCiv.R 7.1A, Lead Plaintiffs' counsel has conferred with Defendant's counsel by email concerning this motion, and Defendant takes no position on Lead Plaintiff's filing of this motion. Lead Plaintiffs' undersigned counsel certifies to the following facts that are relevant to this motion: 1. On May 26, 2006, Lead Plaintiffs filed their motion for partial summary

judgment, along with an accompanying memorandum of law and other supporting materials (docket # 171-173). Pursuant to the scheduling order governing this case at that time, dispositive motions were due on May 28, 2006 (docket # 167). An amended scheduling order, entered on May 30, 2006, changed the deadline for dispositive motions to July 31, 2006 (docket # 176). 2. By order dated June 8, 2006, the Court granted Defendant's unopposed

motion for an extension of time to file its papers in opposition to Lead Plaintiffs' motion, making such opposition papers due July 14, 2006 (docket # 179). 3. By order dated July 14, 2006, the Court granted Defendant's second

unopposed motion for an extension of time to file its papers in opposition to Lead Plaintiffs' motion, making such opposition papers due July 24, 2006, and making Lead Plaintiffs' reply papers due August 18, 2006 (docket # 182). 4. On July 24, 2006, Defendant filed its opposition papers (docket # 183). -2-

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5.

On August 17, 2006, Lead Plaintiffs filed their reply papers (docket #

185). At the time, Lead Plaintiffs expected that, pursuant to the Court's July 14, 2006 scheduling order, briefing on the motion was complete. 6. On August 29, 2006, without leave of Court, Defendant filed its Notice of

Submission of the Krauss Affidavit, attaching the Krauss Affidavit (with exhibits) thereto (docket # 187). 7. On September 21, 2006, Lead Plaintiffs filed a letter (the "Letter")

objecting to the Kraus Affidavit as untimely and not entirely based on personal knowledge and arguing that, even if the Court considered the Krauss Affidavit, it in fact supported Lead Plaintiffs' motion for partial summary judgment (docket # 193). 8. On September 27, 2006, the Court ordered a hearing on the summary

judgment motion to be held on October 23, 2006 (docket # 194). 9. (docket # 196). 10. On October 11, 2006, the Court struck Lead Plaintiffs' Letter from the On October 4, 2006, Defendant filed a response to Lead Plaintiffs' Letter

docket for failure to comply with D.C.Colo.LCiv.R 7.1 and 10.1, and further ordered that a par ty wishing to supplement a response or reply should request leave of Court (docket # 197). 11. Although the Court struck Lead Plaintiffs' Letter from the docket for

failing to comply with the format set forth in D.C.Colo.LCiv.R 10.1 and for failing to comply with D.C.Colo.LCiv.R 7.1, Lead Plaintiffs believe that the substantive points raised in the Letter are relevant to the Court's consideration of their motion for partial summary judgment. Moreover, since Defendant filed the Krauss Affidavit weeks after the deadline for its opposition papers established by the Court's July 14, 2006 scheduling order, Lead Plaintiffs believe that they should be provided with an opportunity to respond to the Krauss Affidavit. 12. Indeed, if Lead Plaintiffs are not permitted to respond to the Krauss

Affidavit, then any party could frustrate an established briefing schedule by waiting until after the conclusion of the briefing schedule and then submitting purportedly relevant evidentiary -3-

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material.

Put another way, if Lead Plaintiffs are not permitted to respond to the Krauss

Affidavit, then their right to reply to Defendant's opposition materials will for all practical purposes have been meaningless. For the foregoing reasons, Lead Plaintiffs respectfully request that the Court grant Lead Plaintiffs' motion and permit them to file the attached Supplementary Memorandum of Law in Further Support of Their Motion for Partial Summary Judgment. Dated: October 11, 2006

Respectfully Submitted,

By: s/ Lawrence M. Rolnick Lawrence M. Rolnick, Esq. LOWENSTEIN SANDLER PC Attorneys At Law 65 Livingston Avenue Roseland, New Jersey 07068 973.597.2500 (phone) 973.597.2400 (fax) Attorneys for Lead Plaintiffs Special Situations Fund III, L.P. Special Situations Cayman Fund, L.P., Special Situations Technology Fund New, L.P., and Special Situations Technology Fund II, L.P.

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CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on October 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 e-mail addresses: · · · · · · · · · · · · Frederick J. Baumann [email protected] [email protected] Solomon Benjamin Cera [email protected] [email protected] Hugh Gottschalk [email protected] [email protected] [email protected] Marcela A. Kirberger [email protected] Marc Bradley Kramer [email protected] [email protected] Evan S. Lipstein [email protected] [email protected] Lawrence M. Rolnick [email protected] Gavin J. Rooney [email protected] [email protected] John Peter Stigi, III [email protected] John Mark Vaught [email protected] [email protected] Craig Richard Welling [email protected] [email protected] Michael T. Williams [email protected] [email protected] s/ Paul W. Horan Paul W. Horan Lowenstein Sandler P.C. 65 Livingston Avenue Roseland, New Jersey 07068 973.597.2500 (phone) 973.597.2400 (fax) Attorneys for Lead Plaintiffs Special Situations Fund III, L.P. Special Situations Cayman Fund, L.P., Special Situations Technology Fund New, L.P., and Special Situations Technology Fund II, L.P.

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