Free Notice (Other) - District Court of Colorado - Colorado

Case 1:04-cv-01006-RPM

Document 187

Filed 08/29/2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-01006-RPM 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., Defendant.

QUOVADX, INC.'S NOTICE OF SUBMISSION OF AFFIDAVIT OF JEFFREY M. KRAUSS PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 56

Pursuant to Federal Rules of Civil Procedure 56(c) and 56(e) and D.COLO.LCivR 7.1.E, Defendant Quovadx, Inc. ("Quovadx") respectfully submits the Affidavit of Jeffrey M. Krauss ("Krauss Affidavit") in support of Quovadx's Opposition to Lead Plaintiffs' Motion for Partial Summary Judgment ("Opposition"). In support of this Notice, Quovadx states as follows: 1. On May 26, 2006, Plaintiffs filed their Motion for Partial Summary Judgment

("Plaintiffs' Motion") [Doc. #171] and Memorandum of Law in Support of Their Motion for Partial Summary Judgment ("Plaintiffs' Memorandum") [Doc. #172]. Plaintiffs' Memorandum relied on documents produced by Quovadx in this litigation, but their Motion was not supported by affidavit testimony of any witness (other than an affidavit by Class Counsel authenticating Quovadx's documents).

Case 1:04-cv-01006-RPM

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Filed 08/29/2006

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2.

On July 24, 2006, Quovadx filed its Opposition to Plaintiffs' Motion [Doc. #183].

Pursuant to Federal Rule of Civil Procedure 56(c) ("Rule 56(c)"), Quovadx's Opposition relied on Quovadx's verified answers to Plaintiffs' interrogatories and on the same documentary evidence on which Plaintiffs' based their Motion. 3. On August 17, 2006, Plaintiffs' filed their Reply Memorandum of Law in Further

Support of Their Motion for Partial Summary Judgment ("Plaintiffs' Reply") [Doc. #185]. In their Reply, Plaintiffs challenged Quovadx's verified answers to interrogatories as an insufficient factual basis on which Quovadx can show the existence of genuine issues of material fact for purposes of Rule 56. (See Pls.' Reply at 14-19.) 4. Despite the plain language of Rule 56(c), which expressly allows Quovadx to rely

on verified answers to interrogatories, Plaintiffs claim that Rule 56(e) requires Quovadx to introduce affidavit testimony to defeat Plaintiffs' Motion. (See id. at 15.) Although Quovadx disagrees with Plaintiffs' interpretation of Rule 56, Quovadx hereby submits the Krauss Affidavit to establish Quovadx's ability to introduce admissible evidence at trial regarding Plaintiffs' mischaracterizations of Quovadx's Audit Committee's findings and Quovadx's business relationship with the Infotech Network Group. (See Krauss Aff., attached hereto as Exhibit 1.) 5. Rule 56(c) provides that "[t]he adverse party prior to the day of hearing may

serve opposing affidavits" in response to a motion for summary judgment. Fed. R. Civ. P. 56(c) (emphasis added). The Krauss Affidavit is hereby served in compliance with Rule 56(c) and D.COLO.LCivR 7.1.E.

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Case 1:04-cv-01006-RPM

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For the foregoing reasons and in further support of Quovadx's Opposition to Plaintiffs' Motion, Quovadx respectfully submits the Krauss Affidavit attached as Exhibit 1. Dated: August 29, 2006 Respectfully submitted,

s/Michael T. Williams Michael T. Williams Wheeler Trigg Kennedy LLP 1801 California Street, Suite 3600 Denver, CO 80202 Telephone: (303) 244-1800 Facsimile: (303) 244-1879 Attorney for Defendant Quovadx, Inc.

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Case 1:04-cv-01006-RPM

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CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on August 29, 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/Michael T. Williams Michael T. Williams Attorney for Defendant Quovadx, Inc. Wheeler Trigg Kennedy LLP 1801 California Street, Suite 3600 Denver, Colorado 80202 Telephone: (303) 244-1800 Facsimile: (303) 244-1879

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