Free Motion for Miscellaneous Relief - District Court of Colorado - Colorado

Case 1:04-cv-01006-RPM

Document 170

Filed 05/22/2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 04-cv- 01006- RPM
III L.P. SPECIAL SITUATIONS FUN SPECIAL SITUATIONS CAYMAN FUN , L.P. SPECIAL SITUATIONS TECHNOLOGY FUN SPECIAL SITUATIONS TECHNOLOGY FUN
similarly situated

NEW , L.P. ; and
L.P. , on behalf of themselves and others

Plaintiffs

LORI R. SWEENEY;
GARY T. SCHERPING; JEFFREY M. KRAUSS; FRED L. BROWN;
1. ANREW

QUOV ADX , INC.

COWHRD;

JAMS B. HOOVER;
CHARES 1. ROESSLEIN , and
JAMS A. GILBERT
Defendants.

LEAD PLAINTIFFS AND DEFENDANT QUOV ADX , INC.' S UNOPPOSED JOINT MOTION FOR ENTRY OF AMENDED SCHEDULING ORDER

Pursuant to Federal Rules of Civil Procedure 23(d) and D. COLO. LCivR 6. l.B
Lead Plaintiffs Special Situations Fund

and 16.2

III L.P. , Special Situations Cayman Fund , L.P. , Special
L.P. (" Lead

Situations Technology Fund New , L.P. , and Special Situations Technology Fund
Plaintiffs ) and Defendant Quovadx ,
Inc. (" Quovadx ) (collectively, "

the Moving Parties

respectfully request that the Court enter the proposed Amended Scheduling Order that is attached

hereto as Exhibit 1. This joint motion is based upon the grounds stated below.

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CERTIFICATION PURSUANT TO D. C.COLO. LCivR 7. 1.A
Pursuant to D.

COLO. LCivR 7. 1. A, Class Counsel and Quovadx s counsel have

conferred , by telephone and e-mail , regarding this motion and have stipulated hereto. Further
Class Counsel and Quovadx s counsel have conferred bye-mail with counsel for " Individual

Defendants " Lorine R. Sweeney and Gary T.

Scherping and with

counsel for " Individual

Defendants " Jeffrey M. Krauss, Fred L. Brown , 1. Andrew Cowherd , James B. Hoover , Charles
1. Roesslein ,

and James A. Gilbert. The attorneys for the Individual Defendants , respectively,

have informed undersigned counsel that the Individual Defendants do not oppose the relief
sought in this joint motion.

As provided in the Scheduling Order that was entered by the Court on March 10
2006 , the Moving Parties originally anticipated that they would be able to jointly submit to the

Court a proposed notice plan as early as March 2006 and to complete notice mailings, if the plan

were approved by the Court , shortly thereafter. Despite Quovadx s and Class Counsel' s diligent
efforts , it took the Moving Parties many weeks to negotiate all the terms of the jointly proposed

notice plan , select a neutral , third- party vendor to administer the notice plan , negotiate the terms
of the administrator s services ,

and obtain the Rogue Wave , Inc. shareholder lists and data that
mailings to Class

are necessary to complete the notice

Members.

The delay in fiing the

proposed notice plan is primarily due to three factors: (A) the substantial time required for the
Moving Parties to successfully negotiate the details of the joint notice plan and notice materials

such that the Moving Parties have avoided motions practice to resolve

their initial disputes

regarding various class notice issues; (B) the substantial time required for several third parties to
respond to Quovadx s requests for information regarding the identities and mailing addresses of

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the Class Members and their brokers or other nominees; and (C) in March , Class Counsel and
Quovadx s counsel engaged in direct settlement
settlement.
negotiations , but

failed to reach a class

The Moving Parties now have successfully negotiated the terms of a joint notice
plan ,
approved the

selection of a third- party

administrator , and obtained the

Rogue Wave

shareholder information that will enable the parties to send the

class notice materials ,

by first-

class u.s. Mail , to all Class Members or their representatives. Thus , contemporaneously with

the fiing of this joint motion , Lead Plaintiffs and Quovadx have submitted their Unopposed
Joint Motion for Approval of Notice Plan ,
a proposed class notice , a proposed Request for

Information to Class Members , and a proposed Order Approving Notice Plan.
Given the delay in the fiing and

execution of their notice

plan ,

the Moving

Parties expect that they will have received by late August 2006 all timely responses to the class

notice and timely requests for exclusion from the Class.

Further , because the third- party

administrator will have to create a database containing the data supplied by the Class Members the Moving Parties ' respective experts will receive in early September 2006 the Class Member

information needed to complete their expert reports.

Thus ,

the Moving Parties respectfully
Order to

request that the Court enter their proposed Amended Scheduling

extend (by

approximately two months) the time in which the Moving Parties are required to complete their
expert disclosures and depositions. (See Ex. 1

VI. E.)

Further , because Class Counsel and Quovadx s counsel have devoted substantial

time to preparing the joint notice plan and materials and to direct settlement

negotiations ,

the

Moving Parties require additional time to complete their fact discovery and dispositive motions.

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Lead Plaintiffs and Quovadx request a one-month extension of the deadlines to complete written

discovery and all other fact discovery (with the exception of the class damages questionnaires
which are to be returned by Class Members no later than 60 days after the notice mailing date).
(See id

~~ VI.C & VI.. ) The

Moving Parties also request a corresponding extension of time to

fie any dispositive

motions approximately 30 days after the proposed June 30 , 2006 , cut-off for
~ VI.D.

fact discovery.

(See id

Good cause exists for all of these requested extensions of time , and no party to
this action will be adversely affected by the relief requested.
In compliance with D. COLO. LCivR 6.

, each undersigned counsel certifies

that a copy of this joint motion has been served on his client and all counsel of record. This is the first extension of the case-management deadlines the Moving Parties
have requested.
For the foregoing reasons ,

the Court should grant the Moving Parties ' joint motion and

enter their proposed Amended Scheduling Order , which is attached hereto as Exhibit
Dated: May 22 , 2006

Respectfully submitted

sf Lawrence M. Rolnick (by consent) Lawrence M. Rolnick Gavin 1. Rooney Lowenstein Sandler PC 65 Livingston Avenue Roseland , New Jersey 07068

sf Michael T. Williams Hugh Q. Gottschalk John M. Vaught Michael T. Williams Wheeler Trigg Kennedy LLP 1801 California Street , Suite 3600 Denver , Colorado 80202
Attorneys for

Attorneys for Lead Plaintifs and the Class

Defendant Quovadx, Inc.

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CERTIFICATE OF SERVICE (CM/ECF)
I hereby certify that on May 22 , 2006 , I electronically fied the foregoing with the Clerk of Court using the CM/CF system which will send notification of such fiing to the following email addresses:

Frederick J. Baumann
fbaumann rothgerber. com phenke rothgerber. com
Solomon Benjamin Cera

scera gbcslaw. com keg gbcslaw. com

Hugh Q. Gottschalk
gottschalk wtklaw. com hart wtklaw. com gottesfeld wtklaw. com John Alonzo Hutchings j hutchings dillanddil1. com chuffman dillanddill. com

Marcela A. Kirberger
mkirberger lowenstein. com Marc Bradley Kramer MarcBKramer cs. com MarcBKramerEsq
ao1. com

Evan S. Lipstein
evan li p steinlaw. com eve I yn
li psteinlaw. com

Nina Locker
nlocker wsgr. com

Lawrence M. Rolnick
lrolnick lowenstein. com

Gavin J. Rooney
grooney lowenstein. com mredmon lowenstein. com

Adam Philip Stapen
astapen dillanddill. com chuffman dillanddil1. com

John Mark Vaught
vaught wtklaw. com como wtklaw. com

Craig Richard Wellng
cwelling rothgerber. com kdail y rothgerber. com

Michael T. Wiliams
williams wtklaw. com chavez wtklaw. com

I hereby certify that a true and correct copy of the foregoing was served by placing a copy in the U.S. Mail , first- class postage prepaid , on May 22 2006 , addressed to:
Linda K. Wackwitz Executive Vice President , Chief Legal Quovadx , Inc. 7600 E. Orchard Rd. , Suite 300S Greenwood Village , CO 80111

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sf 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 williams~wtklaw. com

Class Counsel will serve a copy of this joint motion directly on their clients:
III L.P. Special Situations Cayman Fund , L.P. Special Situations Technology Fund New , L.P. Special Situations Technology Fund L.P.
Special Situations Fund

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