Free Brief in Opposition to Motion - District Court of Colorado - Colorado

Case 1:03-cv-01973-PSF-MJW

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EXHIBIT G

EXHIBIT G

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 03-F- 1973 (MJW) J. E. H. KNUTSON Plaintiff,
V.

FILED

AW302flfl4
GREGORY C. LANGHAt~1
C~ER~<

WALKER GROUP, [NC., Defendant.

AMENDED SCHEDULING ORDER

1. DATE OF CONFERENCE AND APPEARANCES OF COUNSEL AND PRO SE PARTIES The second Scheduling/Planning Conference will begin at 8:30 a.m. on August 30, 2004 (the first having occurred on December 4, 2003). Plaintiff is represented by Michael R. McCurdy and Cohn A. Walker of Fairfield and Woods, P.C., Wells Fargo Center, Suite 2400, 1700 Lincoln St., Denver, CO 80203 (303-830-2400). Joshua Maximon, 12202 Airport Way, Suite 170, Broomfield, CO 80021 (303-991-3344), and Richard S. Gottlieb of Kilpatrick Stockton LLP, 1001 West Fourth St., Winston-Salem,

NC 27101 (336-607-7300), represent the defendant.
2. STATEMENT OF CLAIMS AND DEFENSES a. Plaintiff: On or about October 10, 2000, First Layer Communications,

Inc., a Colorado corporation ("First Layer"), and defendant executed a Revolving Convertible Note Purchase Agreement. On or about that same date, plaintiff, who owned

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approximately twenty-six percent (26%) of First Layer's outstanding stock, and three other principals of First Layer executed personal guarantees, which were subsequently amended. Plaintiff executed his Guaranty pursuant to representations that it would not be called, and was only intended to ensure monies defendant loaned to First Layer were used for intended business purposes rather than personal benefit. After First Layer allegedly defaulted on the Agreement in or about Fall 2002, defendant seized or otherwise obtained First Layer's assets. The fair market value of First Layer's assets~sequal to or greater than the amount it owed defendant. Accordingly, plaintiffdoes not owe defendant any amounts pursuant to his Guaranty or amendments thereto. After defendant demanded payment from plaintiff and unsuccessful settlement negotiations, plaintiff filed his Complaint for Declaratory Judgment in the Boulder County District Court on August 12, 2003. Rather than formally serving defendant with the Complaint, through counsel, plaintiffsent it to defendant along with a Waiver and Acceptance of Service in the event defendant intended to pursue claims against plaintiff. Defendant responded by filing a Verified Complaint in a North Carolina state court on or about September 15, 2003. The North Carolina Complaint seeks money damages from plaintiffand First Layer, which defendant acknowledges is out of business and unable to pay monies allegedly owing defendant. As defendant did herein, plaintiffremoved the North Carolina state case to federal court. Plaintiff contends this court is the proper forum to resolve the parties' dispute, and has filed a motion challenging the North Carolina federal court's jurisdiction over him as

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well as requesting that that action be dismissed in favor of the first-filed Colorado case. To date, the North Carolina federal court has not ruled upon these requests. In addition to a declaratoryjudgment, plaintiff seeks monetary damages herein pursuant to a cause ofaction for fraud. Plaintiff alleges incurred damages because of and would not have executed the personal Guaranty in issue but for defendant's misrepresentations. Plaintiffs damages exceed $200,000. b. Defendant: On or about October 10, 2000, Defendant Walker Group

loaned First Layer communications, Inc. ("First Layer") $500,000.00 through the execution of a Revolving Convertible Note Purchase Agreement ("Revolving Agreement"). Pursuant to the Revolving Agreement, First Layer issued a promissory note to Walker Group in the amount of $500,000.00. The Revolving Agreement and promissory note were unconditionally secured by, among other things, the Personal Guaranty ("Guaranty") of Plaintiff J. E. H. Knutson. The Revolving Agreement, promissory note, and Guaranty were subsequently amended to increase the amount loaned and guaranteed to $914,000.00. Walker Group was induced to enter into the loan transaction and subsequently to amend the loan documents and Guaranty to increase the loan amount by Plaintiffs representations about his personal wealth and ability to support the Guaranty both before and after the loan initially was made. First Layer dissolved or otherwise went out ofbusiness without repaying Walker Group the amounts owed pursuant to the Revolving Agreement and related amendments. Contrary to Plaintiffs assertions, Walker Group received less than $10,000.00 in assets from First Layer at the time ofthe latter's demise.

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By letter dated July 9, 2003, counsel for Walker Group demanded payment from Plaintiff pursuant to the Revolving Agreement, promissory note, Guaranty, and all amendments to each of those agreements. No payment was received. Instead, Plaintiff filed this declaratory action on August 12, 2003 naming the incorrect defendant during the course ofsettlement negotiations and without informing the defendant. Service was obtained on September 26, 2003. Upon leave of Court, the Complaint was later amended to add the correct Defendant, Walker Group, Inc. Later, Plaintiff was granted leave to file a second amended Complaint to add an additional claim of fraud claim. 3. UNDISPUTED FACTS The following facts are undisputed: 1. First Layer and defendant executed a Revolving Convertible Note

Purchase Agreement ("Agreement"). 2. Plaintiff, a principal of First Layer, executed a Guaranty ofthe Agreement

that was subsequently amended. 4. COMPUTATION OF DAMAGES a. Plaintiff seeks a declaration that he does not owe monies to defendant for

a October 10, 2000 Guaranty and amendments thereto, as well as money damages exceeding $200,000 as a result of defendant's misrepresentations together with interest and attorney fees. b. Walker Group seeks at least $723,870.00, together with pre and post-

judgment interest and attorney's fees as allowed by law for breach ofthe Guaranty. Walker Group seeks such additional damages as are allowed by law as a result ofits

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claims of fraud and negligent misrepresentation against Plaintiff/Counterclaim-Defendant Knutson. 5. REPORT OF PRECONFERENCE DISCOVERY AND MEETING UNDER FED. R. CIV. P. 26(f) a. b. The Rule 26(f) meeting occurred on November 17, 2003. Michael R. McCurdy, on behalfof plaintiff, and Joshua Maximon, on

behalfof defendant, participated in the Rule 26(f) meeting. c. The parties do not propose any changes in timing or the requirement of

disclosures under Fed.R. Civ. P. 26(a)(1). d. e. discovery. 6. CONSENT All parties have not consented to the exercise ofjurisdiction ofa magistrate judge. 7. CASE PLAN AND SCHEDULE a. 2004. b. Deadline for Joinder of Parties and Amendment ofPleadings: January 19, ~ Discovery Cut-off: F~ct~4~-i~ (45) daya ufte~-~the deadline to d~signat~
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Rule 26(a)(1) disclosures were made on or before December 1, 2003. The parties have not entered into any agreements to conduct informal

rebuttal exp~rt&. c.

Dispositive Motion Deadline: Thirty (~0) dais af~'terhe di~eve~. t

d.

Expert Witness Disclosure (1) Plaintiff presently anticipates presenting expert witness testimony

regarding the fair market value ofassets defendant seizedlreceived that

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should be credited against the amount claimed to be due and owing from plaintiff. Defendant presently anticipates presenting rebuttal expert witness testimony. (2)

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T-he-partie~ not propnse `any limit on the u~ or nl.lmheLof do

e~wi4~e9~e~(3) The parties shall designate all experts and provide opposing

counsel with all information specified in Fed. R. Civ. P. 26(a)(2) on or V~c-~i~-- I ~ prQduc~ infermatien-a~4the do~1jrn~r~t~:niight p1"intiff'~ liiuiIulI to ~uflipd; or ~hui (30) duyz afl~r Lf the~p~e~oeef~peHn-fti. (4) The parties shall designate all rebuttal experts and provide

opposing counsel and any pro se party with all information specified in Fed. R. Civ. P. 26(a)(2) on or befere forty -fwe (45) days after the deadline t~e-e~e~s~(5) Notwithstanding the provisions of Fed. R. Civ. P. 26(a)(2)(B), no

exception to the requirements of the rule will be allowed by stipulation of

the parties unless the stipulation is approved by the court.

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e.

Deposition Schedule: Time of Deposition Expected Length of Deposition

Name ofDeponent To Be Determined To Be Determined

Date ofDeposition

f.

Interrogatory Schedule

Interrogatories may be submitted on or ~ dis~~ry~dcadline. rcapon~e~ ~i.thi~-thi~ days thereafter. with due
g.

Schedule for Request for Production of Documents: xr ,~ çz..~. t
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Requests for production of documents,~be submitted on or before fo~ty-fivc (1 ~) days b~f~r~diseevefy deadline, with th@ h. Discovery Limitations: (1) ~ p~~es within thirty days th~~et due ~

Each party shall be limited to seven (7) depositions, plus endorsed experts

(2) (3)

Each deposition shall be limited to seven (7) hours. Each party shall be limited to thirty-five (35) interrogatories, incl~iding discrete subparts, without leave ofcourt. Interrogatories served before submission ofthis Amended Scheduling Order shall count toward this limit.
(4)

Each party shall be limited to thirty (30) requests for production of documents and twenty (20) requests for admissions, including discrete subparts, without leave ofcourt. Plaintiff and Defendant

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disagree as to whether Plaintiffs previously served requests pursuant to Fed. R. Civ. P. 30(b)(6)-(5) are to count toward this limit. (5) Other Planning or Discovery Orders: None. 8. SETTLEMENT The parties certify that, as required by Fed. R. Civ. P. 26(f), they have discussed the possibilities of a prompt settlement or resolution of the case by alternative dispute resolution. To date, efforts to do so have been unsuccessful but are ongoing. 9. OTHER SCHEDULING ISSUES a. The parties state that there is no other discovery or scheduling issues on

which counsel, after a good faith effort, were unable to reach an agreement. b. Within ten (10) days ofthe event that will establish future litigation

deadlines, i.e. production of the information and documents sought plaintiffs motion to compel, or denial of plaintiff's motion to compel in full, the parties will submit a Second Amended Scheduling identifying dates certain for future deadlines not established herein. The anticipated length ofthe trial in this case is four (4) days. Trial is to be to jury. 10. DATES FOR FURTHER CONFERENCES -ç $~ b ~ ,~ A settlement conference wa~-hc1d May 2004. in
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It is hereby ordered that all settlement conferences that take place before the magistratejudge shall be confidential.

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Each party shall submit a Confidential Settlement Statement to the magistratejudge on or before
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outlining the facts and

issues in the case and the party's settlement position. b. Status conferences will be held in this case at the following dates and times:

c.

A final pretrial conference will be held in this case on r at ____ o'clock A.m. A Final Pretrial Order shall

be prepared by the parties and submitted to the court no later than five days before the final pretrial conference. 11. OTHER MATTERS In addition to filing an appropriate notice with the clerk's office, counsel must file a copy of any notice ofwithdrawal, notice of substitution ofcounsel, or notice ofchange of counsel's address or telephone number with the clerk ofthe magistrate judge assigned to this case. In addition to filing an appropriate notice with the clerk's office, apro se party must file a copy of a notice ofchange ofhis or her address or telephone number with the clerk of the magistratejudge assigned to this case. With respect to discovery disputes, parties must comply with D.C.COLO.LCivR 7.1A.

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The parties filing motions for extension oftime or continuances must comply with D.C.COLO.LCivR 6.1D. by submitting proofthat a copy ofthe motion has been served upon the moving attorney's client, all attorneys of record, and all pro se parties. 12. AMENDMENTS TO SCHEDULING ORDER The Scheduling Order may be altered or amended only upon a showing good cause. DATED this
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day of

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2004.

BY THE COURT:

United St~fes agistrate Judge MICHAEL J. WATANABE APPROVED:

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U~S. AGISTRATE JUDGE M

i~aidield Woads, P.CT'--~ and Michael R. McCurdy 1700 Lincoln Street, #2400 Denver, CO 80203 (303) 830-2400 Attorney for Plaintiff

Richard S. Gottlieb Kilpatrick Stockton LLP 1001 West Fourth Street Winston-Salem, NC 27101 (336) 607-7484 Joshua Maximon 12202 Airport Way, Suite 170 Broomfield, CO 80021 303 -991-3344 Attorneys for Defendant

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The parties filing motions for extension oftime or continuances must comply with D.C. COLO.LCivR 6. 1D. by submitting proofthat a copy ofthe motion has been served upon the moving attorney's client, all attorneys ofrecord, and all prose parties. 12. AMENDMENTS TO SCHEDULING ORDER The Scheduling Ordermay be altered or amended only upon a showing good cause. DATED this ______ day of
,

2004.

BY THE COURT:

United States Magistrate Judge APPROVED:

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Fairfield and Woods, P.C. Michael R. McCurdy 1700 Lincoln Street, #2400 Denver, CO 80203 (303) 830-2400 Attorney for Plaintiff

Richard S. Gottlieb Kilpatrick Stockton LLP 1001 West Fourth Street Winston-Salem, NC 27101 (336) 607-7484 Joshua Maximon 12202 Airport Way, Suite 170 Broomfield, CO 80021 303-991-3344 Attorneys for Defendant

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N

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No. 03-F-i 973 (MJW) J.E.H. KNUTSON, Plaintiff(s),
V.

WALKER GROUP, iNC., Defendant(s).
-

CERTIFICATE OF SERVICE
______________,

a 2OOj~', copy of the foregoing document was served to the following persons by:

I hereby certify that on

..X. United States mail, proper postage affixed:
Joshua Maximon Stuart D. Mann 1 2202 Airport Way Suite 1 70 Broomfield CO 80021 Richard S. Gottlieb Kilpatrick Stockton LLP 1001 West Forth Street Winston Salem NC 27101-2400 Cohn A. Walker Michael R. McCurdy Fairfield & Woods PC 1 700 Lincoln Street #2400 Denver CO 80203-4524 Deputy Clerk