Free Request for Judicial Notice - District Court of California - California

Case 3:07-cv-03738-VRW

Document 40-5

Filed 04/03/2008

Page 1 of 4

JOINT CASE MANAGEMENT STATEMENT AND PROPOSED ORDER UNITED STATES DISTRICT COURT NO RTH ERN DIST RICT OF CA LIFOR NIA SAN FRANCISCO DIVISION

U.S. SMALL BUSINESS ADMINISTRATION, as Receiver for PROSPERO VE NT UR ES, L.P., Plaintiff(s), v. RAINB OW EN TE RP RISES, L.P., Defendant(s).

NO.

C 07-03738 JCS

JOINT CASE MANAGEM ENT CONFERENCE STATEMENT AND PROPO SED ORDER

The parties to the above-entitled action jointly submit this Case Management Statement and Proposed Order and request the Court to adopt it as its Case Man agement Order in this case. DESCR IPTION OF TH E CASE 1. A brief description of the events underlying the action: On April 1, 1999, PROSPERO VENTURES, L.P., ("PROSPERO") and RAINBOW ENTERPRISES, L.P ., ("RAINBO W ") entered into a written Partnership Agreement which was modified on or about September 10, 1999. Pursuant to the Agreement, RAINBOW agreed to contribute $2,247,525. RAIN BO W subsequently made a payment of $1,123,762. On or about November 10, 2004, PLAINT IFF notified DEFEND ANT that PROS PERO had been ordered into receivership, that the SBA had been appointed Receiver of PROSPERO , and that the Receiver had taken over the control of the assets and op erations of PROSPERO. On or about February 9, 2005, P LAINT IFF demand ed payment in the amount of $1,123,762 by Marcy 18, 2005. RAINBOW did not make any payment in response to the demand. PLAINTIFF contends that RAINB OW has breached the Partnership Agreement by failing to pay the second half of the ca pital co mmitment; therefore, RAINB OW is indebted to PLAIN TIFF in the sum of $1,123,76 2, plus interest. RAINBOW denies that it is indebted to the PLAIN TIFF and denies that its conduct constitutes a breach of the Partnership Agreem ent. RAIN BO W raises numero us affirmative defenses. 2. The principal factual issues which the parties dispute: The principal disputed factual issues are as follows: (1) whether RAINBO W paid the second half of the capital commitment in the amount of $1,123,762, (2) whether RAINBOW owes PLAINTIFF $1,123,762, plus interest; (3) whether PLAIN TIFF failed to give PROSPERO and RAINBOW an opportunity to cure; (4) whether PLAINT IFF acted in bad faith; (5) whether PLAIN TIFF m itigated its damages; and, (6) whether PLAINTIFF took actions or made statements that were relied up on by PR OS PE RO and R AIN BO W to their detriment.

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Case 3:07-cv-03738-VRW

Document 40-5

Filed 04/03/2008

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3. The principal legal issues which the parties dispute: The princip al legal issues are (1) whether R AIN BO W breached the Pa rtnership Agreem ent whe n it failed to pay $1,123,762 despite demand; (2) whether RAINBOW is indebted to PLAINTIFF in the sum of $1,123,762 together with interest; (3) whether PLAINTIFF breached the Implied Covenant of Good Faith and Fair Dealing; (4) whether PLAINTIFF acted in bad faith and with unclean hands; (5) whether P LAINT IFF is estopp ed from enfo rcing the contra ct; (6) whethe r PLAIN TIFF breach ed its fiduciary duties; (7) whether the SBA regulations are invalid; (8) whether the SBA regulations are vague, am biguo us, and unenfo rceab le; (9) whether PLAIN TIFF failed to m itigate its damages; (10) whether PLAIN TIFF's actions are ultra vires; and (11) whether Defendant can bring any of the affirmative defenses raised. 4. The other factual issues which remain unresolved for the reason stated below and how the parties propose to resolve tho se issues: There are no other factual issues of which the parties are aware. 5. The p arties w hich ha ve no t been ser ved a nd the reason s:

All parties have bee n served and have a ppe ared. 6. The additional parties which the below-specified parties intend to join and the intended time frame for such joinder: None. 7. The following parties consent to assignment of this case to a United States M agistrate Judge for [court or jury] trial: The parties consent to assignment of the case to a Un ited States M agistrate Judg e for jury trial. ALTERNATIVE DISPUTE RESOLUTION 8. [Please indicate the a ppropriate resp onse(s).]

The case w as au tomatica lly assigned to Nonbinding Arbitration at filing and will be ready for the hearing by (date)__________________.
The p arties have filed a S tipulation and P ropo sed O rder Selecting an AD R pr ocess (specify process): The parties agreed to m ediate this matter pursuant to this C ourt's ADR program. The Stipula tion and Agreement to Mediate was filed on November 2, 2007. The parties completed mediation on February 27, 2008. XX

The parties filed a Notice of Need for ADR P hone Conference and the phone conference was held on or is scheduled for __________________. The parties have not filed a Stipulation and Proposed Order Selecting an ADR process and the ADR process that the parties jointly request [or a party separately requests] is __________________________.
9. Please indicate any other information regarding ADR process or deadline.

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Case 3:07-cv-03738-VRW

Document 40-5

Filed 04/03/2008

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DISCLOSURES 10. The parties cer tify that they have mad e the following disclosures [list disclosures of person s, docu men ts, dama ge com putation s and insuranc e agree men ts]: PROSPER O provided its initial discovery disclosures on November 20, 2007. RAINBOW provided its initial discovery by November 30, 2007. DISCOVERY 11. The parties previously agreed to the following discovery plan: A. INTERROG ATORIES 1. By P laintiff: a. Interrogatories to obtain additional information. b. Approximately 20 to 25 interroga tories. c. Interrogatories will be served by April 15, 2008. B y R AIN BO W : a. Interrogatories to obtain additional information. b. App roximately 20 to 25 interrogatories. c. Interrogatories will be served by July 15, 2008.

2.

B.

REQUESTS FOR ADMISSIONS 1. By P laintiff: a. Request for Adm issions of Fact and G enuineness of D ocuments. b. Requests will be served by April 15, 2008. c. Approximately 15 requests for ad mission s of genuinene ss of do cuments to each defendant. d. Approximately 15 to 20 re quests for ad mission s of fact. B y R AIN BO W : a. Request for Adm issions of Fact and G enuineness of D ocuments. b. Requests will be served by July 15, 2008. c. Approximately 15 requests for ad mission s of genuinene ss of do cuments to each plaintiff. d. Approximately 15 to 20 re quests for ad mission s of fact.

2.

C.

REQUESTS FOR PRODU CTION OF DO CUM ENTS 1. By P laintiff: a. Request production of do cuments disclosed by defendants in their Rule 26 disclosure, as well as other documents that are relevant to a claim or defense.. b. Requests will be served by April 15, 2008. B y R AIN BO W : a. Request production of d ocuments disclosed b y plaintiffs in their Rule 26 disclosure, as well as other documents that are relevant to a claim or defense. b. Requests will be served by July 15, 2008.

2.

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Case 3:07-cv-03738-VRW

Document 40-5

Filed 04/03/2008

Page 4 of 4

D.

EXPERT DISCOVERY The parties believe that all non-expert discovery can be completed b y M ay 15, 200 8, and expe rt disco very co mpleted by October 15, 200 8. DEPOSITIONS 1. By P laintiff: a. b. PLAINTIFF intends to depose RAINBOW . This deposition will likely take no more than two, eight ho ur days. PLAINTIFF reserves the right to depose additional witnesses as may be identified through disco very.

E.

2.

By RAINBOW: a. RAINBOW intends to depose the person designated as a Representative of PLAIN TIFF. T his dep osition will likely take no more than two, eight hour days. RAINBOW reserves the right to dep ose add itional witnesses as may be identified through disco very.

b.

3.

Time Estimate: Both parties estimate that the above identified depositions can be com pleted by September 30, 20 08. TRIAL SCHEDULE

12.

The p arties previously a greed upon a trial date as follow s: The parties estimated a three (3) day trial. The parties propose a trial date of March 2, 2009. COLEM AN & H OROW ITT, LLP

Dated: March 17, 2008

DARRY L J. HOROW ITT Attorneys fo r Pla intiff, U.S. SMALL BUSINESS ADMINISTRATION, as Receiver for PROSPERO VENTURES, L.P.

Donoghue, Barrett & Singal
Dated: March 17, 2008 /S/ BRUCE SINGAL Attorney fo r Defendan t, RAINBOW ENTERPRISES, L.P. CASE M ANAGEM ENT ORDER The Case M anagement State ment a nd P ropo sed O rder is hereby adop ted by the Court a s the Case M anagement O rder fo r the case and the parties are ordered to com ply w ith this Or der. In addition the Court orders as follow s: Dated: _______________ ________________________________________________ HON. VAUG HN R. WALK ER UNITED STATES DISTRICT JUDGE

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