Free Statement - District Court of Arizona - Arizona

BEUS GILBERT PLLC
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 Pursuant to Local Rule 56.1, and Federal Rule of Civil Procedure Rule 56, the 19 20 21 22 23 24 25
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ATTORNEYS AT LAW

4800 NORTH SCOTTSDALE ROAD SUITE 6000 SCOTTSDALE, ARIZONA 85251 TELEPHONE (480) 429-3000

Leo R. Beus/002687 [email protected] Scot C. Stirling/005757 [email protected] Steven E. Weinberger/015349 [email protected] Attorneys for Plaintiffs

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Diane Mann, as Trustee for the Estate of LeapSource, Inc., et al., , Plaintiffs, vs. GTCR Golder Rauner, L.L.C., a Delaware limited liability company, et al., Defendants, (Assigned to the Honorable Robert C. Broomfield Case No.: CIV-02-2099-PHX-RCB PLAINTIFF'S RESPONSE AND OBJECTIONS TO MAKINGS' STATEMENT OF FACTS IN SUPPORT OF RENEWED MOTION FOR SUMMARY JUDGMENT AND JOINDER IN GTCR'S RENEWED MOTION FOR SUMMARY JUDGMENT

Plaintiffs submit the following Response and Objections to Makings' Statement of Facts in Support of Renewed Motion for Summary Judgment and Joinder in GTCR's Renewed Motion for Summary Judgment.

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In his "Statement of Facts" (Docket 481), Makings has simply incorporated by reference GTCR's Statement of Facts (Docket 476), and Makings' own prior Statements of Facts and exhibits filed on February 26, 2006 (sic - Plaintiffs assume that should be February 22, 2006, Docket 324)1 and March 20, 2006 (sic ­ Plaintiffs assume that should be March 10, 2006, Docket 341). The prior Statement of Facts in Docket 324 also included a "joinder" in other defendants' Motions and Statements of Facts, which were addressed in the Plaintiffs'

7 8 9 10 11 12 13 14 15 16 (1) 17 18 19 20 21 22 23 24 25 That was a Statement of Facts filed in support of a Motion for Summary Judgment on the Joint Venture related claims; it is not clear why that document would be cited in support of Makings' "renewed" motion or "joinder" in GTCR's motion. However, we find no document in the record filed by Makings on February 26, 2006. This is one of the reasons that Plaintiffs object to Makings' renewed Motion and joinder in GTCR's motion; Makings is incorporating by reference other documents that in turn incorporated other documents by reference, and the Plaintiffs' responses to those earlier Motions and Statements of Facts therefore comprise a number of other documents, filed over a period of approximately eighteen months.
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responses to the other defendants' Motions and Statements of Facts.2 There is no new Statement of Facts for the Plaintiffs to respond to (see Docket 481), and in these circumstances it is not clear exactly what facts Makings is actually relying upon for his "renewed" Motion and "joinder" in GTCR's renewed Motion, and the Plaintiffs object to this failure to comply with Local Rule 56.1 and Fed.R.Civ.P. 56. In the absence of any better direction that Makings' "Statement of Facts" (Docket 481) provides, the Plaintiffs' Response to Makings' Motion is therefore necessarily supported by: Plaintiffs' Response to in opposition to GTCR's renewed Motion for Summary

Judgment (Docket 483), and by the plaintiffs' Response to GTCR's Statement of

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Uncontested ICG-Related Facts and Statement of Additional Facts Precluding Summary Judgment, submitted with the plaintiffs' Response to the GTCR Motion (Docket 484); (2) Plaintiffs' Response (Docket 418) and Plaintiffs' related Statements of Facts

(Docket 419) filed in opposition to Makings' Motion for Summary Judgment on Contract Claims, Breach of Fiduciary Duty Claims and All Other Claims Against Defendant Makings (Docket 340) and its supporting Statement of Facts (Docket 341).

7 8 9 10 11 12 13 14 15 16 ago. However, because Makings in Dockets 323 and 324 joined in the motion and statement 17 18 19 20 21 22 23 24 25 Plaintiffs believe this admittedly confusing and unhelpful reference to and incorporation of documents previously filed is necessary because of Makings' wholesale incorporation of earlier statements of fact.
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(3)

Plaintiffs' Response (Docket 364) to Makings' Motion for Summary Judgment

on Joint Venture Related Claims (Docket 323) and supporting Statement of Facts (Docket 324) pointed out that the Court had already granted other defendants' Motions for Summary Judgment on the Joint Venture claims, finding that there was no joint venture as a matter of law, and that Makings' Motion was therefore moot. Therefore, Plaintiffs did not file a responsive statement of facts to the Motion, and Plaintiffs object to Makings' attempt in his "renewed" Motion to use unspecified facts from a Statement of Facts that was not even correctly identified, and that was not answered when it was filed approximately 18 months

of facts filed by GTCR, Plaintiffs' response to this "renewed" Motion is also based upon the Plaintiffs' responsive Statements of Facts, filed under seal on September 26, 2005 in opposition to the GTCR Statement of Facts.3 But see footnote 1 (we don't even know why Makings has cited the papers on that motion).

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Dated this 7th day of September, 2007. BEUS GILBERT PLLC

3 4 By 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
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Scot C. Stirling Leo R. Beus Scot C. Stirling Steven E. Weinberger 4800 North Scottsdale Road Suite 6000 Scottsdale, AZ 85251 Attorneys for Individual Plaintiffs and Trustee

STEVE BROWN & ASSOCIATES, LLC Steven J. Brown 1414 E. Indian School Road, Suite 200 Phoenix, AZ 85014 Co-Counsel for Trustee

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CERTIFICATE OF SERVICE I hereby certify that on 7 September, 2007, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Kevin A. Russell David S. Foster Nicholas B. Gorga LATHAM & WATKINS LLP [email protected] [email protected] [email protected] Attorneys for Defendants GTCR Golder Rauner, LLC, GTCR Fund VI, LP, GTCR VI Executive Fund, LP, GTCR Associates VI, Joseph P. Nolan, Bruce V. Rauner, Daniel Yih, David A. Donnini and Philip A. Canfield Don P. Martin Edward A. Salanga QUARLES & BRADY STREICH LANG, LLP [email protected] [email protected] Attorneys for Defendants GTCR Golder Rauner, LLC, GTCR Fund VI, LP, GTCR VI Executive Fund, LP, GTCR Associates VI, Joseph P. Nolan, Bruce V. Rauner, Daniel Yih, David A. Donnini and Philip A. Canfield
Merrick B. Firestone

Veronica L. Manolio RONAN & FIRESTONE, PLC [email protected] [email protected] Attorney for Defendant Michael Makings

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Richard A. Halloran Jon Weiss LEWIS & ROCA, L.L.P. [email protected] [email protected] Attorneys for Defendants David Eaton and AEG Partners LLC John Bouma James R. Condo Patricia Lee Refo SNELL & WILMER LLP [email protected] [email protected] [email protected] Attorneys for Kirkland & Ellis Steven J. Brown STEVE BROWN & ASSOCIATES, LLC Co-Counsel for Trustee [email protected]

_Scot C. Stirling____

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