Free Supplement - District Court of Arizona - Arizona

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BEUS GILBERT PLLC
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 Individual Plaintiffs and Trustee

STEVE BROWN & ASSOCIATES, LLC
1440 EAST MISSOURI, STE. 185 PHOENIX, ARIZONA 85014-2412 TELEPHONE (602) 264-9224

Steven J. Brown/010792 Co-Counsel for Trustee UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA DIANE MANN, as Trustee for the Estate of LeapSource, Inc., CHRISTINE V. KIRK, et al., Plaintiffs, vs. GTCR GOLDER RAUNER, L.L.C.; et al., Defendants.

Case No.: CIV-02-2099-PHX-RCB

PLAINTIFFS' SUPPLEMENTAL AUTHORITY CONCERNING MAKINGS' REPLY MEMORANDUM IN SUPPORT OF MAKINGS' MOTION FOR SUMMARY JUDGMENT ON JOINT VENTURE RELATED CLAIMS (Docket No. 376)

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In Plaintiffs' Response to Makings' Motion for Summary Judgment on Joint Venture 1 2 3 4 5 6 7 8 9 10 11 With respect to the arguments made by the Defendant Michael Makings at pages 2-3 12 13 14 15 16 17 18 19 20 21 (2) that the Plaintiffs' Response noting that the Makings Motion was made 22 moot by the Court's ruling is merely a "procedural argument" against the Makings 23 24 25
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Related Claims, and to Makings' Joinder in GTCR Defendants' Motion for Summary Judgment on Joint Venture-Related Claims, the Plaintiffs advised the Court that: However, because the claims that are the subject of the February 22 Makings Motion for Summary Judgment on Joint Venture Related Claims are premised upon the existence of the joint venture alleged in the Fourth Amended Complaint, and because the Court has determined in ruling on the GTCR motion that the joint venture does not exist, it follows that the Court's March 28 Order is also dispositive of the claims that are the subject of the Makings February 22 motion for summary judgment, and that the Makings February 22 motion is therefore moot. Plaintiffs' Response, 10 April 2006, at page 2, lines 9-16 (Docket No. 364) (emphasis added).

of Makings' Reply Brief on His Motion for Summary Judgment on the Joint Venture Related Claims and Joinder in GTCR Defendants' Motion for Summary Judgment on Joint VentureRelated Claims (Docket No. 376): (1) that the plaintiffs were obligated to continue litigating the joint venture claims in response to the Makings Motion for Summary Judgment, even after the Court ruled on the joint venture claims in its Order dated March 28, 2006, and granted the GTCR Motion that Makings joined (e.g., Makings Reply at page 2 lines 13-19); and

Motion (e.g., Makings Reply at page 3 lines 9-13),

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the Plaintiffs submit the following supplemental citation of authority for the Court's consideration: 1. Smith v. University of Washington, Law School, 233 F.3d 1188, 1193 (9th Cir.

2000) ("Mootness is like standing, in that if it turns out that resolution of the issue presented cannot really affect the plaintiff's rights, there is, generally speaking, no case or controversy for the courts to adjudicate; no real relief can be awarded") (emphasis added). 2. Cole v. Oroville Union High School Dist., 228 F.3d 1092, 1098 (9th Cir.2000)

("As the Supreme Court has recently noted, both standing and mootness are jurisdictional 9 10 11 12 13 14 15 16 17 18 Mar 14, 2006) ("By this Opinion and Order, summary judgment is granted against plaintiffs' 19 20 21 22 23 24 25
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issues deriving from the requirement of a case or controversy under Article III") (citing Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000)) (emphasis added). 3. Osborn v. McCauley ex rel. Arizona Dept. of Corrections, 29 F.3d 633 (Table),

1994 WL 268639 (9th Cir. 1994) ("Because the district court granted defendants' motion to dismiss, Osborn's motion for summary judgment became moot and, thus, the defendants were not required to file an opposition to it"). 4. McDonald v. Sun Oil Co., ___ F.Supp.2d ___, 2006 WL 696316 *14 (D. Or.

negligence per se claims, so plaintiffs' motion on those claims is denied as moot. In light of the court's related decisions, plaintiffs' motion for summary judgment against defendant's affirmative defenses is also denied as moot."). 5. J.): Carrillo v. U.S., 2006 WL 475274 *1-2 (D. Ariz., Feb. 27, 2006) (Broomfield,

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IT IS ORDERED that, having determined that Plaintiff was properly on notice of the impending dismissal of his action for failure to effectuate service of process within the time limit for service as extended by the Court's January 25 Order, this action is DISMISSED without prejudice as to Defendant the United States of America pursuant to Fed.R.Civ.P. 4(m). IT IS FURTHER ORDERED that the remainder of the United States' motion to dismiss (doc. # 6) pursuant to Rule 12(b)(6), which was converted to a Rule 56 motion for summary judgment, shall be DENIED and DISMISSED as moot. Hyde v. Owens-Corning Fiberglas Corp., 751 F. Supp. 832, 834 (D. Ariz.

1990) (Broomfield, J.): IT IS ORDERED granting defendant Owens-Corning's motion for summary judgment (Doc. # 70). IT IS FURTHER ORDERED vacating as moot, defendant Owens-Corning's motion for summary judgment re: punitive damages (Doc. # 68). Dated this 3rd day of May, 2006. BEUS GILBERT PLLC

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s/ 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 1440 East Missouri, Suite 185 Phoenix, AZ 85014 Co-Counsel for Trustee

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CERTIFICATE OF SERVICE I hereby certify that on May 3, 2006, 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]

__s/ Scot C. Stirling_______________________

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