Free Response to Motion - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8

STEVE BROWN & ASSOCIATES, LLC
1414 EAST INDIAN S CHOOL ROAD, S UITE 200 PHOENIX, ARIZONA 85014 (602) 264-9224

Steven J. Brown (#010792) [email protected] Steven D. Nemecek (#015219) [email protected] Attorneys for Trustee UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA DIANE MANN, Trustee; et al., CIV-02-2099-PHX-RCB Plaintiffs, v. GCTR GOLDER RAUNER, L.L.C., a Delaware limited liability company; et al., Defendants. In re: LEAPSOURCE, INC., Debtor. DIANE MANN, Trustee, Plaintiff, v. ICG GROUP, INC., an Arizona corporation; MICHAEL MAKINGS and MARCIA MAKINGS, husband and wife, Defendants. consolidated with CIV-02-2325-PHX-RCB BK-01-9020-PHX-JMM Adv. No. 02-1202

9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

RESPONSE TO MOTION TO DISMISS

Case 2:02-cv-02099-RCB

­1­ Document 330

Filed 03/01/2006

Page 1 of 15

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26
1 2

Defendants Motion to Dismiss mischaracterizes the nature of Plaintiff's amendments to her Complaint, ignores binding Ninth Circuit precedent, and applies the wrong rule. Neither movant is a new party to this adversary proceeding; both have been parties from the outset. The Amended Complaint merely (1) adds ICG Group, Inc. to a pre-existing claim, and (2) corrects Mrs. Makings' first name. Defendants' Motion should be denied. I. B RIEF SUMMARY OF F ACTUAL B ACKGROUND.1 This adversary proceeding concerns the transfer of a valuable business known as ICG, which was founded by Defendant Michael Makings. At all relevant times, Makings has been married to Marcia Makings, and they have resided at 8335 East Aster Drive in Scottsdale, Arizona.2 In 2000, Debtor purchased ICG for $10 million and also hired Makings. In 2001, in anticipation of Debtor's bankruptcy filing, Makings formed Defendant ICG Group, Inc. and arranged for Debtor to transfer the ICG business to ICG Group, Inc. to repay Makings on a $2.5mm promissory note Debtor owed him. Makings was the CEO, a director, and a shareholder of Debtor when he arranged the transfer. At all relevant times, Makings has been ICG Group, Inc.'s sole shareholder. The Trustee is now attempting to recover the value of those assets from Makings and ICG Group as fraudulent and preferential transfers. II. P ROCEDURAL B ACKGROUND. On July 11, 2001, Debtor filed a Chapter 7 Petition in the Bankruptcy Court, 01-9020-PHXJMM. Diane Mann was appointed as Trustee.

See Pl.'s Statement of Facts in Supp. of Mot. for Partial Summ. J. See Warranty Deeds, copies attached hereto as Ex. 1.

Case 2:02-cv-02099-RCB

-2Document 330

Filed 03/01/2006

Page 2 of 15

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26
3

In 2002, the Trustee initiated this adversary proceeding by filing a Complaint against Michael Makings, Jane Doe Makings, and ICG Group, Inc., Adv. No. 02-1202.3 The Complaint explains that "Jane Doe Makings is Makings' wife and is named as a defendant herein solely for purposes of binding Makings' marital community" (Complaint ¶ 5). The Trustee alleged three counts in the Complaint: Count I, fraudulent transfer under 11 U.S.C. § 548, against Mr. and Mrs. Makings and ICG Group, Inc.; Count II, aiding and abetting fraudulent transfer, against Mr. and Mrs. Makings; and Count III, preferential transfer under 11 U.S.C. § 547, against Mr. and Mrs. Makings. The Complaint was properly served upon all three Defendants.4 In 2002, the bankruptcy case reference was withdrawn to this Court, CIV-02-2325-PHXRCB. In 2003, the Court consolidated the bankruptcy case into a related case, CIV-02-2099-PHXRCB (the "GTCR Lawsuit"). This Court is well aware of the substantial litigation and extensive discovery that has been going on in the GTCR Lawsuit. The parties to this much smaller bankruptcy lawsuit have, in essence, simply allowed this lawsuit to coattail on all the activity in the GTCR Lawsuit, letting all the discovery that might be relevant take place there, rather than duplicating efforts and litigating on dual tracks. The Defendants never even filed an answer in this bankruptcy lawsuit, but counsel have sporadically communicated with each other, attended certain depositions together, engaged in occasional discussions of settlement, and generally just awaited the fruits of discovery in the GTCR

For the Court's convenience, copy attached hereto as Ex. A (only to Judge's and Defendants' copies of Response, pursuant to Local Rule 7.1(d)(4)). 4 See Affidavit of Service, copy attached hereto as Ex. B (only to Judge's and Defendants' copies of Response, pursuant to Local Rule 7.1(d)(4)).

Case 2:02-cv-02099-RCB

-3Document 330

Filed 03/01/2006

Page 3 of 15

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

lawsuit.

At no time did Defendants' counsel raise issues over a lack of prosecution, nor has

Plaintiff's counsel attempted to default the Defendants or engaged in any motion practice. In January 2006, after the applicable expert witness reports and depositions were finally completed, and in preparation for a partial summary judgment, Plaintiff filed and served an Amended Complaint.5 Defendants had still not answered the original Complaint so no stipulation or motion was required (See Rule 15 of the Federal Rules of Civil Procedure). The amendments consisted of (1) adding ICG Group, Inc. to Count III, and (2) substituting Mrs. Makings' actual first name, Marcia, for Jane Doe. Plaintiff has moved for partial summary judgment against Defendants on Count III of that Amended Complaint for $2.51 million, but Defendants have tried to circumvent that motion by filing the instant Motion to Dismiss. III. RULE 15(C) RELATION B ACK STANDARD. Rule 7015 of the Federal Rules of Bankruptcy Procedure incorporates Rule 15 of the Federal Rules of Civil Procedure. Rule 15(c) provides that an amended pleading "relates back" to an original pleading in certain circumstances, thereby defeating a statute of limitation defense. "[T]he relation back doctrine of Rule 15(c) is to be applied liberally." Percy v. San Francisco Gen'l Hosp., 841 F.2d 975, 980 (9th Cir. 1988). Indeed, Rule 15(c) has been amended twice to make relation back even more liberal and expansive. See 28 U.S.C.A., Fed. R. Civ. P. 15, 1966 Adv. Cmte. N., 1991 Adv. Cmte. N.; Wright, Miller, & Kane, Federal Practice & Procedure § 1498 (2005); accord G.F. Co. v. Pan Ocean Shipping Co., Ltd., 23 F.3d 1498, 1502 (9th Cir.

5

For the Court's convenience, copy attached hereto as Ex. C (only to Judge's and Defendants' copies of Response, pursuant to Local Rule 7.1(d)(4)).

Case 2:02-cv-02099-RCB

-4Document 330

Filed 03/01/2006

Page 4 of 15

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

1994) (1991 amendment); Wentz v. Alberto Culver Co., 294 F. Supp. 1327, 1329 (D.C. Mont. 1969) (1966 amendment). Rule 15(c) consists of three disjunctive subsections, two of which are implicated by Defendants' Motion to Dismiss: An amendment to a pleading relates back to the date of the original pleading when... (2) the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, or (3) the amendment changes the party or the naming of a party against whom a claim is asserted if the foregoing provision (2) is satisfied and, within the period provided by Rule 4(m) for service of the summons and complaint, the party to be brought in by amendment (A) has received such notice of the institution of the action that the party will not be prejudiced in maintaining a defense on the merits, and (B) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party. In these two subsections, "Rule 15(c) distinguishes between two types of amendments: one that amends the claims against a party already named in the pleading and the other that amends the party to the original pleading." Martell v. Trilogy Ltd., 872 F.2d 322, 324 (9th Cir. 1989). Rule 15(c) thus establishes two different tests to be applied to two different situations. The first... provides the test to be applied when the amended pleading seeks to allege a new or different claim or defense. The court is to determine whether the amendment is transactionally related to the original pleading. The second... addresses the situation in which the amended pleading attempts to "chang[e] a party against whom a claim is asserted." The litigant seeking amendment must satisfy more stringent requirements. In addition to the requirement that the amendment arise out of the same transaction, Rule 15(c) imposes greater notice demands and a showing of lack of prejudice.

Case 2:02-cv-02099-RCB

-5Document 330

Filed 03/01/2006

Page 5 of 15

1 2 3 4 5 6 7

Id.6 IV. AS TO ICG GROUP, INC., THE AMENDED COMPLAINT RELATES B ACK UNDER RULE 15(C)(2). Defendants' Motion to Dismiss cites only Rule 15(c)(3). As to ICG Group, Inc., however, Rule 15(c)(3) is inapplicable. The Amended Complaint relates back to the original Complaint under Rule 15(c)(2). A. The Amendment As to ICG Group, Inc.

8 9 10 11 12

In her original Complaint (Ex. A hereto), Plaintiff raised three claims, all related to the same, single transaction whereby Debtor transferred the ICG assets to ICG Group, Inc. in anticipation of filing a bankruptcy proceeding. Count I sets forth a claim for fraudulent transfer under 11 U.S.C. § 548. Count II sets forth a claim for aiding and abetting fraudulent transfer. Count III sets forth a

13 14 15 16 17

claim for preferential transfer under 11 U.S.C. § 547. ICG Group, Inc. was named under Count I only. In the Amended Complaint (Ex. C hereto), Plaintiff did not change any of these claims or add any new claims or factual allegations. Plaintiff alleges the exact same three claims in the Amended

18 19 20 21 22

Complaint that she alleged in the original Complaint. In the Amended Complaint, ICG Group, Inc. is added to Count III. Count III arose out of the exact same transaction as Count I, to which ICG Group, Inc. was already a party. The amendment was needed because during discovery the Trustee learned that ICG Group claimed to be the holder of the promissory note that was "preferred" by the pre-

23 24 25 26
6

bankruptcy transfer of assets, rather than Michael Makings. Both parties are thus potentially liable for the same preferential transfer.

The rule was recast in 1991; references to the "first sentence" of old Rule 15(c) correspond to current subsection (2)

Case 2:02-cv-02099-RCB

-6Document 330

Filed 03/01/2006

Page 6 of 15

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

B.

Ninth Circuit Precedent Requires Denial of Defendants' Motion.

As a matter of law, the Motion must be denied as to ICG Group, Inc., pursuant to Ninth Circuit precedent: Martell v. Trilogy Ltd., 872 F.2d 322 (9th Cir. 1989). Martell's original complaint named Merrill Lynch as a defendant to one set of claims and Trilogy as a defendant to a second sets of claims, all arising from a common core of operative facts. Id. at 323, 325. Martell later amended his complaint to add Trilogy to the second set of claims. Trilogy moved for dismissal of the amended complaint based on the statute of limitation. Id. Defendants' Motion to Dismiss eerily evokes the district court's lower ruling in Martell: The second amended complaint adds new claims against the defendants. Although similar claims were previously brought against Merrill Lynch in the original complaint, the Court has not found good cause for plaintiffs [sic] delay in naming Trilogy as a defendant to these claims. There has been no showing that a mistake in identifying the parties occurred. In addition, the Court finds that relating the complaint back at this late date would prejudice the defendants in their efforts to investigate the claims. Accordingly, the second amended complaint will not relate back to the original complaint. Id. at 324. The Ninth Circuit reversed the district court. The Ninth Circuit utterly rejected the district court's logic, which Trilogy tried to support on appeal: "Trilogy attempts to interject ambiguity" and "the wrong standard," but its "novel construction... cannot withstand analysis" and "fails to find a place in logic." Id. at 324-325. The Ninth Circuit held that the applicable standard was Rule 15(c)(2), not Rule 15(c)(3) as urged by Trilogy. Id.7 In concluding that the amended complaint did not relate back to the original one, the district court applied an erroneous standard. Martell
(amended claim), and references to the "second sentence" correspond to current subsection (3) (changed party). 7 See supra note 6.

Case 2:02-cv-02099-RCB

-7Document 330

Filed 03/01/2006

Page 7 of 15

1 2 3 4 5 6 7

merely sought to add new claims to its original complaint against a party already named as a defendant to the action. In this circumstance, the district court should have analyzed the two pleadings to determine whether they share a common core of operative facts sufficient to impart fair notice of the transaction, occurrence, or conduct called into question. Martell's original and amended complaints unquestionably are transactionally related and provided adequate notice to Trilogy. Accordingly, we hold that the district court erred in dismissing Martell's amended complaint against Trilogy based on the statute of limitations.

Id. at 326-27.
8 9 10 11 12

Here, too, the Amended Complaint and the original Complaint allege the exact same facts, all of which apply to all claims (compare Ex. A with Ex. C). ICG Group, Inc., which was already a Defendant, was merely added to Count III ( id.). The Amended Complaint relates back to the original Complaint under Rule 15(c)(2) because "the claim... asserted in the amended pleading arose out of

13 14 15 16 17 18 19 20 21 22

the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading." Rule 15(c)(3) is inapplicable, because ICG Group, Inc. is not a new party. Defendants cite two cases for the proposition that an amendment to adjust a legal strategy cannot relate back: Louisiana-Pacific Corp. v. ASARCO, Inc., 5 F.3d 431 (9th Cir. 1993) and Centuori v. Experian Info. Sys., Inc., 329 F. Supp. 2d 1133 (D. Ariz. 2004). In both cases, however, the amendment added an entirely new party to the litigation. In Louisiana-Pacific, ASARCO did not name IMP in its original third-party complaint and later moved for leave to amend, to add IMP as a new, additional third-party defendant. Id. at 432-

23 24 25 26

33. (The Ninth Circuit affirmed the district court's denial of the motion.) In Centuori, MIS was not a defendant under t he original complaint, and Centuori amended its complaint to add MIS as a new party. Id. 1135-36. (MIS moved for summary judgment based on the
-8Document 330

Case 2:02-cv-02099-RCB

Filed 03/01/2006

Page 8 of 15

1 2 3 4 5 6 7

statute of limitation, arguing that the amendment did not relate back under Rule 15(c), but the court denied the motion.) Here, however, ICG Group, Inc. is not a new party but, rather, is an original Defendant. The apposite case is therefore Martell. V. AS TO MRS. MAKINGS, THE AMENDED COMPLAINT RELATES B ACK UNDER EITHER RULE 15(C)(2) OR (3). A. The Amendment As to Mrs. Makings.

8 9 10 11 12

The original Complaint (Ex. A hereto) identified Mrs. Makings' first name as "Jane Doe." The Complaint explained that "Jane Doe Makings is Makings' wife and is named as a defendant herein solely for purposes of binding Makings' marital community" (id. ¶ 5). The Amended Complaint (Ex. C hereto) changes Mrs. Makings' first name to Marcia.

13 14 15 16 17

The Rules, and caselaw interpreting those Rules, make it clear (as described below) that the amendment to state Mrs. Makings' real first name is appropriate and permissible. In addition, this argument itself is ridiculously disingenuous and nothing more than legal game-playing. Counsel for these Defendants has actually appeared for, and filed motions on behalf of Mrs. Makings,

18 19 20 21 22

naming his client as "Jane Doe Makings" just as she was originally listed. For example, in the original adversary proceeding (which then was removed to this Court), Mrs. Makings joined in the Motion to Withdraw Reference, which was filed on behalf of "ICG Group, Inc. and Michael and Jane Doe Makings". See, Docket Entry #3 in the original bankruptcy adversary lawsuit Adversary No.

23 24 25 26

02-1202. Once the case was removed, she similarly appeared and filed a Motion to Consolidate this case with the GTCR lawsuit, again filed on behalf of "ICG Group, Inc. and Michael and Jane Doe Makings". See, Docket Entry #4 in Case No. 02-2325. It is frivolous for counsel to now take the
-9Document 330

Case 2:02-cv-02099-RCB

Filed 03/01/2006

Page 9 of 15

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

position that Plaintiff is trying to add a "new party" or that there is some lack of due process or notice that justifies Marcia Makings' dismissal on statute of limitations grounds. She has been involved in the lawsuit from the start, has filed motions, and the claims against her are not being changed whatsoever. Plaintiff is just stating her proper first name. B. The Amended Complaint Relates Back Under Rule 15(c)(2).

The correction of Mrs. Makings' first name is a mere "misnomer," which does not constitute changing a party under Rule 15(c)(3), but, rather, falls under Rule 15(c)(2): A misnomer is involved when t he correct party was served so that the party before the court is the one plaintiff intended to sue, but the name or description of the party in the complaint is deficient in some respect. Under those circumstances, an amendment merely correcting that description does not entail the actual "changing" of the parties [under Rule 15(c)(3)] and it should be allowed as a matter of course as long as it satisfies the standard [of Rule 15(c)(2)]. Wright, Miller, & Kane, Federal Practice & Procedure § 1498 (2005).8 This point of law was followed in a case similar to the one at bar. The original complaint named a defendant as "David Foster," Mr. Foster was served, and the amended complaint corrected Mr. Foster's first name to "Dewey": Defendant Foster contends that the Complaint is untimely filed as to him because he was not the person sued in the original Complaint filed on the last day of the one year limitations period. We think this is merely a case of correcting a misnomer, and under [Rule 15(c)(2)] the amendment will relate back to the original Complaint. Because the amendment merely corrects a misnomer and does not in fact change parties, and because the original Complaint was timely served and no prejudice has been demonstrated, the amendment relates back and plaintiff's claims against Foster are timely. Beyda v. USAir, Inc., 697 F. Supp. 1394, 1399 (W.D. Pa. 1988).9

Case 2:02-cv-02099-RCB

-10Document 330

Filed 03/01/2006

Page 10 of 15

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26
8 9

As another court stated in citing and following this point of law: A complaint's caption is not dispositive of the identity of the parties i f it is clear from the body of the complaint who the actual defendant is. "A suit at law is not a children's game, but a serious effort on the part of adult human beings to administer justice; and the purpose of process is to bring parties into court. If it names them in such terms that every intelligent person understands who is meant... it has fulfilled its purpose...." Boliden Metech, Inc. v. United States, 140 F.R.D. 254, 257 (D.R.I. 1991) (citations omitted) (denying motion to dismiss). As to each of the three claims against Mrs. Makings, "the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading." Accordingly, the Amended Complaint relates back to the original Complaint. C. The Amended Complaint Relates Back Under Rule 15(c)(3).

Rule 15(c)(3) provides that an amendment to a pleading relates back to an original pleading when the amendment changes "the naming of the party" against whom a claim is asserted. The quoted language was added in 1991. However, nothing in the language of that amendment or its advisory committee note suggests that this change in the rule overrides prior caselaw on the misnomer of a served party. Nevertheless, assuming for the moment that the misnomer of a served party does now fall under Rule 15(c)(3), the result here is the same: the Amended Complaint relates back. The Amended Complaint relates back under Rule 15(c)(3) if Mrs. Makings (A) received "such notice" of the institution of the action that she "will not be prejudiced in maintaining a defense on the

See supra note 6. See supra note 6.

Case 2:02-cv-02099-RCB

-11Document 330

Filed 03/01/2006

Page 11 of 15

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

merits," and (B) "knew or should have known" that, but for the mistake concerning her first name, the action would have been brought against her in her actual first name. First, Mrs. Makings received not only mere "notice" of the action, she was formally and properly served with the original Complaint and Summons (Exs. A & B hereto). Rule 7004(b)(1) of the Federal Rules of Bankruptcy Procedure provides for service of an adversary complaint and summons "by mailing a copy of the summons and complaint to the individual's dwelling house or usual place of abode." As stated in the Affidavit of Service (Ex. B hereto), the original adversary Complaint and Summons were served on Mrs. Makings by mailing to 8335 East Aster Drive, in Scottsdale, Arizona. This was Mr. and Mrs. Makings' residence ( see Ex. 1 hereto). Not only was she served, but she specifically joined in the motion to withdraw reference to this Court, as well as the motion to consolidate this lawsuit with the GTCR lawsuit. Second, the original Complaint expressly stated that "Jane Doe Makings is Makings' wife and is named as a defendant herein solely for purposes of binding Makings' marital community" (Ex. A ¶ 5). Thus, Mrs. Makings "knew or should have known" that, but for the mistake concerning her first name, the action would have been brought against her in her actual first name. Nowhere in their Motion do Defendants dispute these key fulfillments of Rule 15(c)(3). Rather, Defendants' only quibble is that Plaintiff did not make a "mistake" about Mrs. Makings' first name, because "LeapSource and its counsel" knew her first name. But Plaintiff is the Trustee, not Debtor LeapSource, and Plaintiff's counsel is certainly not Debtor's counsel. It is absurd for Defendants to argue that Plaintiff did not make a "mistake," due to imputation of knowledge by other

Case 2:02-cv-02099-RCB

-12Document 330

Filed 03/01/2006

Page 12 of 15

1 2 3 4 5 6 7 8 9 10 11 12

parties. In any event, the rule's reference to a "mistake" is broadly applicable and thus not amenable to Defendants' argument regardless: As the rationale behind Rule 15(c) is "to ameliorate the effect of the statute of limitations", "[p]roperly construed, the rule encompasses both mistakes that were easily avoidable and those that were serendipitous." A mistake is "a wrong action or statement proceeding from faulty judgment, inadequate knowledge, or inattention." "Virtually by definition, every mistake involves an element of negligence, carelessness, or fault-and the language of Rule 15(c)(3) does not distinguish among types of mistakes concerning identity." Centuori v. Experian Info. Sys., Inc., 329 F. Supp. 2d 1133, 1138 (D. Ariz. 2004) (citations omitted) (denying summary judgment motion based on statute of limitation defense). VI. CONCLUSION. Plaintiff's Amended Complaint adds no new parties, facts, or claims, and it thus arises out of

13 14 15 16 17

the very same transaction alleged in her original Complaint. The Amended Complaint merely corrects Mrs. Makings' first name and adds ICG Group, Inc., a pre-existing Defendant, to Count III, a pre-existing claim. The Amended Complaint therefore relates back to the date of the original Complaint pursuant to Rule 15(c)(2). Accordingly, neither ICG Group, Inc. nor Mrs. Makings has a

18 19 20 21 22 23 24 25 26

statute of limitation defense, and the Court should therefore deny their Motion to Dismiss. DATED March 1, 2006. STEVE BROWN & ASSOCIATES, LLC By: /s/ S.B. #010792 Steven J. Brown Steven D. Nemecek 1414 East Indian School Road, Suite 200 Phoenix, Arizona 85014 Attorneys for Tr ustee
-13Document 330

Case 2:02-cv-02099-RCB

Filed 03/01/2006

Page 13 of 15

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

Copies of the foregoing mailed this 1 st day of March, 2006 to: Merrick B. Firestone Veronica L. Manolio RONAN & FIRESTONE, PLC 9300 East Raintree Drive, Suite 120 Scottsdale, AZ 85260 Attorney for Defendants ICG Group, Inc, Michael Makings, and Marcia Makings Kevin A. Russell David S. Foster Patrick E. Gibbs LATHAM & WATKINS, LLP Sears Tower, Suite 5800 Chicago, IL 60606 Attorneys for GCTR Golder Rauner, L.L.C. et al Don P. Martin Edward A. Salanga QUARLES & BRADY STREICH LANG, LLP One Renaissance Square Two North Central Phoenix, AZ 85004-2391 Attorneys for GCTR Golder Rauner, L.L.C. et al Richard A. Halloran Jon Weiss LEWIS & ROCA, LLP 40 North Central Phoenix, AZ 85004-4429 Attorneys for Defendants David Eaton and AEG Partners LLC

Case 2:02-cv-02099-RCB

-14Document 330

Filed 03/01/2006

Page 14 of 15

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

John Bouma James R. Condo Patricia Lee Refo SNELL & WILMER LLP One Arizona Center 400 East Van Buren Phoenix, AZ 85004 Attorneys for Defendant Kirkland & Ellis Leo L. Beus Scot C. Stirling Steven E. Weinberger Kevin Breger BEUS GILBERT PLLC 4800 North Scottsdale Road Suite 6000 Scottsdale, AZ 85251 Attorneys for Individual Plaintiffs and Trustee

/s/ Sherrie Jo Christensen

Case 2:02-cv-02099-RCB

-15Document 330

Filed 03/01/2006

Page 15 of 15