Free Motion to Supplement - District Court of Arizona - Arizona

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

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] Kevin Breger/021004 ­ [email protected] Attorneys for Individual Plaintiffs and Trustee

STEVE BROWN & ASSOCIATES, LLC
1414 E. INDIAN SCHOOL ROAD, SUITE 200 PHOENIX, ARIZONA 85014-2412 TELEPHONE (602) 264-9224

Steven J. Brown/010792 ­ [email protected] 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

MICHAEL MAKINGS, Counterclaimant, vs. LEAPSOURCE, INC., et al., Counterdefendants.

PLAINTIFFS' REQUEST TO SUPPLEMENT THE RECORD AND PLAINTIFFS' STATEMENT OF ADDITIONAL FACTS PRECLUDING SUMMARY JUDGMENT ON THE JOINT VENTURE CLAIMS

H:\leapsource\pleadINGS\Request to Supplement Record.doc

Case 2:02-cv-02099-RCB

Document 320

Filed 02/20/2006

Page 1 of 6

1 2 3 4 5 6 7 8 9 10 Motion for Summary Judgment on Joint Venture Related Claims along with their Statement 11 12 13 14 15 16 17 18 19 20 deposition there is relevant material that the Plaintiffs would have included in their Response 21 and Statement of Additional Facts had Mr. Peck been identified and deposed before the 22 23 24 25 response was filed. Specifically, the Plaintiffs request the Court to permit the Plaintiffs to supplement their Statement of Additional Facts Precluding Summary Judgment with the following facts:
Case 2:02-cv-02099-RCB Document 320

Pursuant to Rules 7(b) and 56, Fed. R. Civ. Pro., the Plaintiffs respectfully ask the Court to allow the Plaintiffs to supplement the record and their Statement of Additional Facts Precluding Summary Judgment on the Joint Venture Claims with the pages attached from the deposition transcript of Kirkland & Ellis' expert, S. Michael Peck (attached as Exhibit A) as well as with the Statements of Fact incorporated herein. It was only after briefing was completed that Mr. Peck's identity as Kirkland & Ellis' expert was disclosed and that his deposition was taken. On August 22, 2005, GTCR, through their attorney filed the GTCR Defendants'

of Uncontested Facts. Plaintiffs filed their response on September 26, 2005 along with Plaintiffs' Response to GTCR Defendants' Statement of Uncontested Facts and Plaintiffs' Statement of Additional Facts Precluding Summary Judgment. GTCR Defendants filed their reply and their responses to Plaintiffs' Statement of Additional Facts Precluding Summary Judgment on October 17, 2005. At that time, the briefing for this Motion was completed. On October 21, 2005, Kirkland & Ellis identified S. Michael Peck as an expert and provided the Plaintiffs with a copy of his report. The Plaintiffs noticed Mr. Peck's

deposition and he was deposed on November 22, 2005. Within the transcript of Mr. Peck's

H:\leapsource\pleadINGS\Request to Supplement Record.doc

1 Filed 02/20/2006

Page 2 of 6

1 2 3 4 5 6 7 8

156.

S. Michael Peck was retained by Snell & Wilmer on behalf of Kirkland & Ellis

as an expert witness in this case. Peck Depo. (Ex. A) at 1-10. 157. Mr. Peck testified that in his experience "[He] works on a lot of transactions

where management and a private equity fund become partners or co-shareholders with respect to a transaction. It's a very typical occurrence." Peck Dep. (Ex. A) at 109:5-23. 158. Where management and private equity funds become partners or co-

shareholders with respect to a transaction, they could be described as "partnerships or business associations resulting in the formation of a limited liability company or co-

9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
H:\leapsource\pleadINGS\Request to Supplement Record.doc

shareholder arrangements resulting in the formation of a corporation." Peck Dep. (Ex. A) at 109:5-110:5. 159. Where management and private equity funds become partners or co-

shareholders with respect to a transaction, they could be described as joint ventures. Peck Dep. (Ex. A) at 109:5-110:5.

Case 2:02-cv-02099-RCB

Document 320

2 Filed 02/20/2006

Page 3 of 6

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

DATED this 20th day of February, 2006. BEUS GILBERT PLLC

By

s/ Kevin Breger Leo R. Beus Scot C. Stirling Steven E. Weinberger Kevin Breger 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

H:\leapsource\pleadINGS\Request to Supplement Record.doc

Case 2:02-cv-02099-RCB

Document 320

3 Filed 02/20/2006

Page 4 of 6

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
H:\leapsource\pleadINGS\Request to Supplement Record.doc

CERTIFICATE OF SERVICE I hereby certify that on February 20, 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

Case 2:02-cv-02099-RCB

Document 320

4 Filed 02/20/2006

Page 5 of 6

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

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/ Kevin Breger_______________________

H:\leapsource\pleadINGS\Request to Supplement Record.doc

Case 2:02-cv-02099-RCB

Document 320

5 Filed 02/20/2006

Page 6 of 6