Free Other Notice - District Court of Arizona - Arizona

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John J. Bouma (#001358) James R. Condo (#005867) Patricia Lee Refo (#017032) Joseph G. Adams (#018210) SNELL & WILMER L.L.P. One Arizona Center 400 E. Van Buren Phoenix, AZ 85004-2202 Telephone: (602) 382-6000 E-Mail: [email protected] Attorneys for Defendant Kirkland & Ellis IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Diane Mann, as Trustee for the Estate of LeapSource, Inc. et al., Plaintiffs, No. CIV 02-2099 PHX RCB KIRKLAND & ELLIS' NOTICE OF PLAINTIFFS' FAILURE TO RESPOND -andMOTION FOR ENTRY OF JUDGMENT RE JOINT VENTURERELATED CLAIMS (Assigned to Hon. Robert C. Broomfield)

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LAW OFFICES One Arizona Center, 400 E. Van Buren Phoenix, Arizona 85004-2202 (602) 382-6000

12 13 14 Defendants. 15 16 17 18 19 20 21 22 23 24 25 26 27 28 On August 23, 2005, Kirkland & Ellis ("K&E") filed and served a motion for summary judgment regarding plaintiffs' joint venture-related claims and a joinder in GTCR's motion for summary judgment. Plaintiffs failed to file a response to K&E's motion. Accordingly, K&E gives notice to the Court of plaintiffs' failure to serve and file the required answering memorandum pursuant to LRCiv 7.2(i) and moves for entry of judgment on the joint venture-related claims brought against K&E (Counts Twelve and Fourteen) pursuant to Fed. R. Civ. P. 56(e). This motion is supported by the following Memorandum of Points and Authorities. ... ... GTCR Golder Rauner, L.L.C.; a Delaware limited liability company, et al.,

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MEMORANDUM OF POINTS AND AUTHORITIES There Is No Evidence That K&E Had Any Knowledge of the Purported Joint Venture Agreement.

On August 22, 2005, GTCR moved for summary judgment on the joint venturerelated claims asserted against GTCR on the ground that there was no evidence to 5 establish that a joint venture existed between plaintiffs and GTCR. Plaintiffs filed a 6 response to this motion on September 26, 2005, and GTCR filed its reply brief on October 7 17, 2005. 8 On August 23, 2005, K&E also moved for summary judgment on the joint venture9 related claims against K&E and joined GTCR's motion for summary judgment. In its 10 motion, K&E argued that, in addition to the reasons explained by GTCR, K&E was 11 separately entitled to summary judgment on the joint venture-related claims because there
LAW OFFICES One Arizona Center, 400 E. Van Buren Phoenix, Arizona 85004-2202 (602) 382-6000

12 is no evidence that K&E knew about the existence of the purported joint venture. 13 Plaintiffs never filed a response to this motion. 14 As set forth in K&E's moving papers, knowledge of a joint venture is a necessary 15 element of plaintiffs' joint venture-related claims against K&E. In Count Twelve, 16 plaintiffs allege that K&E aided and abetting GTCR's breach of fiduciary duties arising 17 out of the joint venture. (Fourth Am. Compl. ¶¶ 403-409.) In Count Fourteen, plaintiffs 18 allege that K&E tortiously interfered with plaintiffs' prospective economic advantage 19 represented by the joint venture. (Fourth Am. Compl. ¶¶ 414-422.) Plaintiffs must prove 20 that K&E knew about the joint venture to proceed with these claims. See Wells Fargo 21 Bank v. Arizona Laborers, Teamsters and Cement Masons Local No. 395 Pension Trust 22 Fund, 201 Ariz. 474, 485, 38 P.3d 12, 23 (Ariz. 2002) (plaintiffs bear burden of 23 establishing defendants' knowledge for aiding and abetting liability); A.A. Tube Testing 24 Co., Inc. v. Sohne, 20 A.D.2d 639, 246 N.Y.S.2d 247, 248 (N.Y. Sup. Ct. 1964) 25 (defendant's knowledge of the existence of an underlying contract is an essential element 26 of a claim for inducing a breach of contract). 27 28
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There is no such evidence. In its moving papers, K&E cited to deposition testimony from plaintiffs and their attorneys showing that they lacked personal knowledge about K&E's conduct and knowledge. Indeed, there is no record evidence suggesting that K&E knew about the supposed joint venture. 2. Entry of Judgment is Appropriate Because Plaintiffs Failed to Meet Their Burden to Produce Evidence.

Under Rule 56, the non-moving party must respond to a properly-supported motion for summary judgment by setting forth "specific facts showing that there is a genuine 8 issue for trial." Fed. R. Civ. P. 56(e). If the adverse party fails to file and serve a 9 response, "summary judgment, if appropriate, shall be entered against the adverse party." 10 Id. In addition, Local Civil Rule 7.2 provides that, "if the opposing party does not serve 11 and file the required answering memoranda, . . . such non-compliance may be deemed a
LAW OFFICES One Arizona Center, 400 E. Van Buren Phoenix, Arizona 85004-2202 (602) 382-6000

12 consent to the denial or granting of the motion and the Court may dispose of the motion 13 summarily." LRCiv 7.2(i). 14 Under similar circumstances, the Ninth Circuit has held that the grant of summary 15 judgment is appropriate so long as the initial motion for summary judgment "satisfied 16 Rule 56." United States v. Real Property Located at Incline Village, 47 F.3d 1511, 1519 17 (9th Cir. 1995). It is well-settled in this District that the Court may grant a motion for 18 summary judgment when no response is filed if the initial motion is "facially 19 meritorious." Weimer v. Maricopa County Community College Dist., 184 F.R.D. 309, 310 20 (D. Ariz. 1998) (citing Henry v. Gill Indus., 983 F.2d 943, 950 (9th Cir. 1993)); Bansal v. 21 United States Int'l Rev. Svce., No. CIV 98-0019-PHX-RCB, 1998 U.S. Dist. LEXIS 22 12478, at *2 (D. Ariz. Aug. 4, 1998). 23 K&E's meritorious motion for summary judgment easily satisfies this test. 24 Because plaintiffs have failed to respond with evidence that would satisfy their 25 evidentiary burden, summary judgment is warranted pursuant to Fed. R. Civ. P. 56(e) and 26 LRCiv 7.2(i) 27 28
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LAW OFFICES One Arizona Center, 400 E. Van Buren Phoenix, Arizona 85004-2202 (602) 382-6000

3.

Conclusion. For the reasons set forth above, K&E respectfully requests that the Court enter

summary judgment in favor of K&E on Counts Twelve and Fourteen in the Fourth Amended Complaint. DATED this 18th day of October, 2005. SNELL & WILMER L.L.P.

By

s/ Joseph G. Adams John J. Bouma James R. Condo Patricia Lee Refo Joseph G. Adams Attorneys for Kirkland & Ellis

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LAW OFFICES One Arizona Center, 400 E. Van Buren Phoenix, Arizona 85004-2202 (602) 382-6000

CERTIFICATE OF SERVICE I hereby certify that on October 18, 2005, 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: Leo R. Beus Richard R. Thomas Scot C. Stirling Beus Gilbert, PLLC 4800 North Scottsdale Road Scottsdale, AZ 85251 Attorneys for Plaintiffs Don P. Martin Edward A. Salanga Quarles & Brady Streich Lang, LLP Two North Central Phoenix, AZ 85004-2391 Attorneys for GTCR Defendants and Defendants Nolan, Rauner, Yih, Donnini and Canfield David S. Foster Latham & Watkins, LLP Sears Tower, Suite 5800 233 South Wacker Drive Chicago, IL 60606 Attorneys for GTCR Defendants and Defendants Nolan, Rauner, Yih, Donnini and Canfield Merrick B. Firestone Ronan & Firestone, P.L.C. 649 North Second Avenue Phoenix, AZ 85003 Attorneys for Michael Makings Foster Robberson Richard A. Halloran Lewis and Roca LLP 40 N. Central Avenue Phoenix, AZ 85004-4429 Attorneys for David L. Eaton and AEG Partners LLC Steven J. Brown Steve Brown & Associates, L.L.C. 1440 E. Missouri, Suite 185 Phoenix, AZ 85014-2412 Attorneys for Plaintiff Diane Mann, as Trustee for the Estate of LeapSource, Inc. s/ Joseph G. Adams

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