Free Motion for Miscellaneous Relief - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10
Bryan Cave LLP Two North Central Avenue, Suite 2200 Phoenix, Arizona 85004-4406 (602) 364-7000

BRYAN CAVE LLP, 00145700 George C. Chen 019704 ([email protected]) Two North Central Avenue, Suite 2200 Phoenix, Arizona 85004-4406 Telephone: (602) 364-7367 Facsimile: (602) 364-7070 Attorneys for Lexcel, Inc., Lexcel Solutions, Inc., Carl Kubitz, and Flora Kubitz UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA ) ) Plaintiff, ) vs. ) ) Nelcela, Inc., et al., ) Defendants. ) ) ) And Related Counterclaims, Cross-Claims, ) and Third-Party Claims. ) ) Merchant Transaction Systems, Inc., No. CIV 02-1954-PHX-MHM THE LEXCEL PARTIES' MOTION FOR POSSESSION OF TRIAL EXHIBIT 675

11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Lexcel, Inc., Lexcel Solutions, Inc., Carl Kubitz, and Flora Kubitz (collectively, "The Lexcel Parties") move the Court for possession of Defendants' Trial Exhibit 675, which is identified by Defendants Nelcela, Inc., Len Campagna, and Alec Dollarhide (collectively, the "Nelcela Parties") as the "Original Lexcel floppy disks from 1994/1995 (3 floppies)". Memorandum of Points and Authorities During the jury trial for Phase I, Carl Kubitz testified that, in 1995, he saved the source code for the Cardholder System, the Non-Visa (or Authorization-Tsys) System, the Authorization System, the Merchant System, and the Database System (collectively, "the Lexcel Software") onto floppy disks. Mr. Kubitz also testified that, in 1995, he gave those floppy disks to Alec Dollarhide to give to Credit Card Services, Ltd. pursuant to the 1995 Settlement Agreement between Credit Card Services, Ltd. and Lexcel, Inc., which

577429/0201990

Case 2:02-cv-01954-MHM

Document 502

Filed 04/26/2007

Page 1 of 3

1 2 3 4 5 6 7 8 9 10
Bryan Cave LLP Two North Central Avenue, Suite 2200 Phoenix, Arizona 85004-4406 (602) 364-7000

was Trial Exhibit 5. Also during the jury trial, Mr. Dollarhide testified that Trial Exhibit 675 consisted of the original floppy disks that Mr. Dollarhide received from Mr. Kubitz in 1995. On April 23 and 24, 2007, the Court granted (#489 and 490) the Joint Parties' oral motion for judgment as a matter of law that Lexcel, Inc. is the owner of the Cardholder System and the Non-Visa System of the Lexcel Software. On April 25, 2007, the jury found (#492 and 501) that Lexcel, Inc. is the owner of the Authorization System and the Merchant System that is at issue in this case and that Lexcel, Inc. is also the owner of the Database Component or System of the Lexcel Software. In view of all the above, Lexcel, Inc. is the owner of the source code saved on the 3 floppy disks, which are Trial Exhibit 675, and the Nelcela parties should not be permitted to retain possession of Trial Exhibit 675. Conclusion The Lexcel Parties move the Court for possession of Trial Exhibit 675, which contains Lexcel's source code, as found by this Court.

11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

RESPECTFULLY SUBMITTED this 26th day of April, 2007. BRYAN CAVE LLP By s/George C. Chen George C. Chen Two N. Central Avenue, Suite 2200 Phoenix, Arizona 85004-4406 Attorneys for Lexcel, Inc., Lexcel Solutions, Inc., Carl Kubitz, and Flora Kubitz

2
Case 2:02-cv-01954-MHM Document 502 Filed 04/26/2007 Page 2 of 3

1 2 3 4 5 6 7 8 9 10
Bryan Cave LLP Two North Central Avenue, Suite 2200 Phoenix, Arizona 85004-4406 (602) 364-7000

CERTIFICATE OF SERVICE I hereby certify that, on April 26, 2007, The Lexcel Parties' Motion for Possession of Trial Exhibit 675 was filed electronically. Notice of this filing will be sent to all parties by operation of the Court's electronic filing system. Parties may access this filing through the Court's system.

s/ Denise M. Aleman Denise M. Aleman

11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3
Case 2:02-cv-01954-MHM Document 502 Filed 04/26/2007 Page 3 of 3
577429/0201990