Polo v. Shwiff et al

Filing 32

Notice of Questions for Hearing. Signed by Judge Jeffrey S. White on April 17, 2013. (jswlc3, COURT STAFF) (Filed on 4/17/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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PATRICK POLO,

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For the Northern District of California

United States District Court

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Plaintiff,

No. C 12-04461 JSW

v.

NOTICE OF QUESTIONS FOR
HEARING

ELIZABETH SHWIFF, et al.,
Defendants.
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TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD, PLEASE TAKE

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NOTICE OF THE FOLLOWING QUESTIONS FOR THE HEARING SCHEDULED ON

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APRIL 19, 2013, AT 9:00 A.M.:

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The Court has reviewed the parties’ memoranda of points and authorities and, thus, does

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not wish to hear the parties reargue matters addressed in those pleadings. If the parties intend to

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rely on legal authorities not cited in their briefs, they are ORDERED to notify the Court and

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opposing counsel of these authorities reasonably in advance of the hearing and to make copies

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available at the hearing. If the parties submit such additional authorities, they are ORDERED

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to submit the citations to the authorities only, with pin cites and without argument or additional

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briefing. Cf. N.D. Civil Local Rule 7-3(d). The parties will be given the opportunity at oral

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argument to explain their reliance on such authority. The Court suggests that associates or of

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counsel attorneys who are working on this case be permitted to address some or all of the

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Court’s questions contained herein.

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1.

The Court has considered the interplay of Paragraphs 5.08 and 5.09 of the

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Partnership Agreement and the argument raised by Ms. Shwiff and Shwiff, Levy

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& Polo, LLP (collectively “Defendants”) that Mr. Polo failed to comply with

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Paragraph 5.09 when he obtained his appraisal of his partnership interest. It

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appears to the Court, however, that the language of Paragraph 5.08 provides that

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if a selling partner objects to the buying partner’s appraisal, the selling partner is

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entitled to obtain a second appraisal. Paragraph 5.08 does not, however, contain

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a provision that permits the buying partners to object to the selling partner’s

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appraisal. Rather, it appears to the Court that Paragraph 5.08 unambiguously
provides that the “fair market value,” and therefore the purchase price “shall” be

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For the Northern District of California

United States District Court

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the average of the two appraisals.

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a.

What is Defendants’ best argument that by admitting to the fact that each

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side obtained an appraisal and to the amounts of the appraisal, they have

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not admitted to facts that show Mr. Polo complied with all conditions

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precedent?

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2.

Defendants generally deny the allegation that they “failed to make any

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payments,” on the basis that this allegation “suggests that Defendants had a legal

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obligation to make such payments which they did not in fact have under the

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circumstances.” (Answer ¶ 38.) Defendants also generally deny that their

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failure to pay Mr. Polo amounts to a breach of the agreement. (Id. ¶ 41.)

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a.

The Court recognizes that Defendants take the position that they were not

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legally obligated to pay Mr. Polo. However, have Defendants paid Mr.

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Polo for his partnership interest?

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b.

Do Defendants have any authority to support a finding that the general

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denials set forth in paragraphs 38 and 41, which do not contain facts, are

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sufficient to raise a question of fact as to whether they breached the

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Partnership Agreement?

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c.

If the Court were to conclude that Mr. Polo has shown that he has

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established each of the elements of his breach of contract claim, on which

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of the thirty-three affirmative defenses would Defendants rely to

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overcome liability?

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3.

This Court has declined to apply the standards of Twombly and Iqbal to

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affirmative defenses. What is Mr. Polo’s best argument that the Court should

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revisit its position on this issue?

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4.

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Defendants seek leave to amend their answer if the Court finds any of their
denials or affirmative defenses unclear or insufficient. In light of the fact that the
Court set a deadline for filing amended pleadings in this case, what is

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For the Northern District of California

United States District Court

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Defendants’ best argument that they have shown good cause under Federal Rule

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of Civil Procedure 16?

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5.

Would the parties be amenable to the Court reserving ruling on this motion
pending completion of the ADR Process?

IT IS SO ORDERED.

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Dated: April 17, 2013
JEFFREY S. WHITE
UNITED STATES DISTRICT JUDGE

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