Stender et al v. Archstone-Smith Operating Trust

Filing 217

ORDER REGARDING SCHEDULING PROCEDURE AND PLAINTIFF'S MOTION PURSUANT TO D.C.COLO.CIVR 7.2. Denying 204 Plaintiffs' Motion Pursuant to D.C.COLO.CivR 7.2, by Magistrate Judge Michael J. Watanabe on 5/9/2013.(mjwcd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 07-cv-02503-WJM-MJW
STEVEN A. STENDER, HAROLD SILVER and
INFINITY CLARK STREET OPERATING, L.L.C., on behalf of themselves and all others
similarly situated,
Plaintiffs,
v.
ARCHSTONE-SMITH OPERATING TRUST;
ARCHSTONE-SMITH TRUST;
ERNEST A. GERARDI, JR.;
RUTH ANN M. GILLIS;
NED S. HOLMES;
ROBERT P. KOGOD;
JAMES H. POLK, III;
JOHN C. SCHWEITZER;
R. SCOT SELLERS;
ROBERT H. SMITH;
STEPHEN R. DEMERITT;
CHARLES MUELLER, JR.;
CAROLINE BROWER;
MARK SCHUMACHER;
ALFRED G. NEELY;
TISHMAN SPEYER DEVELOPMENT CORPORATION;
RIVER HOLDING, LP; RIVER ACQUISITION (MD), LP;
RIVER TRUST ACQUISITION (MD), LLC; and
ARCHSTONE MULTIFAMILY SERIES I TRUST;
Defendants.

ORDER REGARDING
SCHEDULING PROCEDURE
AND
PLAINTIFFS’ MOTION PURSUANT TO D.C.COLO.CIVR 7.2 (DOCKET NO. 204)

Entered by U.S. Magistrate Judge Michael J. Watanabe
This matter was before the court on May 8, 2013 for Status Conference and
Hearing on the Plaintiffs’ Motion Pursuant to D.C.COLO.LCivR 7.2 (docket no. 204)

consistent with Judge Martinez’s Order Granting Plaintiffs’ Motion to Reopen (docket
no. 188). The court has considered Plaintiffs’ Status Report (docket no. 212) and
Defendants’ Status Report and Proposed Schedule (docket no. 213). In addition, the
court has considered Plaintiffs’ Motion Pursuant to D.C.COLO.LCivR 7.2 (docket no.
204) and the response (docket no. 215) thereto. Moreover, the court has taken judical
notice of the court’s file and has considered applicable Federal Rules of Civil Procedure
and case law. Lastly, the court has considered additional oral argument by the parties.
The court now being fully informed makes the following findings of fact, conclusions of
law and order.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
This case has a tortured history. The docket is now up to 216 entries. The
Complaint (docket no. 1) was filed on November 30, 2007. Pursuant to
D.C.COLO.LCivR 40.1, former Chief District Court Judge Edward W. Nottingham was
drawn as the Article III Judge assigned to this case and I was drawn as the Magistrate
Judge. On December 3, 2007, Chief Judge Nottingham entered a General Case
Management Order and Order of Reference to United States Magistrate Judge (docket
no. 2).
On September 30, 2008, Chief Judge Nottingham granted Defendants’ Motion to
Stay the arbitrable tax-related claim, dismissed the other breach of contract claim,
dismissed with prejudice all remaining claims, and administratively closed the case.
See Stender v. Gerardi, 2008 WL 4452117, at *21 (D. Colo. Sept. 30, 2008).
On November 5, 2008, Judge Robert Blackburn was reassigned as the presiding
judge on this case due to the resignation of Chief Judge Nottingham from this court.
See docket no. 70.
On February 9, 2011, this case was again reassigned to Judge William J.
Martinez upon his recent appointment to this court. See docket no. 131. It should be
noted that the only constant judicial officer that has been assigned to this case since its
inception to the present is Magistrate Judge Watanabe. Upon being reassigned this
case, Judge Martinez, who replaced Judge Blackburn, without reaching the merits,
granted Plaintiffs’ motion to amend their complaint. Stender v. Cardwell, 2011 WL
1235414, at *4 (D. Colo. Apr. 1, 2011) (“Stender V”) (granting leave to amend because
“Defendants [would] not be unduly prejudiced”). The Court allowed Plaintiffs to file an
amended complaint adding the same securities claims that were dismissed in the Katz
Litigation by then Chief Judge Wiley Y. Daniel. See Katz v. Geradi, 2010 WL 3034358,
at *8 (D. Colo. Aug. 3, 2010) (“Katz III”).
On August 25, 2011, the Tenth Circuit affirmed dismissal of the Katz action,
finding, among other things, that Katz’s Securities Act standing argument was “verbal
alchemy.” Katz v. Gerardi, 655 3d. 1212, 1223 (10th Cir. 2001) (“Katz IV”).
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That pursuant to Court’s Orders, the parties conducted the arbitration before the
Arbitrator jointly retained by the parties, the Honorable Bruce W. Kaufman, former judge
of the United States District Court for the Eastern District of Pennsylvania. On March 8,
2013, Judge Kaufman rendered his final award in Archstone’s favor (“Final Award”).
On April 2, 2013, Judge Martinez entered his Order Granting Plaintiffs’ Motion to
Reopen (docket no. 188). This Order states, in pertinent part:
Accordingly, the Court [Judge Martinez] ORDERS as follows:
1.

Defendant Archstone’s Motion to Reopen Case for Good Cause to
Confirm Arbitration Award (ECF No. 183) is DENIED;

2.

Plaintiffs’ Motion to Reopen Case for Good Cause (ECF No. 180) is
GRANTED;

3.

The Clerk shall reopen this action and the parties shall contact
Magistrate Judge Michael J. Watanabe to set up whatever
scheduling or status conference the Judge deems necessary
to assist with moving this case forward;

4.

Plaintiffs’ prior Motion to Reopen Case for Good Cause and for
Expedited Hearing (ECF No. 174) is DENIED as MOOT;

5.

Plaintiffs’ Motion for Ruling on Request for Judicial Intervention
(ECF No. 175) is DENIED as MOOT; and

6.

Plaintiffs’ Motion for Reconsideration (ECF No. 177) is DENIED AS
MOOT.

I find, based upon the written status reports (docket nos. 212 and 213) and oral
argument presented during this hearing, that the parties have filed or intend on filing the
following motions:
1.

Plaintiffs’ Motion to Set Aside the Protective Order Entered in
Arbitration (“Protective Order Motion”);

2.

Defendant Archstone’s Motion to Confirm the Arbitration Award
(“Motion to Confirm”). This motion (docket no. 184) has been filed
and the response (docket no. 186) has also been filed;

3.

Plaintiffs’ Motion to Vacate the Arbitration Award (“Motion to
Vacate”);

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4.

Plaintiffs’ Motion for Leave to File an Amended Complaint; and

5.

Plaintiffs’ Motion Pursuant to D.C.COLO. LCivR 7.2 (docket no.
204) which has been filed. The response (docket no. 215) has also
been filed.

Here, I find that it is unnecessary for Plaintiffs to file a motion to vacate the
arbitration award. There is already pending Defendant Archstone’s Motion to Confirm
the Arbitration Award (docket no. 184) and Judge Martinez through his ruling on such
motion will either confirm or vacate such arbitration award. The parties can seek, by
motion, oral argument on this motion (docket no. 184) before Judge Martinez and in his
discretion he will either grant or deny oral argument. I further find that in order to carry
out the scope and purpose of Fed. R. Civ. P. 1 which calls for a “... just, speedy, and
inexpensive determination of every action and proceeding” that Judge Martinez should
rule on this motion (docket no. 184) first.
If Defendant Archstone’s Motion to Confirm the Arbitration Award (docket no.
184) is granted by Judge Martinez, then Plaintiffs shall file their Motion to Amend the
Complaint within 15 days after Judge Martinez confirms the Final Award. Defendant
will have 30 days to respond to Plaintiffs’ Motion to Amend the Complaint and Plaintiffs
will have 15 days after the response is filed by Defendants to file their Reply. The
parties can seek, by motion, oral argument on Plaintiffs’ Motion to Amend the
Complaint. Once filed, Judge Martinez, in his discretion, will either grant or deny oral
argument on such motion. After Judge Martinez has rendered his decision on Plaintiffs’
Motion to Amend the Complaint, the parties shall, within five business days of such
ruling, contact Magistrate Judge Watanabe’s chambers to set this case for a Status
Conference. At this Status Conference, Magistrate Judge Watanabe will set a date
certain by which Defendants shall file their Motion to Dismiss as to the Operative
Complaint, Response date and Reply date.
If Defendant Archstone’s Motion to Confirm the Arbitration Award (docket no.
184) is denied and the Arbitration Award is vacated by Judge Martinez then the parties
shall, within five (5) business days of such ruling, contact Magistrate Judge Watanabe’s
chambers to set this case for a Status Conference. At this Status Conference,
Magistrate Judge Watanabe will address the resetting of the Arbitration Hearing and
issues concerning other motions pending or anticipated to be filed.
I find that this Court’s previous February 27, 2008 Order Regarding Defendants’
Motion to Stay Discovery and Further Pretrial Proceedings Pending Resolution of
Threshold Issues (docket no. 50) should remain in effect, and discovery and other
proceedings will remain stayed [except as outlined above] pursuant to that Order and
the Private Securities Litigation Reform Act of 1995, 15 U.S.C. § 78u-4(b)(3)(B) (2006).
Lastly, I find that Plaintiffs’ Motion Pursuant to D.C.COLO.LCivR 7.2 (docket no.
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204) is premature and unnecessary at this time based upon the scheduling procedure
this court will utilize from this point forward as outlined in this Order. The Arbitration
Protective Order specifically contemplates and permits the use of confidential arbitration
materials for the purpose of confirming or challenging the arbitration final award. See
Memorandum in Support of Plaintiffs’ Motion to Restrict Access at page 3 (docket no.
205) [The Arbitration Protective Order provides a limited exception to the blanket use
restriction, in instances which a party seeks to challenge or modify an order entered by
the Arbitrator. That limited exception, however, requires that such filings be made under
seal.] Per this provision, the parties should file in this court any materials used in the

Arbitration in support of or in opposition to Defendants Archstone’s Motion to Confirm
the Arbitration Award (docket no. 184) consistent with D.C.COLO.LCivR 7.2, but there is
no need to set aside the Arbitration Protective Order.
ORDER
WHEREFORE, based upon these findings of fact and conclusions of law, this
court ORDERS:
1.

That Plaintiffs may not file a motion to vacate the arbitration award.
There is already pending Defendant Archstone’s Motion to Confirm
the Arbitration Award (docket no. 184) and Judge Martinez through
his ruling on such motion will either confirm or vacate such
arbitration award. The parties can seek, by motion, oral argument
on this motion (docket no. 184) before Judge Martinez and in his
discretion he will either grant or deny oral argument. The decision
on this motion (docket no. 184) shall take place first.
If Defendant Archstone’s Motion to Confirm the Arbitration Award
(docket no. 184) is granted by Judge Martinez, then Plaintiffs shall
file their Motion to Amend the Complaint within 15 days after Judge
Martinez confirms the Final Award. Defendant will have 30 days
to respond to Plaintiffs’ Motion to Amend the Complaint and
Plaintiffs will have 15 days after the response is filed by Defendants
to file their Reply. The parties can seek, by motion, oral argument
on Plaintiffs Motion to Amend the Complaint. Once filed, Judge
Martinez, in his discretion, will either grant or deny oral argument
on such motion. After Judge Martinez has rendered his decision on
Plaintiffs’ Motion to Amend the Complaint, then the parties shall,
within five (5) business days of such ruling, contact Magistrate
Judge Watanabe’s chambers to set this case for a Status
Conference. At this Status Conference, Magistrate Judge
Watanabe will set a date certain by which Defendants shall file their
Motion to Dismiss as to the Operative Complaint, Response date
and Reply date.
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If Defendant Archstone’s Motion to Confirm the Arbitration Award
(docket no. 184) is denied and the Arbitration Award is vacated by
Judge Martinez then the parties shall, within five (5) business days
of such ruling, contact Magistrate Judge Watanabe’s chambers to
set this case for a Status Conference. At this Status Conference,
Magistrate Judge Watanabe will address the resetting of the
Arbitration Hearing and issues concerning other motions pending or
anticipated to be filed.
That this Court’s previous February 27, 2008 Order Regarding
Defendants’ Motion to Stay Discovery and Further Pretrial
Proceedings Pending Resolution of Threshold Issues (docket no.
50) will remain in effect, and discovery and other proceedings will
remain stayed [except as outlined above] pursuant to that Order
and the Private Securities Litigation Reform Act of 1995, 15 U.S.C.
§ 78u-4(b)(3)(B) (2006).
2.

That Plaintiffs’ Motion Pursuant to D.C.COLO.CivR 7.2 (docket no.
204) is DENIED.
Done this 9th day of May 2013.
BY THE COURT
S/ Michael J. Watanabe
Michael J. Watanabe
U.S. Magistrate Judge

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