Landegger et al v. Cohen et al
ORDER denying without prejudice 87 Defendants' Motion for Summary Judgment. Defendants are GRANTED leave to file a renewed Motion for Summary Judgment, said Motion for Summary Judgment must be filed on or before August 28, 2013. Plaintiffs' Response to any renewed Motion for Summary Judgment must be filed on or before September 4, 2013. Defendants' Reply deadline is September 11, 2013. SO ORDERED by Judge William J. Martinez on 08/20/2013.(wjmsec, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 11-cv-01760-WJM-CBS
GEORGE F. LANDEGGER, and
WHITTEMORE COLLECTION, LTD., THE
HOWARD S. COHEN, and
ASPEN PACIFIC CAPITAL, INC., and
ASPEN PACIFIC GROUP, INC.
ORDER DENYING JOINT MOTION FOR SUMMARY JUDGEMENT ECF NO. 165
This matter is before the Court on Defendants Howard S. Cohen, Dennis Young,
Aspen Pacific Capital, Inc., and Aspen Pacific Group,Inc.(“Defendants”) Motion for
Summary Judgment (“Motion”). (ECF No. 87.) Plaintiffs George F. Landegger and the
Whittemore Collection, Ltd have filed a Response (ECF No. 94); and Defendants a
Reply. (ECF No. 106.)
For the reasons set forth below, Defendants’ Motion for Summary Judgment is
denied without prejudice. Leave is granted to refile the Motion consistent with what is
stated in the Order, herein.
The Court has reviewed the Parties’ briefing. Given the complex issues raised
by the federal and state claims, respectively, the Court finds further briefing in this case
is required. This was also foreshadowed by Plaintiff in their Response. (ECF No. 40 at
39-40.) As such, the Court grants the Parties leave to refile the above briefing
consistent with the following requests:
Federal Claim (Section 15(a) and 29(b) under the Securities
Exchange Act of 1934): With respect to Plaintiffs’ federal claim, the
Parties should refile their existing briefs and update their briefing with
relevant case law (if any) on: (a) the privity issue, and (b) the private
cause of action issue, as those issues are defined in Defendants’ Motion.
(ECF No. 87 at 3.) Case law from the Tenth Circuit and the District of
Colorado should be bolded in the briefing should it now exist since the
Parties’ initial filings. Case law cited from outside the Tenth Circuit need
not be.1 Additionally, the Court notes that its has reviewed the article by
Samuel H. Gruenbaum & Marc I. Steinberg, Section 29(b) of the
Securities Exchange Act of 1934: A Viable Remedy Awakened, 48 Geo.
Wash. L. Rev. 1 (1979)) cited in Defendants’ Motion. (ECF No. 87 at 10.)
To the extent that this article sheds further light on the statutory
construction of Section 29(b) regarding the privity issue—and is consistent
with existing case law—the Parties should make reference to this article
and any further secondary sources that may support their positions.
The Court notes, however, that there may be limited (if any) authority in the Tenth
State Claim (Nevada Securities Law): With respect to Plaintiffs’ state
claim, the Court notes that the Parties should also refile their existing
briefs and update their briefing with relevant case law (if any). Case law
from the Tenth Circuit and the District of Colorado should be bolded in the
briefing should it now exist since the Parties’ initial filings to support the
Parties’ positions. Cases law from outside the Tenth Circuit need not be.
The Court has also reviewed the briefs and found the following
cases, inter alia, pertinent to the analysis. The cases include:
(a) Foundation Ventures, LLC v. F2G, Ltd., 2010 WL 3187294 (S.D.N.Y.
Aug. 11, 2010); (b) SEC v. Hansen, 1984 WL 2413 (S.D.N.Y. Apr. 6,
1984); and (c) Cornhusker Energy Lexington, LLC v. Prospect Street
Ventures, 2006 WL 2620985, *6 (D. Neb. 2006). In supplementing their
existing briefs, the Parties should place added emphasis on these cases,
in part, and draw relevant analogies and distinctions where appropriate.
Supplement/Amendments: When refiling the briefs with respect to the
Motion for Summary Judgement, the Parties need only supplement their
existing briefs in the same documents that have previously been filed with
the Court. (ECF Nos. 87, 94, and 107). Where Parties make
amendments in accordance with points A. and B., above, the Parties
should denote such amendments as tracked changes (underline). This
will assist the Court in identifying the Parties’ updated positions.
Schematic: The Court found Plaintiffs’ schematic useful to better
understand the relationships between the Parties. (ECF No. 94 at 9.)
Notwithstanding this, should Defendants find the depiction of the
contractual relationships in the schematic inadequate, Defendants should
clearly state this in their refiled briefing. Alternatively, Defendants may
also supplement their briefing with a schematic of their own.2 (Id.)
Based on the foregoing, the Court ORDERS and DIRECTS as follows:
Defendants Motion for Summary Judgment (ECF No. 87) is DENIED
Defendants are GRANTED leave to file a renewed motion for summary
judgment. Should Defendants choose to refile their motion, they must do
so by August 28, 2013.
Plaintiffs must respond to the renewed motion by no later than September
Defendants are to reply by no later than September 11, 2013.
Dated this 20th day of August, 2013.
BY THE COURT:
William J. Martínez
United States District Judge
Should the Parties have any questions in relation to the above request, they may call
Chambers direct on (303) 335-2892.
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