Niemi et al v. Burgess et al

Filing 272

ORDER: Plaintiffs' claims other than the two claims that are the subject of this court's Final Judgment and the pending appeal (Counts Five and Twelve) are dismissed with prejudice. 255 Motion for Order is DENIED; 257 Motion to Quash is GRANTED; 267 Motion to Dismiss is DENIED as MOOT; 270 Cross-Motion for Dismissal with Prejudice Upon Conditions is DENIED. by Judge R. Brooke Jackson on 8/29/14.(jdyne, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge R. Brooke Jackson
Civil Action No. 12-cv-00869-RBJ
JOHN NIEMI,
ROBERT NAEGELE, III, and
JESPER PARNEVIK,
Plaintiffs,
v.
MICHAEL FRANK BURGESS,
ERWIN LASSHOFER,
INNOVATIS GMBH,
INNOVATIS IMMOBILIEN GMBH,
INNOVATIS ASSET MANAGEMENT SA,
LEXINGTON CAPITAL & PROPERTY INVESTMENTS, LLC, and
BARRY FUNT,
Defendants,
CREDIT SUISSE A.G.,
Nominal Defendant.

ORDER

On August 6, 2014 the United States Court of Appeals for the Tenth Circuit issued an
order directing the appellants to file within 30 days a copy of an order of this court dismissing
the remaining claims with prejudice. The parties have expressed their positions on that matter
and other matters pending in this court. Having considered all these filings, the court now issues
the following orders:

1

1. Plaintiffs’ claims other than the two claims that are the subject of this court’s “Final
Judgment” and the pending appeal (Counts Five and Twelve) are dismissed with
prejudice.
2. “Plaintiffs’ Motion to Require Lasshofer Defendants to Post Bond or Obtain Stay as
Prerequisite to Appealing Final Judgment” [ECF No. 255] is denied. At this point the
motion is essentially moot.
3. “Motion of Steese, Evans & Frankel, P.C. to Quash Subpoena” [ECF No. 257] is
granted.
4. “Emergency Motion of Defendants Erwin Lasshofer, Innovatis GmbH, Innovatis
Immobilien GmbH, and Innovatis Asset Management, S.A. to Dismiss with Prejudice
All Remaining Claims and Request for Expedited Hearing” [ECF No. 267] is denied.
This motion is moot.
5. “Cross-Motion for Dismissal with Prejudice Upon Conditions Pursuant to Fed. R.
Civ. P. 41(a)(2)” [ECF No. 270] is denied. Plaintiffs asked the Lasshofer defendants
to agree not to remove the $6.8 million held in an Innovatis Credit Suisse AG
account. The Lasshofer defendants refused. Plaintiffs then requested, as a condition
for their agreement to the dismissal with prejudice of their remaining claims, that the
court in substance order the Lasshofer defendants to transfer those funds to the
custody of this court. As set forth above, the court has unconditionally dismissed the
remaining claims with prejudice. Moreover, counsel for Credit Suisse gave this court
their assurance that the funds they are holding for the Lasshofer defendants, namely
what is believed by the plaintiffs to be $6.8 million, would not be removed from the
account. The court continues to rely on that assurance.

2

DATED this 29th day of August, 2014.

BY THE COURT:

___________________________________
R. Brooke Jackson
United States District Judge

3