Dykes, Jr. et al v. Maverick Motion Picture Group, L.L.C. et al

Filing 96

Response to dft's Sur-Reply Memo in Opposition to 75 MOTION for Leave to File First Amended Complaint for Damages filed by Dykes and Dykes, L.L.C., Jay Dykes, Jr.. (BP, ) Modified on 9/9/2010 to edit document type (BP, ).

Dykes, Jr. et al v. Maverick Motion Picture Group, L.L.C. et al

Doc. 96

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA JAY DYKES, JR. and DYKES AND DYKES, L.L.C. versus MAVERICK MOTION PICTURE GROUP, L.L.C., MAVERICK FILMS, L.L.C., IRONSTAR, L.L.C., MARK MORGAN, TARA PIRNIA, AUSTEN TAYLER, GUY OSEARY, and MADONNA LOUISE CICCONE (a/k/a MADONNA) CIVIL ACTION NO. 08-00536 JUDGE BRADY MAGISTRATE DOCIA L. DALBY

______________________________________________________________________ PLAINTIFFS' RESPONSE TO DEFENDANTS' SUR-REPLY MEMORANDUM IN OPPOSITION TO PLAINTIFFS' MOTION FOR LEAVE TO FILE A FIRST AMENDED COMPLAINT FOR DAMAGES ______________________________________________________________________ MAY IT PLEASE THE COURT: Plaintiffs file this Response to Defendants' Sur-Reply in Opposition to Plaintiffs' Motion for Leave to File a First Amended Complaint for Damages to address Defendants' position as set forth as follows in their brief: Plaintiffs' reply contains 22 pages of vague and baseless allegations about how Guy Oseary ("Oseary") and Madonna Ciccone ("Madonna") conspired with the other Defendants, or are alter egos of Maverick and MMPG, all with the ultimate goal of defrauding Plaintiffs. These allegations are unsupported by either a Verified First Amended Complaint, or a Declaration from even one of the 18 alleged witnesses that Plaintiffs claim will support their allegations. (Rec. Doc. 86, p. 1).

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First of all, many of the facts set forth in Plaintiffs' brief are supported by the sworn testimony of Oseary and Maverick Films and MMPG's business records. Other facts were learned from several witnesses, including Brent Emery, who is listed as a member of the management team of Maverick and MMPG. Undersigned counsel

believed that Mr. Emery would provide a declaration to support those facts, but Mr. Emery refused and stated that his own settlement negotiations with Maverick Films and MMPG were threatened to be jeopardized if he voluntarily submitted a declaration in this case. Ultimately, Mr. Emery refused to provide a Declaration. Therefore,

Plaintiffs plan to subpoena Mr. Emery for deposition in this case and have notified all opposing counsel of its intent to do so.1 Counsel for Oseary and Madonna object to that deposition.2 Nevertheless, attached hereto as Exhibit A is the Declaration of Jay Dykes, Jr. who was present for a telephone conference between undersigned counsel, Mr. Emery, and Mr. Dykes. Also attached as Exhibit B, is a Declaration from Mr. Dykes verifying the allegations contained in the First Amended Complaint. Therefore, Defendants'

concerns about the allegations being unsupported by sworn testimony have been addressed.

It should be noted that Plaintiffs have not had the opportunity to conduct discovery on the merits of the case and sworn testimony is not required to support a Motion for Leave to File an Amended Complaint. Given the facts set forth in Plaintiffs' Reply Brief, Plaintiffs should have the opportunity to conduct formal discovery on the claims set forth in the First Amended Complaint. See correspondence between all counsel of record regarding deposition schedule attached as Exhibit C.
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Respectfully submitted,

/s/ Joseph F. Lavigne Thomas P. Hubert (LA Bar #19625) Robert W alsh (LA Bar #17850) Joseph F. Lavigne (LA Bar #28119) Jones, Walker, Waechter, Poitevent, Carrère & Denègre, L.L.P. 201 St. Charles Avenue, 50th Floor New Orleans, Louisiana 70170-5100 Telephone: [phone] Facsimile: [phone] [e-mail] [e-mail] [e-mail] Attorneys for Plaintiffs

CERTIFICATE OF SERVICE I HEREBY CERTIFY that on August 3, 2010, I electronically filed the foregoing Plaintiffs' Response to Defendants' Sur-Reply Memorandum in Opposition to Plaintiffs' Motion for Leave to File a First Amended Complaint for Damages with the Clerk of Court using the CM/ECF System which will send notification of such filing to all counsel of record.

/s/ Joseph F. Lavigne

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